Current Month (September 2025)
SEC Updates Shut-Down Plans
By Rani Doyle
On August 7, the Securities and Exchange Commission (“SEC”) updated its shutdown guidance in a publication “Operations Plan Under a Lapse in Appropriations and Government Shutdown.”
SEC Issues New C&DI re: Filer Status
By Cooley LLP
On August 27, the SEC’s Division of Corporation Finance issued a few new Compliance and Disclosure Interpretations (“C&DIs”), including C&DI 130.05 regarding Smaller Reporting Company status. This particular C&DI is raising questions, including around its impact on SOX 404 compliance. Companies that fall within the fact pattern raised by the C&DI need to work through this with their advisers.
To help support analysis, Cooley published a “Guide to Determining Securities Exchange Act Filer and Smaller Reporting Company Status.”
“Retail Voting Program” Permitted by the SEC
By Noah B. Levin, WilmerHale
The staff of the SEC’s Division of Corporation Finance concurred with ExxonMobil in a no-action letter permitting the company’s implementation of a “Retail Voting Program.” The program allows retail shareholders of ExxonMobil’s stock, whether they be shareholders of record or beneficial shareholders, to provide standing instructions to the company to vote their shares in accordance with the recommendation of company’s board of directors in (1) all matters or (2) all matters except contested director elections and merger or divestiture transactions requiring approval from the company’s shareholders.
The Retail Voting Program is structured as an opt-in program, although once opted in, shareholders will have to affirmatively opt out to no longer take part. Shareholders that opt in will receive an annual notice reminding them of their opt-in status and providing a means to opt out. The Staff concurred that this program design complies with Exchange Act Rules 14a-4(d)(2) and 14a-4(d)(3), which limit the duration of proxies to a single annual meeting.
Shareholders that opt in to providing standing instructions to the company to vote their shares in accordance with board recommendations in all matters will receive an additional notice reminding them of their opt-in status and providing opt-out instructions in advance of a contested director election or an acquisition, merger, or divestiture transaction requiring approval. Even if a shareholder that has opted in to the program does not opt out, shareholders can override their standing voting instructions by casting a vote using the proxy materials received.
SEC Issues Policy Statement on Mandatory Arbitration Provisions; Amends Rules of Practice on Commission Review of Staff Actions Under Delegated Authority
By Liz Walsh and Jennifer Zepralka, Mayer Brown
On September 17, 2025, the Securities and Exchange Commission (the “Commission”) held an open meeting to discuss several items, including (i) permitting the acceleration of effectiveness of registration statements of issuers with certain mandatory arbitration provisions and (ii) amending the Commission’s Rules of Practice relating to the Commission’s review of staff declarations of effectiveness of registration statements by delegated authority. The two matters were discussed together, with clear acknowledgement that they are interrelated, although voted on separately by the Commission. Taken together, these actions signal a dramatic departure from the Commission’s historic views and have the potential to substantially impact the contents of public company governing documents.
For more information, see our full note on the topic.
SEC Chairman Addresses Cross-Border Issues in Speech to OECD
By Thomas W. White, Retired Partner, WilmerHale
In a wide-ranging speech on September 10, Securities and Exchange Commission Chairman Paul Atkins outlined his views on various cross-border securities law issues. Addressing the Organisation for Economic Cooperation and Development’s inaugural Roundtable on Global Financial Markets in Paris, Atkins discussed the following topics:
- Special Accommodations for Foreign Issuers. Noting that SEC rules have since the advent of the SEC granted special accommodations for foreign companies that access the US capital markets, Atkins described the SEC’s recent Concept Release on Foreign Private Issuer Eligibility. The release seeks public feedback on whether foreign companies listed in the US should be subject to additional conditions for them to receive accommodations not available to US companies. Atkins emphasized that “the SEC welcomes foreign companies that seek to access the U.S. capital markets” and the release “is not a signal that the SEC intends to disincentivize such firms from listing on U.S. exchanges.”
- High-Quality Accounting Standards. Atkins raised concerns about the IFRS Foundation’s formation of the International Sustainability Standards Board (“ISSB”) in 2021. He said this expansion of the foundation’s remit should not divert its focus from its core responsibility of funding the International Accounting Standards Board (“IASB”). He stated that “the IASB must promote high-quality accounting standards that are focused solely on driving reliable financial reporting and are not used as a backdoor to achieve political or social agendas.” Atkins suggested that if the IASB does not receive “full, stable funding,” then the SEC might revisit its 2007 elimination of the requirement that foreign companies that report IFRS financial statements provide a reconciliation to US GAAP.
- Financial Materiality. Atkins criticized recent European Union sustainability reporting and due diligence laws which, he said, promote a “double materiality regulatory approach.” He contrasted regulation focused on financial materiality, which “is another pillar of maximizing the efficient flow of capital,” with double materiality, which “considers other non-financial factors.” Noting that the EU sustainability laws impact US companies with operations in the EU, he stated that Europe “should focus on reducing unnecessary reporting burdens on issuers rather than pursuing ends that are unrelated to the economic success of companies and to the well-being of their shareholders.”
- Crypto. Atkins reviewed the SEC’s recent actions with respect to crypto regulation. Quoting Victor Hugo (“on résiste à l’invasion des armées; on ne résiste pas à l’invasion des idées”), he proclaimed that “crypto’s time has come.” He noted that the SEC’s prior approach to crypto regulation was “not only ineffective, but injurious; it drove jobs, innovation, and capital overseas.” He declared that SEC crypto policy “will no longer be set by ad hoc enforcement actions.” He described the SEC’s Project Crypto, “a sweeping initiative to modernize the securities rules and regulations to enable our markets to move on-chain.” Atkins concluded that “[o]ur goal is simple: to spark a golden age of financial innovation on U.S. soil.”
- Opportunities for Collaboration with International Counterparts. Atkins also discussed the value of “work[ing] strategically with international partners who share our commitment to innovation and to regulatory clarity.” He applauded recent EU digital assets regulation, and, while reiterating his determination “to ensure that America is second to none in fostering an economic climate that supports financial innovation,” said he looked forward “to collaborating with our international counterparts to facilitate more innovative markets.”
- AI and Finance. Finally, Atkins touched on the potential impact of artificial intelligence on financial markets. According to Atkins, AI “is opening the door to agentic finance—a system whereby autonomous AI agents execute trades, allocate capital, and manage risk at speeds no human can match, with securities law compliance embedded in its code.” He stressed that “[t]he government’s responsibility here is to ensure that commonsense guardrails are in place while eliminating the regulatory obstructions that stifle innovation.” He asserted, “The choice before us is simple yet profound: either America steps forward with confidence and conviction, or others will,” while adding that he was eager to work with international counterparts.
Spring 2025 Regulatory Agenda Released by the SEC
By Noah B. Levin, WilmerHale
The SEC’s Spring 2025 Unified Agenda of Regulatory and Deregulatory Actions (the “Reg Flex Agenda”) was released, which Chairman Paul Atkins said reflects a “new day” at the SEC. Supporting the SEC’s “renewed focus on supporting capital formation, market efficiency, and investor protection,” the Reg-Flex Agenda aims to add clarity on crypto assets and modernize existing rules to address and reduce compliance burdens.
Two crypto topics were included in the Reg-Flex agenda:
- Proposing rules relating to the offer and sale of crypto assets, including exemptions and safe harbors, to provide certainty to the market.
- Amending Exchange Act rules to address crypto asset trading on alternative trading systems and national security exchanges.
New proposals on the agenda include:
- Rule 144: Expanding safe harbors.
- Rule 14a-8: Modernizing the shareholder proposal rules to reduce compliance burdens for issuers.
- Shelf Registration: Modernizing rules to reduce compliance burdens and facilitate capital formation.
- Exempt Offerings: Simplifying the pathways for raising capital for, and investor access to, private businesses.
- Emerging Growth Companies (“EGCs”) and Filer Status: Expanding accommodations for EGCs and simplifying filer status for reporting companies.
- Foreign Private Issuer (“FPI”) Definition: Updating the definition of FPI to better represent the issuers that are intended to benefit from FPI accommodations.
In addition to announcing additions to the Reg Flex Agenda, several topics were also dropped from further consideration. These topics include proposed rules on Corporate Board Diversity, Human Capital Management Disclosure, Incentive-Based Compensation Arrangements, Disclosure of Payments by Resource Extraction Issuers, and Regulation D and Form D Improvements.
For further reading on this topic, refer to the WilmerHale blog post.
SEC Organizational Updates
By Noah B. Levin, WilmerHale
Leadership Announcements
The SEC announced that Chairman Paul Atkins tapped James Maloney to take over as director of the Division of Corporation Finance. Acting Director Cicely LaMothe will return to her role as deputy director upon Maloney formally assuming the director role. Maloney worked at the SEC for six years, from 1994–2000, before moving to Gibson Dunn & Crutcher, where he spent the last twenty-five years.
Maloney’s appointment comes just weeks after Judge Margaret “Meg” Ryan was named director of the Division of Enforcement. Judge Ryan officially took over as the director of the Division of Enforcement on September 2. Prior to taking this position, Judge Ryan served as a judge of the U.S. Court of Appeals for the Armed Forces and previously clerked for Supreme Court Justice Clarence Thomas.
Cross-Border Task Force
The SEC established the Cross-Border Task Force, which is tasked with investigating potential U.S. securities laws violations from companies in “foreign jurisdictions, such as China, where governmental control and other factors pose unique investor risks.” Market manipulation, such as “pump-and-dump” and “ramp-and-dump” schemes, along with the conduct of auditors and underwriters of foreign companies, are noted as particular areas of focus for the Task Force. While the Task Force is within the Division of Enforcement, Chairman Atkins has also instructed the Divisions of Corporation Finance, Examinations, Economic and Risk Analysis, and Trading and Markets, in addition to the Office of International Affairs, “to consider and recommend other actions that would better protect U.S. investors, including new disclosure guidance and any necessary rule changes.”
SEC and CFTC Cooperation Comes into Focus
By Noah B. Levin, WilmerHale
The SEC and the Commodity Futures Trading Commission (“CFTC”) announced several joint initiatives, highlighting synergies between the two regulatory commissions. A joint statement by the SEC’s Division of Trading and Markets and the CFTC’s Division of Market Oversight and Division of Clearing and Risk (the “Divisions”) announced that the Divisions would coordinate efforts to enable the trading of certain spot crypto asset products. The coordination follows the SEC’s establishment of Project Crypto and the CFTC’s establishment of its Crypto Spring initiative, and the recommendation that the SEC and CFTC coordinate on digital asset regulation from the President’s Working Group on Digital Asset Markets.
Notably, the joint statement announced that both the SEC and CFTC take the view that CFTC-registered designated contract markers, CFTC-registered foreign boards of trade, and SEC-registered national securities exchanges are not prohibited from facilitating the trading of certain spot crypto asset products. In line with this announcement, the joint statement notes that the Divisions are ready to process necessary registrations, proposals, or requests for appropriate relief and are available to engage with stakeholders regarding relevant questions.
The SEC and CFTC also held a joint roundtable discussing additional ways in which the two regulatory bodies can harmonize their regulatory regimes. The roundtable discussed how regulatory harmonization efforts could help platforms unlock economic value while maintaining investor protections and could increase choices for market participants while reducing costs for them.
