As much as you might be wishing for the conflict minerals reporting requirement to go away, that hasn’t happened quite yet – and for some companies, the Form SD process continues to be an annual ambush of last-minute panic. So, I was pleased to see this Ropes & Gray memo with 26 conflict minerals FAQs for 2026 – with plenty of time before this year’s June 1st deadline. Here’s an excerpt:
Is there anything new or different to take into account this year?
Even though there have not been changes to the Conflict Minerals Rule in the past year, registrants should consider the following:
– Do disclosures need to be updated to reflect acquisitions, dispositions or changes to product lines, segments or internal functions or departments? If there is a description of the business, is it aligned with the Form 10-K, Form 20-F and/or other relevant disclosures?
– Have there been updates to 3TG policies, procedures and/or risk mitigation measures that need to be reflected in this year’s filing?
– More generally, are disclosures and written 3TG compliance policies, procedures and risk mitigation measures in synch with actual practices? With the passage of time, changes to program personnel and changes to the business, we often find this is no longer the case.
– Does contact person or signatory information need to be updated?
– Is the forward-looking statements safe-harbor statement up-to-date?
– Is voluntary website information relating to 3TG compliance up-to-date and otherwise aligned with mandatory disclosures and current policies, procedures and risk mitigation measures?
– To the extent applicable, are US disclosures aligned with disclosures under EU and Swiss conflict minerals requirements?
– Does smelter or refiner information reported by suppliers raise potential concerns? Have suppliers listed smelters or refiners that are believed to be supporting conflict? Reported sourcing information also may be relevant to sanctions compliance, forced labor compliance under Section 307 of the US Tariff Act (including the Uyghur Forced Labor Prevention Act) and compliance with mandatory human rights due diligence legislation, as well as to human rights policies and risk assessments.
– Are there other changes in individual supplier responses or response patterns that raise potential concerns? For example, have there been meaningful changes in the quality or completeness of supplier data or supplier response rates?
– With AI advances over the past year, supplier responses relating to 3TG usage, sourcing and due diligence can more effectively and efficiently be integrated into the overall supplier compliance assessment process. AI advances also enable better use of data to help assess geographic and other sourcing risks.
– More powerful AI tools are not only benefitting registrants. This year, NGOs, other civil society organizations, social media influencers, social activists, plaintiffs’ lawyers, shareholders and others will be able to more easily identify, review, slice and dice and compare registrant-reported data. Registrants should take this into account as they prepare their disclosure.
This one snuck by us! I blogged last summer that FINRA was set to increase its filing fees. Luckily, as our intrepid editor Meaghan Nelson was updating our “Filing Fees” Handbook, she noticed that this increase had been delayed till January 1, 2027. This Alston & Bird memo shows the fee schedule and explains how the delay affects the ramp-up:
The increase in the public offering filing fee and the new private offering filing fee will take effect on January 1, 2027, with additional increases to the public offering filing fee cap for WKSIs to take place on January 1, 2028, and January 1, 2029.
The Corp Fin Staff has posted 7 new interpretations relating to asset-backed securities.As John shared last week, these are now called “Corporation Finance Interpretations” – or “CFIs” – instead of “Compliance & Disclosure Interpretations,” which was always a mouthful. No streamlining opportunity shall remain untouched during Chair Atkins’ tenure!
Six of the new CFIs cover Form ABS-15G, specifically:
Here’s something Meredith shared earlier this week on our Proxy Season Blog:
Public companies that decide to exclude a shareholder proposal from their proxy statements are no longer the only parties facing lawsuits in the wake of Corp Fin’s move away from Rule 14a-8 no-action letters. Late last week, ICCR and As You Sow filed a lawsuit in the U.S. District Court for the District of Columbia seeking to stop the implementation of the new policy. The complaint in ICCR vs. SEC alleges that the change in approach violated the Administrative Procedure Act.
In this 14-minute episode of the “Inside Track” podcast, Ryan Nowicki Stewart joined me to discuss one of his (many) recent proxy season innovations – Governance Arena. We discussed:
1. The Governance Arena platform – which compares how different AI models analyze and make voting recommendations on real-world proxy scenarios – and the gap it fills in the proxy landscape.
2. How companies can benefit from using Governance Arena.
3. What companies should know about investors’ use of AI tools to make voting decisions.
4. Five-year predictions for AI’s impact on proxy voting and engagement.
Last week on our Proxy Season Blog, I shared another creation of Ryan’s – ProxyGuessr. It’s a quick brainteaser to test your knowledge of who’s who based on their proxy statements. I think there’s a secondary contest playing out for “most creative name” on the leaderboard!
As Meredith recently noted, Nasdaq has been on a roll lately with its proposals. The SEC has been keeping up, too – posting notices over the past couple of weeks on a few of the proposals that we’ve been watching. For micro-caps and China-based companies, the Commission extended time to act on these relevant proposals:
1. Adopt a new continued listing requirement on minimum market cap – extended till April 29th, see our original blog here
2. Adopt additional listing criteria for companies primarily operating in China – extended till May 17th, see our original blog here (the proposal was subsequently amended)
While we don’t know for sure whether the rules will be approved, these extensions are good news for companies that might be affected if they are – e.g., you have a bit more time to consider your options if your market cap is below $5 million.
In addition to extending the period to act on recent market clean-up proposals, the SEC acted last week to approve Nasdaq’s proposal to allow for trading of “tokenized” securities during the pendency of the related DTC tokenization pilot program. Meredith blogged about Nasdaq’s original proposal last fall – it was later amended a couple of times to provide more detail about how the process works. Check out this January blog for key points about how the DTC pilot program works.
Here’s an excerpt from the SEC’s notice:
Nasdaq market participants that are eligible to participate in the DTC Pilot (“DTC Eligible Participants”) would be able to trade tokenized versions of certain equity securities and exchange traded products on the Exchange that are eligible for tokenization as part of the DTC Pilot (“DTC Eligible Securities”). According to Nasdaq, while they are actively assessing multiple methods of tokenization and trading of tokenized securities, the proposed rule change describes and applies to one method by which DTC Eligible Securities can trade on Nasdaq, using DTC to clear and settle trades in token form, per order handling instructions that DTC Eligible Participants may select upon entering their orders for DTC Eligible Securities on Nasdaq.
And:
Pursuant to the Nasdaq proposal, a tokenized share of a DTC Eligible Security must be fungible with, share the same CUSIP number and trading symbol with, and afford its shareholders the same rights and privileges as a share of an equivalent class of the traditional security for it to trade on Nasdaq. Further, Nasdaq has represented that it would trade DTC Eligible Securities “within the confines of existing securities laws and rules” and that its trading system and procedures, except as described above, would be the same regardless of whether a security is tokenized.
A tokenized share of a DTC Eligible Security and its traditional counterpart would trade on the same order book and with the same execution priority. Moreover, market data feeds would not differentiate between tokenized and traditional shares and market surveillance of tokenized and traditional securities would rely upon the same underlying data, which would continue to be accessible by Nasdaq and FINRA.
Talk about a long and storied career! Carl Hagberg started his career as an inspector of elections before handheld calculators existed, and he – and his son Peder Hagberg – are still going strong. As the Co-Editors of The Shareholder Service OPTIMIZER newsletter and magazine – as well as partners of CT Hagberg LLC, which has provided independent inspectors of election since 1992, Carl and Peder are a great source of info on tabulation issues, annual meeting procedures, and “who’s who” in the public company space.
So, as we head into annual meetings, this 35-minute episode of the “Timely Takes” podcast is living up to its name in being especially timely. Meredith was joined by Carl and Peder to discuss:
1. How Carl and Peder came to be experts on the proxy voting process
2. Risks for companies that exclude shareholder proposals in the absence of traditional no-action relief
3. Why this is the year to consider improving your virtual shareholder meeting practices
4. Bad, good, better and best practices for virtual shareholder meetings
5. How companies typically use the option to prerecord portions of the virtual meeting
6. Tips for engaging inspectors
7. How Carl and Peder are trying to improve retail vote turnout and how you can too
As always, if you have insights on a securities law, capital markets or corporate governance issue, trend or development that you’d like to share in a podcast, we’d love to hear from you. Email Meredith and/or John at mervine@ccrcorp.com or john@thecorporatecounsel.net.
Earlier this month, the Department of Justice announced its first-ever department-wide corporate enforcement policy, which applies to all corporate criminal cases.
The policy – formally known as the “Corporate Enforcement and Voluntary Self-Disclosure Policy” or “CEP” – is intended to promote consistency, transparency, and predictability and to incentivize voluntary self-disclosure and remediation. It supersedes all existing policies – but seems to incorporate many of their principles.
This Sullivan & Cromwell memo summarizes key changes from existing policies. As far as what the new approach means for companies, the S&C team shared these thoughts in their memo:
The new CEP now ensures that — with the exception of antitrust cases that have long been subject to the Antitrust Division’s unique leniency program — the concrete benefits of voluntary self-disclosure, cooperation, and remediation offered by the Department in corporate criminal cases are governed by a single, uniform policy. For companies facing potential criminal exposure under all other federal criminal statutes, the new policy brings a degree of predictability and consistency that did not exist under the prior regime, where the potential benefits and aggravating circumstances depended on which office or component was handling the matter. The benefits of the CEP are now available across the board, regardless of where a case lands.
The tradeoff is that the prior patchwork of component-specific policies offered companies some degree of flexibility and, in certain instances, more favorable terms. While the new Department-wide CEP makes several changes to the prior Criminal Division CEP, it hews closely to it, and companies can continue to look to precedent cases decided under prior policies to get a sense of what to expect going forward.
At PLI’s “SEC Speaks” conference last week, the Corp Fin Staff shared a status update on the disclosure review program, which had been significantly affected by last year’s record-breaking government shutdown. Here are a few key takeaways (based on our notes from the event and subject to the standard SEC disclaimers):
• The shutdown created a “pens down” situation where staff couldn’t review in-process filings – and by the time it ended, 1,000+ registration statements had accumulated, and of course more kept coming in after the government reopened. When the government reopened on November 13, it was taking about 70 days for the Staff to issue its first round of comments on initial registration statements.
• Now, time-to-first-comment is averaging around 30 days – closer to normal – with some reviews completing the first round under 30 days. In the time period from November 13 to March 19, the Staff processed initial round comments on over 600 filings – compared to just over 300 in the same period the prior year. Not only did they double the volume, they did it with a reduced headcount! People are working very hard.
• The annual review program under Sarbanes-Oxley Section 408 was paused to deal with the registration statement backlog, but it has now been restarted. The Staff will comply with the mandate, though the number of reviews will be lower than in prior years.
• Comment letter dissemination is approximately five months behind. That means that if you’re tracking comment letter trends or volume, the data will look artificially low, and you should know that it’s a function of the delay, not a reduction in comments. Staff is looking at ways to automate what is currently a manual process.
On that last point, one thing that slows down comment letter dissemination is the need to scrub personally identifiable information. If you’re submitting correspondence or exhibits, double-check for bank account numbers, addresses, and tax IDs before you file. Cleaning up on the front end helps Staff on the back end.
