On Friday, the Corp Fin Staff published four new “Securities Act Forms” CFIs to clarify the availability and mechanics of incorporation by reference on Form S-1. Here they are:
Question: A company was not eligible to incorporate by reference when it filed a registration statement on Form S-1 and did not utilize historical or forward incorporation by reference. Can the company subsequently utilize incorporation by reference in its next pre- or post-effective amendment if, at the time it files the amendment, it meets all conditions for use of incorporation by reference?
Answer: Yes. The staff believes that a registrant that becomes eligible to use historical or forward incorporation by reference may do so at any time by filing a pre- or post-effective amendment, as applicable, by analogy to Securities Act Rule 401(c) which permits use of a shorter form registration statement at the time of any amendment to a registration statement. The pre- or post-effective amendment to add incorporation by reference must include the information required by Item 12 of Form S-1. [Sept. 4, 2026]
Question: If a smaller reporting company complies with Item 12(b) of Form S-1 by indicating that it has elected to forward incorporate on Form S-1, must it meet all of the eligibility requirements and conditions to using incorporation by reference set forth in General Instruction VII of Form S-1 in order for the documents subsequently filed by the registrant to be incorporated into the registration statement?
Question: If a company that is eligible to forward incorporate by reference on Form S-1 has elected to forward incorporate information filed after the effective date of the registration statement under Item 12(b), must it also incorporate by reference into the prospectus contained in the registration statement the documents required to be specifically incorporated by Items 12(a)(1) and 12(a)(2) of Form S-1?
Question: A prospectus in a Form S-1 registration statement, unlike Form S-3, does not require incorporation of any other document by reference. If a registrant eligible to forward incorporate by reference elects to do so, does forward incorporation of subsequent Exchange Act filings always provide all of the itemized disclosure required in a prospectus in a Form S-1?
Answer: No. In order to determine whether a registrant has a complete prospectus at the time of any sale, a registrant that has elected to forward incorporate by reference must consider whether any item of Form S-1 requires disclosure not included in any Exchange Act filings subsequently filed by the registrant that the Form S-1 has incorporated by reference. To the extent such registrant needs to add such disclosure to its prospectus, it will need to evaluate whether to file a post-effective amendment to the registration statement or prospectus supplement. However, if the information required by Form S-1 appears in incorporated documents under headings that differ from the Form S-1 item headings, incorporation by reference still satisfies the form’s requirements. [Sept. 4, 2026]
This may not be a groundbreaking rulemaking proposal like some in our community were hoping for before Labor Day, but it’s still helpful clarification for companies not eligible to use Form S-3. Meanwhile, the Commission’s current proposal on registered offering reform could make it easier for many (but not all) companies to use the short form (S-3), while also extending the availability of forward incorporation by reference on Form S-1 to more issuers. We’re continuing to post law firm memos about the proposal in our “Form S-3″ Practice Area.
Question: A filer attempted to register the offer and sale of securities on a Securities Act registration statement by claiming an offset against fees paid on a preliminary merger Schedule 14C [PREM14C] filed for a different transaction. The filer cited Rule 457(b) as the basis for the offset. May the filer claim this offset?
Answer: No. This offset is not available because the PREM14C was filed in connection with a different transaction. Rule 457(b) and the analogous Exchange Act Rule 0-11(a)(2) only ensure that, for any single transaction, the total fee paid for that particular transaction is to be calculated based on the overall transaction rather than requiring a fee for each step of the transaction. See Release No. 33-6617 (Jan. 9, 1986). [Sept. 4, 2026]
Remember that issuers can use Rule 457(p) to carry forward fees in some circumstances. We’ll be updating our “Filing Fees” Handbook for the new CFI – members can use this resource for a practical explainer on how all this works.
We are seeing quick turnaround these days with publication in the Federal Register – so we didn’t expressly call out that the SEC’s proposed “Regulation E-Delivery” was published back in late July, not too long after the proposal was issued. As I mentioned in this blog on the various outstanding proposals, comments are due September 21st.
We are continuing to post memos about the proposal in our “E-Delivery” Practice Area. This Gibson Dunn memo shares a few questions that companies may want to weigh in on during the comment period:
• Whether electronic addresses collected by an issuer’s transfer agent or proxy solicitor, or a NOBO list, could be used for default e-delivery;
• The retention of the NOIA process (and related 40-day deadline) as an alternative for proxy statements;
• The extent of an issuer’s obligation to identify and remediate e-delivery failures (e.g., bounce backs);
• The definition of PFI, including whether it should exclude addresses and general brokerage information; and
• The creation of a hybrid solution for shareholder lists under Rule 14a-7 so issuers could agree to forward electronic communications from third parties while providing requestors with mailing addresses.
Also check out Dave’s and Meredith’s earlier blogs on the proposal:
If you’ve ever seen me in person, you probably guessed from the mustard stains on my shirt (not to mention my waistline) that I love hot dogs. It’s pretty clear that I’m not alone in that sentiment. According to the National Hot Dog & Sausage Council, Americans consume over 7 billion hot dogs during “hot dog season,” which the Council says runs from Memorial Day to Labor Day. Since Monday is Labor Day, and because frivolity around holidays is one of this blog’s traditions, this seems like an appropriate time for me to pay tribute to my beloved frankfurters.
On Labor Days past, I’ve shared my views on summer cocktails and the right way to cook corn on the cob. And on most Labor Days you can usually find me on my patio grilling corn and some kind of protein over charcoal and enjoying a Dark ‘n Stormy or two. I can’t say that the corn was always accompanied by hot dogs, but they certainly have been a regular part of the rotation over the years.
Sadly, this year finds me on the grilling disabled list. I had a hip replacement a couple of weeks ago and so I’m currently limping around on a cane when I’m not confined to my recliner. Of course, knowing that I can’t prepare some grilled dogs on my own only makes me pine for them more – which in turn gave me the idea for this late summer reverie.
I’ve had hot dogs all across this great land of ours and have yet to encounter a frank I didn’t like. From the dirty water Sabrett hot dogs in Midtown Manhattan to the Lucky Dogs on Bourbon Street to the Chicago style dogs with radioactive relish and a salad on top to the legendary $1.50 Costco hot dogs, I’ve only got good things to say about them. I even like the very average dogs they sell at the Cleveland Guardians games, which are transformed into something special when you cover them in MLB’s best mustard.
Notwithstanding my embrace of all hot dogs, I have some special favorites, which I will now inflict on those of you who are still reading.
All Hail Western New York! If you’re going to grill your hot dogs, then Western New York is the place to get them. Rochester has Zweigle’s and Buffalo has Sahlen’s, both of which brands offer hot dogs in natural casings that split open when you grill them, snap when you bite them, and taste absolutely sublime. For a unique taste of my home town, try Zweigle’s White Hots. These are one of Rochester’s three great culinary contributions to our nation – the other two being Chicken French and, of course, Nick Tahou’s Garbage Plate.
Love that Dirty Water. There’s nothing like a dirty water hot dog from a hot dog cart. They’re a reliable choice in any city, but if you’re in Cleveland and want something unique from a hot dog cart vendor, give a Polish Boy a shot. You won’t leave hungry – or with a clean shirt.
Where’s the Beef?. When it comes to all-beef franks at the supermarket, my go to brands are Nathan’s and Hebrew National. No offense to Sabrett, which I know the elites at The New York Times fancy, but you can’t get that brand around here. Anyway, I think I like the taste of Hebrew National a little more than Nathan’s, although I may be biased by the classic ads I grew up watching. Still, Nathan’s hot dogs are easier to find than Hebrew National where I live and, because I’m a fat pig, I value the availability of their Colossal Quarter Pound Beef Franks.
While I’ve sampled hot dogs near and far, there remain several styles that I’ve yet to try. For example, even though I lived in the Detroit area for a few years when I was very young, I’ve never had a Coney. I’ve also never tried a Sonoran Dog, a Seattle-style Dog, or an LA Street Dog. These are all on my bucket list, and since Americans are infinitely creative, I’m sure I’ll discover others to add to my list as time goes by.
Of course, I’m mindful of the need for moderation in pursuit of completing my hot dog bucket list, because these things aren’t made of kale. I want to hang around long enough for my new hip to wear out, and if I’m too aggressive in my pursuit of hot dog heaven, I might hit my expiration date a lot sooner than my hip does.
Have a great Labor Day, everybody. Our blogs will be back on Tuesday.
Yesterday, the Corp Fin Staff again waded into the murky waters of Schedule 13G eligibility and issued three new CFIs addressing the impact of certain engagement scenarios on an investor’s ability to report its holdings on Schedule 13G. These are set forth in their entirety below:
Question 103.13
Question: An issuer requests a meeting with a shareholder to discuss the shareholder’s views or voting decisions on matters that either were submitted for a vote at a past shareholder meeting or will be submitted for a vote at an upcoming shareholder meeting. If the shareholder reports its beneficial ownership of the issuer’s securities on a Schedule 13G in reliance on Rule 13d-1(b) or Rule 13d-1(c), can the shareholder participate in such a discussion without losing its eligibility to report on a Schedule 13G?
Answer: The context in which an engagement occurs is highly relevant to the determination of whether a shareholder is holding securities with a disqualifying purpose or effect of “influencing” control of the issuer. Generally, (1) an engagement initiated by the issuer itself or (2) a response to an issuer’s request to understand why the shareholder voted in a certain manner at a past shareholder meeting is less likely to be viewed as an attempt by the shareholder to “influence” control of the issuer. Therefore, participation in such a discussion would not, by itself, disqualify a shareholder from reporting on a Schedule 13G. The determination is based on all the relevant facts and circumstances. [September 2, 2026]
Question 103.14
Question: Can a shareholder reporting its beneficial ownership on a Schedule 13G in reliance on Rule 13d-1(b) or Rule 13d-1(c) participate in discussions with a person engaged in a proxy solicitation with respect to a particular issuer without losing its eligibility to report on a Schedule 13G?
Answer: The fact that a shareholder discusses its views on a particular topic and how those views could inform its voting decisions with a person engaged in a proxy solicitation would not, by itself, disqualify the shareholder from reporting on a Schedule 13G. [September 2, 2026]
Question 103.15
Question: A shareholder reporting its beneficial ownership on a Schedule 13G in reliance on Rule 13d-1(b) or Rule 13d-1(c) reviews the disclosures in an issuer’s filings, such as its proxy soliciting materials, and seeks clarification about particular facts or statements asserted in the filings. Would the shareholder lose its eligibility to report on a Schedule 13G if it contacts an issuer and seeks such clarification?
Answer: No. A shareholder would not be disqualified from reporting on a Schedule 13G solely because it engages with an issuer to better understand the issuer’s disclosures or other public communications. [September 2, 2026]
The last time Corp Fin issued CFIs relating to the topic of how communications by an investor might affect its Schedule 13G eligibility, everybody sort of freaked out, and institutional investors became more cautious when engaging with issuers. The tone of these CFIs is clearly different than the last batch, and hopefully the guidance they contain will help encourage a somewhat more open approach.
I think we’ve all seen some ham-fisted efforts by public companies to downplay bad financial news. This is always a bad idea – among other things, it frequently leads investors to conclude that the company and its management team are insulting their intelligence. Over on RealTransparentDisclosure.com, Broc recently blogged about this topic. This excerpt highlights examples of practices that companies should avoid when conveying bad news to investors:
– Serial, italicized, headline subtitles that refocus attention away from key financial results
– Overemphasis upon non-GAAP results, and even discussing them to the exclusion of GAAP results
– Introducing completely new reporting metrics – just for the quarter – to highlight data that might distract investors from the poor results
– Long-winded CEO quote setting forth how “unbelievably excited” they are about some of the “extremely transformative” things the company is working on that make them “incredibly optimistic”
– Changing the comparative reporting periods to opportunistically highlight sequential results, since the year-over-year comparisons are bad
– Lengthy, bullet-pointed lists of “business highlights” that are predominantly comprised of immaterial information
– Introduction of new initiatives that investors don’t hear much about thereafter
Broc says that the only way to deal with bad news is to confront it head on. I couldn’t agree more. If you don’t, the downside isn’t limited to investors feeling like you’ve insulted their intelligence. Investors know they aren’t stupid, but antics like these may well cause them to reach a different conclusion when it comes to your management team.
Over on The Cooley Capital Xchange Blog, Liz recently addressed the implications of the changes to Nasdaq’s trading halt rule made as part of the implementation of 23/5 trading. This excerpt summarizes the expanded rule:
The amended rule builds on the mandatory trading halt framework that already exists for reverse stock splits – extending it to eight specified categories:
1. trading symbol/ticker changes
2. CUSIP changes
3. Stock dividends valued at 25% or more of the Nasdaq official closing price on the day immediately preceding the ex-date (whether payable in cash, stock, another security or a combination)
4. Forward and reverse stock splits
5. DeSPAC transactions
6. Spinoffs
7. Changes to the form, type, class or designation of a listed security
8. Mergers or other mandatory exchanges
Additionally, a “catch-all” category applies when Nasdaq determines that another corporate action or issuer-related event requires a trading halt to protect investors or maintain fair and orderly markets.
When one of these actions or events occurs, Nasdaq will implement a trading halt after post-market hours end at 8:00 pm ET and before the 9:00 pm ET night session begins. This will happen on the day before the market effective date of the corporate action. Trading will resume at 8:00 am ET on the market effective date
Liz goes on to point out that the rule doesn’t change existing notice and public disclosure requirements for listed companies, including notification requirements applicable to reverse stock splits, dividends and distributions, and changes in ticker symbols.
Liz suggests that companies update checklists and existing processes for corporate actions to identify those that may trigger trading halts early on. She says that companies should also map out the full timeline for a particular action with their transfer agents, Nasdaq & other intermediaries to confirm key notice and disclosure deadlines, and prepare to respond to investor questions about a trading halt.
On a related note, yesterday the SEC announced the agenda and participants for its Sept. 17th roundtable on preparing for 24-hour trading.
Yesterday, the SEC announced proposed rules intended to modernize the regulatory scheme for registered transfer agents. Here’s the 421-page Proposing Release and here’s the two-page Fact Sheet. This excerpt from the Fact Sheet says that the proposal would make the following changes:
– Amend the registration and annual reporting requirements for transfer agents, including the questions and instructions on Forms TA-1 and TA-2.
– Modernize the rules to reflect how transfer agents carry out their activities in light of technological advancements, including the use of electronic and blockchain-based recordkeeping and uncertificated securities.
– Establish new requirements related to turnaround, risk management, and inactive securityholders.
– Introduce two new rules addressing compliance and restrictive legends for registered transfer agents.
The proposed rule addressing restrictive legends is likely to be the most interesting part of the proposal for securities lawyers. The rule would require transfer agents to establish a reasonable basis for removing restrictive legends on a security, and would also create a safe harbor for establishing the existence of such a reasonable basis. Fitting into that safe harbor is where things get interesting.
The proposal offers two potential routes to that safe harbor (see the discussion beginning on p. 206 of the Proposing Release). One would permit the transfer agent to rely on its own efforts, but that would require the transfer agent to jump through several documentation and due diligence hoops. The second alternative would allow the transfer agent to rely on an opinion of counsel, but that opinion must be rendered by “counsel who is not an affiliate, officer, director, or employee of either the issuer or the individual or entity seeking to resell shares of the issuer.”
That language suggests that a transfer agent couldn’t fit into the safe harbor by relying on an opinion from the issuer’s in-house counsel. While I think it’s more typical for outside counsel to render these opinions, I know some public companies look to their in-house team to handle them. I also know that there have been some enforcement actions against lawyers who’ve rendered questionable legend release opinions, but I’m not aware of any involving in-house counsel, and this seems like overkill to me.
In either case, the transfer agent must also not be aware of any “red flags” with respect to the transaction for the safe harbor to apply. Examples of potential red flags are set forth on p. 205 of the Proposing Release. While some are clearly problematic (e.g., incomplete or non-existent issuer SEC filings, inconsistent financial information and altered charter documents), others seem less clear-cut (e.g., issuers with several business combinations or large reverse stock splits) and, without further clarification, may invite skittish transfer agents to see ghosts.
Ernst & Young had a much improved result in its latest PCAOB inspection. According to the PCAOB’s report, EY’s Part I. A. audit deficiency rate declined from 28% in 2024 to 5% in 2025. This excerpt from a CFO Dive article says that the firm believes its investments in technology, including AI tools, had a lot to do with the improved results:
For EY, the turnaround was the “direct result” of a $1 billion investment in technology and talent to “increase audit quality, including expanded use of AI and advanced analytics, continuous learning, and shifting work so teams focus on the areas requiring the highest levels of judgment and insight,” the firm said in an emailed statement.
The technology changes focused heavily on standardizing and simplifying the audit process globally, [EY Americas CTO Richard] Jackson said.
EY also worked to eliminate unnecessary audit steps and concentrate more closely on procedures tied to key risks, while investing in employee training and compensation.
Interestingly, the article says that the inspection results don’t reflect additional investments in generative and agentic AI tools that the firm introduced this year.
It’s also worth noting that the inspection report showed significant drops in the deficiency rates among the other Big Four firms. KPMG’s deficiency rate dropped from 20% to 13%, PwC’s dropped from 16% to 9%, and Deloitte’s dropped from 14% to 9%. The article doesn’t mention the extent to which tech and AI investments played a role in the other firms’ improved results, but it’s hard to imagine they didn’t.
If you’ve served as underwriters’ counsel for an IPO, you are well aware that several FINRA rules come into play during the IPO process. If you haven’t been involved in many IPOs or you’ve served only in the capacity of issuer’s counsel, then you may not be as familiar with some of the FINRA compliance hurdles your underwriters and their lawyers have to contend with. If you fall into this latter category, then this King & Spalding memo addressing FINRA’s public offering rules is worth your time. Here’s the intro:
This note provides an overview of important FINRA and SEC rules that companies and underwriters should consider in connection with US initial public offerings (IPOs) of equity securities. The discussion regarding FINRA rules focuses on four related areas: the Corporate Financing Rule (Rule 5110), which regulates underwriting terms and compensation; the Conflict of Interest Rule (Rule 5121), which regulates offerings of securities that are subject to a conflict of interest; and the two IPO Allocation Rules: the New Issue Rule (Rule 5130) and the IPO Allocation Rule (Rule 5131). The note also highlights the recent amendments to Rule 5110 that were recently approved by the SEC in 2026, and their potential implications for IPO planning and execution.
The memo also discusses the SEC’s registered offering reform proposal and its implications for the IPO process.
