In a significant decision, the California Supreme Court clarified that forum-selection clauses included in corporate charter documents are not unenforceable simply because the designated forum, such as the Delaware Court of Chancery, does not provide the right to a jury trial. The Court drew a clear distinction between predispute jury trial waivers and forum selection […]| Cooley PubCo
This year’s proxy season brought fewer shareholder proposals but governance proposals continued to be submitted in high numbers and received robust support. Environmental and social proposals, on t…| Cooley PubCo
The Trump administration has issued four new executive orders aimed at reviving and expanding the US nuclear energy sector, coming on top of numerous other executive orders marking a sweeping rever…| Cooley PubCo
As ESG backlash escalated this past year, companies have often felt caught between Scylla and Charybdis, struggling to navigate between the company’s commitment to ESG issues that the company belie…| Cooley PubCo
It’s not just Mickey Mouse that’s feeling the heat from anti-ESG efforts lately. Reuters reports that, so far this year, legislators have filed about 99 so-called “ESG backlash” bills compared wit…| Cooley PubCo
In a press release issued today, the Business Roundtable announced the adoption of a new Statement on the Purpose of a Corporation, signed by 181 well-known, high-powered CEOs. What’s newsworthy h…| Cooley PubCo
Laurence Fink, the Chair and CEO of BlackRock, has issued his annual letter to public companies, entitled A Sense of Purpose. As in prior years, Fink advocates enhanced shareholder engagement and …| Cooley PubCo
Are shareholders really the “owners” of corporations? Even though shareholders have no responsibilities to the corporations they “own”? Should corporations be managed for the sole purpose of maximi…| Cooley PubCo
by Cydney Posner Much has been written about the problems associated with the prevalence of short-term thinking in corporate America. As noted in a post from The Harvard Law School Forum on Corpor…| Cooley PubCo
by Cydney Posner According to “Companies’ Stock Buybacks Help Buoy the Market,” by Dan Strumpf, published in the WSJ on September 15, 2014, “[c]ompanies are buying their own shares at the bri…| Cooley PubCo
Bloomberg reports that staff from the Department of Government Efficiency is currently at the SEC, according to communications to SEC staff, who were “instructed to treat them as internal employees.” Bloomberg also reports that the “SEC has designated an internal team to work with DOGE,” including “the offices of the chief operating officer, the general counsel, human resources and enforcement.” According to the article, about 10% of the SEC’s workforce (arounds 500 staff mem...| Cooley PubCo
As reported in this PubCo post, the SEC announced yesterday that it was ending its “defense of the rules requiring disclosure of climate-related risks and greenhouse gas emissions”—the climate disclosure rules. In response to that action, Commissioner Caroline Crenshaw issued this Statement Regarding Climate-Related Disclosures Rule Litigation: The Commission has Left the Building. She’s none too pleased with the SEC’s action—to put it mildly.| Cooley PubCo
Today, the SEC announced that the Commissioners had voted to end the SEC’s “defense of the rules requiring disclosure of climate-related risks and greenhouse gas emissions”—the climate disclosure rules. As you probably know, a number of challenges to the climate disclosure rule were consolidated as State of Iowa v. SEC in the Eighth Circuit, where briefs in the case had been filed. Then, in February, Acting Chair Mark Uyeda issued a statement advising that he had requested that...| Cooley PubCo
Controversial Delaware SB 21 was signed into law last evening after passage yesterday by the legislature. According to this Statement from the office of Delaware Governor Matt Meyer, the Governor has “signed Senate Bill 21 into law, thanking lawmakers for the swift passage of this critical update to Delaware’s corporate law, aimed at ensuring the state remains the premier home for U.S. and global businesses. The legislation, developed in collaboration with corporate leaders and legal ex...| Cooley PubCo
As widely reported, the Delaware legislature has responded to increasing chatter and speculation about the intentions of some companies—as well as action in some cases—to change their states of incorporation from Delaware to other states by proposing new legislation, Senate Bill 21. That proposed bill would offer a process for boards to invoke safe harbor protection from litigation over potentially conflicted transactions for directors and controlling stockholders. The bill would also add...| Cooley PubCo
In this new paper from the Rock Center for Corporate Governance at Stanford, The Artificially Intelligent Boardroom, the authors discuss the potential impact of artificial intelligence on boardroom…| Cooley PubCo
Corp Fin continues its project of updating CDIs. This new tranche relates to effectiveness of Form S-3 relative to timing of filing of Forms 10-K and proxy statements, allowing non-automatically effective Forms S-3 to be declared effective during the period between the filing of the Form 10-K and the definitive proxy statement. The CDIs also relate to foreign private issuer filings and withdraw a few CDIs to reflect the vacatur by a Federal court of the repurchase modernization rules. The ...| Cooley PubCo
As discussed in this PubCo post, in February, Reuters reported that, under the new Administration, some SEC Enforcement staff have recently “been told that they will need to seek the Commission’s approval for all formal orders of investigation, which are required to issue subpoenas for testimony or documents,” marking a “change in procedure that could slow down investigations.” Previously, Reuters reported, authority to formally launch investigations had been delegated to Enforce...| Cooley PubCo
Yesterday, Acting SEC Chair Mark Uyeda delivered remarks to the Investment Company Institute’s 2025 Investment Management Conference. While much of his presentation was specific to investment companies, the theme of his remarks had a more general application: a revised—revived?—blueprint for SEC rulemaking processes. This is certainly not the first time that Uyeda has been critical of the SEC’s rulemaking process (see, e.g., this PubCo post and this PubCo post), but now, as Acting...| Cooley PubCo
In December of last year, Nasdaq proposed a rule change to modify the initial listing requirements related to liquidity. More specifically, Nasdaq proposed to change Listing Rules 5405 and 5505 to require that a company seeking to list on the Nasdaq Global Market or Nasdaq Capital Market in connection with an IPO or to uplist to Nasdaq from the OTC in connection with a public offering “satisfy the applicable minimum Market Value of Unrestricted Publicly Held Shares (MVUPHS) requirement so...| Cooley PubCo
Based on the news reports from this morning, it seems unlikely that the threatened government shutdown will come to pass. Nevertheless, although the shutdown appeared doubtful, just this morning, Corp Fin posted an Announcement Regarding Pending Registration Statements and Offering Statements. As a cautionary measure, until the shutdown is fully resolved by a vote, it may make sense for those with pending registration statements to take a look.| Cooley PubCo
Corp Fin has just issued a slew of new and revised CDIs regarding the Securities Act and related rule and forms—primarily Reg A and Reg D. Some are updates that relate back to the 2020 amendments designed to harmonize and simplify the patchwork universe of private offering exemptions. (See this PubCo post.) There are also a few CDIs related to Reg Crowdfunding. And, in a burst of housekeeping, Corp Fin has also withdrawn a number of mostly ancient CDIs. The highlights here are two new CDIs...| Cooley PubCo
Here’s a recent Cooley Alert that some companies may be delighted—or at least relieved—to read: Impacts for US Companies of the Proposed EU Omnibus Package, from Cooley’s international ESG and sust…| Cooley PubCo
At the end of last year, in this post on the CLS Blue Sky Blog, two leading authorities on securities law, Professors John C. Coffee, Jr. and Joel Seligman, made some predictions about SEC regulation under the new Administration. (See this PubCo post.) In light of their concerns about the potential changes to the SEC under the new Administration, they announced their intent to form a “Shadow SEC,” composed of acknowledged experts in securities regulation, intended to encourage debat...| Cooley PubCo
In a meeting last year of the SEC’s Investor Advisory Committee, the Committee heard from a panel regarding the continued viability—or rather, lack thereof—of §11 liability following SCOTUS’s decision in Slack Technologies v. Pirani. Slack, as you know, limited §11 liability in direct listings—and, perhaps increasingly, in the context of other offerings as well—given the difficulty of tracing shares to the defective registration statement in direct listings, where both regis...| Cooley PubCo
In this new press release, Filer Transition to New and Improved EDGAR Begins March 24, the SEC provides references and links to “extensive guidance and resources” available to assist filers with EDGAR Next. According to the press release, the new EDGAR Filer Management dashboard will go live on March 24 on the SEC’s website, and filers can begin enrolling in “EDGAR Next.” Enrollment in EDGAR Next will remain open until December 19, 2025; however, to avoid interruption, the SEC adv...| Cooley PubCo
Corp Fin has just posted some new CDIs related to M&A transactions, more specifically, a revised CDI related to Form S-4 and lock-up agreements and a new group of CDIs related primarily to material changes in tender offers. The CDIs are summarized below.| Cooley PubCo
Two recent settled actions suggest that SEC Enforcement seems to be scrutinizing disclosures about related-person transactions—or rather, the absence thereof. The first, announced last week agains…| Cooley PubCo
Is “-washing” the securities fraud equivalent of “-gate” for political scandals? First we had greenwashing, then diversity-washing, and now we have AI-washing—a topic that, as discussed in the Side…| Cooley PubCo
This week, SEC Commissioner Hester Peirce delivered the keynote address at the Northwestern Securities Regulation Institute in San Diego. Her theme: that public companies are “confronting a symptom…| Cooley PubCo
Corp Fin has posted several new or revised CDIs that address exempt solicitations under the proxy rules. With certain exceptions, Rule 14a-2(b)(1) exempts “any solicitation by or on behalf of any …| Cooley PubCo
In October last year, the NYSE proposed, like Nasdaq, to take on the challenge of repeated reverse stock splits by limiting the circumstances under which a listed company could use a reverse stock …| Cooley PubCo
In August 2024, Nasdaq submitted a new rule proposal aimed at accelerating the delisting process for companies with shares that trade below $1. Briefly, under the proposal, a company that was non-c…| Cooley PubCo
The SEC has announced that Commissioner Mark T. Uyeda has been designated Acting Chair of the SEC. As you know, Paul Atkins has been nominated to serve as Chair, following his confirmation by the …| Cooley PubCo
In this settled action—part of a slew of SEC Enforcement cases reported out in the last days before the change in Administration—the SEC alleged that Celsius Holdings, Inc. engaged in improper acco…| Cooley PubCo
On Tuesday, the SEC filed a complaint in the D.C. federal district court alleging that Elon Musk ignored the Section 13(d) beneficial ownership reporting deadline when, in March 2022, he acquired m…| Cooley PubCo
Just in time for the commencement of proxy season we have this reminder from SEC Enforcement about disclosures of related-person transactions. Failure to properly report on a related-person transac…| Cooley PubCo
This article from Morningstar published on the Harvard Law School Forum on Corporate Governance examines three major trends of the 2024 proxy season regarding environmental, social and governance s…| Cooley PubCo
As discussed in this press release, the SEC has announced Orders settling charges against Ideanomics, Inc., its current CEO and former CFO, as well as its former Chair and CEO, for alleged misleadi…| Cooley PubCo
On Wednesday, SCOTUS heard oral argument—for over three and a half hours—in two very important cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Dept of Commerce, about whether th…| Cooley PubCo
In Loper Bright v. Raimondo, which overturned the 40-year-old doctrine of Chevron deference (see this PubCo post), SCOTUS highlighted the continued relevance of the doctrine articulated in Skidmore…| Cooley PubCo
In April, the NYSE filed a proposed rule change with the SEC that would allow the NYSE to commence immediate suspension and delisting procedures for a listed company if that company has “changed it…| Cooley PubCo
As has been widely discussed, the administrative state took quite a shellacking this last SCOTUS term. But as I noted earlier, it wasn’t just the elimination of Chevron deference in Loper Bright (s…| Cooley PubCo
Utah v. Julie A. Su, a new opinion from Fifth Circuit, concerns an appeal of the “weighty question”—post Chevron—of whether, as phrased by the Court, “ERISA allow[s] retirement plan managers to con…| Cooley PubCo
This term, SCOTUS delivered two big wallops to the administrative state in the decisions eliminating Chevron deference (Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Dept of Commerce…| Cooley PubCo
“ESG month” may not be exactly what you think. It’s the moniker, according to Politico, ascribed to the plan of the House Financial Services Committee, reflected in this interim report from its ESG…| Cooley PubCo
[This post revises and updates my earlier post primarily to provide a more detailed discussion of the contents of the adopting release.] At an open meeting on Wednesday last week, the SEC voted, th…| Cooley PubCo
On Friday, SCOTUS issued its decision in two very important cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Dept of Commerce, about whether the National Marine Fisheries Service…| Cooley PubCo
Is it ok for an agency to change its mind? Well that depends. If the agency was “arbitrary and capricious” in failing to provide an adequate explanation to justify its change, a court may well vaca…| Cooley PubCo
Reams of anti-ESG legislation have been proposed recently at both the state and federal levels. This article from Institutional Investor updates us on the status of state anti-ESG legislative effo…| Cooley PubCo
Corp Fin has just issued a new set of CDIs under Form 8-K, Item 1.05, Material Cybersecurity Incidents. The SEC adopted final rules regarding cybersecurity disclosure in 2023, requiring companies …| Cooley PubCo
What’s the latest on SB 313, the proposed amendments to the Delaware General Corporation Law largely designed to address the outcome of the decision in West Palm Beach Firefighters’ Pension Fund v.…| Cooley PubCo
Back in March 2023, the DOJ unsealed an indictment against Terren Peizer, formerly the executive chair of Ontrak, Inc., representing the first time, according to the press release, that the DOJ bro…| Cooley PubCo
Yesterday, Corp Fin Director Erik Gerding issued a new statement, Selective Disclosure of Information Regarding Cybersecurity Incidents. As you know, last year the SEC adopted new rules regarding c…| Cooley PubCo
As you probably recall, on March 6, the SEC adopted final rules “to enhance and standardize climate-related disclosures by public companies and in public offerings.” (See this PubCo post, this PubC…| Cooley PubCo
In January, ExxonMobil filed a lawsuit against Arjuna Capital, LLC and Follow This, the two proponents of a climate-related shareholder proposal submitted to Exxon, seeking a declaratory judgment t…| Cooley PubCo
Controversy notwithstanding, the proposed amendments to the Delaware General Corporation Law in Senate Bill 313 have reportedly “sailed through” the Delaware Senate and are scheduled to move to the…| Cooley PubCo
As you know, the Nasdaq board diversity disclosure requirements might be in jeopardy at the moment, as we await the decision of the en banc Fifth Circuit following oral argument in Alliance for Fai…| Cooley PubCo
Last month, this PubCo post discussed the recent controversy over proposed amendments to the Delaware General Corporation Law. As noted in the post, the Council of the Corporation Law Section of t…| Cooley PubCo
In remarks to the audience at a Financial Times summit earlier this month, Gurbir Grewal, SEC Director of Enforcement, citing a recent poll from Deloitte, observed that over “a third of executives …| Cooley PubCo
You may recall that, in January, ExxonMobil filed a lawsuit against Arjuna Capital, LLC and Follow This, the two proponents of a climate-related shareholder proposal submitted to Exxon, seeking a d…| Cooley PubCo
