Author Archives: Liz Dunshee

Corp Fin Director Jim Moloney also took to the stage at SRI yesterday. Another breath of fresh air! Of course, Jim had to be somewhat careful in what he could say, but he was candid and consistent with Commissioner Uyeda. Here are a few takeaways:

– Jim is working hard to refocus the Corp Fin Staff on activities that move the needle, such as clearing the shutdown-related registration statement backlog

– Corp Fin has worked through about half of the backlog, but new registration statements are also continuing to get into the queue. The Staff is focusing review resources on filings with substantive disclosures that matter to investors, and less on “basic” filings like universal shelf registration statements, etc.

– The Staff is aiming high with its Reg S-K review. Jim didn’t move from California to DC to move a few commas. When it comes to simplifying regulations, think more “Ozempic” and less “nip & tuck.”

– They posted job openings last week for a “strike force” of sorts – he’s looking for folks with real-world experience to participate in the Reg S-K review.

– Help the SEC help you. Don’t wait to react to a proposal, help jumpstart it. Submit comments in advance to inform the proposal, which you can do through this public form or by emailing rule-comments@sec.gov with “CLL-15” included in the subject line.

– The Staff is also receptive to suggestions for interpretive guidance. If you think there should be a CDI, draft it up in track changes and send it in.

– The SEC is open for business. It’s not “giving away the store,” they’ll be doing things thoughtfully. But there’s a drive to enhance investment options in public markets, by encouraging more companies to go and stay public.

– Liz Dunshee

One thing Jim suggested yesterday was that the issuer community gather feedback through surveys, which can help inform the questions posed in an eventual proposal. It’s important to note that other constituents will also be gathering their own feedback and submitting perspectives – but SRI is mainly an issuer audience, so the remarks were geared towards that.

Anyway, I’m here to do my part. We’ve blogged about the government’s “suggestion box” for deregulation, and we’ve solicited views on your favorite and least favorite Reg S-K items. But let’s take a more conceptual look. Where is the juice not worth the squeeze?

Please participate in this anonymous poll to weigh in on what could “move the needle” on decisions to go public and stay public. Are there line items that are boilerplate and that your investors have never asked about? Are there requirements that are resource intensive, burdensome, and not material? This list excludes Item 402 compensation disclosures since those are subject to a separate review effort. Check all that apply – and drop me an email if you have other suggestions:

– Liz Dunshee

On Friday, Corp Fin published a bunch of updates to its Compliance & Disclosure Interpretations for Securities Act Sections and Securities Act Rules – including withdrawals, revisions, and brand new interpretations.

The updates modernize the CDIs to reflect that a number of them had become obsolete with the adoption of Securities Act Rule 152 back in 2020. As Dave has noted, that Rule provided welcome certainty for integration issues that had been a source of stress for many years. Other updates provide clarity on determining accredited investor status. Here’s more detail (with links to the new and revised CDIs, and paraphrasing the topics):

Securities Act Sections C&DIs (UPDATED 01/23/26)

1. Section 134. Securities Act Section 4(a)(2) – Withdrew Question 134.02 (superseded by Rule 152)

2. Section 139. Securities Act Section 5

– Withdrew Question 139.08 (superseded by Rule 152)

– Withdrew Question 139.25 (superseded by Rule 152)

– Revised Question 139.27 (updated to reflect existence of Rule 152)

Securities Act Rules C&DIs (UPDATED 01/23/26)

1. Section 141. Rule 147 – Intrastate offers and sales – Withdrew Question 141.06 (superseded by Rule 152)

2. New Section 148. Rule 152

– New Question 148.01

– The CDI addresses sales to individuals under Rule 506(b) of Regulation D, following a general solicitation under Rule 506(c). This depends on whether the issuer established a substantive relationship with such prospective purchasers prior to the commencement of the Rule 506(b) offering. Because the issuer solicited the prospective investors through the general solicitation in the prior Rule 506(c) offering, the issuer cannot rely on Rule 152(a)(1)(i). The CDI describes factors to consider.

– This CDI doesn’t give a bright-line cleansing period for investors previously solicited under a general solicitation, which is an issue raised in a letter request that John blogged about last summer. It does say that being an existing investor may constitute a preexisting relationship. Perhaps we will hear more about this at SRI this week.

– New Question 148.02

– The CDI explains that the mere fact that a registration statement is effective, in and of itself, does not automatically raise integration concerns under Rule 152.

– New Question 148.03 (revised and moved from Question 152.02)

– The refreshed CDI states that following an unsuccessful shelf takedown, an issuer may complete the offering privately, provided that the issuer complies with the general principle of integration in Rule 152(a).

3. Section 152. Rule 155 – Integration of Abandoned Offerings

– Withdrew Question 152.01 (superseded by Rule 152)

– Revised and Moved Question 152.02 (moved to Question 148.03) (private offering following unsuccessful shelf takedown)

– Withdrew Question 152.03 (superseded by Rule 152)

4. Section 212. Rule 415 – Delayed or Continuous Offering and Sale of Securities – Withdrew Question 212.06 (superseded by Rule 152)

5. Section 255. Rule 501 – Definitions and Terms Used in Regulation D – Revised 255.06

– This CDI relates to looking through to natural persons when determining accredited status of entities, the update clarifies language and adds a reference to Note 1 of Rule 501(a)(8).

6. Section 256. Rule 502 – General Conditions to be Met

– Withdrew Question 256.01 (superseded by Rule 152)

– Withdrew Question 256.02 (superseded by Rule 152)

– Withdrew Question 256.34 (superseded by Rule 152)

7. Section 260. Rule 506 – Exemption for Limited Offers and Sales Without Regard to Dollar Amount of Offering

– New Question 260.39 – This new CDI clarifies that in a Rule 506(c) offering, an issuer can use different methods to verify the accredited investor status for different investors.

– Liz Dunshee

As Meredith shared today on DealLawyers.com, Corp Fin also updated CDIs on business combinations, tender & exchange offers, and proxy rules (e.g., broker searches).

These include an interesting update on exempt solicitations, saying that the Staff will object to voluntary filings. Check out Meredith’s blog and the CDIs for more detail.

– Liz Dunshee

Last but not least, the Corp fin Staff published a CDI on Friday to clarify when a spun-off company could omit historical compensation disclosures in subsequent filings. Check out Meredith’s blog on CompensationStandards.com for more on this one.

– Liz Dunshee

Like clockwork, a couple hours after I posted yesterday’s blog guessing about the SEC’s operating status over the upcoming 5-day weekend for federal workers, the SEC posted a formal announcement that EDGAR will be closed this Wednesday through Friday, resuming normal operations on Monday, December 29th. That means:

– EDGAR filing websites will not be operational.

– Filings will not be accepted in EDGAR.

– EDGAR Filer Support will be closed.

– Filings required to be made on December 24, December 25, or December 26, 2025 will be considered timely if filed on December 29, 2025, EDGAR’s next operational business day. Filers should plan their filings accordingly.

To put an even finer point on it, this is saying that the 24th – 26th are not “business days” for purposes of calculating filing deadlines. Effectively, the executive order gives you a couple of extra days to file.

– Liz Dunshee

The transcript is now available for our recent webcast – “This Year’s Rule 14a-8 Process: Corp Fin Staff Explains What You Need to Know.”

We heard from Corp Fin Chief Counsel, Michael Seaman, and Corp Fin Counsel, Emma O’Hara, on how the Staff will handle the Rule 14a-8 process for the 2026 proxy season in light of Corp Fin’s November statement. Cooley’s Reid Hooper and Gibson Dunn’s Ron Mueller also shared their perspectives on strategy and how issuers should be thinking about and approaching the new process, and I had the joy of returning to my “webcast moderator” role for this event. Topics included:

– How the Staff is working through its post-shutdown backlog

– The expected substance of the notice submitted by companies under this year’s Rule 14a-8 approach

– What language should be included for the “unqualified representation”

– What to do after submission

– What happens if there’s a withdrawal

– The carve-out for Rule 14a-8(i)(1) requests

The on-demand replay of this program is available here – and continues to be free to anyone who wants access, even if you aren’t currently a member of this site. We aren’t offering CLE credit for this one, but we have plenty of other programs for members if you need to get credits before year-end!

If you’re not yet a member of TheCorporateCounsel.net, try a no-risk trial now. 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. If you need assistance, send us an email at info@ccrcorp.com – or call us at 800.737.1271.

– Liz Dunshee

In this 25-minute episode of the Women Governance Trailblazers podcast, Courtney Kamlet and I spoke with Cindie Jamison – who serves as Board Chair of Darden Restaurants, as well as a director and Audit Committee Chair at ODP Corp. and IFF Inc. She also recently published a memoir/career and life advice book that I very much enjoyed – “Shards in My Hair: Tales From Breaking the Glass Ceiling.” We discussed:

1. How to adapt to career-related setbacks and opportunities.

2. The biggest changes facing boards today – and how to stay nimble.

3. Evolution in activism approaches and director slates.

4. Potential impacts of the current deregulatory environment on boards and disclosure practices.

5. How to cultivate a productive boardroom culture and appropriate information flows.

6. Cindie’s advice for the next generation of women governance trailblazers.

To listen to any of our prior episodes of Women Governance Trailblazers, visit the podcast page on TheCorporateCounsel.net or use your favorite podcast app. I am SO grateful for all of the guests who have taken time to talk with us over the past 5+ years, and we’re looking forward to more great discussions in 2026! If there are governance trailblazers whose career paths and perspectives you’d like to hear more about, Courtney and I always appreciate recommendations! Drop me an email at liz@thecorporatecounsel.net.

Programming note: We’re starting our holiday blogging schedule tomorrow, which means that this blog will be sparse until early January. Happy holidays – and best wishes to all of our readers for the new year!

– Liz Dunshee

John shared encouraging stats last week for IPO momentum heading into 2026. If you’re planning an IPO in the near future, you should know that there is also a focus on market quality alongside the push to “Make IPOs Great Again” (in contrast to poor framing by the WSJ).

The latest example happened last week, when the SEC posted notice & immediate effectiveness of a Nasdaq proposal that expands the exchange’s ability to deny an initial listing based on the risk of price manipulation by third parties. This Mayer Brown blog summarizes the update:

Under the proposal, Nasdaq would adopt new interpretive material, IM‑5101‑3, under Nasdaq Rule 5101 that would permit it to deny an initial listing if it determines, based on a qualitative assessment, that the company’s securities are susceptible to manipulation or present comparable risks. This authority would apply even if the issuer otherwise meets Nasdaq’s existing listing requirements.

Nasdaq explains that the change would allow consideration of broader risk indicators suggesting susceptibility to problematic or unusual trading. Under the proposed rule, if Nasdaq denies a listing pursuant to this authority, it must issue a written determination explaining the basis for its decision. The issuer would have the right to appeal the determination to a Nasdaq hearings panel and would be required to publicly disclose the denial and the concerns identified by Nasdaq.

Nasdaq’s rule change aligns with the SEC’s recent trade suspensions based on alleged market manipulation – as the WSJ article had noted, there have been at least 12 trading suspensions since September, which is more suspensions than the previous 4 years combined.

It also follows other recent efforts by Nasdaq to clean up penny stocks. Meredith shared the proposals in real time earlier this fall, and now the SEC has:

– Initiated proceedings to determine whether to approve or disapprove a proposal to adopt additional initial listing criteria for companies primarily operating in China

– Approved a proposal, as amended, to amend certain initial listing requirements for de-SPAC transactions

– Approved a proposal, as amended in its entirety, to increase the minimum market value of unrestricted publicly held shares for companies that are pursuing an initial listing under the net income standard on either the Nasdaq Capital Market or the Nasdaq Global Market

When it comes to Nasdaq’s expanded discretion to consider the risk of manipulation during the initial listing process, the Mayer Brown blog shares these thoughts on what companies and their counsel should do:

For issuers seeking an initial Nasdaq listing, the proposal underscores the importance of assessing qualitative risk factors alongside technical listing compliance. In-house counsel and management may wish to consider whether ownership structures, jurisdictional features, public float characteristics, management experience, or the regulatory history of advisors involved in the offering could raise concerns under the proposed framework.

Advisors should also be mindful that Nasdaq may consider broader market patterns and past outcomes associated with similar listings when reviewing applications, rather than focusing exclusively on issuer-specific facts. Issuers and their advisors should consider how this expanded authority, if approved, could affect listing readiness, timing, and engagement with the exchange during the application process.

– Liz Dunshee

In case you missed it, the White House published an executive order late last week to give federal workers a holiday from December 24th through December 26th. As far as I can tell, the 5-day weekend won’t have much impact on issuers. Here’s what I can glean as of the time of this blog:

– The executive order permits agency heads to keep staff on-duty and stay open in their discretion.

– As of the time of this blog, the SEC hasn’t updated its website to announce any additional closures beyond the permanent federal holidays.

– In other years where there’s been a temporary holiday for federal workers, if the SEC is planning to be fully closed, it announces that – for example, see the announcement posted last year.

– The stock exchanges are sticking to their already-established holiday schedule of closing early on December 24th (at 1:00 pm ET) and operating a regular full trading day on December 26th, according to this Reuters article.

– So, perhaps there will be fewer folks reporting into the office, but for now it seems like Edgar is still open and the 24th and 26th will count as “business days.”

Here are holiday greetings from SEC Chair Paul Atkins and the staff in each division. I love the festive spirit!

Update: Helpfully, a few hours after this blog was published, the SEC has now posted a formal announcement that EDGAR will be closed this Wednesday through Friday, resuming normal operations on Monday, December 29th. That means no EDGAR filings will be accepted and December 24-28 are not “business days” for purposes of filing deadlines.

– Liz Dunshee