In recent comments, Commissioner Peirce shared her views on the role of the Securities and Exchange Commission in expressing a view regarding mandatory arbitration provisions. Commissioner Peirce noted that, in her opinion, the SEC does not have grounds to object to mandatory arbitration provisions. She noted that the Federal Arbitration Act “directs federal agencies to respect private contracts that favor arbitration.” To the extent that a corporate charter or bylaws are viewed as private contracts, the Federal Arbitration Act would seem to limit the authority of the SEC to prohibit a mandatory arbitration provision that is otherwise permissible under applicable state law. The Commissioner noted that it has been reported in the past that the Staff of the SEC has not allowed domestic registrants with mandatory arbitration provisions in their charters to have declared effective their IPO registration statements. She notes that if the Staff were to recommend that the SEC prohibit another company from registering an offering because of a mandatory arbitration provision in the future, the Commissioner would want to understand the basis for such view. Despite various statements from Chair Clayton to the effect that the SEC is not actively considering its position on mandatory arbitration, Commissioner Peirce’s comments seem to suggest that mandatory arbitration provisions remain a topic of discussion.

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Anna T. Pinedo

Anna Pinedo is a partner in Mayer Brown’s New York office and a member of the Corporate & Securities practice. She concentrates her practice on securities and derivatives. Anna represents issuers, investment banks/financial intermediaries and investors in financing transactions, including public offerings and private placements of equity and debt securities, as well as structured notes and other hybrid and structured products.

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