Corporate Governance, Rule 10C-1, and the SEC: The Adopting Release Reverse (Part 4)

In the adopting release for Rule 10C-1, the Commission stated that no single "relevant factor" would determine director independence.  See Exchange Act Release No. 67220 (June 20, 2012) (noting that relevant factors contained in Rule 10C-1 "should be considered in their totality and that no one factor should be viewed as a determinative factor of independence.").  The statement suggested that no single factor could result in a loss of director independence. 

We criticized that comment on this blog and wrote a comment letter that sought clarification (or more accurately, reversal).  In the release adopting the Nasdaq listing standards under Rule 10C-1, the Commission did indeed reverse.  See Exchange Act Release No. 68640 (Jan. 11, 2013) ("the Commission confirms that Rule 10C-1 does not mean that a director cannot be disqualified on the basis of one factor alone. Although Nasdaq does not state this explicitly, the Commission believes that nothing in Rule 10C-1 or in Nasdaq’s current or proposed rules implies otherwise.").