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Yesterday, I dropped my youngest daughter off at college for her junior year, bringing to a close a decade of participating in that time-honored ritual of moving my children into on-campus housing. It is an experience that always involves a distinct mix of excitement, chaos, trepidation and relief. While, as a parent, I have always experienced mixed emotions on this day, this year felt particularly poignant, as my wife and I wrapped up a decade-long chapter of our lives that has most certainly seen its ups and downs. There will no doubt be plenty of move-ins to come (including into off-campus housing for our daughter’s senior year), but there is something unique about carting plastic totes and blue bags into campus housing in a rushed attempt to beat the deadline and have time to assemble furniture comprised of one thousand parts!

I too am feeling the back-to-school pressure this week, as the course I co-teach kicks off tomorrow. Now in my sixth year of teaching the course, I feel the same sort of back-to-school jitters that I am sure that my daughter feels going back to college. The course focuses specifically on exempt securities offerings, so I have been thinking about what to say to the class about the SEC’s current agenda as it relates to the exemptions from the registration requirements of the securities laws.

Obviously, the biggest news on that front happened just last week, when the Commission proposed Regulation Crypto Assets, which contemplates two exemptions from the registration requirements of the Securities Act for certain investment contracts involving crypto assets. It is not that often that we see the Commission adopting an entirely new set of exemptive rules, especially without a Congressional directive (such as the JOBS Act), so this is certainly a big deal to note for the class.

As for the SEC’s other actions on the exempt offering front, much remains to be seen. During the course of the class this semester, we will no doubt be discussing a number of the items that the SEC has identified on its latest Reg Flex Agenda, as some or all of these proposed rulemakings may see the light of day. These proposed rulemakings, all expected by October 2026, include:

– Rule 144 Safe Harbor
– Updating the Exempt Offering Pathways
– Enhancing Retail Exposure to Private Markets
– Regulatory Status of Finders

On the topic of Rule 144, we expect the SEC to propose rule changes that would expand the safe harbor for resales of restricted and control securities to provide for more instances in which the safe harbor would be available to those selling securities who are not an issuer, underwriter or dealer. We certainly hope that this effort will involve revisiting the dreaded Rule 144(i), particularly in the context of de-SPAC companies, so that investors will have improved liquidity in those situations. It is also possible that the Commission will reconsider the definition of “accredited investor,” consistent with an overall push to expand investor access to private capital.

As for the proposal to update exempt offering pathways, we expect that the Commission would seek to build on the exempt offering harmonization rulemaking from 2020 to expand opportunities for issuers to raise capital in transactions exempt from the registration requirements of the Securities Act. This rulemaking could involve raising offering thresholds in existing rules (such as Regulation A, Regulation CF or other exemptions), creating new offering exemptions, and revisiting conditions for existing exemptions, as well as other potential changes.

On the topic of enhancing retail exposure to private markets, in addition to revisiting the accredited investor definition, we may see the SEC propose changes on the regulated entity side (e.g., investment advisers, funds, brokers) to make it easier for retail investors to participate in private capital transactions.

Finally, the Commission has indicated a willingness to tackle the age-old problem of finders, which has been a regulatory gray area for the entire time that I have been practicing securities law. The rulemaking would likely provide more clear guidance as to what activities finders could engage in without having to register as a “broker” under the Exchange Act.

Suffice it to say, this semester promises to be a very active one on the regulatory front when it comes to exempt offerings, so we should have no shortage of current events to discuss! I hope your back-to-school experience, whatever it may be, goes well over the coming days.

– Dave Lynn