Davis Polk Discusses SEC Package of Equity Market Structure Proposals

By Zachary J. Zweihorn, Robert A. Cohen, Gabriel D. Rosenberg, Mary Jane Dumankaya and Tyler X. Senackerib January 24, 2023 by renholding

The SEC recently proposed a set of sweeping equity market structure reforms across four rule proposals that would make highly significant changes to how national market system (NMS) stock orders are priced, executed and reported. The proposals include:

a new

…

Sullivan & Cromwell Discusses ESG Considerations for Financial Institutions in 2023

By Michelle Chen, Harshil Bansal, June Hu, Cathy Clarkin and Mark Treviño January 23, 2023 by renholding

As U.S. financial institutions assess their ESG risks, opportunities, policies and procedures for 2023, key considerations include the numerous significant ESG developments in 2022—in particular, recent proposals and initiatives announced by financial regulators with respect to climate-related risk management and …

Market Practices and the Awareness/Use Problem in Insider Trading Law

By Robert T. Miller January 17, 2023 by renholding

In a new article, I respond to an article by Professor Andrew Verstein concerning the awareness/use problem in insider-trading law. As many readers know, this problem arises because, although Rule 10b-5 prohibits persons bound by a duty of confidentiality from …

SEC Commissioners Dissent to Charges Against McDonald’s for Flawed Disclosure of CEO Firing

By Hester M. Peirce and Mark T. Uyeda January 12, 2023 by renholding

We are unable to support the charges against McDonald’s Corporation (“McDonald’s”) for failing to disclose sufficient information regarding the termination of its former CEO, Stephen Easterbrook, in its 2020 proxy statement. The Order[1] casts McDonald’s, the victim of Mr. …

Assessing the SEC’s Role As Enforcer Against Financial Misconduct

By Chuan Chen, Yanrong Jia, Xiumin Martin and Bernardo Silveira January 10, 2023 by renholding

The Securities Exchange Act grants the SEC ample authority and discretion to investigate and seek sanctions related to violations of the securities laws, with the goal of protecting investors; maintaining fair, orderly, and efficient markets; and facilitating capital formation (SEC, …

Skadden Discusses Recent Contests Under the Universal Proxy Rules and the 2023 Outlook

By Richard J. Grossman, Neil P. Stronski, Anya Richter Hodes and Alexander J. Vargas January 9, 2023 by renholding

The Securities and Exchange Commission’s (SEC’s) new universal proxy rules, which took effect for meetings after August 31, 2022, require the use of “universal” proxy cards in all director election contests, except for elections held by registered investment companies and …

Does the Market Demand Climate-Related Disclosure Regulation?

By Richard M. Frankel, Yongzhao (Vincent) Lin and Xiumin Martin January 4, 2023 by renholding

On March 21, 2022, the Security and Exchange Committee (SEC) proposed that all public firms disclose climate-change risk and greenhouse-gas (GHG) emission information in their financial statements. According to SEC Chair Gary Gensler, the proposal “would help issuers more efficiently …

Arnold & Porter Discusses SEC Case on Impeding and Retaliating Against Whistleblower

By Jane Norberg, Jonathan Green, Dan Hawke, Christian Schultz and Jennifer McLellan January 4, 2023 by renholding

On November 22, 2022, the US Securities and Exchange Commission (SEC or Commission) filed an amended securities fraud complaint against Adam Rogas, the former Chief Executive Officer of NS8, Inc. (NS8), alleging that, among things, Rogas engaged in whistleblower impeding …

SEC Chair Gensler on Final Amendments to Insider Trading Requirements

By Gary Gensler December 16, 2022 by renholding

Today [December 14], the Commission will consider whether to adopt amendments to Rule 10b5-1, as well as new required corporate disclosures related to executive officers’ and directors’ trading. I am pleased to support these new requirements because, if adopted, they …

Angels and Devils: The Early Crypto Entrepreneurs

By Darian Ibrahim December 8, 2022 by renholding

After the collapse of FTX and a summer of crypto failures (Terra Luna, Celsius, Three Arrows), the Securities and Exchange Commission (SEC) will want to act quickly and treat more digital assets as “securities.” But which ones? In a new …

The FTX Collapse: Why Did Due Diligence, Regulation, and Governance Evaporate?

By Georges Ugeux November 30, 2022 by renholding

FTX[1] is a Bahamas-based cryptocurrency exchange founded in 2019 that, at its peak in 2021, had over 1 million users, making it the world’s third largest crypto exchange by volume. Since November 11, 2022, though, FTX has been in …

Let’s Stop Treating Crypto Trading as If It Were Finance

By Todd H. Baker November 29, 2022 by renholding

Members of Congress and financial regulators from the Federal Reserve, U.S. Treasury, SEC, CFTC, and CFPB appear set on regulating the crypto trading system (traded coins and associated marketplaces, exchanges, brokerages, lending, staking, derivatives, intermediaries, and enablers) as part of …

Fraud on the Crypto Market

By Menesh Patel November 28, 2022 by renholding

Investors now routinely turn to crypto asset trading for portfolio appreciation and diversification, but significant investor protection concerns loom. Between 2017 and 2019, thousands of crypto assets were offered to the public and others through initial coin offerings. Many of …

Paul Hastings Discusses SEC’s Crypto Victory in the LBRY Case

By Kenneth Herzinger, Nick Morgan, Eric Sibbitt and Derek Evan Wetmore November 28, 2022 by renholding

On November 7, a federal judge ruled that LBRY Credits (“LBC”) are securities, and thus LBRY violated Section 5 of the Securities Act of 1933 by selling LBC.[1] LBRY responded with a tweet describing the ruling as “extraordinarily dangerous …

SEC Enforcement Chief Speaks on Penalties, Investigations, and Compliance

By Gurbir Grewal November 22, 2022 by renholding

Throughout my first year as Director, I have spoken[1] often about the public’s declining trust in our institutions and financial markets.[2] I have observed that, while there is no single cause for this decline of trust, it is

…

Can Shareholder Lawsuits Police Companies’ Climate Disclosures?

By Emily Strauss November 18, 2022 by renholding

In March 2022, the SEC proposed mandatory climate disclosures for public companies.[1] While climate activist investors applauded the proposed rules, opponents lamented their scope and cost, arguing that the SEC lacks the authority to promulgate such rules. But the …

SEC Announces Enforcement Results for FY 2022

By Securities and Exchange Commission November 16, 2022 by renholding

The Securities and Exchange Commission today [November 15] announced that it filed 760 total enforcement actions in fiscal year 2022, a 9 percent increase over the prior year. These included 462 new, or “stand alone,” enforcement actions, a 6.5 percent …

Social Washing or Credible Communication?

By Nathan C. Goldman and Yuan Zhang November 15, 2022 by renholding

Investor demand for information about firms’ environmental, social, and governance (ESG) commitments has prompted substantial corporate disclosure of their ESG activities. However, these disclosures often raise questions of “social washing,” where firms make unsubstantiated claims or misrepresent their company as …

SEC Investment Management Chief Speaks on Regulation Outside the U.S.

By William A. Birdthistle November 15, 2022 by renholding

Good morning. Thank you, Mark, for your kind invitation to speak with you all today – and congratulations on the 25^th anniversary of this conference. I am deeply honored to be giving the Scott Friestad Memorial Keynote address, particularly

…

All Stick and No Carrot? Reforming Public Offerings

By Stephen J. Choi and Adam C. Pritchard November 14, 2022 by renholding

The traditional IPO was once the dominant path to raising capital for a growing company, but challengers, most notably SPACs and direct listings, have emerged. In our essay, we argue that the regulation of public offerings should seek to facilitate …

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