To advise on whether an internal investigation is needed, you don’t just need to understand the applicable legal issues – you also need to exercise judgment and be familiar with the process. Sometimes, though, it can be challenging in the moment to recognize whether or not an issue is pointing towards an investigation.
This Faegre Drinker memo provides a helpful framework to identify common triggers for internal investigations and execute an effective, privilege-protected investigative process. The memo flags these stockholder demand triggers and summarizes the applicable Delaware law:
– Books and records demands
– Appraisal demands
– Derivative demands
Other triggers that the memo covers include white collar and government notices and internal misconduct. The memo explains that an internal investigation may be appropriate where:
– There are credible allegations of misconduct, and this includes gatekeeping reviews to determine credibility.
– A regulator has indicated, through formal or informal means, that there is potential misconduct.
– The issue could affect:
* Financial reporting or disclosures
* A pending or contemplated transaction
* Regulatory compliance or enforcement exposure
– The company must respond to stockholders, auditors, or regulators.
– The board is required to make a formal decision, such as responding to a derivative demand.
In these circumstances, engaging experienced counsel — often outside counsel — can help ensure that the investigation is conducted effectively and with appropriate independence.
The memo then walks through the steps of the investigative process and how to preserve privilege and independence and outlines key considerations for an external communications strategy during and after the investigation. Of course, practice makes perfect, and the Faegre Drinker team notes that for companies facing significant risk, tabletop exercises can be a valuable tool. Here’s an excerpt:
These exercises simulate scenarios such as:
– Receipt of a subpoena or search warrant
– Parallel civil and criminal investigations
– Media or market disclosures
The memo concludes with these best practices and pitfalls:
– Respond promptly and in good faith to all stockholder and government demands — delay or intransigence can result in adverse inferences, fee-shifting, or reputational harm.
– Maintain a clear record of the board’s oversight and involvement; this is critical protection if the investigation is later scrutinized by a court or regulator.
– Carefully consider privilege risks when communicating with auditors, business partners, or third parties.
– If criminal or regulatory action is possible, coordinate closely with outside counsel to avoid interfering with government investigations and to manage parallel proceedings.
– Use investigation findings as an opportunity to strengthen compliance, remediate issues, and update company policies or training as needed.
Programming Note: Our blogs will be off tomorrow in honor of Juneteenth. We will return on Monday, June 22nd.
The comments are rolling in on the SEC’s semiannual reporting proposal – so far, many of the submissions are from individual investors who oppose (or strongly oppose!) the proposal. This tracker from Professor Tzachi Zach at The Ohio State University Fisher College of Business categorizes the letters so that you can see at a glance the number that oppose, support, or conditionally support the proposal.
Although the overwhelming majority of commentors currently oppose the proposal, it’s worth noting that not all of the feedback is in quite yet – more on that below – and also that trade organizations often submit letters on behalf of all their members. That means the feedback may not translate neatly to a “one vote per letter” type of tally at the end of the day. But it’s still useful to see how different groups of market participants are reacting, and it will be up to the SEC to decide what’s persuasive. For extra credit, Professor Zach also built a comment tracker for the 2018 proposal on this topic – that proposal ultimately generated mixed feedback.
Many market participants have not yet submitted letters – and as this letter from MFA, AIMA and SIFMA Asset Management notes, it’s a bit challenging to have the deadline fall on the first business day after Independence Day (where we will be celebrating the 250th anniversary of the US Declaration of Independence, no less)! That 5-page letter essentially says, “Please sir, may we have until September 4th?”
As someone who has worked on comment letters for SEC rulemaking and knows how much effort goes into them – not the one-paragraph submissions that seem to be most common on this proposal to-date, but the more thorough variety – an extension sounds great to me! Whether that’s realistic or not in terms of the SEC accomplishing agenda items, might be another story.
The SEC’s recent semiannual reporting proposal has given public companies and their lawyers plenty to think about – and so has Nasdaq’s decision to permit extended 23/5 trading later this year. The semiannual reporting rules are just at the proposal stage – i.e., not a done deal – and Nasdaq’s move to extend trading hours seems to be more of a competitive and service-oriented response to market dynamics that are already happening, rather than something intended to cause big changes to corporate practices. Nevertheless, some proactive clients are already asking, “what’s everyone else planning to do?”
To be ready to answer that question, head over to this 18-question anonymous survey – prepared in collaboration with our friends at Fenwick & West and Orrick.
You don’t have to be a member of TheCorporateCounsel.net to take the survey, so we invite all of our readers to take a few minutes to complete it. We’ll share the results on this site when the survey closes!
Most corporate and securities lawyers I talk to are happy to have litigation be someone else’s problem. But sadly, we can’t entirely ignore it – especially when there’s interplay with public disclosures or it’s significant enough to hit the board agenda.
So, it’s helpful to know which issues plaintiffs are focusing on. This midyear update from Norton Rose Fulbright gathered perspectives from 135 general counsel and in-house litigation leaders across four US industries: energy, financial institutions, healthcare and technology. Here are the key takeaways:
• Cybersecurity and data privacy is the leading area where dispute exposure has deepened since the start of 2026. More than half of all respondents report increased federal- (56%) and state-level (53%) exposure, outpacing expectations outlined in the firm’s January 2026 research.
• AI litigation exposure is elevated as adoption advances. Forty-six percent report more federal dispute exposure, and 42% cite state-level increases.
• Class action risk still centers on cybersecurity and employment issues. Data or cybersecurity breaches (51%) are the leading events that all respondents consider likely to trigger class action litigation in 2026, followed by workforce changes such as layoffs or policy shifts (47%).
And here are trends at the industry level:
• Energy: Nearly six in 10 (57 percent) energy respondents report increased employment and labor dispute exposure at the federal level and 51 percent at the state level, the highest shares across industries. Energy respondents are also the most likely (57 percent) to consider workforce changes a likely class action trigger in 2026.
• Financial institutions: More than half of financial institutions respondents report increased federal exposure to cybersecurity and data privacy (53 percent) and consumer protection (53 percent) disputes, followed by AI at 47 percent. Data breaches or cybersecurity incidents are also this group’s most-cited class action trigger for 2026 (56 percent).
• Healthcare: Federal AI exposure increased for 53 percent of healthcare respondents, with the same share citing AI-enabled product deployments and product launches as a likely trigger of class action litigation. They are also the most likely to say AI governance and oversight issues have heightened (26 percent) since late 2025.
• Technology: Three-quarters of technology respondents report increased federal litigation exposure and 72 percent report state-level increases since the start of 2026, the highest shares of any industry surveyed. More than half (56 percent) expect privacy or data protection violations from AI use to contribute to litigation exposure; half also cite bias or discrimination claims and intellectual property disputes involving AI.
The 20-page memo also notes that public disclosures, earnings announcements, and ESG and sustainability statements remain some of the top triggers for class actions. We’ve posted this resource in our “Securities Litigation” Practice Area.
Ben Franklin said only two things were certain in life – death and taxes – but it sure seems like shareholder activists also find a way to persist no matter the conditions. According to this Barclays update, the number of shareholder activist campaigns increased in Q1 this year compared to 2025 – at least in the US. This mid-year update from Olshan identifies the key drivers so far this year. Here’s the intro:
A strong 2025 for shareholder activism has carried forward into the first half of 2026, with a variety of significant activist engagements and campaigns this proxy season. Activist campaigns have largely focused on operational, strategic, capital allocation, and governance-related improvements, with new activity in the M&A and IPO markets expected to impact activist demands and the corporate governance landscape overall.
Settlement agreements remain a key means for activists to change the composition of boards of directors, and C-suite turnover prior to and following campaigns reinforces the importance of succession planning and accountability in the boardroom. The evolving regulatory environment, geopolitical uncertainty, and a shift in institutional investor engagement have also impacted this proxy season, with the growing importance of AI also playing a significant role.
Many of us are pondering what types of trade-offs companies may face if the SEC moves to a more principles-based disclosure framework. The Olshan team offers these thoughts:
The evolving regulatory landscape continues to impact companies and activists this proxy season. Following last year’s 13G/13D guidance affecting engagement between companies and investors, the SEC is proposing a number of significant rule changes in an effort to encourage companies to become and remain public, as part of its “Make IPOs Great Again” agenda. These include proposed changes to securities offering disclosure rules and a proposed rule to give public companies the option to file periodic reports on a semiannual rather than quarterly basis. If semiannual reporting becomes available as an alternative, we expect that many companies will continue to report on a quarterly basis (at least initially) or find other avenues for providing investors with material financial information, and those that do not will likely face criticism for lack of transparency, and potentially see negative implications in director elections. If the financial information flowing to investors changes, investors will need to adapt their approaches to monitoring and engaging with companies. We do not expect that would significantly affect the volume of activist activity, but it may have an impact on the timing and cadence of campaigns, and lead to changes in governance best practices promoted by institutional investors and proxy advisors.
The SEC has also proposed rule changes that would make significantly more public companies qualify for exemptions from mandatory “say-on-pay” votes, pay-versus-performance disclosures, and auditor attestations of internal controls over financial reporting. If adopted, these changes would similarly decrease the information investors have available and eliminate certain compensation-related data points that activists have historically used to help identify potential targets, gauge investor sentiment and support their campaigns. For most proxy campaigns involving seasoned activists, however, executive compensation is just one of the multitude of issues that activists can point to while making their case for change, with concerns surrounding performance, strategy, operations, capital allocation and governance remaining at the forefront.
In this 31-minute episode of the “Mentorship Matters with Dave & Liz” podcast, Dave and I were delighted to continue our conversation about Hollywood portrayals of securities law issues and securities lawyers – again featuring enthusiastic color commentary from Charles Lee, who serves at the SEC as Senior Advisor, Office of the Chairman, and Ted Yu, who serves at the SEC as Associate Director of Specialized Policy & Disclosure in the Division of Corporation Finance. In this episode, we discussed:
1. Board and compliance dynamics in “Billions.”
2. Schedule 13D anarchy in “Other People’s Money.”
3. Hollywood’s take on shareholder meetings.
4. Why IPOs are an underutilized securities law plot.
5. Honorable mentions for favorite securities law movies and tv shows.
6. SEC Historical Society’s list of securities law in film, radio, and television.
7. Wrap-up thoughts on securities law in Hollywood.
If you missed Part 1 of this conversation, you can check out Dave’s recent blog about it – and all of our prior episodes are available in our podcast archive.
In both episodes, Charles and Ted were speaking with us in their individual capacities – and as always, the SEC disclaims responsibility for any private publication or statement of any SEC employee or Commissioner, and this podcast expresses the speakers’ views and does not necessarily reflect those of the Commission, the Commissioners or other members of the SEC staff.
Thank you to everyone who has been listening to the podcast! If you have a topic that you think we should cover or guest who you think would be great for the podcast, feel free to contact Dave or me by LinkedIn or email.
While scholarship continues to discuss the historical affects of films on the American public, there is little exploration of the portrayal of U.S. financial markets in motion pictures. Financial markets are a large part of the American economy and culture. Moreover, movies have depicted markets, misdeeds, and regulation since the invention of silent film. By studying the various ways American movies have shown the image of the markets, nature of financial misdeeds, and the role of regulation over the past century, people can begin to consider how film may have reflected and shaped public perception of financial markets.
Dr. Miller calls on scholars to reflect on and synthesize how films about financial regulation reflect and shape public views. I can’t promise “scholarship,” but maybe we’ll do another podcast at some point! Also check out this page from the SEC Historical Society – with film, radio, and tv clips through the years of the SEC and financial markets in action.
In remarks last week at the US Chamber Capital Markets Summit, Corp Fin Director Jim Moloney recapped how the SEC’s recent proposals to reform registered offering rules and filer status thresholds would work together to simplify the hodge-podge of registration and reporting rules that seem to be a hurdle for companies looking to access the public companies – especially small- and mid-sized companies. Since we take a lot of cues from Corp Fin, Jim’s perspective is helpful for piecing things together (Jim gave the remarks in his official capacity, but as always they don’t necessarily reflect the views of the Commission, any Commissioner, or staff, etc. etc.). Here’s an excerpt:
While these Proposals may look like “new builds,” the design blueprints are time-tested. These Proposals, if adopted, would impact how public companies register securities and report to investors. I will point to just one example from each proposal to demonstrate how impactful these rules could be.
The Registered Offering Reform Proposal, if adopted, would give smaller public companies access to shelf registration for the first time in decades, increasing the number of eligible companies by more than 60 percent.[5] It would rewire the house to support the higher amperage of capital flows required today. Consider a small, pre-commercial biotech company that successfully completed an IPO within the past year, but that needs to conduct a follow-on offering to raise additional capital to further its clinical trials. The company cannot wait weeks or months for SEC review of its registration statement that repeats much of the same information already provided to investors in its IPO registration statement. But, under the current rules, that’s exactly what companies have to do.
Form S-3, the vehicle for shelf registration, currently requires a $75 million public float and a 12-month reporting history — thresholds set in the 1990s that today shut out companies that have earned their place in the public markets and need to raise capital on their own timelines. The Registered Offering Reform Proposal would replace these obsolete thresholds with two simple questions: (1) Is this company an “ineligible issuer”?[6] and (2) Is this company current and timely in its SEC reporting?[7]
The Filer Status Proposal would take the same approach to disclosure. Right now, SEC rules sort public companies into five different compliance buckets, some overlapping. The proposal, if adopted, would raise the Large Accelerated Filer threshold from $700 million to $2 billion in public float, reserving the most demanding disclosure rules and reporting deadlines for the largest corporations.[8] For everyone else – 81 percent of all public issuers, although only 6.5 percent of total market public float[9] – the amendments would likely result in reduced audit fees and other costs. The current system has a leaky roof and sagging floorboards, and this proposal would alleviate these signs of structural stress.
Some companies become subject to auditor attestation of internal controls[10] before generating a single dollar of revenue, simply because the companies’ market value crosses the accelerated filer threshold at one specific testing date. One biotech company in particular reported spending around $11 million on that compliance obligation alone since it crossed the $700 million public float threshold in 2021, roughly the cost of running a large Phase 2 clinical trial.[11] Under the thresholds in the proposal, many companies would be able to instead deploy that capital to further their business operations.[12]
Jim noted that all of the recent proposals are currently open for comment. Additionally, as Meredith shared a couple weeks ago, SEC Chair Paul Atkins has opened a new comment portal specifically for IPO modernization. Jim’s remarks call out that the SEC is looking for companies as well as investors. Building on another recent blog from Meredith, here are all the upcoming comment deadlines:
Earlier this month – June 6th – the SEC celebrated its 92nd birthday. That was the date the Securities Exchange Act, which created the Commission, was signed into law. In a speech last week, Commissioner Hester Peirce paid tribute to where the SEC has been and where it’s going. That got me thinking that it would be fun to pull together a few of the blogs we’ve shared through the years to mark the SEC’s existence. Here are a few highlights:
Speaking of milestones, Commissioner Peirce also noted in this speech – titled “Peirce Out” – that she’s moving to the beach in the not-too-distant future. I’m not exactly sure when Commissioner Peirce’s last day is at the SEC, but as Meredith shared, she’s starting a new gig at Regent University School of Law this fall. It will be the end of an era!
Looking ahead to what’s on the horizon for the SEC during these exciting times, the agency announced last week that John Moses has been appointed Director of the Office of Investor Education and Assistance, which provides services and resources to help investors build their financial futures and protect against investment fraud. John has been at the SEC since 2016 and has been serving as Acting Director of this Office prior to his permanent appointment. His background before joining the SEC was in real estate, operations, and the US Navy.
The latest issue of The Corporate Counsel newsletter has been sent to the printer. It is also available now online to members of TheCorporateCounsel.net who subscribe to the electronic format. The issue includes the following articles:
– ‘Form 10-Q for Thee, But Not for Me?’ SEC Proposes Optional Semiannual Reporting
– ‘Everybody into the Pool!’ SEC Proposes to Overhaul Rules for Registered Offerings
– The Great Filer Reset: SEC Proposes to Streamline Filer Status Categories
Email info@ccrcorp.com or call 1.800.737.1271 to subscribe to this essential resource!
