When Glass Lewis announced an open comment period on the four perspectives that will underpin its research beginning in September 2027, it noted that it will continue to offer its Benchmark Voting Policy Guidelines for the 2027 Proxy Season, to be announced in October, with minimal expected changes (limited to significant regulatory and corporate governance developments). Those Benchmark Voting Policy Guidelines — which will apply to shareholder meetings held from January 1 through August 31, 2027 — were quietly released (I believe) late last week.
When you open the guidelines, you’ll immediately notice that they contain no “Summary of Changes.” That’s because there were no changes to the U.S. guidelines from 2026. The preface to the guidelines explains:
Glass Lewis’ single house policy has traditionally anchored the regional benchmark guidelines. Given Glass Lewis’ announced intention to move away from this single house policy, towards multiple perspectives representing varied viewpoints of its clients, policy development has entered a period of transition. As such, the Glass Lewis 2026 Benchmark Policy Guidelines will remain static for 2027.
Glass Lewis, however, remains committed to keeping policies current during this transition phase by ensuring that any relevant changes to regulation or corporate governance practices are reflected in the Benchmark Policy guidelines. A review of market-level regulatory and best practice changes over the preceding year concluded that these guidelines do not require revision for 2027
I went to the shareholder proposals section to remind myself how Glass Lewis approached the shifting shareholder-proposal environment last year. The document still provides that:
[T]he Benchmark Policy will generally approach these matters with the basic premise that shareholders should be afforded the opportunity to vote on matters of material importance. To be sure, the Benchmark Policy respects the limitations placed on shareholder proponents, as certain shareholder proposals can unduly burden companies or cross the line between the purview of shareholders and that of the board. It also recognizes that not all shareholder proposals serve the long-term interests of shareholders. Nonetheless, the Benchmark Policy views the basic right of shareholders to file proposals as critical to the proper functioning of our system of corporate governance and in the best economic interest of all shareholders.
A number of important corporate governance reforms, such as declassified boards and majority voting, would not have been achieved without shareholders’ willingness and ability to submit proposals, for which they bear the costs and only realize a portion of the benefits. Empirical evidence has shown that even withdrawn shareholder proposals, such as those on executive compensation, can encourage beneficial corporate practices, thereby benefiting all shareholders.
Like last year, it also notes that it will closely monitor regulatory changes and their ramifications and that the benchmark guidelines may be updated prior to or during the proxy season should regulatory changes warrant.
We’ll be posting related resources in our “Proxy Advisors” Practice Area. We’ve also already created the “2027 Resources” subsection of our “Proxy Season” Practice Area, which is always a treasure trove of helpful resources by the time proxy season is in full swing.
Yesterday, Corp Fin posted new, revised and withdrawn CFIs. Some of the updates are cleanup, and others provide clarification – particularly regarding when an Item 2.01 (Completion of Acquisition or Disposition of Assets) 8-K must be filed. Here are links to the CFIs (or redlines, where revised), along with a brief description of what’s new:
Securities Act Forms, Section 115 Form S-3. General Instructions 1.A.1 to I.A.8 – Registrant Requirements, Revised Question 115.02 & Regulation S-K, Section 115. Items 308 and 308T – Internal Control over Financial Reporting, Revised Question 115.02
Both CFI updates clarify the consequences of failing to provide management’s report on ICFR pursuant to Item 308(a) of Regulation S-K and the consequences of being current but untimely after the Form 10-K is amended to provide management’s report — specifically to include the implications for incorporating by reference on Form S-1 or S-11 and to remove references to transitional Item 308T.
Exchange Act Form 8-K, Section 105. Item 2.01 Completion of Acquisition or Disposition of Assets, New Question 105.01
Explains that registrants need only apply the applicable paragraph in Instruction 4 to Item 2.01 of Form 8-K when determining whether an acquisition or disposition is deemed to involve a significant amount of assets. Specifically, (1) a business development company that did not acquire or dispose of a business as determined under Rule 11-01(d) of Regulation S-X would only apply paragraph (iii) of Instruction 4, (2) a registrant that acquired or disposed of a business as determined under Rule 11-01(d) of Regulation S-X would apply only paragraph (ii), and (3) a registrant that is not a business development company and did not acquire or dispose of a business as determined under Rule 11-01(d) of Regulation S-X would apply only paragraph (i).
Exchange Act Forms 8-K, Section 105. Item 2.01 Completion of Acquisition or Disposition of Assets, New Question 105.02
Clarifies that Instruction 4 does not require registrants to include probable acquisitions of related businesses, real estate operations, and funds with the related businesses, real estate operations, and funds that have already been acquired when assessing aggregate significance for purposes of Item 2.01 reporting because Item 2.01 of Form 8-K only requires disclosure regarding completed acquisitions.
Exchange Act Forms 8-K, Section 105. Item 2.01 Completion of Acquisition or Disposition of Assets, New Question 105.03
Provides that registrants should use their most recent balance sheet required to be filed at or prior to the date of the acquisition or disposition, which may be an interim balance sheet, to derive “the total assets of the registrant and its consolidated subsidiaries” required for the significance test outlined in paragraph (i) of Instruction 4 to Item 2.01 of Form 8-K.
Exchange Act Forms 8-K, Section 110. Item 2.06 Material Impairments, Withdrawn Question 110.02 reflects a housekeeping update, withdrawing a now-irrelevant CFI.
I realize third-party tokenization was already a reality before the SEC’s Innovation Exemption order. But it sure feels like we’ve opened a Pandora’s box in the last few weeks. Every time I open LinkedIn, I see tokenization discussions. Sure, that’s partly the work of my algorithm, but there are many considerations for issuers, including some John shared last week. Luckily, there are also new resources available and some news reports on company objections to TSV notifications. Here’s a somewhat random grab bag of those resources and developments:
Yesterday, the Staff in the SEC’s Division of Trading and Markets issued these FAQs on the Innovation Exemption and a list of entities that have submitted written notice to the SEC that they intend to operate as a TSV pursuant to the TSV Exemption.
Earlier this week, the Securities Industry and Financial Markets Association (SIFMA) submitted a comment letter to the SEC reflecting input from its broker-dealer and asset manager members, plus the public companies that own them. Among other recommendations, SIFMA believes that a third-party tokenized version of a company’s NMS stock should only trade on a TSV after the company has given affirmative consent (i.e., an opt-in, not an opt-out).
Late last month, Nasdaq released a series of FAQs on the exemption, which highlight that there’s no requirement in the exemption that the tokens be interoperable across TSVs and that the lack of requirements related to price transparency on TSVs “effectively creates a shadow market for equity securities that can become disconnected from the broader market in both pricing and price transparency.” Nasdaq warns that this “impairs an issuer’s ability to maintain a complete, accurate and contemporaneous understanding of the price and trading behavior of its own securities” and that investors with poor outcomes on TSVs may blame the issuer. It concludes with the note that “As an issuer ourselves, having carefully reviewed and weighed these current considerations of the Innovation Exemption, we intend for Nasdaq, Inc. (Nasdaq: NDAQ) to opt out of TSVs.”
A group called the Issuer Sponsored Token Coalition has been formed around the goal that tokenized public securities preserve the fundamental relationship between an issuer and its shareholders.
We also now know that a number of well-known large caps have objected to having tokenized versions of their shares traded on the TSV jointly launched by the crypto exchange OKX and NYSE’s parent, Intercontinental Exchange.
There’s also this announcement from Securitize that it will offer security entitlements to shares of twelve well-known companies. While the press release notes that these security entitlements are expected to be eligible for trading on TSVs eventually, apparently (I’m not going to pretend I fully get this!), the structure of the tokens and the fact that secondary market trading is availble “in a regulated manner through its broker-dealer” means that this development is initially not relying on the TSV exemption.
See also these nine more things you should know about tokenization from Broc on the Governance Beat blog. Panelists at our Proxy Disclosure Conference also said some companies are considering the issuer-sponsored token route to get ahead of demand for tokenized securities and maintain control, for example, through the issuer-focused Nasdaq Equity Token.
This Ashurst Perkins Coie memo shares key takeaways from discussions with SEC Staff in the Division of Enforcement early this month at Securities Enforcement Forum Central and the 46th Annual Ray Garrett Jr. Corporate & Securities Law Institute. Here’s my high level summary:
– The Division is “being very thoughtful” and “thinking long and hard” about pursuing cases and whether to charge companies, with a focus on “bread and butter” securities fraud and a “quality over quantity” approach.
– As expected, the Division seeks to pursue individual bad actors “with particular attention to gatekeepers.”
– The focus on bread and butter securities fraud doesn’t mean that the Division isn’t pursuing enforcement of regulatory violations, which can be “deliberate and intentional.”
– The Staff is “receptive” to self reporting, and “where a company has identified an issue, self-remediated, and caused no investor harm, staff may decline to pursue enforcement on a case-by-case basis.” However, companies should expect enforcement to be pursued in the event of repeat violations or where it was aware of a violation harming investors.
– The Division’s new Financial Reporting and Accounting Unit can be distinguished from the Division’s former Task Force because the unit has its own “staff, management structure, and resources.” The Unit is expected to pursue “public company accounting fraud, non-GAAP disclosure cases, and auditor/gatekeeper matters,” with a focus on life sciences companies.
– Pursuing insider trading cases is a priority of the Division, and prediction markets got a lot of attention during the discussions.
– AI-related fraud is another Division priority. Agentic AI systems were highlighted as a key risk. And “subpoenas may increasingly request information about a company or individual’s use of AI, including prompts and chatbot logs, raising novel privilege and preservation questions.”
– Investigative practice has shifted. “The SEC is increasingly using voluntary document requests, in part because formal orders of investigation are harder to obtain under the current administration. Panelists advised pushing for subpoenas where possible because subpoenas typically trigger directors and officers (D&O) insurance coverage obligations.”
We know Silicon Valley is its own beast. The general proxy season data shared every year isn’t always indicative of how things are going for the largest SV-based tech companies, making benchmarking somewhat difficult for companies in this cohort. Luckily, the team at Fenwick publishes its SV 150 list ranking the largest Silicon Valley-based public technology and life sciences companies by revenue and publishes reports comparing vote results and governance practices. Late last month, it issued its report on 2026 annual meeting results (available for download). Here are some key ways the SV 150 diverged from the S&P 100 in 2026:
– The total number of stockholder proposals on which SV 150 companies voted increased slightly in 2026, while the total number of stockholder proposals on which S&P 100 companies voted decreased. The number of stockholder proposals at SV 150 companies increased slightly from 67 in 2025 to 70 in 2026. The S&P 100 saw a decrease from 204 in 2025 to 187 in 2026. This decrease can be attributed primarily to a decrease in the number of compensation proposals (20 in 2025; 7 in 2026) and policy issue proposals (147 in 2025; 110 in 2026), offsetting an increase in governance proposals (34 in 2025; 68 in 2026).
– The total number of policy issue proposals increased slightly for SV 150 companies, but decreased for S&P 100 companies. While S&P 100 companies saw an overall drop in policy issue proposals, including a significant drop in anti-discrimination/diversity proposals (44 in 2025; 21 in 2026) and a more modest drop in environmental/sustainability proposals (48 in 2025; 39 in 2026), SV 150 companies saw a slight increase in these proposals (32 in 2025; 34 in 2026), which included a noticeable rise in environmental/ sustainability proposals (4 in 2025; 9 in 2026). For S&P 100 companies, the only category of policy issue proposals that increased from 2025 to 2026 was human rights proposals (20 in 2025; 27 in 2026).
– Average support for stockholder proposals decreased at SV 150 companies and increased at S&P 100 companies. Average support across all categories of stockholder proposals (compensation, governance, policy issues, and general business) decreased for the SV 150 companies, from 18.0% in 2025 to 17.1% in 2026, with a sharp decrease in support for compensation proposals (22.5% in 2025; 7.3% in 2026), an increase in support for governance proposals (29.8% in 2025; 33.2% in 2026), and a decrease in support for policy issue proposals (9.2% in 2025; 4.6% in 2026). For the S&P 100, average support increased across all categories of stockholder proposals from 12.5% in 2025 to 16.2% in 2026.
As John Jenkins highlighted on Friday on thecorporatecounsel.net, the Staff recently issued new Corporation Finance Interpretations (CFIs) on several topics, including Question 135.05, which addresses how to determine the filing deadline for a Form 4 filed to report a transaction executed in a time zone later than the U.S. Eastern time zone:
Question 135.05
Question: A Section 16 reporting person sells shares of a class of equity securities on a foreign exchange on August 25, 2026 at 9 a.m. local time (when it is August 24, 2026 in U.S. Eastern time). What is the Form 4 filing deadline?
Answer: Rule 16a-3(g)(1) requires a Form 4 to be filed before the end of the second business day following the day on which the subject transaction has been executed. The deadline is calculated beginning with the date in the time zone where the transaction was executed. In this scenario, the second business day would be August 27, 2026 so the reporting person must make the filing before the August 27, 2026 EDGAR filing deadline based on U.S. Eastern Time. Thus, the Form 4 must be filed by 10:00 p.m. U.S. Eastern time on August 27, 2026. [October 15, 2026]
This interpretation is consistent with issues the ABA’s Joint Committee on Employee Benefits discussed with the Staff at their in-person meeting back in May 2026 and offers additional preparation time when reporting a transaction that occurs in a time zone that is later than the U.S. Eastern time zone (e.g., 73 hours for a transaction executed at 9 a.m. on the New Zealand Stock Exchange in the example set forth in the new CFI) as compared to the preparation time for reporting a transaction that occurs in the U.S. Eastern time zone (e.g., 59 hours for a transaction executed on the New York Stock Exchange at 9 a.m. U.S. Eastern time).
While the new CFI does not address the similar issue that arises when a transaction occurs on an earlier date as a result of being executed at a location in an earlier time zone, calculating the filing deadline for the Form 4 beginning with the date in the U.S. Eastern time zone at the time the transaction was executed, if that date is later than the date in the local time zone, would provide the equivalent additional preparation time.
As John shared, the SEC’s proposal to modernize the regulatory scheme for transfer agents includes a new rule that will have implications for issuers because it would require transfer agents to establish a reasonable basis for removing restrictive legends on a security and provide a related safe harbor. This White & Case alert notes that the proposal would likely standardize requirements around the Rule 144 legend removal process, which have been inconsistent over the years depending on the transfer agent you’re working with, but also potentially complicate things by making the process more document and analysis intensive across the board.
Under the safe harbor, there are two ways a transfer agent can establish a reasonable basis: (1) an opinion of counsel or (2) reaching its own conclusion, documented in writing. As John noted, the legend removal opinion cannot be given by an affiliate, officer, director, or employee of the issuer or the holder and proposal’s language around “red flags” may invite “skittish transfer agents to see ghosts.” The memo suggests some other ways that the proposal, if adopted, could change the process for issuers. For example:
[F]or every issue it services, a transfer agent would be required to keep a current list of the issuer’s own employees who are authorized to give it instructions on legends, and refuse instructions from anyone off that list. Only issuer employees can be on the list, so counsel, underwriters, and paying agents who have historically given legend instructions on an issuer’s behalf will need another route to the transfer agent.
Many transfer agents today accept shorter opinions where the opinion giver is relying almost entirely on representations given by holders and brokers. However, the safe harbor’s opinion checklist would require considerably more detail in the opinion itself (naming the documents reviewed, walking through a specific exemption, and reaching a transaction-specific conclusion).
[W]hat would [more] significantly increase the diligence burden is the requirement that transfer agents consider what could constitute a “red flag,” as discussed above. The proposed safe harbor cannot be met by simply ruling out the specific red flags enumerated by the SEC, but instead requires an opinion giver to have conducted a thorough investigation into a highly fact-dependent field of subtle distinctions and reached considered conclusions to identify problematic trades, which will dictate whether an opinion can be delivered.
Because the rule includes a broad definition of “unregistered securities transaction” and would encompass unregistered original issuances or transfers by an affiliate, that same “reasonable-basis analysis” would be required in “private placement closings, PIPE issuances, note conversions, warrant exercises, equity compensation deliveries, and affiliate transfers of every kind, many of which have never before required a transfer agent-facing legal opinion.”
Notably, note conversions and warrant exercises in particular are included in this list. These two actions historically have not been an area of concern for the SEC because any safeguards would have been applied to the initial issuance. By including these types of transactions within the scope of Rule 17ad-31, the SEC may be adding an additional layer of friction to these transactions. Equity compensation deliveries follow a similar pattern: equity compensation is largely regulated at the time of the initial issuance, and including it in the new rule’s coverage could make it somewhat more difficult for companies to align employee compensation with shareholders’ interests by tying compensation to future performance.
Ultimately, the memo concludes that the requirements transfer agents are likely to impose if these rules are adopted as proposed will make legend removal cost more and take longer at a time when settlement timing is very short, and the associated challenges may fall on issuers. Certain issuers, like those with significant affiliate holdings, may want to comment before the November 3rd deadline.
I recently shared on The Proxy Season blog that the number of investors participating in Vanguard’s investor choice program increased 6x from 2025 to 2026 according to its 2026 How Investors Vote Report. The significant increase in participation wasn’t limited to Vanguard. This report (available for download) on the 2026 proxy season from tumelo (which provides infrastructure that enables pass-through voting, including for Vanguard) shares that voting choice tripled and that the number of companies in the U.S. where an investor on tumelo’s platform could direct a vote went from 475 in 2025 to 720 in 2026.
Three seasons of pass-through voting have given us something we didn’t have before: enough data to say with confidence how investors behave once they have a choice over their vote [. . .] The measure we watch is divergence: how often an asset owner, given the choice, votes differently from what their pooled fund would have done by default.
They found that at least one proposal was voted differently at 89% of meetings and 24% of proposals were voted differently from the fund’s default.
Those two numbers feel like a good depiction of reality. Asset owners and their fund managers agree on about three-quarters of individual resolutions. The default is, most of the time, a perfectly good answer. But hand an asset owner a full meeting agenda and they will nearly always find one item where their own policy points a different way, and they vote accordingly.
What this means Voting choice isn’t being used to overturn the fund’s position on every single proposal, it’s being used where it matters to the investor. That matches what we hear in the market: asset owners are often broadly happy with their manager’s voting, but there are specific themes, proposals or individual companies where they want a say of their own.
They also found that that divergence reflected the consistent application of the investor’s policies and, in some cases, the need to direct individual votes because “no policy can perfectly anticipate every situation.”
Yesterday, the SEC announced that it plans to host a roundtable on the use of machine-understandable data and Super Intelligence (SI) on November 9 from 8:00 am to 3:30 pm ET at the SEC’s headquarters (registration required to attend) and streamed live on SEC.gov. The roundtable will include two panel discussions exploring “how market participants use SI and machine‑understandable data, the associated risks and costs, and ways the SEC can further support and enhance the use of these technologies.” According to the agenda, the panels will tackle these questions:
How Does the Market Use Super Intelligence (SI) and Machine-Understandable Data?
What risks and costs related to SI and machine-understandable data should the SEC consider?
How could the SEC better facilitate SI and machine-understandable data?
Liz recently blogged about the SEC’s recent Section 21(a) report addressing the actions of certain members of Climate Action 100+ (“CA100”) during the 2021 proxy contest targeting Exxon Mobil. This Cooley memo highlights some of the key insights to be drawn from that report:
– No enforcement action, but a clear warning. The SEC’s investigation raised serious concerns, and the SEC used the report to provide guidance for investors participating in similar organizations. Coordinated action prompted by an intermediary’s pressure on members to align regarding the acquisition, holding, disposition or voting of securities may provide circumstantial evidence of an agreement or understanding sufficient to create a “group” as determined under Sections 13(d)(3) and 13(g)(3).
– Disclaimers alone are not enough. Investors may reserve independent voting discretion and disclaim “group” status, but the SEC emphasized that actual conduct controls. At the same time, parallel voting, ordinary-course communications, independent voting decisions and passive receipt of an activist solicitation do not, standing alone, establish a “group.”
– Schedule 13G eligibility presents a separate risk. Even if investors have not formed a “group,” a qualified institutional investor or passive investor holding more than 5% may lose eligibility to report on Schedule 13G if its activities have the purpose or effect of changing or influencing control of the issuer. The report suggests that this analysis can extend beyond a director contest to coordinated efforts targeting specific management or policy outcomes.
– Proxy advisers are a natural area to watch. The report repeatedly focuses on intermediaries that organize investors around shared objectives and voting outcomes. That framework closely tracks the December 2025 executive order, which specifically directed the SEC to consider whether a proxy adviser can facilitate coordination among investment advisers sufficient to create a “group” as determined under Sections 13(d)(3) and 13(g)(3).
