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Dave has blogged about the SEC’s agenda with respect to Regulation D, statements by Commissioner Crenshaw and the SEC’s Investor Advisory Committee discussing the growth of the private markets earlier this year.  Does the SEC face obstacles in proposing related rulemaking?

This CLS Blue Sky Blog post and paper by Alexander I. Platt of the University of Kansas School of Law suggests that the SEC may not have legal authority to impose ongoing disclosure obligations on unicorns as was suggested by Commissioner Crenshaw. He also authored a paper for the Michigan Law Review in August of last year that questioned the SEC’s authority to mandate a “look-through” to the beneficial owners for purposes of the shareholder count under 12(g) of the Exchange Act.

Plus, as Liz blogged, the departing members of the SEC’s Small Business Capital Formation Advisory Committee shared parting thoughts in February of this year urging the SEC to continue to focus on five objectives—one of which was recognizing the importance of the private markets for small business growth. Nonetheless, addressing risks posed by the growth of the private markets has been a recent topic of interest for the SEC, and we’ll eagerly await the Spring 2023 Reg Flex agenda to see where these topics sit.

– Meredith Ervine