On September 17, 2026, two days after the Clarity Act failed to advance in the U.S. Senate, the Securities and Exchange Commission issued a highly question-begging and likely illegal “Order” granting five-year conditional exemptions from the definitions of exchange and
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Paul Weiss Discusses Treasury’s First Penalty Under Outbound Investment Security Program
By Martinyerovi
On October 7, 2026, the U.S. Department of the Treasury (“Treasury”) announced its first civil penalty under the Outbound Investment Security Program (the “OISP”). Treasury fined Amidi, LLC (“Amidi”) $200,000 for failing to notify Treasury of an investment that Amidi’s…
Does Stronger Securities Enforcement Lower Stock Prices?
By Renholding
How does stronger securities enforcement affect stock prices? The conventional wisdom is that it deters fraud, improves disclosure, and lowers the cost of raising outside capital, so shareholders should welcome it. The most relevant evidence supports that view. When the…
Cleary Discusses SEC Proposal to Rescind Rule 14a-8 and Amend Rule 14a-4
By Martinyerovi
On September 16, 2026, the SEC issued its much-anticipated proposal to rescind Rule 14a-8 under the Securities Exchange Act of 1934 (the “Exchange Act”), the shareholder proposal rule, in its entirety. If adopted, the proposal would eliminate the federal framework…
A Theory of Corporate Bad Faith
By Renholding
There are four forms of corporate bad faith: intentional misconduct, knowing violation of law (Massey), violation of the duty of oversight (Caremark), and corporate waste. Each is a distinct theory of the case in a cause of action for “bad…
Kirkland & Ellis Discusses SEC Proposal to Expand and Modernize Retail Fund Access
By Martinyerovi
On September 30, 2026, the U.S. Securities and Exchange Commission (the SEC) issued two proposing releases that could significantly expand retail access to private market strategies through regulated fund structures. The first proposed rulemaking would permit advisers to registered investment companies…
Rethinking Officer Duties and Liability
By Renholding
Corporate officers occupy an unusual place in corporate law. They are among the most important actors in the modern corporation, making many of the decisions that shape a company’s day-to-day operations, strategy, risk taking, and compliance.[1] Yet compared with…
Davis Polk Discusses SEC Clarification of Letter on Structured Notes Disclosure
By Martinyerovi
The SEC has clarified that a recent letter on structured note disclosures does not affect, limit or condition long-standing staff guidance and does not impose legal requirements.
Background
In a 1996 no-action letter (the Morgan Stanley Letter), the SEC’s…
Shadow SEC Statement No. 16: Retain Rule 14a-8
By Renholding
We oppose rescission of SEC Rule 14a-8.
Rule 14a-8 has for 80 years been a useful, congressionally authorized component of the U.S. capital markets, fully compatible with the long-standing dual state and federal system governing public companies. Reasonable people may…
Cleary Gottlieb Discusses Revised DOJ Justice Manual on False Claims Act Enforcement
By Renholding
On Friday, September 18, 2026, the U.S. Department of Justice (DOJ) announced revisions to two Justice Manual sections governing False Claims Act (FCA) enforcement. The revisions narrow DOJ’s enforcement approach in two respects. First, DOJ revised Justice Manual § 1-19.000…