Foley & Lardner’s Patrick Daugherty recently shared his article “10 FAQ About Crypto for Corporate Directors” with us. This resource covers a lot of the basics about digital assets and serves as a good starting point for helping you to educate private and public company directors about crypto. This excerpt addresses the differences between the traditional financial system and decentralized finance typically associated with crypto assets:
Traditional finance (sometimes called “TradFi”) differs from decentralized finance (“DeFi”) with respect to control. TradFi is controlled by banks and governments. DeFi is controlled by code. US dollar deposits, stocks and bonds are traditionally custodied in and by banks, broker-dealers and clearing agencies and are bought, transferred and sold using exchanges and those other TradFi institutions. The assets are controlled by centralized entities and identifiable human beings. Most crypto assets, in contrast, can be held and transferred without an intermediary. They can be transferred using personal computers and the internet from one person’s “wallet” to another’s wallet.
Metamask and Ledger are two well-known wallet providers. This is “peer-to-peer” transfer. That said, there are centralized crypto exchanges, such as Coinbase and Crypto.com, that can be used to transfer and custody crypto assets. And there are decentralized exchanges, such as Uniswap, where crypto assets are bought and sold peer-to-peer, with no human involvement other than the buyer and the seller. The Cube Exchange is a hybrid exchange, combining centralized ordermatching with decentralized custody and settlement.
Topics addressed in the FAQs include, among others, “what is crypto?” “Is crypto lawful?” “What do Miners do? What is Proof of Work? Proof of Stake?” “What are ‘utility tokens’?” and “What is a ‘stablecoin,’ and how does it compare to crypto assets like BTC and ETH?”
Public company boards are accustomed to scrutiny from a variety of sources, including regulators, investors, analysts, reporters, influences, and whistleblowers. This Skadden memo says that “watchdogs” that don’t have a stake in the company but demand board action on their hot-button issues should be added to that list, and that boards should take their demands seriously:
Boards may wonder whether they are obligated to respond to watchdogs or other third parties raising concerns about critical company issues. The board must exercise judgment in each instance about whether and how to respond. As a practical matter, however, the board should at least consider a watchdog’s demands and document its response and reasoning. Doing nothing can be risky for several reasons:
– Watchdogs may identify real issues that, if addressed, could benefit the company.
– If ignored, these demands could later be cited as “red flags” in litigation or regulatory investigations, suggesting the board failed in its oversight duties.
– Plaintiffs’ lawyers and regulators often use hindsight to argue that ignored warnings were clear signs of deeper problems.
The memo provides guidance to boards on how to evaluate and respond to watchdogs, and says that in order to appropriately fulfill their oversight responsibilities, boards “should respond as they would to similar issues raised by whistleblowers, shareholders or government agencies.”
Yesterday, the SEC announced that Corp Fin’s Deputy Director, Cicely LaMothe, had retired from the agency after 24 years of service. Ms. LaMothe served as Acting Director of Corp Fin prior to Jim Moloney’s appointment to the position of Director in September of this. Here’s what Director Moloney had to say about her tenure at the SEC in announcing her departure:
“Cicely has gone above and beyond the call of duty over the past twenty-four years to serve the public in her many critical roles in the Division of Corporation Finance,” said Jim Moloney, Director of the Division of Corporation Finance. “Throughout her tenure she has contributed her passion, commitment, and accounting expertise to support our mission – to ensure investors have the information they need to make informed decisions. She will be sorely missed, and we wish her all the best on her next chapter.”
Cicely LaMothe held a variety of senior positions at the SEC since joining the agency in 2002. In addition to her time as Acting Director of Corp Fin, these included service as Program Director of the Disclosure Review Program, Associate Director of the Office of Assessment and Continuous Improvement, and Associate Director of Disclosure Operations before being named Deputy Director for Disclosure Operations in 2022. We join Director Moloney in wishing her all the best going forward.
According to PwC’s 2026 US Capital Markets Outlook, the state of the IPO market in 2025 gives us plenty of reasons to think that 2026 will be a strong year. Here are some of the signs of strength that PWC cites in its report:
– Through November 30, 72 traditional IPOs have raised more than $33.6 billion—surpassing the full-year totals of 2024 (62 IPOs; $27 billion), 2023 (35 IPOs; $17.7 billion), and 2022 (28 IPOs; $7.1 billion). Momentum accelerated meaningfully in late summer and early fall, with September becoming the busiest month for new listings in years.
– Notably, eight companies were still able to price their IPOs during the October-early November government shutdown, underscoring the depth of investor appetite and the resilience of the issuance window. The shutdown did, however, pause SEC operations and delay several in-process offerings, ultimately pushing many issuers into 2026.
– Sponsor-backed IPO activity strengthened further in 2025, marking the busiest year for sponsor-backed issuance since 2021. Year to November 30, 17 sponsor-backed companies have raised more than $8.9 billion, already surpassing the full-year total for 2024, when 13 deals raised $8.8 billion. The 2025 cohort has delivered an average return of approximately 22% since debut, reflecting solid investor demand for scaled, cash-generative businesses with clear deleveraging paths.
– VC-backed IPOs also strengthened in 2025. Year to November 30, 34 VC-backed companies have raised approximately $16.4 billion, compared to 29 issuers raising more than $8.6 billion in all of 2024. Although fewer in number than in earlier cycles, the 2025 cohort has been larger, more profitable and more operationally mature than their 2021 counterparts.
– SPAC issuance posted its most active stretch since 2021. Year to November 30, 122 SPACs have raised approximately $22.2 billion, far surpassing the 57 SPAC IPOs that raised $8.7 billion in 2024.
Sectors that PwC expects will lead the IPO charge in 2026 include AI infrastructure, insurance and specialty risk companies, and software—particularly AI-enabled platforms. It says that momentum is also building in industrials and the manufacturing sector, including reshoring, aerospace and defense.
Revitalizing IPOs was a topic that featured prominently in SEC Chairman Paul Atkins’ recent speech on revitalizing America’s markets at the NYSE. During his remarks, he stressed that “[r]aising capital through an IPO should not be a privilege reserved for those few “unicorns,” and discussed regulatory reforms designed to enhance the IPO on-ramp and make it easier for smaller companies to engage in initial public offerings.
This recent Mayer Brown blog says that it will take more than regulatory changes like these to bring back small cap IPOs:
While all of these measures are undoubtedly important and necessary steps to improve capital formation, there are significant issues that disproportionately affect smaller companies that would not be addressed by any on-ramp regardless of its slope or length. Since the 1990s, the market has changed. There are fewer institutional investors focusing on small- and mid-cap stocks. We cannot make them reappear.
There is less research coverage dedicated to smaller companies—this is well documented by the reports that have been published over the years by the Office of the Advocate for Small Business Capital Formation. The lack of research coverage negatively impacts the liquidity of the securities of smaller public companies.
This, in turn, makes it more difficult for these companies to raise capital in follow-on offerings and raises their cost of capital even though these companies chose to become public, in part, to improve their access to capital and to lower their cost of capital. The companies are then forced to turn to less appealing, higher cost capital-raising alternatives that also are more dilutive. That negatively impacts their stock price. A downward spiral.
While these market conditions aren’t likely to be fixed through regulatory reform, the blog highlights some additional regulatory impediments that the SEC should consider addressing beyond enhancements to EGC status and tweaking filer status thresholds and filer status-based disclosure requirements.
In particular, the blog notes how the stock exchanges’ shareholder approval requirements for private placements in close proximity to M&A transactions have a disproportionately negative impact on smaller public companies, and how Staff interpretations of the volume limits in the baby shelf rules also negatively impact smaller issuers.
Nasdaq’s recent rule proposal to expand trading hours for listed equities and exchange-traded products to 23 hours a day, five days a week has prompted some pushback from others on Wall Street who think it’s a terrible idea. Here’s an excerpt from a recent article in The Street:
A lot of people on Wall Street think this is the wrong answer to a real problem. According to Forbes reporting, Wells Fargo analysts blasted the proposal as “the worst thing in the world,” arguing it would further “gamify” stocks and make equity trading look even more like a casino.
Their core argument is simple: liquidity in U.S. stocks is already heavily concentrated around the opening and closing bells, while off-peak hours are thinner and more fragile.
“Most of the complaints I hear about market structure are about poor volumes,” a Wells Fargo trading desk memo said, questioning why the response is to stretch trading across even more hours.
Jay Woods, chief global strategist at Freedom Capital and a veteran NYSE floor broker, told CNBC that companies and investors need “time to pause” to process information, hold meetings, and release news without an active tape reacting instantly. He warned that nonstop or near-nonstop trading “opens up a new set of challenges,” including burnout for traders and executives and less time for thoughtful decision making.
Concerns include spreading volume over a greater number of hours, which critics fear could lead to wider spreads and greater volatility. That volatility could be exacerbated by market reactions to overnight news, which the article says could result in investors waking up to discover “a stock blasted 10% higher or lower on thin overnight volume, driven more by traders’ knee-jerk reactions than by calm analysis. Critics also cite the higher costs resulting from competitive pressures on banks and brokerages to staff desks for overnight trading.
Proponents of 24/5 trading argue that current practices are out of sync with how people want to trade, and as Liz blogged earlier this year when Nasdaq first revealed its intention to move in this direction, the SEC already approved the “24X Exchange,” which launched in October of this year.
Over on RealTransparentDisclosure.com, Broc Romanek posted a link to this recent Labrador report reviewing public company ESG proxy disclosure practices in 2025 and offering some thoughts on how to approach those disclosures in 2026. For 2025, the report says that companies took one of three alternative approaches to ESG proxy disclosure in light of the evolving environment:
– Stay the course and retain a description of their ESG programs. For the companies that retained their disclosure in 2025, many acknowledged a clear tie to their business and long-term value creation.
– Retain some disclosure but reduce the amount of content or modify the description to delete controversial words or programs.
– Delete any ESG disclosure from the proxy statement.
Here’s how Labrador suggests that companies approach these disclosures during the upcoming proxy season:
One thing is certain – the landscape will continue to evolve as the different political parties, special interest groups and other stakeholders work to advance their priorities and search for common ground. At least in the near-term, though, many large investors still prioritize climate risk, environmental stewardship and other issues that have direct financial implications for companies.
In response, we advise that companies still include an oversight section in proxy statements that describe how sustainability-related responsibilities are allocated among management personnel, the Board and its committees. In addition, best practice companies are tying Board oversight of sustainability to the company’s strategy and stakeholder feedback. Any disclosures beyond an oversight description are dependent on a company’s particular circumstances and investor base. In all cases, though, companies should provide enough information about issues that have a direct financial implication to allow stockholders to make an informed decision when voting on a company’s directors.
Companies should always be mindful of the consistency of sustainability-related disclosures between their proxy statement and sustainability reports. Attention should be given to a thoughtful review of a company’s disclosure documents to ensure a consistent and coherent message.
The report also includes numerous sample disclosures from 2025 proxy statements and summarizes the sections of BlackRock, Vanguard and State Street’s proxy voting guidelines relating to their expectations concerning sustainability disclosures.
Gunster’s Bob Lamm – who is no fan of proxy advisors – has some words of caution for those inclined to rejoice over President Trump’s recent executive order targeting them. Here’s an excerpt from his comments:
Executive orders are not models of subtlety or nuance, and given the complexities of the proxy process (more on that below), they are likely to have any number of unintended consequences. (Can you say “ready- fire-aim”?)
One such consequence may be the demise of the proxy advisory business. Some may view that as a good thing, but one reason that the proxy advisory business continues to exist is that there is a market for it; many investors need it. Simply stated, investors do not have the time to review proxy statements at all, much less review them carefully. (For example, I once asked one of my company’s major investors how much time it spent reviewing our proxy statement. The response was more or less as follows: “You are one of our major investments, so we devote more time to you than most companies – around 15 minutes.”)
With the number of investments they have to monitor, Bob says it’s not surprising to see many institutions rely on third parties for advice. He suggests that if the proxy advisory industry is squashed, some institutions won’t vote at all, which could make it even harder for companies to obtain quorums. Even worse, these institutions may reflexively vote “no” or increase their use of robo-voting.
Join us at 2 pm Eastern today for the webcast – “Anatomy of a Shelf Takedown” – to hear DLA Piper’s Era Anagnosti, Fenwick’s Amanda Rose, and Gunderson’s Andrew Thorpe provide in-depth look at the legal and practical issues involved in a shelf takedown of debt or equity securities.
Members of this site are able to attend this critical webcast at no charge. If you’re not yet a member, try a no-risk trial now by contacting us at info@ccrcorp.com or calling us at 800.737.2171. Our “100-Day Promise” guarantees that during the first 100 days as an activated member, you may cancel for any reason and receive a full refund. The webcast cost for non-members is $595, and you can sign up for the webcast by contacting us at the email address or phone number listed above.
We will apply for CLE credit in all applicable states (with the exception of SC and NE which require advance notice) for this 1-hour webcast. You must submit your state and license number prior to or during the program using this form. Attendees must participate in the live webcast and fully complete all the CLE credit survey links during the program. You will receive a CLE certificate from our CLE provider when your state issues approval; typically within 30 days of the webcast. All credits are pending state approval.
Earlier this week, the WSJ’s popular “Heard on the Street” column fired a broadside at emerging growth companies and called into question the SEC’s efforts to enhance the benefits associated with EGC status. Unfortunately, the column did so by using a small group of foreign penny stock issuers to paint the entire EGC category of issuers as a scam factory. Check out this excerpt:
The U.S. government has tried to address the long decline in stock-exchange listings by relaxing the rules for small public companies. But this approach creates a persistent risk: more stock scams.
The quandary is on display now at the Securities and Exchange Commission. Its chairman, Paul Atkins, is pushing to further ease the reporting obligations for many smaller companies under a 2012 statute called the JOBS Act. The law gives special treatment to “emerging growth companies,” or EGCs, including exemptions from many accounting, auditing and disclosure requirements.
At the same time, Atkins is leading a fresh attack on stock frauds targeting individual investors. Since late September, the SEC has suspended trading in 12 companies’ stocks. That is more suspensions than in the previous four years combined. The SEC cited potential manipulation that appeared to be aimed at inflating the stocks’ prices and volume.
The critical link: All 12 are emerging growth companies under the JOBS Act. Though the acronym stands for “Jumpstart Our Business Startups,” these aren’t American companies. It is highly doubtful any of them could have gone public on U.S. exchanges without the JOBS Act and the regulatory relief afforded by their EGC status.
All 12 are based in Asia, including four in Hong Kong and one in China. Ten went public this year, and two last year, on the Nasdaq Stock Market. All 12 initially went public as “penny stocks,” pricing their IPOs at less than $5 per share. Yet most didn’t stay that way.
The article goes on to recount how the prices of these penny stocks soared during the relatively brief period following their IPOs until the SEC suspended trading.
The apparent manipulation of prices in a couple of handfuls of foreign penny stocks is a pretty slender reed upon which to rest a broader indictment of EGCs, and I think the case gets weaker as the column goes on. For example, the column says that the stock market is “awash with struggling EGCs” and points to the fact that of the 304 listed companies currently trading below $1 a share 205, or 67%, self-identified as EGCs, and that 63% of that group were foreign companies, most of which came from China or Hong Kong.
I don’t think the fact that most of the companies that trade below $1 are foreign companies is a big surprise to anyone who has been paying attention over the past 15 years. Putting that issue aside though, I’d have guessed that EGCs accounted for much more than 67% of sub-dollar stocks. That’s because most IPOs significantly underperform the market and, according to WilmerHale’s 2025 IPO Report, nearly 90% of IPO issuers have been EGCs since the enactment of the JOBS Act. (It’s also worth noting that according to an article by Nasdaq’s chief economist, less than 25% of listed companies remain below $1 after 210 days.)
An SEC spokesman is quoted as saying that “it is unreasonable to conclude” that EGCs in general “are at a higher risk of violating securities laws” just because the 12 recent stock suspensions were all at EGCs. That’s right, of course, and the WSJ’s effort to use some scammy behavior on the part of a small group of foreign penny stock issuers to call into question the accommodations provided to EGCs is really a stretch.
