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Materiality Under the SEC’s Climate Risk Rule

By Tom Riesenberg August 12, 2024 by renholding

The concept of materiality has been called the “bedrock” or the “cornerstone” of the corporate disclosure system established by Congress in the federal securities laws.[1] But, despite its importance, determining how to use or apply the concept can be …

Should Ethereum ETFs Include Staking?

By David Krause August 8, 2024 by renholding

The approval of Ethereum Spot Exchange-Traded Funds (ETFs) by the U.S. Securities and Exchange Commission (SEC) in May 2024 marked a significant step forward for cryptocurrency in mainstream finance (Krause, 2024). This decision followed the precedent set by Bitcoin Spot …

John C. Coffee, Jr. – What Would a Trump Administration Mean for Securities Regulation?

By John C. Coffee, Jr. August 5, 2024 by renholding

There can be no debate: The Administrative State has been scaled back. The rule-making powers of administrative agencies have clearly been curbed. Most blame the Supreme Court and particularly its decision in West Virginia v. EPA, 597 U.S. 697 …

Reg FD’s Dilemma: The Unseen Edge in Private Investor Meetings

By H. Scott Asay, Shana Clor-Proell and Michael T. Durney July 31, 2024 by renholding

Regulation Fair Disclosure (Reg FD) attempts to level the playing field for investors, stating that any “informational edge” should be due to investors’ “skill, acumen, or diligence” rather than “from their superior access to corporate insiders.”[1]However, Reg FD …

SEC Chair Gensler Speaks to Small Business Capital Formation Advisory Committee

By Gary Gensler July 31, 2024 by renholding

Good morning. I’m pleased to speak with the Small Business Capital Formation Advisory Committee. As is customary, I’d like to note that my views are my own as Chair of the Securities and Exchange Commission, and I am not speaking

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Fraud-on-the-Market Liability in the ESG Era

By Kevin S. Haeberle July 29, 2024 by renholding

Fraud-on-the-market (“FOTM”) suits are thought to generate considerable benefits for society – namely, those associated with increased stock-market price accuracy and liquidity. But these suits are also said to impose exceptionally large social costs relative to even those associated with …

Davis Polk Discusses Cyber Disclosure Case Against SolarWinds and Its CISO

By Robert A. Cohen, Fuad Rana, Michael Kaplan, John B. Meade and Paul J. Nathanson July 29, 2024 by renholding

A court rendered a mixed result in the SEC’s SolarWinds litigation. The court declined to dismiss the SEC’s claims that a website “Security Statement” overstated the strength of SolarWinds’ cybersecurity measures. However, the court dismissed claims based on SolarWinds’ SEC …

Skadden Discusses What Decisions May Look Like After Chevron’s Demise

By Shay Dvoretzky, Parker Rider-Longmaid, Emily J. Kennedy and Sylvia O. Tsakos July 22, 2024 by renholding

In Garland v. Cargill, the U.S. Supreme Court held that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) exceeded its statutory authority by issuing a rule that classifies bump stocks as “machineguns” under the National Firearms Act of …

Enhanced Scrutiny and the Omnipresent Specter of Political Bias

By Stefan Padfield July 19, 2024 by renholding

Corporate politicization, when companies take sides in our culture war and risk alienating half their potential customers, is a serious concern. Recent examples of companies that have felt its negative impact on shareholder value abound, including Bud Light, Target, and …

How Shifting to Semi-Annual Financial Reporting Affects Market Dynamics and Governance

By Keren Bar-Hava July 18, 2024 by renholding

In recent years, regulatory shifts in financial reporting have garnered significant attention, especially concerning their implications for corporate governance and market dynamics. One notable change was the 2017 regulatory adjustment on the Tel-Aviv Stock Exchange (TASE), where small-cap firms were …

Skadden Discusses Jarkesy’s Impact on Other In-House Enforcement Procedures

By Shay Dvoretzky, Parker Rider-Longmaid, Daniel Michael, Emily J. Kennedy and Sylvia O. Tsakos July 17, 2024 by renholding

In Securities and Exchange Commission v. Jarkesy, the U.S. Supreme Court held that “the Seventh Amendment entitles a defendant to a jury trial when the [Securities and Exchange Commission] seeks civil penalties against him for securities fraud.”

In its …

SEC Enforcement Chief Speaks on Enforcing the Federal Securities Laws in the Age of Crypto

By Gurbir Grewal July 11, 2024 by renholding

I’m thrilled to be back at my law school alma mater. This is a special place – one that not only helped me hone my legal skills, but also one that helped mold me into a “citizen lawyer.”

For me,

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SEC Commissioner Peirce Offers a Hitchhiker’s Guide to ESG

By Hester M. Peirce July 5, 2024 by renholding

The last time I was in Poland was approximately three decades ago. It was a brief but memorable stop on an unfocused American student’s hop across Europe. Among other things, Poland provided me my only hitchhiking experience. Some kind soldiers …

SEC Chair Gensler on Registration Form for Index-Linked Annuities

By Gary Gensler July 5, 2024 by renholding

Today [July 1], the Commission adopted amendments to provide a tailored form to register the offerings of registered index-linked annuities (“RILAs”) and registered market value adjustment annuities (“registered MVA annuities”). I am pleased to support this adoption because it fulfills …

SEC Corporation Finance Director Speaks on the State of Disclosure Review

By Erik Gerding June 25, 2024 by renholding

Good afternoon.[1] I appreciate the opportunity to speak with you again today as part of the Corp Fin Workshop. I wanted to make a few remarks about the important work being done in the Division’s Disclosure Review Program and

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The Dark Side of Safe Harbors

By Susan C. Morse June 24, 2024 by renholding

Safe harbors are useful and nifty. Consider the SEC’s accredited investor safe harbor under Rule 506 of Regulation D, which allows private securities offerings to sufficiently wealthy investors. Rule 506 facilitates capital formation and promotes efficient markets. Yet …

Sullivan & Cromwell Discusses SEC Charge of Internal Accounting Controls Failure Based on Cybersecurity Breach

By Peter C. Charnell, Robert W. Downes, Nicole Friedlander and Anthony J. Lewis June 24, 2024 by renholding

On June 18, 2024, the Securities and Exchange Commission (“SEC”) announced charges against R.R. Donnelley & Sons Company (“RRD”) for failure to maintain adequate internal accounting controls in violation of Section 13(b)(2)(B) of the Securities Exchange Act of 1934 (“Exchange …

SEC Chair Gensler Speaks on Shortening the Settlement Cycle

By Gary Gensler June 21, 2024 by renholding

Last month, the U.S. smoothly shortened the settlement cycle for equities, corporate bonds, and municipal securities to one day after the transaction date (T+1). This step better unifies the U.S. market structure, where Treasuries, options, and mutual funds already largely …

SEC Chair Testifies Before Senate Subcommittee on Financial Services

By Gary Gensler June 14, 2024 by renholding

Good morning, Chair Van Hollen, Ranking Member Hagerty, and members of the Subcommittee. Thank you for inviting me to testify today on the Securities and Exchange Commission’s Fiscal Year (FY) 2025 budget request. As is customary, I’d like to note …

Looking Under the Hood of Activist Fraud Campaigns

By Byung Hyun Ahn, Robert M. Bushman and Pano Patatoukas June 13, 2024 by renholding

Corporate fraud poses a significant agency cost for stock ownership. Activist short sellers, who conduct and publicize investigative research, play a crucial role in exposing such fraud, in contrast with most short sellers who quietly await price catalysts without public …

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