Yesterday, the Staff of the SEC’s Division of Trading and Markets issued a no-action letter to the Depositary Trust Company (DTC) to provide relief under various provisions of the Exchange Act for DTC’s a pilot version of the DTCC Tokenization Services, which would allow DTC Participants to elect to have their security entitlements to DTC-held securities recorded using distributed ledger technology, rather than exclusively through DTC’s current centralized ledger.

In a statement regarding the no-action letter, Commissioner Hester Peirce noted:

Although this program is a pilot subject to various operational limitations, it marks a significant incremental step in moving markets onchain. DTC plays a central role in our securities markets. I am looking forward to seeing how DTC’s participants benefit from this program and the extent to which DTC’s tokenization model can enhance the functioning of our securities markets.

DTC’s tokenized entitlement model is a promising step along the tokenization journey, but other market participants are exploring alternate experimental avenues. As I have said repeatedly, the Commission’s crypto work is iterative. We welcome and expect other market participants’ continuing efforts to innovate and experiment. Their experiments may involve other securities tokenization models. Investor choice is critical, particularly at this early stage when the market is testing what works. For example, some issuers have begun tokenizing their own securities, which may make it easier for investors to hold and transact in securities directly, rather than through an intermediary. As I previously cautioned, market participants should be aware that different tokenization structures may raise distinct regulatory considerations.

– Dave Lynn

The latest issue of The Corporate Counsel newsletter has been sent to the printer. It is also available now online to members of TheCorporateCounsel.net who subscribe to the electronic format. The issue includes the following articles:

– Celebrating 50 Years of The Corporate Counsel!
– Going Back to Where It All Began: Your Year-End Gift Guide
– ExxonMobil’s Retail Voting Program: A Game Changer?

Now is the time to renew your subscription to The Corporate Counsel! Please email info@ccrcorp.com to or call 1.800.737.1271 to renew or to subscribe to this essential resource.

– Dave Lynn

Last night, the House passed the National Defense Authorization Act (NDAA), sending this sweeping, “must-pass” defense spending legislation on to the Senate. Buried in the bill is legislation that has been rattling around Congress for some time seeking to eliminate the exemption from Section 16 reporting that is available to insiders of foreign private issuers. John blogged about a similar effort to pass this legislation two years ago, but at that time the provision did not advance. Alan Dye’s Section16.net blog noted at that time the background of this legislation:

The proposal was originally introduced in the Senate in 2022, as a standalone bill entitled the Holding Foreign Insiders Accountable Act. The bill was intended to address trading abuses identified by former Commissioner Robert Jackson (now at NYU law school) and Wharton professors Bradford Levy and Daniel Taylor in an April 2022 paper entitled “Holding Foreign Insiders Accountable.” The authors examined trading by insiders of certain foreign private issuers, particularly Russian and Chinese issuers, and concluded that insiders of many of those companies avoided trading losses by selling their company stock shortly before significant declines in its price. In an opinion piece they wrote for the Wall Street Journal, Senators Kennedy and van Hollen said that American investors absorb most of the losses avoided by foreign insiders and that subjecting those insiders to Section 16 would alert investors to insider sell-offs and give American law enforcement agencies better ability to identify insider trading.

If enacted, the legislation would give the SEC 90 days to amend its rules to implement the statutory directive. I tip my hat to Reid Hooper and Vince Sampson of Cooley for their insights on the bill.

Look for more coverage of these developments over on Section16.net. If you are not a member with access to all of the practical information available on Section16.net, please email us at info@ccrcorp.com or call us at 800-737-1271 today.

– Dave Lynn

On Tuesday, the California Air Resources Board (CARB) announced that it will hold a public hearing on February 26, 2026 to consider adoption of a proposed California Corporate Greenhouse Gas Reporting and Climate-Related Financial Risk Disclosure Initial Regulation. At the same time, CARB made the Staff Report (Initial Statement of Reasons) and Proposed Regulatory Text available on its website for public comment during a 45-day comment period that begins on December 26, 2025 and ends on February 9, 2026.

Among the matters addressed in the proposed regulatory text are: (i) the applicability of the disclosure requirements; (ii) definitions; (iii) the calculation, payment and enforcement of fees; and (iv) an August 10, 2026 deadline for providing the GHG emissions disclosures required by SB 253.

As Meredith noted last week, on December 1, 2025, CARB posted an enforcement advisory indicating that it would not enforce the disclosure requirements in SB 261 while an injunction is in effect.

– Dave Lynn

Last week, Corp Fin announced updates to the Financial Reporting Manual, reflecting changes arising from Release No. 33-11265, Special Purpose Acquisition Companies, Shell Companies, and Projections, which was effective July 1, 2024. The Staff notes that the following Topics/Sections of the Financial Reporting Manual have been updated:

– 1140.5 Audit Requirement for Non-Reporting Target
– 1140.7 Reverse Acquisitions
– 1170.2 Financial Statement Dates and Periods
– 5130 Shell Company
– 8310 Presentation of Net Tangible Book Value per Share
– 8340 Net Tangible Book Value per Share, As Adjusted [S-K 1602(a)(4), 1602(c), 1604(c)]
– 10110 Eligibility as an EGC
– 10120 Other Eligibility Issues
– 10220.6 Financial Statements of a Target Company in a Form S-4 or Proxy Statement When Registrant Is a Shell Company
– 10220.7 Financial Statements of a Target Company in a Form S-4 or Proxy Statement When Registrant Is Not a Shell Company
– 12220.1 Form 8-K – Reverse Recapitalization with a Shell Company
– 12250 Auditor Issues
– 12260 Registration and Proxy Statements for Mergers, Acquisitions, De-SPAC Transactions, and Similar Transactions
– 12300 Additional Considerations for Acquisitions of Businesses by a Shell Company, Including De-SPAC Transactions

The Staff updates the Financial Reporting Manual on an ad hoc basis to reflect new regulatory developments and interpretations.

– Dave Lynn

Last summer, the SEC launched Project Crypto in what amounts to an all-out sprint to the finish to address to what extent and how crypto assets are to be regulated under the federal securities laws. The efforts are being undertaken by the SEC’s Crypto Task Force, which has throughout the course of 2025 engaged in a massive information gathering campaign geared toward identifying areas of potential regulation (or deregulation) and unique considerations for the SEC that are raised by the world crypto assets.

Next up on the Crypto Task Force’s agenda is the topic of financial surveillance and privacy, but the SEC’s initial efforts to hold a roundtable on the topic were stymied by the government shutdown. Last Friday, the SEC announced that the agenda and panelists had been set for the Crypto Task Force’s rescheduled Roundtable on Financial Surveillance and Privacy, which will take place on December 15, 2025 from 1:00 – 5:00 pm at the SEC’s DC headquarters and via live webcast.

– Dave Lynn

Last week, the Center for Audit Quality announced the publication of its 12th annual “Audit Committee Transparency Barometer Report.” The report is compiled by the CAQ and Audit Analytics to measure disclosures about financial oversight and other audit committee responsibilities. The CAQ’s announcement notes:

As audit committees navigate emerging risks including economic disruption and the rapid integration of artificial intelligence, investors need insights into board composition, expertise, and oversight processes. This year’s Barometer shows that while skills matrix disclosure continues at high rates and disclosure of cybersecurity expertise on boards has grown, most disclosure areas have stagnated or declined, providing audit committees with an opportunity to enhance transparency about their evolving oversight responsibilities.

Key findings of the report include:

– 90% of S&P 500 companies disclosed the board of directors’ skills matrix, an increase from 85% in 2024. S&P MidCap companies (80%) and S&P SmallCap companies (70%) also showed slight increases.

– 65% of S&P 500 boards disclosed they have a cybersecurity expert—representing a 5-percentage point increase from 2024.

– Stagnation and decline of audit committee disclosures were observed across several measures, including (for S&P 500 companies): disclosure of the annual evaluation of the external auditor (decreased from 39% to 38%); considerations in appointing or (re)appointing the external auditor (remained flat at 50%); and factors contributing to the selection of the audit partner (decreased from 17% to 16%).

The report concludes:

As the role of the audit committee continues to evolve, it is essential to maintain robust disclosures. Audit committees have an opportunity to re-evaluate their disclosures in light of the period of disruption that we are facing, to provide greater transparency to investors and other stakeholders about how the audit committee is fulfilling its oversight responsibilities. These disclosures ultimately enhance trust and instill confidence in the audit committee’s leadership.

– Dave Lynn

Well folks, this has been quite year – and 2026 promises to be even more of a wild ride in the securities and corporate governance space. Given all that is going on, be sure to join us tomorrow for our webcast “The (Former) Corp Fin Staff Forum,” which will take place from 2:00 – 3:00 pm Eastern here on TheCorporateCounsel.net. We have assembled a panel of SEC All Stars to provide the latest update on the SEC’s rulemaking agenda, Staff interpretations and disclosure review from the Corp Fin perspective. We will discuss the most important initiatives at the SEC and in Corp Fin – and provide practical guidance about what you should be doing as a result. Our illustrious panelists for the program are:

– Sonia Barros, Partner, Sidley Austin LLP
– Meredith Cross, Partner, WilmerHale LLP
– Tom Kim, Partner, Gibson, Dunn & Crutcher LLP
– Keir Gumbs, Chief Legal Officer, Edward Jones
– Dave Lynn, Partner, Goodwin Procter LLP, and Senior Editor, TheCorporateCounsel.net

The topics that we plan to cover include:

– The SEC’s regulatory agenda for public companies and capital formation
– Recent Staff guidance and the implications for companies
– The SEC’s evolving approach to shareholder proposals and ESG matters
– The Corp Fin approach to filing reviews under new leadership
– What to expect from Corp Fin in 2026 and beyond

This is the webcast that you do not want to miss! But if you do, we will have an archive of the recording and transcript available after the show.

Members of TheCorporateCounsel.net are able to attend this critical webcast at no charge. If you’re not yet a member, 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. The webcast cost for non-members is $595. Contact us at info@ccrcorp.com or 800.737.1271 if you would like to sign up.

– Dave Lynn

At last week’s meeting of the SEC’s Investor Advisory Committee, SEC Chairman Paul Atkins delivered remarks on the topic of tokenization of securities. In his remarks, Chairman Atkins notes his proposed approach for facilitating decentralized ledger technologies and tokenization in securities markets:

Today, our rules assume that securities are issued, traded, and managed through layers of intermediaries, which help to address risks like information asymmetry and operational friction. But as we consider the rise of public blockchains and tokenization, we must acknowledge that these technologies have the capacity to streamline not only trading but the entire issuer-investor relationship.

In other words, tokenization is not just about transforming how trades occur. It can also enable direct connectivity for proxy voting, dividend payments, and shareholder communications, reducing the need for multiple intermediaries in those processes as well. As we modernize our rules, we must consider the full scope of these changes, both in how markets trade and in how security ownership is recorded and serviced. I welcome the IAC’s assistance in helping us think through how to respond appropriately to these innovations.

As with any technological shift, market participants are experimenting with different tokenization models, and I am interested to hear the panel’s thoughts about the implications of these approaches. Several models may warrant discussion. First, some companies are issuing equity directly on public distributed ledgers in the form of programmable assets that, in some cases, have the ability to embed compliance, voting rights, and other governance functions. This path allows investors to hold a security in digital format, with fewer intermediaries and more transparency.

Second, third parties are tokenizing equities by creating on-chain security entitlements, which represent ownership interests in equities that exist off-chain.

Third, we are seeing synthetic exposures—tokenized products that seek to mirror public equity performance. While today the offer and sale of these products are proliferating offshore, they illustrate the global demand for U.S. market exposure built on distributed ledger-powered infrastructure.

Of course, the shift to on-chain capital markets requires more than just issuance. We must also tackle other stages in the securities transaction lifecycle. For example, tokenized shares risk becoming nothing more than conversation pieces if their owners cannot trade them competitively in liquid on-chain environments. But making this possible requires the Commission to think carefully about how our regulatory mandate intersects with technological realities. Furthermore, issuers should be at the center of the discussion to help ensure that these new systems work effectively and align with the overarching goals of transparency and investor protection.

The previous Commission attempted to address on-chain markets through a brute-force redefinition of “exchange” to include even basic “communication protocols,” and then subjecting whatever was captured by that new definition to the full panoply of our regulatory framework for exchanges. That approach lacked limiting principles, expanded the SEC’s reach beyond what Congress intended, and ultimately created uncertainty that chilled innovation.

We must not repeat that mistake. If we want to boost innovation, investment, and jobs here in the United States, we must provide compliant pathways that allow market participants to leverage the unique capabilities of this new technology. That is why I have asked staff to recommend to the Commission ways in which we can use our exemptive authorities to allow for on-chain innovation while we continue to work on long-term, durable rules of the road.

Congress has given the SEC broad exemptive authorities under the Securities and Exchange Act of 1934, and we must use these authorities responsibly. A thoughtful exemptive framework—cabined, time limited, transparent, and anchored in strong investor protections—could allow the markets to develop on-chain models and give investors innovative new choices. And, drawing on input from market participants, we will be able to craft rules that distinguish between truly decentralized finance and the wide spectrum of centralized, on-chain finance in existence today.

A durable rulebook must recognize this spectrum without forcing square pegs into round holes. If we attempt to regulate decentralized protocols as if they were centralized brokers, we will undermine the very innovation that makes them resilient and transparent. But if we allow centralized intermediaries to benefit from regulatory arbitrage just because they operate on-chain, we erode the principles of accountability and investor protection that have contributed to our global market dominance. Our task, as well as our responsibility, is to write rules that match functional reality. I look forward to working with my counterparts across the Administration in the coming years to do just that.

The SEC’s role is not to resist the market’s transition to on-chain capital markets, nor to force it into legacy definitions, nor to push innovators offshore. Rather, it is to allow market participants to operate and innovate subject to clear guardrails that protect the public, ensuring that U.S. markets remain the most dynamic, transparent, and trusted in the world. If we stay true to this course, we can ensure that the United States leads—not follows—in the next chapter of capital markets innovation.

Meanwhile, in a recent article published in The Economist, Blackrock’s Larry Fink and Rob Goldstein address the move to tokenization, calling it “the next major evolution in market structure.” They liken the state of tokenization today to where the Internet was in 1996, noting that it will not replace the existing financial system any time soon, but that we should think of the development of tokenization as analogous to a bridge being built from two sides of river to converge at the center. They argue for the thoughtful implementation of safeguards as the technological developments advance.

– Dave Lynn

Wilson Sonsini recently released its 2025 Silicon Valley 150 Corporate Governance Report, which surveys governance practices among Silicon Valley’s largest companies. The report includes information regarding board matters, officer matters, defensive measures, proxy statement disclosures, ESG and sustainability reporting, stockholder proposals, activism, and executive compensation. Among the key takeaways from this year’s report include:

– Diversity Disclosure Significantly Down. Diversity disclosure in SV150 proxy statements dropped significantly this year to 57.3 percent compared with 92 percent last year. The decrease occurs not only amid the change in U.S. presidential administration and elimination of the Nasdaq diversity matrix referenced above, but also the consequent changes in some institutional shareholder voting policies regarding DEI. Emblematic of the decrease in disclosure, the use of the word “diversity” or “diverse” in proxy statements plummeted following these developments to 7.61 average uses versus 20.12 average uses in prior year proxy statements, representing a decrease of 62.2 percent.

– Human Capital Disclosure Also Decreased. After three years of increases, human capital disclosure decreased to 66.0 percent, down from 74.7 percent in the prior year. Quantitative human capital disclosure in which the company provides numerical data about employees or other human capital matters was particularly down from 41.6 percent of companies providing such information in 2024 to 26.5 percent in 2025.

– ESG/Sustainability Down Slightly. After increasing prevalence over the last few years, ESG/sustainability disclosure in proxy statements has also trended down this year, although less significantly than DEI, from 80.7 percent in 2024 to 71.3 percent this year. Companies continued to post ESG reports on their websites at a slightly reduced rate (114 this year compared to 117 last year). The majority of such reports (57.9 percent) were dated 2024, with 23.7 percent dated 2025.

– Other Areas Largely Status Quo. Despite the decreases in disclosure regarding diversity, human capital, and ESG/sustainability, most proxy statement disclosures and practices in other areas remained largely consistent with prior years. Virtual annual meetings continued to be the norm for most companies (85 percent) and the presence of women in the boardroom and executive suites remained on par with prior years (33.5 percent of directors and 20.7 percent of executives in 2025). Despite the shift away from diversity disclosure, the percentage of ethnically diverse directors, to the extent it was disclosed at all, continued to remain at approximately 29.4 percent, similar to our findings last year.

The report also notes that only 5.4 percent of SV150 companies were affected by activism in 2025, and only two activism campaigns resulted in a proxy fight, with the most frequent result being at least one director added to the board in a settlement with the activist stockholder.

– Dave Lynn