As I recently shared in this Cooley CapitalXchange blog, the market seems to be receptive to a variety of types of securities offerings right now. That’s a good thing for highly levered companies, as this Weil alert notes:
A wave of near-term debt maturities, persistent covenant pressure, and a financing market that rewards speed and certainty over marketed processes have pushed balance sheet management to the top of the agenda for management and boards of highly levered companies. For companies navigating this environment, the equity capital markets offer a variety of means of raising new capital, including some effective but less frequently used alternatives. Used deliberately, they are balance sheet management tools in their own right, capable of improving liquidity, reducing leverage and strengthening a company’s position in creditor negotiations.
Three equity financing techniques are particularly well suited to these objectives, each addressing a different balance sheet need. At-the-market programs (ATMs) provide flexibility and low cost of capital, allowing companies to raise capital incrementally over time at prevailing market prices. Registered direct offerings trade some of that pricing efficiency for confidentiality and execution certainty, raising committed capital in a single negotiated transaction with terms that can be agreed upon before any public announcement. Debt-for-equity exchanges reduce leverage directly, retiring outstanding debt without requiring new cash. Together, these tools give public companies a range of options for managing liquidity, leverage and refinancing risk as financing needs evolve.
The alert points out that preparation is key: To use these alternative offerings effectively, companies need to understand their advantages and limitations ahead of time. The Weil team walks through that in detail in the memo for each alternative – and provides this handy chart to summarize key tradeoffs:
The alert also discusses how the SEC’s currently proposed changes to the shelf registration framework would affect companies’ access to capital. We’re continuing to post memos about the SEC’s proposal in our “Shelf Registration” Practice Area.
For the latest episode of “Mentorship Matters with Dave & Liz,” Dave and I were honored to talk with Chaka Patterson, who recently published the book “The Hot Seat: Mastering the Public Company General Counsel Role.” Chaka is Founder and CEO of Chaka Strategy, a leadership and strategic advisory firm that helps Chief Legal Officers and General Counsels of publicly traded companies become more effective enterprise leaders, and he is also a lecturer at the University of Chicago Law School.
During his career, Chaka has served in the roles of General Counsel, VP of Treasury and Investor Relations, outside counsel, and enforcement attorney for the Illinois AG’s office – so he has a well-rounded perspective and shared a lot of helpful advice during our 23-minute conversation. We discussed:
1. Mentors who influenced Chaka’s career path in private practice, enforcement, and in-house roles – and the important lessons they shared.
2. What inspired Chaka to write “The Hot Seat: Mastering the Public Company General Counsel Role” – and why he felt that now was the right time to publish this field guide.
3. Chaka’s advice for building and strengthening important relationships with the C-suite, board and other stakeholders.
4. Skills and experiences that lawyers should actively seek if they aspire to have a general counsel role and thrive in “the hot seat.”
5. How to overcome common patterns that hold lawyers back.
Among other takeaways, I appreciated Chaka’s advice to move away from the “volume mindset” and his thoughts on shifting from a technical expert to a strategist.
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.
We know that the search function on TheCorporateCounsel.net hasn’t exactly been one of our strong points, and that’s why we’re pleased to announce that we’re rolling out an enhanced search tool for our members to take for a test drive. We’ve tested this with smaller groups, but we want to give everyone a chance to use the beta version of the tool and provide us with feedback about how we can improve it. (We’ve included a feedback button in the upper right corner of the tool’s homepage for your convenience).
Our enhanced search tool will allow you to access the guidance you need in fewer clicks. It features a reformatted user interface and search algorithm that’s designed to surface relevant and timely content. It also features “Smart Mode”, where you can get direct answers to some of your questions via a very basic AI chatbot.
We’ve intentionally kept this AI chatbot simple, in order to reduce the likelihood that it will do weird AI stuff – you know, like identifying Greg Sankey as the Chairman of the Securities and Exchange Commission. Anyway, if you have complex questions, please continue to post those on our Q&A Forum.
You can access the enhanced search tool by clicking here, or by clicking the box in the top right corner of TheCorporateCounsel.net homepage.
We know some members would like to vet AI elements prior to use. Our enhanced search uses a lightweight AI function when Smart Mode is enabled. Please contact Editor Zachary Barlow at zbarlow@ccrcorp.com if your firm or company would like us to disable Smart Mode pending approval.
Yesterday, the Treasury Department’s Financial Crimes Enforcement Network – known as “FinCEN” – announced that it had issued a final rule that permanently removes the requirement for U.S. companies and U.S. persons to report beneficial ownership information to FinCEN under the Corporate Transparency Act. The rule will be effective upon publication in the Federal Register. Additionally, FinCEN will delete from its database information previously reported by US persons. Thanks to Weil’s Howard Dicker for alerting us!
Here are 12 FAQs about the final rule. The announcement shares these key points about what it does:
– adopts the exemptions set out in the interim final rule issued in March 2025, making the rollback of beneficial ownership reporting by U.S. companies permanent;
– exempts U.S. persons who have obtained FinCEN IDs from any obligation to update or correct the information they originally provided to FinCEN to obtain their FinCEN IDs;
– eliminates the requirement for foreign companies to report U.S. person “company applicants” (i.e., the individuals who helped those foreign companies register to do business in the United States);
– exempts foreign pooled investment vehicles registered in the United States from reporting the beneficial ownership information of a U.S person in control of the investment vehicle; and
– confirms that FinCEN will delete information about any individuals—company applicants, beneficial owners, or recipients of a FinCEN ID—that FinCEN reasonably believes is a U.S. person (e.g., the information is linked to a U.S. passport or U.S. driver’s license).
Under the final rule, foreign entities that are reporting companies will still be required to report beneficial ownership information for foreign individuals.
The announcement notes that guidance on FinCEN.gov will be updated to reflect the final rule.
In late July, the California Privacy Protection Agency announced its first sectoral audit – focused on “gig economy” platforms. CalPrivacy says this is the first in a series of sectoral audits that evaluate compliance with the California Consumer Privacy Act. CalPrivacy is especially focused on compliance with consumers’ rights to access and exercise control over their personal information.
This Freshfields blog says the audit signals a focus on effective governance and controls around privacy requirements, and that companies in other industries should treat it as a preview of coming attractions. Here’s an excerpt:
The distinction between a single-business enforcement focus and an industry review is notable. Where a traditional investigation asks whether a business has complied with applicable privacy laws—often triggered by a particular incident, complaint, or event—a sectoral audit explores how a business implements privacy obligations across its business functions and whether it achieves compliance on an ongoing basis. For example, regulators may look beyond simply checking whether businesses fulfilled access or deletion requests and instead evaluate whether a business has built the underlying architecture to maintain compliance. Specifically, regulators may look at how businesses:
– Receive, track, and fulfill access and deletion requests across systems
– Monitor and enforce statutory deadlines
– Establish privacy governance structures
– Allocate privacy compliance responsibilities across teams and departments
– Audit, document, and verify compliance with legal obligations.
In short, a sectoral audit looks past isolated compliance outcomes to examine the processes and accountability mechanisms that produce them.
The blog recommends testing whether privacy compliance is operationalized. Check out our “Data Privacy” Practice Area for other recent developments and resources on risk management.
We’ve posted the transcript for our recent webcast: “The SEC’s Proposal to Simplify Filer Status & Reduce Reporting Burdens.” This program featured Luna Bloom of the SEC’s Division of Corporation Finance, Howard Dicker of Weil Gotshal, Raquel Fox of Skadden, and Dave Lynn of Goodwin (and, of course, TheCorporateCounsel.net). They discussed:
– Overview and Policy Objectives of the Proposal
– Revisions to Filer Classifications and Definitions
– Expanded Accommodations and Scaled Disclosure
– Initial and Annual Determinations of Filer Status; Transition Rules
– Requests for Comments and Potential Changes to the Proposed Rules
– Considerations for Companies Considering Scaled Disclosure
– Relationship of the Proposal to Other SEC Initiatives
Members of TheCorporateCounsel.net can access the transcript of this program. If you are not a member, email info@ccrcorp.com to sign up today and get access to the full transcript – or call us at 800.737.1271.
The Center for Audit Quality, together with KRC Research, recently published this 24-page institutional investor survey on the use of artificial intelligence in research and analysis for investment decision making.
The survey was conducted in May 2026 and represents views from 100 investors with $500 million or more in assets under management (the appendix has a lot of detail about job titles, type of investor, etc.). It follows a CAQ survey that Dave blogged about earlier this summer on how investors felt about using GenAI in public company audits.
Here are a few key findings:
– Earnings calls are one of the most common “use case” – with 16% using AI all the time to analyze earnings calls transcripts, 45% using it often, 14% using it occasionally, 13% using it rarely, and 13% never. If you don’t have your math hat on, that means 60% of investors said they use AI tools “always” or “often” to analyze earnings calls.
– For company filings like 10-Ks and 10-Qs – 16% of investors are using AI to analyze filings all the time, 25% often, 33% occasionally, 13% rarely and 14% never.
– Investors are also using AI tools on risk assessment scenario analysis (49% always or often), financial modelling and projections (46% always or often), and screening investment opportunities (45% always or often).
The survey gives this additional color on how AI tools are used to review company filings:
– Extracting specific financial or operational metrics – 60%
– Summarizing key sections like the MD&A, risk factors, etc. – 58%
– Comparing filings across similar companies in the same industry – 50%
– Identifying inconsistencies between narrative and financials – 48%
– Comparing filings across time periods for consistency or significant changes – 47%
– Synthesizing insights across multiple disclosures – 46%
– Identifying anomalies or red flags – 45%
– None of the above – 2%
Companies are already using AI to quality-check filings, but this investor-sourced list might help with your prompts.
Yesterday, the SEC announced that it will hold an open meeting this Friday, August 14th, at 10 am ET to consider whether to issue a release proposing new rules to create a tailored offering regime for certain investment contracts involving crypto assets. The meeting will be held in person at the Commission’s headquarters and by webcast on www.sec.gov.
Here’s the Sunshine Act Notice. Here’s the agenda – confirming it’s just the one item – and stating that Jim Moloney, Sebastian Gomez Abero, and others from Corp Fin will be there.
On Friday, the SEC announced that it had filed a joint stipulation to dismiss, with prejudice, claims against Terren Peizer, which were premised on alleged misuse of a Rule 10b5-1 trading plan. In a parallel DOJ case, the defendant had been sentenced last year to 42 months in prison and $17.9 million in fines and forfeitures – but he was later pardoned by the President.
The case was unique because it took issue with the lack of a significant “cooling off” period between the time the former executive entered into the Rule 10b5-1 plan and the first transaction under the plan. As we’ve noted in our past commentary, it would be unlikely for this fact pattern to recur now that Rule 10b5-1 requires a 90-day “cooling off” period for directors and officers. The Commission stated in the joint stipulation and its related announcement that its decision to dismiss this civil action does not necessarily reflect the Commission’s positions in any other case.
Last week, the US Department of Justice announced withdrawal of a 1987 letter to ISS that had indicated that – at the time of the letter – the DOJ had no current intention to bring action under the antitrust laws to enjoin the establishment and operation of ISS. The announcement says that circumstances have changed. Here’s an excerpt:
ISS and Glass, Lewis & Co. LLC (“Glass Lewis”), control more than 90 percent of the proxy advisory market and their clients’ holdings represent a significant ownership stake in the United States’ largest publicly traded companies. As a result of this concentration of market power, ISS and Glass Lewis have tremendous influence in corporate governance matters and, based on their market dominance, shape the policies of America’s largest companies.
At the time that the Antitrust Division issued its 1987 BRL to ISS, proxy advising as an industry was in its infancy. The Letter noted that, based on the understanding that ISS “will offer advice only on matters relating to the exercise of voting rights on issues of corporate governance, and that ISS will not provide advice or engage in discussions with respect to the corporate operations or business activities,” the Department of Justice “ha[d] no current intention to bring action under the antitrust laws to enjoin the establishment and operation of ISS.” The 1987 BRL did not address corporate consulting services, which ISS now offers in connection with proxy voting services. ISS’s business model is now in direct conflict with the language in the Letter. ISS is, in fact, now providing advice with respect to corporate operations. In so doing, ISS wields enormous influence over corporate governance issues and policies through its proxy voting services.
The letter continues:
Indeed, the representation at the time that ISS would not “provide or engage in discussions with respect to the corporate operations or business activities” may run contrary to ISS’s business model today. The 1987 BRL expressly qualified the Antitrust Division’s enforcement position to exclude services directed at corporate operations or activities. The Department of Justice has since clarified that while antitrust safe harbors for passive investment protect most beneficial corporate governance advocacy, they do not protect the use of commonly held stock in competitors to encourage market-wide reductions in output or other anticompetitive conduct.[1]
To be clear, proxy advising is not inherently problematic and the lawful exercise of voting rights pursuant to a proxy advisor recommendation does not raise competition concerns. The Antitrust Division is withdrawing its 1987 BRL because the Letter does not reflect ISS’s current business practices or the Antitrust Division’s view of those practices. Moreover, the concentration of market power in the proxy advisory market raises significant competition concerns.
It appears that while proxy advisors may be winning a battle right now at the state level, they haven’t won the war. And broadly speaking, the “war” over how companies are influenced is still being waged on multiple fronts – including against institutional investors that may join topic-based coalitions to urge companies to act in certain ways. The “clarification” that the DOJ cited in its announcement was provided in connection with the Texas v. BlackRock litigation, which Vanguard settled earlier this year but continues against the other defendants.
