In this February post, I pondered the question of whether an issuer could allocate shares on the basis of race, gender or ethnicity.  That post was inspired by the case of  Glennon v. Johnson, U.S. Dist. Ct. Case No. 1:25-cv-01057 (N.D. Ill. Jan. 6, 2025).  That case involves a Fourteenth Amendment challenge to a proposed public offering by Bally's Chicago, Inc. that would impose minority and gender based qualification requirements on investors.  In February,  U.S. District Court Judge Franklin U. Valderrama declined to issue a temporary restraining order, ruling that the plaintiff had shown neither a likelihood of success nor irreparable injury.

Despite winning this round in court, Bally's still needs to have its registration statement declared effective by the Securities and Exchange Commission.  That apparently has not yet occurred.  On February 28, 2025, Bally's filed a free writing prospectus with the SEC that included the following disclosure:

Bally’s Chicago, Inc. (“Bally’s Chicago”) thanks you for your interest and patience. Unfortunately, as of the time of this message, we have not yet received clearance from the U.S. Securities and Exchange Commission (“SEC”) to price and close our initial public offering. Consequently, prospective investors may seek to withdraw any amount deposited into their respective BitGo Trust accounts while we continue to work to obtain SEC clearance for our initial public offering. Bally’s Chicago intends to continue to make regular, periodic filings of its registration statement with the SEC once its annual financial statements for the fiscal year ended December 31, 2024, which are expected to become available in March. This process aims to fulfill the City of Chicago's mandate of having 25% of Bally's Chicago's ownership held by individuals or entities that qualify as women or Minorities (as defined by MCC 2-92-670(n)), among other criteria, as required by the Host Community Agreement with the City of Chicago.

Apparently, Bally's remains determined to effect a discriminatory offering.  It remains to be seen whether the SEC is willing to declare effective a registration statement with respect to an unabashedly racist and sexist plan of distribution.  In the meantime, Bally's filed a Form D on March 14 disclosing that it had sold $83.15 million of an approximately $195 million offering of interests.