As John noted last week, the Senate Banking Committee held a confirmation hearing on the nomination of Paul Atkins to serve as SEC Chairman on Thursday. The nominee’s written testimony noted:
My time in public service and in the private sector has allowed me to see first-hand how regulations, including those of the SEC, affect markets and investors. They can stoke innovation, facilitate investment goals, and create opportunities – or burdens – on businesses’ ability to compete and serve their customers.
Implementation of regulations, therefore, is crucial; it is one thing to write a regulation, quite another for it to achieve its intended goal. Regulation ideally should be smart, effective, and appropriately tailored within the confines of the regulator’s statutory authority. In short, clear rules of the road benefit all market participants.
Unfortunately, lawyers do not speak the same language as businesspeople, or compliance professionals, or IT staff. It takes knowledge and experience to translate and anticipate issues that inevitably arise among these various professionals tasked with implementing regulations.
The breadth and depth of my combined experiences over the decades will inform my approach if I am fortunate to be confirmed by the Senate. It takes industry experience and focused application to ensure that customers and investors of financial-services firms benefit from efficient, effective, and well-designed regulation. Our goal at the SEC should be to facilitate those efforts, analyze their effectiveness, and use our enforcement power to cure and rectify wayward actions.
Atkins went on to note:
It is time for the SEC to return to its core mission that Congress set out for it: investor protection; fair, orderly, and efficient markets; and capital formation. I look forward to an ongoing, constructive dialogue with this Committee and the Congress at large, as we work together to foster a dynamic, innovative, and rapidly evolving financial system, where the United States has the opportunity to maintain and build on its global leadership.
As this POLITICO article notes, Senator Elizabeth Warren pressed Atkins on his plans to divest from his consulting firm, Potomak Global Partners. The exchange was reported as follows:
“Will you disclose who the buyers are and how much they pay, so that we can make certain that these are not people who are just buying access to the future chair of the SEC?” Warren said during Atkins’ confirmation hearing.
Atkins promptly responded: “Sen. Warren, I have abided by the Office of Government Ethics’ [process].”
“So that is a ‘no’ — you’re not going to tell us who you sell it to and how much money you get,” Warren cut in. “Some people might call that a pre-bribe.”
Among many other topics, Atkins addressed the possibility of eliminating the PCAOB (noting that only Congress could eliminate the PCAOB or combine it with the SEC), defended his tenure while previously serving as a Commissioner of the SEC, clarified the extent of his involvement in the Project 2025 recommendations concerning financial markets, and noted that digital assets regulation will be a top priority.
As this Crypto.news piece notes, the Committee did not vote on Atkins and the other nominees following Thursday’s hearing (as is often the case), but instead requested that the nominees submit written answers to questions from members of the Committee ahead of to-be-scheduled markup vote.
Financial regulators should take a technology-neutral approach to regulation. I have been concerned with some recent Commission efforts that might effectively place unnecessary barriers on the use of new technology. We should avoid an overly prescriptive approach that can lead to quickly outdated, duplicative rules, a “check the box” approach to compliance, and impediments to innovation. To the extent that advances in technology, such as AI, create potential gaps in our regulatory structure or point to the need for additional guidance, it is the Commission’s responsibility to address those gaps or provide guidance in ways that encourage innovation while protecting investors. The Commission must be mindful of its statutory authority and prioritize effective and cost-efficient regulations in this space.
As with other financial innovations, the use of AI also may bring risks and challenges. AI is a broad term, but risks from the use of AI technologies may largely depend on the specifics of the technology, use case, and deployment at issue. As we evaluate potential risks and challenges arising from the use of AI, we should focus on obtaining relevant data and evidence. To foster a commonsense and reasoned approach to AI and its use in financial markets and services, regulators should be engaging with innovators, technology providers, market participants, and others.
Commissioner Hester Peirce’s remarks posed some questions for consideration during the Roundtable:
Today’s roundtable is a great step toward a better understanding of artificial intelligence, its role in the financial industry, and how to think about regulating it. A better understanding can dispel unfounded fears and enable us to focus on real problems and to identify tailored solutions. To that end, I have several questions that the panelists may wish to consider:
– What areas of the securities industry are likely to be most transformed by AI in the next five years? Should we do anything as a regulator to prepare for these changes?
– Do firms need guidance from the Commission about their usage of artificial intelligence technology, and how should the Commission deliver such guidance?
– Given the rapid pace of technological evolution in this space, how do we ensure that any potential Commission guidance or regulations related to the use of artificial intelligence do not quickly become outdated?
– Relatedly, how do we ensure that our actions do not stifle innovation and remain technologically agnostic?
– Finally, how do we avoid overreacting to the most egregious cases of artificial intelligence misuse and letting it define our rules and guidance?
In her remarks, Commissioner Crenshaw took credit for the idea of this Roundtable, and also highlighted specific areas that needed to be addressed in the course of the discussion:
Now, whenever I speak with members of financial services community about AI, I ask them – how do you define AI and how are you using it? There is one constant. No one is on the same page. In many ways, when we speak about these technologies, I think we have a tendency to talk past each other.
So, let’s reset. And let’s answer some very basic but important questions.
– What is artificial intelligence? How do we achieve greater precision in our terminology and definitions?
– How is AI being deployed in the financial services industry today? And how will it be used in the future?
– I ask this with respect to all industry participants – how is it used by broker dealers, investment advisers, issuers, intermediaries, markets, investors and other stakeholders?
– Are the most common uses investor-facing, related to investing or the deployment of capital, or are they in pursuit of back-office efficiencies? Is AI being deployed by companies or by their service providers?
– What governance mechanisms are in place to oversee AI systems – especially those systems that may employ “black box” algorithms, where it’s not clear how inputs are weighed or outputs derived? What do those governance mechanisms look like? And is AI being used at board or governance levels?
– And what oversight is applied to ensure that legal and regulatory responsibilities are met – both fiduciary and professional obligations, as well as the relevant rules governing trading mechanics or back-office functions?
– What disclosures are being made around AI uses and risk, and are they consistent and sufficient?
– Are there areas where investors are left vulnerable by the use of AI – either susceptible to fraud or systematic disadvantage?
– Are there systemic market or volatility risks associated with the use of AI that we need to be focused on?
AI appears to represent a sea-change in technology. It is powerful and persistent. It will drive change. The question is – are we prepared for it? I hope that today’s session is an important step for preparedness at the SEC.
I was in Washington, DC over the weekend amidst the crush of tourists flocking to our nation’s capital to experience the beauty of the cherry blossoms, which is always one of the first signs of Spring that makes one living in the mid-Atlantic region excited for the warmer (and longer) days ahead. But this morning, I am skipping right over the Spring and Summer months and focusing on my favorite season, Autumn, and our two annual Conferences now scheduled for October 21-22 in Las Vegas, Nevada.
Believe it or not, now is the time for me to start encouraging you to register for our 2025 Proxy Disclosure and 22nd Annual Executive Compensation Conferences. By the time October rolls around, you will undoubtedly be quite tired of hearing from me concerning these Conferences, and if that is in fact the case, I will be satisfied with a job well down. Registration for the conferences is now open, and you can now take advantage of our early-bird rate. In October, I look forward to an opportunity to participate in some lively (and insightful) discussion of all of the developments that we are going through during this proxy season and beyond. I certainly hope that you can join us, and it is by no means not too early to sign up!
Yesterday, just over a year after adopting its climate change disclosure rules, the SEC announced that it had voted to discontinue its defense of those rules. The announcement went on to say that a letter had been sent to the court stating that the agency was withdrawing its defense of the rules and that its counsel was no longer authorized to advance the arguments in the brief that the SEC had filed. Here’s an excerpt from the SEC’s press release:
SEC Acting Chairman Mark T. Uyeda said, “The goal of today’s Commission action and notification to the court is to cease the Commission’s involvement in the defense of the costly and unnecessarily intrusive climate change disclosure rules.”
The rules, adopted by the Commission on March 6, 2024, create a detailed and extensive special disclosure regime about climate risks for issuing and reporting companies.
States and private parties have challenged the rules. The litigation was consolidated in the Eighth Circuit (Iowa v. SEC, No. 24-1522 (8th Cir.)), and the Commission previously stayed effectiveness of the rules pending completion of that litigation. Briefing in the cases was completed before the change in Administrations.
Commissioner Crenshaw filed a blistering dissenting statement to the Commission’s decision. Here’s an excerpt:
By its letter, we are apparently letting the Climate-Related Disclosures Rule stand but are withdrawing from its defense in court. This leaves other parties, including the court, in a strange and perhaps untenable situation. In effect, the majority of the Commission is crossing their fingers and rooting for the demise of this rule, while they eat popcorn on the sidelines. The court should not take the bait.
Rather, the SEC should do its job. It should defend its existing rule in litigation. If the agency chooses not to defend that rule, then it should ask the court to stay the litigation while the agency comes up with a rule that it is prepared to defend (be it by rescission or otherwise, but certainly in accordance with APA mandates). At the very least, if the court continues without the Commission’s participation, it should appoint counsel to do what the agency will not – vigorously advocate in the litigation on behalf of investors, issuers and the markets.
The Commission’s actions are inconsistent with the APA, historical practice, and they embody bad governance. We do not have license to wholesale abandon agency action simply because the now-constituted Commission would not have supported the rule when it passed. The new majority cannot now rewrite history to change the outcome of a properly held Commission vote.
The SEC’s action does appear to leave things in some kind of weird judicial limbo, but I’m sure we’ll hear more about what happens next on the climate change disclosure rules – from the court and others – over the weeks and months to come.
By the way, if you’re wondering whether the fact that yesterday was Opening Day had anything to do with the title of this blog, the answer is of course it did!
Earlier this week, Delaware Gov. Matt Meyer signed the highly contested 2025 amendments to the DGCL into law. The legislation amends Section 144 of the DGCL to establish broad safe harbors for transactions with directors and officers and controlling stockholders. It also significantly narrows the information available pursuant to a books & records demand under Section 220 of the DGCL.
The new safe harbor for transactions with directors and officers is contained in Section 144(a) of the DGCL and departs from existing Delaware precedent by allowing a transaction approved by a special committee of directors to qualify for the safe harbor no matter when that committee was formed. Delaware case law previously required such a committee to be established ab initio, before any economic terms of the proposed transaction were discussed. The new safe harbor also departs from the requirement that the special committee must be comprised entirely of disinterested directors.
The statute also creates a rebuttable presumption that a director of a public company is disinterested if the board determines that the director satisfies applicable stock exchange standards. In order to rebut this presumption, the plaintiff must show “substantial and particularized facts” indicating that the director was conflicted.
These are significant changes, but the provisions of the legislation that have generated the most heated debate are those establishing safe harbors for transactions involving a controlling stockholder. Here’s an excerpt from Troutman Pepper Locke’s memo on the amendments describing the safe harbor for non-going private transactions with a controlling stockholder:
Under amended Section 144(b) of the DGCL, a conflict transaction involving a controlling stockholder (but other than a go-private transaction) may not be the subject of equitable relief or monetary damages against an officer, director, or the controlling stockholder by reason of a fiduciary breach if:
1. The facts as to the transaction are disclosed to a committee to which the board has expressly delegated the authority to negotiate and to reject the transaction, and such transaction is approved (or recommended for approval) in good faith and without gross negligence by a majority of the disinterested directors then serving on the committee (and the committee must consist of at least two directors, each of whom has been determined by the board to be disinterested);
2. The transaction is conditioned, at the time it is submitted to stockholders for their approval or ratification, on the approval of, or ratification by, disinterested stockholders, and the controlling stockholder transaction is approved or ratified by an informed, uncoerced, affirmative vote of a majority of the votes cast by the disinterested stockholders; or
3. The transaction is fair as to the corporation and its stockholders (essentially invoking Delaware’s “entire fairness” standard of review)
Under current Delaware law, a conflicted controlling stockholder transaction must be approved by both a majority of the disinterested directors and by a majority of the disinterested stockholders. Why is this controversial? Well, among other things, the ability to authorize such a transaction with a disinterested director vote would likely insulate compensation arrangements like the one at issue in Tornetta v. Musk from attack.
What’s more, Elon Musk’s compensation arrangements wouldn’t even be subject to challenge as a conflicted controller transaction under the new regime, because the statute precludes a stockholder owning less than one-third of the voting power of the company from being regarded as a controlling stockholder.
For going private transactions, the statute preserves some of the existing MFW regime by allowing controllers to avoid satisfying the entire fairness standard only if the deal is approved by both a disinterested special committee and the disinterested stockholders. However, all the changes set forth in Section 144 with respect to the timing of the special committee’s formation & its composition apply to going private transactions as well, and that’s a big departure from recent case law interpreting MFW.
We’re posting memos on the 2025 DGCL amendments in our “Delaware Law” Practice Area.
If you’re working with a company that is considering migrating from Delaware to Texas or Nevada, a recent Woodruff Sawyer blog highlights a potential advantage that those states’ corporate statutes provide over the DGCL that I haven’t seen addressed before – the potential for less expensive Side A D&O coverage:
As we explained in our article last year, a company’s state of incorporation has not historically been a material factor in D&O insurance rates or coverage terms. The wildcard here is the extent to which companies, lawyers, and insurers talk in out-loud voices about the framework for indemnification of derivative settlements and judgments. This is, of course, prohibited in Delaware, making Side A D&O insurance particularly important for directors and officers.
By contrast, indemnification of derivative suit settlements and judgments appears to be permitted in some forms in Nevada and Texas. Where companies are permitted/have an indemnification obligation for derivative settlements, and if directors are also subject to significantly more generous standards of liability, such as in Nevada, Side A D&O insurance really should be easier for insurers to write. It should also cost less than it does for a Delaware corporation. We’ll be watching this space closely.
Based on what we’ve seen so far, Delaware probably will be watching this space closely too. Stay tuned for the 2026 DGCL amendments.
Apparently, the SEC’s buyout offer to its employees has been remarkably successful – perhaps a little too successful. This excerpt from a Politico article indicates just how big the voluntary exodus of SEC staffers may turn out to be:
Hundreds of SEC staffers have agreed to voluntarily leave the agency, according to three people familiar with the matter, an exodus that stands to substantially shrink the ranks of the top Wall Street regulator.
Through a mix of different programs, including the SEC’s recently offered $50,000 buyout, more than 10 percent of the agency’s roughly 5,000-person staff is expected to leave in the coming weeks and months, said the people, who were granted anonymity to discuss the private information.
One of the people said they expect the tally will be close to if not more than 15 percent, or 750 people, as the $50,000 offer is still available to staff who voluntarily resign or retire through the end of Friday.
That’s a very big hit, and to make matters worse, Politico says these departures involve some of the agency’s most experienced staff members. Of course, all this is happening before DOGE shows up to swing a scythe through Elon Musk’s favorite federal agency.
The current commissioners have stressed that they want to make the SEC more responsive to public companies and those seeking to raise capital. For example, Commissioner Peirce has said that the SEC wants Corp Fin and OCA to engage more with public companies on difficult disclosure issues, and to communicate early and often on the timing of reviews of registration statements in order to permit issuers to have increased confidence in their offering timelines.
Those are great goals, but the agency needs lots of experienced people around if it is going to have any hope of achieving them. Right now, it looks like whether the SEC will have enough of those people to do that is an open question. In fact, it’s fair to ask just how limited the SEC’s capabilities might be once Musk finishes with them. That’s a question that Hunton’s Scott Kimpel addressed last year, and his answer isn’t comforting to companies that need guidance on difficult disclosure issues or that hope to navigate the review process for offerings without significant delay.
We’ll have to see how this all plays out, but the attrition at the SEC is a source of legitimate concern for public companies and the lawyers who advise them. It’s also incredibly ironic to think that an agency that actually makes money for the federal government may see budget cuts that jeopardize its ability to accomplish the laudable objectives that its commissioners have laid out.
The only silver lining for members of TheCorporateCounsel.net is that whatever happens at the SEC, at least we have each other – just like we have for the past 50 years.
Every day, I’m awed by the willingness of the best and brightest lawyers in the country to share their insights with our community. Their expertise has allowed us to develop the high-quality resources that our members rely upon – and that they may need to rely upon even more in the days to come. If you’re not a member, consider joining today by subscribing online, emailing us at sales@ccrcorp.com or calling us at 800-737-1271.
Under the JOBS Act, emerging growth companies are given a phase-in period to come into full compliance with certain disclosure and accounting requirements under SEC rules. A recent WilmerHale memo (p. 24) looks at the extent to which EGCs are electing to take advantage of the relief from these requirements during this phase in period.
The memo says that the percentage of EGCs opting to take advantage of the ability to submit confidential draft registration statements and to provide reduced executive compensation disclosure has remained consistently high. In contrast, practices with respect to relief available for financial disclosure and changes in accounting principles have varied over the years. This excerpt addresses how and why practices with respect to these items have varied:
– Reduced Financial Disclosure. Overall, the percentage of EGCs electing to provide only two years of audited financial statements has increased dramatically, from 27% in 2012 to 98% in 2024. From the outset, life sciences companies—for which older financial information is often irrelevant—were likely to provide only two years of audited financial statements, with the percentage choosing this option reaching 100% each year since 2022.
Technology companies—which generally have substantial revenue and often have profitable operations—were slower to adopt this practice, but the percentage providing only two years of audited financial statements grew from 22% in 2012 to 91% in 2022 and 100% in both 2023 and 2024.
– Accounting Standards Election. Through 2016, the vast majority of EGCs opted out of the extension of time to comply with new or revised accounting standards. At that time, the decision appears to have been motivated by the uncertain value of the deferred application of future, unknown accounting standards and concerns that a company’s election to take advantage of the extended transition period could make it more difficult for investors to compare the company’s financial statements to those of its peers.
Starting in 2017, a major shift occurred, with the percentage of EGCs adopting the extended transition period jumping from 11% through 2016 to 50% between 2017 and 2019 and to 93% between 2020 and 2024. This trend appears to have been motivated by the desire of many EGCs to delay the application of new revenue recognition and lease accounting standards (which became mandatory for public companies in 2018–2019) or, at a minimum, to take more time to evaluate the effects of these standards before adopting them.
We’ve posted the transcript for our recent webcast – “Director Independence: Recurring Issues and Recent Developments.” Skadden’s Caroline Kim, Gunster’s Bob Lamm, Davis Polk’s Kyoko Takahashi Lin, and Morris Nichols’ Kyle Pinder joined Meredith to discuss a variety of topics relating to director independence. Here’s an excerpt from Kyle’s discussion of some of the independence implications of Delaware’s SB 21, which became law on Tuesday:
Amended Section 144 also lessens the burden or heightens the presumption of independence for directors of public companies. For a public company director, if the board determines he or she is independent for stock exchange purposes from the company, then that presumption is only rebuttable if a stockholder can allege substantial and particularized facts showing that the director is actually interested or not independent. Where the transaction involves a controlling stockholder, the board needs to determine that the director is independent from the controlling stockholder under the exchange rules, but you treat the controlling stockholders as if it were the issuer for applying that analysis.
One other change that provides clarity is that in all cases, just being a designee or a nominee of a person does not render you not independent of them. There has been Delaware case law going both ways on that.
Then the last big point on Senate Bill 21 is that it would set an ownership floor for determining whether a stockholder or a group is a controlling stockholder. As amended, a stockholder or group of persons cannot be deemed to be a controlling stockholder or a control group unless they have equity ownership of one-third or more of the total outstanding voting power of the company.
The Senate Banking Committee has scheduled Paul Atkins’ confirmation hearing for tomorrow at 10:00 am Eastern. While Atkins is widely expected to be confirmed, it looks like he should nevertheless be prepared to heed Bette Davis’s famous warning to “Fasten your seatbelts. It’s going to be a bumpy night.”
That’s because earlier this week, Sen. Elizabeth Warren (D. Mass) lobbed in a 34-page letter raising questions about Atkins’ record and potential conflicts of interest. After offering perfunctory congratulations on his nomination, Sen. Warren got quickly to the point:
While you have extensive experience in financial services and capital markets, I have concerns about your record. You have been involved as a regulator or key adviser in historic failures of the financial system, including as an SEC Commissioner in the years before and during the 2008 financial crisis and as an adviser to the cryptocurrency platform FTX before and during its sudden collapse in 2022. You have also advocated for weaker SEC rules, including for Chinese accounting companies in the United States, at your corporate advisory firm. You were an architect of Project 2025 and received “special mention” for your extensive contributions.
You also have significant potential conflicts of interest through your work on behalf of corporate interests—and a long record of advocating for weaker protections for investors and weaker rules to prevent wrongdoing by giant corporations. This record raises questions about your judgement and your ability to serve as an effective SEC Chair if you are confirmed.
You can just feel the love, can’t you? Anyway, Sen. Warren follows this up with 32 pages of interrogatories questions on these and other topics that she asks Atkins to be prepared to respond to during tomorrow’s confirmation hearing (mind you, the letter was sent on Monday). She also asks him to provide written responses to these questions prior to the Senate Banking Committee’s vote on his nomination. I’m betting this will make for some great cable news soundbites, which after all is the point of a confirmation hearing, right? Fasten your seatbelts indeed.