Securities Regulation

Simpson Thacher Discusses the SEC’s Climate and ESG Task Force

By Leah Malone, Marc Berger, Michael Osnato, Stephen Blake and Emily Holland May 17, 2023 by renholding

Aligning with the growing importance of ESG concerns to investors, and coinciding with increased investor appetite for ESG-related investment portfolios, the SEC created the Climate and ESG Task Force (the “Task Force”) within the Division of Enforcement on March 4, …

How Corporate Counsel Enable Management Misstatements in ESG Matters

By J. Robert Brown, Jr. and Eli Wald May 15, 2023 by renholding

The Securities and Exchange Commission (SEC or Commission) is considering proposals that would require public companies to disclose reliable and complete information about the risks of climate change.  The Commission’s efforts will fall short, however, unless it addresses the role …

SEC Chair Speaks About the Treasury Markets and the Debt Ceiling Discussions

By Gary Gensler May 12, 2023 by renholding

Good afternoon. I’m pleased to be back for what I’m told is the fifth time speaking before the International Swaps and Derivatives Association (ISDA). As is customary, I’d like to note that my views are my own as Chair of …

Skadden Discusses De-SPACed Companies Seeking Chapter 11 Protection

By Shana A. Elberg and Christopher M. Dressel May 11, 2023 by renholding

The contraction of the market for special purpose acquisition companies (SPACs) and the recent challenges de-SPACed companies have encountered have attracted considerable press attention. The stocks of many de-SPACed businesses — companies formed by the merger of a SPAC with …

Milbank Discusses Universal Proxy and “Horizontal” Conflicts

By Neil Whoriskey May 10, 2023 by renholding

There is reason to believe the SEC’s new universal proxy Rule 14a-19 will result in more stockholder nominees being elected to the boards of public companies.

First, the rule allows voting stockholders to make their own ad hoc choice of …

The Real Effects of Disclosure in Going Private Deals

By Pietro A. Bianchi, Miguel Minutti-Meza and Maria Vulcheva May 9, 2023 by renholding

In a recent paper, we examine the real effects of disclosure in going private transactions.  The number of companies going private has been steadily increasing over the past decade, with a sharp rise during the last couple of years. This …

SEC Commissioner Dissents from New Rule on Private Fund Data Collection

By Hester M. Peirce May 4, 2023 by renholding

Thank you, Chair Gensler. This expansion of Form PF data collection is the latest reflection of the Commission’s unquestioning faith in the Benevolent Power of More, a faith that I do not share. We have not explained sufficiently why we

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SEC Chair Speaks on New Rule for Private Fund Data Collection

By Gary Gensler May 4, 2023 by renholding

Today [May 3], the Commission considers adopting a final rule amending Form PF, an important tool that the Commission uses to oversee private fund advisers. I am pleased to support the amendments because they will improve visibility into private funds,

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SEC Chair Gensler Speaks on Updated Rules for Private Funds

By Gary Gensler May 3, 2023 by renholding

The 1990s was the decade of Michael Jordan and the Chicago Bulls. The Cold War was over. It was the dawn of the internet and the Spice Girls. Seinfeld was on TV. Bill Clinton brought blue jeans and Domino’s delivery …

Why Aren’t Reg A Offerings More Popular Among Small Businesses?

By David Krause April 27, 2023 by renholding

Regulation A (Reg A) offerings were revamped under the Jumpstart Our Business Startups Act (JOBS Act) in 2012 to increase the maximum offering size of exempt securities from $5 million to $50 million.[1] However, despite this potential source of …

Skadden Discusses Scotus Endorsement of Early Challenge to Agency Proceedings

By Boris Bershteyn, Shay Dvoretzky, Bradley A. Klein, Scott D. Musoff and Susan L. Saltzstein April 26, 2023 by renholding

The Supreme Court has made it easier to challenge the constitutionality of administrative tribunals housed at federal agencies. On April 14, 2023, the Court unanimously held in Axon Enterprise, Inc. v. Federal Trade Commission that parties subject to enforcement actions …

How Startup Attorneys Create Value and Engineer Exits

By Rachel Landy April 25, 2023 by renholding

For nearly 40 years, scholars have debated whether business lawyers add value to transactions. The debate essentially started with an influential article by Professor Ronald Gilson, who characterized business lawyers as “transaction cost engineers.” These engineers optimize the costs of …

SEC Chair Testifies Before U.S. House Committee on Financial Services

By Gary Gensler April 24, 2023 by renholding

Good morning, Chairman McHenry, Ranking Member Waters, and members of the Committee. Thank you for inviting me to testify today. As is customary, I will note that my views are my own, and I am not speaking on behalf of …

How Regulation of Share Buybacks and Insider Trading Compare in the U.S. and Europe

By Lance Ang April 21, 2023 by renholding

Share buybacks have returned with a vengeance following the COVID-19 pandemic.[1] The average proportion of buybacks out of aggregate shareholder payouts in 2019-2021 was higher than the historical average during 2005-2019 in the U.S. and Europe.[2] These developments …

Davis Polk Discusses SEC’s Proposed Safeguarding Rule for Registered Advisers

By Gregory S. Rowland, Leor Landa, Michael S. Hong, Zachary J. Zweihorn and Sarah E. Kim April 20, 2023 by renholding

On February 15, 2023, the SEC proposed a sweeping new rule (Proposed Rule) which would replace current Rule 206(4)-2 (Custody Rule) under the Investment Advisers Act of 1940 (Advisers Act or Act). The Custody Rule was originally adopted in 1962 …

Do Managers Factor Litigation Risk into Their Environmental Disclosure Decisions?

By Scott Robinson, Nikki Skinner and Jasmine Wang April 19, 2023 by renholding

The SEC has proposed mandating climate disclosure to meet investor demand for information about the environmental risks firms face and managers’ plans to mitigate their firms’ environmental impacts.  Yet critics worry that the proposed mandate would increase risks of litigation …

Wachtell Lipton Discusses Constitutional Challenges to Ongoing SEC and FTC Administrative Proceedings

By John F. Savarese, Kevin S. Schwartz, Noah B. Yavitz, Adam L. Goodman and Jacob Miller April 19, 2023 by renholding

We previously reported on the Supreme Court’s grants of certiorari in SEC v. Cochran and Axon Enterprise, Inc. v. FTC, in which the Court agreed to consider whether federal district courts have jurisdiction to hear constitutional challenges to the …

SEC Chair Gensler Speaks on Alternative Trading Systems and the Definition of an Exchange

By Gary Gensler April 17, 2023 by renholding

Today [April 14], the Commission is considering whether to issue a supplemental release to our January 2022 proposal requiring significant trading platforms—including in the Treasury markets—to come under important rules for the markets. I believe this supplemental release would help

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Cooley Discusses the Risk of Liability from Sustainability Reports

By Cydney Posner April 14, 2023 by renholding

In April of last year, as described in this press release, the SEC filed a complaint against Vale S.A., a publicly traded (NYSE) Brazilian mining company and one of the world’s largest iron ore producers, charging that it made “false …

SEC Chair Testifies on FY 2024 Budget Request Before House Subcommittee

By Gary Gensler April 6, 2023 by renholding

Good afternoon, Chair Womack, Ranking Member Hoyer, and members of the Subcommittee. Thank you for inviting me to testify today on the Securities and Exchange Commission’s Fiscal Year (FY) 2024 budget request. As is customary, I’d like to note that

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