SEC Grapples with Jarkesy Case as Meta Lawsuit Waits in the Wings

By John Livingstone and Anat Alon-Beck December 8, 2023 by renholding

The legal world witnessed a riveting face-off last week as the Supreme Court delved into the intricacies of SEC v. Jarkesy. The case, stemming from a divided opinion by the Fifth Circuit in May 2022, challenges the constitutionality of …

SEC Chair Gensler Speaks Before the Investor Advisory Committee

By Gary Gensler December 8, 2023 by renholding

Good morning. I am pleased to speak with the Investor 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 on behalf

…

John C. Coffee, Jr. and Joshua Mitts – Can Section 11 Be Saved?: Tracing a Path to Its Survival

By John C. Coffee, Jr. and Joshua Mitts December 6, 2023 by renholding

In the wake of Slack Techs., LLC v. Pirani,[1] many have predicted that Section 11 of the Securities Act of 1933 will decline into a state of near irrelevance. Some have mourned this prospect in the belief that …

The Current Securities Landscape of Cryptocurrencies and NFTs

By Christa J. Laser December 1, 2023 by renholding

The value of assets on the blockchain has soared to billions of dollars, stored everywhere from Bitcoin to Bored Ape Yacht Club NFTs to play-to-earn gaming. Some of those assets, though, have crashed and burned in the wake of market …

Skadden Discusses New SEC Pay-Versus-Performance Compliance & Disclosure Interpretations

By Erica Schohn, Joseph Penko, Loren Koles and Shalom Huber December 1, 2023 by renholding

On November 21, 2023, the staff of the Securities and Exchange Commission’s (SEC’s) Division of Corporation Finance issued eight new Compliance & Disclosure Interpretations (C&DIs), and revised two previously issued C&DIs, relating to the final pay-versus-performance (PVP) disclosure rules adopted …

Debevoise Discusses SEC’s Division of Enforcement Year-End Results

By Kara Brockmeyer, Andrew Ceresney, Robert Kaplan, Julie Riewe and Mary Jo White November 30, 2023 by renholding

On November 14, 2023, the U.S. Securities and Exchange Commission’s (“SEC” or “Commission”) Division of Enforcement (“Division”) announced its enforcement results for fiscal year (“FY”) 2023.[1] Disgorgement and penalties were the second highest in the SEC’s history at just …

Paul Hastings Discusses Labor Unions, Social Activists, and Universal Proxy Cards

By Sean Donahue, Eduardo Gallardo and Ankush Dhupar November 29, 2023 by renholding

On November 21, 2023, a coalition of labor unions led by the Service Employees International Union (SEIU), announced that it has nominated three director candidates for election to the Board of Directors of Starbucks at the 2024 annual meeting of …

Davis Polk Discusses SEC’s Expansive View of Accounting Control Violations

By Robert A. Cohen, Michael Kaplan, John B. Meade, Joseph A. Hall and Martine M. Beamon November 28, 2023 by renholding

After receiving board approval to buy back stock under a 10b5-1 plan, a company interpreted Rule 10b5-1 in a manner with which the SEC disagreed. The SEC did not allege that the company traded on the basis of material nonpublic …

Private Equity Fund Bargaining: What We Know (and Don’t Know)

By William W. Clayton November 16, 2023 by renholding

The growth of the private equity industry over the past two decades has been nothing short of extraordinary. Yet research on the formation and governance of these funds – including the rights and obligations of general partners and limited partners …

For Regulators, It’s All About Timing

By Adriana Z. Robertson November 13, 2023 by renholding

Regulators have a hard job. Novel financial products are developed and launched all the time. At first, regulators have very little information about these products; it makes sense to let the market develop a bit before taking action. But waiting …

Skadden Discusses What SEC’s Solar Winds Complaint Means for Boards, Information Security Officers

By Anita Bandy, William Ridgway, David Simon, Joshua Silverstein and Shirley Diaz November 13, 2023 by renholding

On October 30, 2023, the SEC filed a litigated complaint against SolarWinds, a software development company, and Timothy Brown, its chief information security officer (CISO). The SEC alleges that from October 2018, when SolarWinds went public, to January 2021, SolarWinds …

SEC Commissioner Speaks on Using Enforcement Actions to Set Regulatory Policy

By Mark T. Uyeda November 10, 2023 by renholding

Good morning and thank you, Jim [Burns], for that introduction. I am pleased to be part of the 2023 conference on SEC Regulation Outside the United States to deliver the Fifth Annual Scott Friestad Memorial Lecture.

I had the privilege

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Overtaking Mutual Funds: The Hidden Rise and Risk of Collective Investment Trusts

By Natalya Shnitser November 9, 2023 by renholding

The retirement security of millions of American workers is increasingly tied to an investment vehicle that most have never heard of, and whose dramatic growth over the last 40 years has received almost no regulatory or academic scrutiny.

With nearly …

Do Meritless Whistleblower Claims Hurt Companies and Shareholders?

By Yangyang Fan, Gilles Hilary and Mark (Shuai) Ma November 7, 2023 by renholding

A number of regulations encourage whistleblowers to provide tips on corporate financial misconduct. For example, as a part of the 2011 Dodd-Frank Act, Congress enacted a whistleblower program to reward eligible individuals with up to 30 percent of the monetary …

What Is the Global Impact of Mandatory Climate-Related Disclosures?

By Lucas Mahieux, Haresh Sapra and Gaoqing Zhang November 6, 2023 by renholding

In response to extreme weather events, regulators and standard setters are developing climate-related reporting requirements and standards. The thinking behind making disclosure of firms’ climate-related risks mandatory is that it will allow the market to price these risks, thereby using …

SEC Chair Gensler on Registration of Security-Based Swap Execution Facilities

By Gary Gensler November 3, 2023 by renholding

Today [November2], the Commission adopted final rules to create a framework for the registration of security-based swap execution facilities (security-based SEFs). I support today’s adoption because, through fulfilling Congress’s mandate, it increases the transparency and integrity of the security-based swap …

Skadden Discusses Approach of SEC Enforcement Division to Compliance Officer Liability

By Anita B. Bandy, Andrew M. Lawrence, Daniel Michael and Hannah Henderson November 1, 2023 by renholding

In a speech on October 24, 2023, the director of the Securities and Exchange Commission’s (SEC’s) Enforcement Division, Gurbir Grewal, described the scenarios in which the commission would bring an enforcement action against a compliance officer.

In remarks to the …

Debevoise & Plimpton Discusses Fifth Circuit Decision to Uphold Nasdaq Board Diversity Rule

By Matthew E. Kaplan, William D. Regner, Simone S. Hicks, Ashley Yoon and Andrew Hong October 31, 2023 by renholding

On October 18, 2023, the Fifth Circuit, in Alliance for Fair Board Recruitment v. SEC, upheld Nasdaq’s board diversity rule. [1]

The rule, approved by the Securities and Exchange Commission in August 2021, requires Nasdaq-listed companies to disclose board-level …

Cleary Gottlieb Discusses How U.S. Securities Laws Apply to a Bail-In of UK or European Bank

By Andrew Bernstein, John Brinitzer, Amelie Champsaur, David Gottlieb and Sarah Lewis October 27, 2023 by renholding

On October 10, 2023, the Financial Stability Board (the “FSB”) published a report (the “FSB Report”)[1] that examined the international resolution framework as applicable to global systemically important banks (“G-SIBs”). In its examination, the FSB Report stated that the …

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