II 

117TH CONGRESS 

1ST SESSION S. 2829 

To amend the Securities Exchange Act of 1934 to require the Securities 

and Exchange Commission to require the contractual provision by large 

issuers of procedural privileges with respect to certain shareholder claims 

relating to board and management accountability for ‘‘woke’’ social policy 

actions as a condition of listing on a national securities exchange, and 

for other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 23, 2021 

Mr. RUBIO introduced the following bill; which was read twice and referred 

to the Committee on Banking, Housing, and Urban Affairs 

A BILL 

To amend the Securities Exchange Act of 1934 to require 

the Securities and Exchange Commission to require the 

contractual provision by large issuers of procedural privileges with respect to certain shareholder claims relating 

to board and management accountability for ‘‘woke’’ social policy actions as a condition of listing on a national 

securities exchange, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


kjohnson on DSK79L0C42PROD with BILLS
2 

•S 2829 IS

1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Mind Your Own Busi3 ness Act of 2021’’. 

4 SEC. 2. FINDINGS. 

5 Congress finds the following: 

6 (1) The fiduciary duties of boards of directors 

7 and other corporate actors to corporations and their 

8 stockholders are generally established by and en9 forceable under State law. 

10 (2) State law generally permits corporations 

11 discretion with respect to altering the rights of 

12 stockholders, including the process by which stock13 holders assert claims for breach of fiduciary duties 

14 by the board of directors or other corporate actors, 

15 limited by State law governing these fiduciary du16 ties. 

17 (3) The regulation of corporations as issuers of 

18 securities authorized by Congress in the Securities 

19 Exchange Act of 1934 (15 U.S.C. 78a et seq.) gen20 erally regulates corporate behavior in connection 

21 with the issuance of securities, including with re22 spect to contractual arrangements between corpora23 tions and their stockholders via provisions in cor24 porations’ charters and bylaws, and does not— 

25 (A) establish fiduciary duties of boards of 

26 directors or other corporate actors to corporaVerDate Sep 11 2014 03:44 Sep 27, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2829.IS S2829

kjohnson on DSK79L0C42PROD with BILLS
3 

•S 2829 IS

1 tions and their stockholders under Federal law; 

2 or 

3 (B) regulate the fiduciary duties of boards 

4 of directors or other corporate actors to cor5 porations and their stockholders under State 

6 law. 

7 (4) The State law fiduciary duties of boards of 

8 directors and other corporate actors establish certain 

9 norms upon which the national market system for 

10 securities has historically relied, including— 

11 (A) boards of directors and other corporate 

12 actors generally have fiduciary duties to their 

13 respective corporations and stockholders; and 

14 (B) the behavior of corporations as issuers 

15 of securities will generally conform to these fi16 duciary duties, to the benefit of the protection 

17 of investors and the public interest. 

18 (5) Other norms related to the public interest 

19 have historically provided critical bases upon which 

20 the national market system for securities has histori21 cally relied, including norms that large corporate 

22 issuers that are significant to the national econ23 omy— 

24 (A) generally invest corporate resources to 

25 increase the long-term value of the corporation 


kjohnson on DSK79L0C42PROD with BILLS
4 

•S 2829 IS

1 as a business rather than as an agent of social 

2 change; 

3 (B) do not use corporate resources to ad4 vance narrowly political or partisan agendas; 

5 and 

6 (C) do not use corporate resources to pro7 mote socialism, Marxism, critical race theory, or 

8 other un-American ideologies among their 

9 workforces or customers. 

10 (6) Though these norms are not enforceable 

11 legal duties of boards of directors or other corporate 

12 actors under Federal law, they substantially con13 tribute to the commercial purpose and nationwide 

14 availability of the national market system for securi15 ties, which are recognized by section 2 of the Securi16 ties Exchange Act of 1934 (15 U.S.C. 78b) as prin17 cipal bases for the regulation authorized by that Act. 

18 (7) Certain large corporate issuers that are sig19 nificant to the national economy have recently un20 dertaken actions which facially violate these norms 

21 on account of apparent political bias. Examples of 

22 such actions include the use of corporate resources 

23 to— 

24 (A) deny goods and services to States and 

25 their political subdivisions, and private entities 


kjohnson on DSK79L0C42PROD with BILLS
5 

•S 2829 IS

1 within such States and their political subdivi2 sions, in response to the social policies proposed 

3 or enacted in such States and their political 

4 subdivisions, including those related to election 

5 procedures, restrictions on abortion, protections 

6 for religious freedom, and enforcement of immi7 gration law; 

8 (B) deny goods and services to industries 

9 and other classes of entities on the basis of 

10 characteristics of those industries and classes 

11 related to social policy, including industries in12 volved in the sale or manufacture of firearms, 

13 operation of border security or criminal deten14 tion facilities, and performance of services for 

15 the United States military, and classes of enti16 ties based on religious belief or identity; 

17 (C) promote race and sex stereotyping, 

18 such as those described in section 2(a) of Exec19 utive Order 13950 (5 U.S.C. 4103 note; relat20 ing to combating race and sex stereotyping), 

21 which include such destructive concepts that the 

22 United States is fundamentally racist or sexist, 

23 an individual should be discriminated against or 

24 receive adverse treatment solely or partly be25 cause of his or her race or sex, and meritocracy 


kjohnson on DSK79L0C42PROD with BILLS
6 

•S 2829 IS

1 or traits such as a hard work ethic are racist 

2 or sexist, or were created by a particular race 

3 to oppress another race; and 

4 (D) openly coordinate with political actors 

5 to pursue such actions, including— 

6 (i) undertaking such actions upon the 

7 action (or inaction) of boards of directors 

8 and other corporate actors that are not 

9 sufficiently independent from conflicts of 

10 interest with political actors, including 

11 elected officials, political parties, news 

12 media, labor unions, nonprofit or non-gov13 ernmental organizations which advocate for 

14 changes political or social policy through 

15 issuers, other activists affiliated with such 

16 actors, and activist investors which advo17 cate for changes in corporate policy pri18 marily unrelated to the pecuniary interest 

19 of the issuer; and 

20 (ii) conceding to the demands of such 

21 political actors without undertaking due 

22 care. 

23 (8) The prominent, open, and public facial vio24 lation of these norms by large corporate issuers that 

25 are significant to the national economy undermine 


kjohnson on DSK79L0C42PROD with BILLS
7 

•S 2829 IS

1 the commercial purpose and nationwide availability 

2 of the national market system for securities by 

3 spending corporate resources on non-commercial and 

4 divisive, political and partisan causes. 

5 (9) The threat these actions pose to the na6 tional market system for securities establishes a 

7 public interest in ensuring large corporate issuers 

8 that are significant to the national economy— 

9 (A) have adequate internal procedural 

10 mechanisms to ensure the accountability of 

11 boards of directors and other corporate actors 

12 with respect to their adherence with the norms 

13 described in this section; and 

14 (B) do not unduly burden the ability of 

15 stockholders to assert claims for breach of fidu16 ciary duty under State law where the actions at 

17 issue in such claims facially violates those 

18 norms. 

19 SEC. 3. LISTING REQUIREMENT RELATING TO PROCE20 DURAL PRIVILEGES FOR CERTAIN SHARE21 HOLDER CLAIMS. 

22 The Securities Exchange Act of 1934 (15 U.S.C. 78a 

23 et seq.) is amended by inserting after section 10D (15 

24 U.S.C. 78j–4) the following: 


kjohnson on DSK79L0C42PROD with BILLS
8 

•S 2829 IS

1 ‘‘SEC. 10E. PROCEDURAL PRIVILEGES FOR CERTAIN 

2 SHAREHOLDER CLAIMS. 

3 ‘‘(a) DEFINITIONS.—In this section: 

4 ‘‘(1) CLAIMANT.—The term ‘claimant’ means— 

5 ‘‘(A) a person that brings a covered claim; 

6 or 

7 ‘‘(B) if a covered claim is brought as a 

8 class action, the representative of the class in 

9 that action. 

10 ‘‘(2) CONTROLLER.—The term ‘controller’ 

11 means any person or entity that has control, directly 

12 or indirectly, by any means (as those terms are de13 fined under applicable State law), over the board of 

14 directors of an issuer, either— 

15 ‘‘(A) generally; or 

16 ‘‘(B) with respect to an action at issue in 

17 a covered claim. 

18 ‘‘(3) COVERED CLAIM.—The term ‘covered 

19 claim’— 

20 ‘‘(A) means any single cause of action 

21 that— 

22 ‘‘(i) asserts a claim for breach of fidu23 ciary duty owed by any corporate defend24 ant to the applicable issuer (or the share25 holders of the applicable issuer) resulting 

26 from material action by any covered corVerDate Sep 11 2014 03:44 Sep 27, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2829.IS S2829

kjohnson on DSK79L0C42PROD with BILLS
9 

•S 2829 IS

1 porate actor with respect to the applicable 

2 issuer— 

3 ‘‘(I) that is taken primarily in re4 sponse to a law (including a regula5 tion) that is enacted by a State, or a 

6 bill that is introduced in the legisla7 ture of a State or policy otherwise 

8 publicly proposed by an elected official 

9 of a State, which shall include if such 

10 action includes any prohibition of 

11 business within that State by an 

12 issuer, whether with respect to busi13 ness services or travel to, or major 

14 events in, that State, that is facially 

15 unrelated to the pecuniary interest of 

16 the applicable issuer, which shall pre17 sumptively include if the law bill, or 

18 policy would modify, establish, or cre19 ate a law relating to— 

20 ‘‘(aa) the manner in which 

21 elections are conducted in the 

22 State; 

23 ‘‘(bb) protecting religious 

24 freedom; or 


kjohnson on DSK79L0C42PROD with BILLS
10 

•S 2829 IS

1 ‘‘(cc) limiting the availability 

2 of services that include the abor3 tion of unborn children; 

4 ‘‘(II) to prohibit the sale of goods 

5 or services by any covered corporate 

6 actor with respect to the applicable 

7 issuer to customers who operate in an 

8 industry with which the issuer en9 gages in such business primarily on 

10 the basis of a characteristic of that in11 dustry that is facially unrelated to the 

12 pecuniary interest of the applicable 

13 issuer; 

14 ‘‘(III) to promote a covered divi15 sive concept; or 

16 ‘‘(IV) for which the reasoning 

17 publicly presented by any covered cor18 porate actor with respect to the appli19 cable issuer as— 

20 ‘‘(aa) any basis for such ac21 tion promotes a covered divisive 

22 concept; or 

23 ‘‘(bb) the primary basis for 

24 such action is facially unrelated 

25 to the pecuniary interest of the 


kjohnson on DSK79L0C42PROD with BILLS
11 

•S 2829 IS

1 applicable issuer, which shall pre2 sumptively include any reference 

3 to diversity, equity, or inclusion 

4 with respect to the composition 

5 of the workforce, management, or 

6 board of directors of the issuer or 

7 society in general; and 

8 ‘‘(ii) is brought by a covered share9 holder as— 

10 ‘‘(I) a direct action; or 

11 ‘‘(II) a derivative action or pro12 ceeding brought on behalf of the ap13 plicable issuer; and 

14 ‘‘(B) does not include a cause of action 

15 that asserts a claim for the breach of fiduciary 

16 duty owed by any corporate defendant to the 

17 applicable issuer (or the shareholders of that 

18 issuer) resulting from— 

19 ‘‘(i) a charitable contribution by any 

20 covered corporate actor with respect to the 

21 applicable issuer; 

22 ‘‘(ii) the exercise of religion by any 

23 covered corporate actor with respect to the 

24 applicable issuer; 


kjohnson on DSK79L0C42PROD with BILLS
12 

•S 2829 IS

1 ‘‘(iii) business activity by any covered 

2 corporate actor in connection with the na3 tional security of the United States, the 

4 Armed Forces, or veterans of the Armed 

5 Forces; or 

6 ‘‘(iv) the limitation of business by any 

7 covered corporate actor with respect to the 

8 applicable issuer— 

9 ‘‘(I) occurring in the jurisdiction 

10 of, or with an agent of the People’s 

11 Republic of China, the Russian Fed12 eration, North Korea, Iran, Syria, 

13 Sudan, Venezuela, or Cuba; 

14 ‘‘(II) in connection with pre15 venting the abuse of internationally 

16 recognized worker rights, as defined 

17 in section 507 of the Trade Act of 

18 1974 (19 U.S.C. 2467); 

19 ‘‘(III) with any entity that de20 rives directly or indirectly more than 

21 de minimis gross revenue through the 

22 sale of products or services, or the 

23 presentation of any depictions or dis24 plays, of a prurient sexual nature; 


kjohnson on DSK79L0C42PROD with BILLS
13 

•S 2829 IS

1 ‘‘(IV) with any entity that en2 gages in a commerce- or investment3 related boycott, divestment, or sanc4 tions activity that targets Israel; or 

5 ‘‘(V) that is required under Fed6 eral, State, or local law. 

7 ‘‘(4) COVERED COMPANY.—The term ‘covered 

8 company’ means an issuer that has, as calculated in 

9 accordance with section 240.12b–2 of title 17, Code 

10 of Federal Regulations, or any successor regula11 tion— 

12 ‘‘(A) a public float of more than 

13 $20,000,000,000; or 

14 ‘‘(B) annual revenues of more than 

15 $5,000,000,000. 

16 ‘‘(5) COVERED CORPORATE ACTOR.—The term 

17 ‘covered corporate actor’ means— 

18 ‘‘(A) an issuer; 

19 ‘‘(B) a director, officer, or affiliate of an 

20 issuer; 

21 ‘‘(C) a controller with respect to an issuer; 

22 or 

23 ‘‘(D) any person acting in the capacity of 

24 an officer or agent of an issuer. 


kjohnson on DSK79L0C42PROD with BILLS
14 

•S 2829 IS

1 ‘‘(6) CORPORATE DEFENDANT.—The term ‘cor2 porate defendant’ means any individual who— 

3 ‘‘(A) is a director, officer, affiliate of an 

4 issuer, or controller; and 

5 ‘‘(B) may be named as a defendant in a 

6 cause of action for breach of fiduciary duty 

7 under applicable State law. 

8 ‘‘(7) COVERED DIVISIVE CONCEPT.—The term 

9 ‘covered divisive concept’ means any concept de10 scribed in section 2(a) of Executive Order 13950 (5 

11 U.S.C. 4103 note; relating to combating race and 

12 sex stereotyping). 

13 ‘‘(8) COVERED SHAREHOLDER.— 

14 ‘‘(A) IN GENERAL.—The term ‘covered 

15 shareholder’ means a shareholder that as of the 

16 date on which a covered claim with respect to 

17 the issuer is filed and at all times during which 

18 the covered claim described in subparagraph 

19 (A) is pending have continuously owned not less 

20 than— 

21 ‘‘(i) $2,000 in market value of the 

22 issuer’s securities for at least three years; 

23 ‘‘(ii) $15,000 in market value of the 

24 issuer’s securities for at least two years; or 


kjohnson on DSK79L0C42PROD with BILLS
15 

•S 2829 IS

1 ‘‘(iii) $25,000 in market value of the 

2 issuer’s securities for at least one year. 

3 ‘‘(9) DIRECTOR.—The term ‘director’ means, 

4 with respect to an issuer, a member of the board of 

5 directors of the issuer. 

6 ‘‘(10) INVESTMENT ADVISER; PRIVATE FUND.— 

7 The terms ‘investment adviser’ and ‘private fund’ 

8 have the meanings given the terms in section 202 of 

9 the Investment Advisers Act of 1940 (15 U.S.C. 

10 80b–2). 

11 ‘‘(11) INVESTMENT COMPANY.—The term ‘in12 vestment company’ has the meaning given the term 

13 in section 3 of the Investment Company Act of 1940 

14 (15 U.S.C. 80a–3). 

15 ‘‘(12) ISSUER.—The term ‘issuer’ means an 

16 issuer with a class of securities registered pursuant 

17 to section 12. 

18 ‘‘(13) NON-PECUNIARY INVESTMENT ENTITY.— 

19 The term ‘non-pecuniary investment entity’ means— 

20 ‘‘(A) any investment company or private 

21 fund that invests, reinvests, or trades, or pro22 poses to invest, reinvest, or trade in, or that ex23 ercises any control right with respect to any se24 curity primarily on a basis that is facially unre25 lated to the pecuniary interest of any beneVerDate Sep 11 2014 03:44 Sep 27, 2021 Jkt 019200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\S2829.IS S2829

kjohnson on DSK79L0C42PROD with BILLS
16 

•S 2829 IS

1 ficiary of such company or fund for which such 

2 activity occurs with respect to such security; 

3 ‘‘(B) any investment advisor that provides 

4 any advice that is not a charitable contribu5 tion— 

6 ‘‘(i) that is for compensation; and 

7 ‘‘(ii) the basis for which is primarily 

8 unrelated to the pecuniary interest of the 

9 party receiving the advice; 

10 ‘‘(C) any entity that engages in activism 

11 with respect to issuers to which section 14 ap12 plies for which the primary basis of such activ13 ism is facially unrelated to the pecuniary inter14 est of the issuers to which such activism is di15 rected, including— 

16 ‘‘(i) nominating candidates for elec17 tion as directors of those issuers; or 

18 ‘‘(ii) making shareholder proposals 

19 pursuant to that section; and 

20 ‘‘(D) any labor organization, as defined in 

21 section 2 of the National Labor Relations Act 

22 (29 U.S.C. 152), or pension fund affiliated with 

23 a labor organization. 

24 ‘‘(b) REQUIREMENTS.— 


kjohnson on DSK79L0C42PROD with BILLS
17 

•S 2829 IS

1 ‘‘(1) RULES.—Not later than 1 year after the 

2 date of enactment of the Mind Your Own Business 

3 Act of 2021, the Commission shall, by rule, direct 

4 the national securities exchanges and national secu5 rities associations to prohibit the listing of any secu6 rity of any covered company that is not in compli7 ance with the requirements of this section. 

8 ‘‘(2) ISSUER REQUIREMENTS.—The rules issued 

9 under paragraph (1) shall require each issuer, to the 

10 maximum extent permitted by State law, in the arti11 cles of incorporation or bylaws of the issuer, to pro12 vide, with respect to any covered claim, that any cor13 porate defendant with respect to the issuer that is 

14 named as a defendant in the covered claim shall— 

15 ‘‘(A) be bound by the presumptions estab16 lished under subsection (c) with respect to any 

17 factual representation made in connection with 

18 the covered claim, including any factual rep19 resentation relating to whether a claim asserted 

20 is a covered claim; 

21 ‘‘(B) have the burden of proof with respect 

22 to any determination of independent business 

23 judgment; 

24 ‘‘(C) if the claimant obtains a judgment on 

25 the merits in the covered claim, be jointly and 


kjohnson on DSK79L0C42PROD with BILLS
18 

•S 2829 IS

1 severally liable for money damages to the claim2 ant in an amount that is not less than the 

3 greater of— 

4 ‘‘(i) treble damages; or 

5 ‘‘(ii) 2 times the total compensation 

6 paid by the issuer to all directors of the 

7 issuer for the year in which the primary 

8 action alleged in the covered claim sub9 stantially occurred, which shall include the 

10 market value of all securities issued as 

11 compensation to those directors in that 

12 year; 

13 ‘‘(D) if the claimant obtains all or some of 

14 the relief sought in the covered claim, whether 

15 by court order, settlement, voluntary change in 

16 the conduct of the defendant, or otherwise, re17 imburse the claimant for the greatest amount 

18 permitted by law with respect to all fees, costs, 

19 and expenses of every kind and description (in20 cluding all reasonable attorney’s fees and other 

21 litigation expenses) that the claimant may ob22 tain in connection with the covered claim; and 

23 ‘‘(E) not be indemnified by the issuer for 

24 any liability, loss (including attorney’s fees, 

25 judgments, fines, or amounts paid in settleVerDate Sep 11 2014 03:44 Sep 27, 2021 Jkt 019200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\S2829.IS S2829

kjohnson on DSK79L0C42PROD with BILLS
19 

•S 2829 IS

1 ment) incurred or suffered in connection with 

2 the covered claim. 

3 ‘‘(c) PRESUMPTIONS.—For the purposes of this sec4 tion, the following presumptions shall apply with respect 

5 to any covered claim, including with respect to any factual 

6 representation relating to whether a claim asserted is a 

7 covered claim: 

8 ‘‘(1) PECUNIARY INTEREST.—There shall be a 

9 presumption that the pecuniary interest of an issuer, 

10 which shall include the best interest of the issuer to 

11 the extent that such interest is substantially similar 

12 to the pecuniary interest of the issuer, does not in13 clude— 

14 ‘‘(A) the morale of, or ability of the issuer 

15 to hire or retain, supervisory employees in gen16 eral; 

17 ‘‘(B) the diversity of the board of direc18 tors, management, or workforce in general with 

19 respect to any characteristic protected by sec20 tion 703 of the Civil Rights Act of 1964 (42 

21 2000e–2); 

22 ‘‘(C) the public relations, image, value of 

23 marketing, or coverage by the news media of 

24 the issuer; or 


kjohnson on DSK79L0C42PROD with BILLS
20 

•S 2829 IS

1 ‘‘(D) any financial benefit or reduction in 

2 cost, including the cost of capital to the issuer, 

3 to the extent the pecuniary benefit of or to such 

4 benefit or reduction in cost is caused by the— 

5 ‘‘(i) investment in the securities of the 

6 issuer by a non-pecuniary investment enti7 ty; or 

8 ‘‘(ii) inclusion of the securities of the 

9 issuer in indexes created by index pro10 viders that select those indexes on a pri11 marily non-pecuniary basis or that include 

12 such securities in any index on a primarily 

13 non-pecuniary basis. 

14 ‘‘(2) DEMAND EXCUSED.—For the purpose of 

15 determining whether demand is excused with respect 

16 to a covered claim, there shall be a presumption that 

17 a director is not independent if the director is em18 ployed, controlled, or nominated by, or otherwise has 

19 a history of affiliation with a non-pecuniary invest20 ment entity or any affiliate of a non-pecuniary in21 vestment entity. 

22 ‘‘(d) RULES OF CONSTRUCTION.—Nothing in this 

23 section may be construed— 

24 ‘‘(1) to limit the exercise of religion, as defined 

25 in section 5 of the Religious Freedom Restoration 


kjohnson on DSK79L0C42PROD with BILLS
21 

•S 2829 IS

1 Act of 1993 (42 U.S.C. 2000bb–2) of any issuer or 

2 any director, officer, or affiliate of an issuer; or 

3 ‘‘(2) as establishing a fiduciary duty by any 

4 corporate defendant or corporate actor.’’. 

Æ 


kjohnson on DSK79L0C42PROD with BILLS