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Law Firms Vie for Tech Talent in AI Race

Fri, 25 Sep 2026 16:44:00 Z

Cooley chief innovation officer David Wang was quoted in Reuters about the firm’s push to recruit technology talent as law firms ramp up their AI capabilities. Wang highlighted Cooley AI, a firm-owned AI company developing technology that addresses complex legal challenge.

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DOL Finalizes Rescission of EO 11246 Affirmative Action Rules, Narrows Section 503, Updates VEVRAA Thresholds

Thu, 24 Sep 2026 07:00:00 Z

On August 21, 2026, the Department of Labor (DOL) published three final rules in the Federal Register modifying federal contractors’ affirmative action obligations: formally rescinding the implementing regulations for Executive Order (EO) 11246, following EO 11246’s rescission last year; narrowing Section 503 of the Rehabilitation Act of 1973 to align with applicable law and recent EOs; and making technical changes to the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), including updating jurisdictional thresholds.

Rescission of EO 11246 implementing regulations – effective October 26, 2026

EO 11246 has long required covered contractors to maintain written affirmative action programs (AAPs) addressing race- and sex-based criteria. Following EO 11246’s rescission in January 2025, the DOL now formally rescinded the implementing regulations for EO 11246, which include placement goal and utilization analysis requirements for nonconstruction contractors. The agency cited additional rationales for the rescission, including eliminating legal vulnerabilities, improving efficiency of the government contracting process, decreasing employer burden and aligning the regulations with recent EOs.

Section 503 regulations modifications – effective September 21, 2026

The rule makes the following key changes to contractors’ disability affirmative action obligations under Section 503 of the Rehabilitation Act:

Eliminates the requirement that contractors invite applicants and employees to self-identify their disability status.
Rescinds the 7% utilization goal for individuals with disabilities and the corresponding utilization analyses.
Updates the Section 503 coverage threshold from $15,000 to $20,000 for inflation.
Removes references to EO 11246 and adds administrative procedures at 41 CFR Part 60-30, effective December 21, 2026.

The DOL stated the modifications fulfill EO 14219’s mandate to rescind regulations not authorized by clear statutory authority. The agency noted that the disability self-identification requirement and utilization goal were inconsistent with the Americans with Disabilities Act (ADA), and that the utilization analysis requirements were “now unworkable” given their dependence on the revoked EO 11246.

Importantly, the rule does not change reasonable accommodation requirements or the obligation to develop and maintain an AAP as to individuals with disabilities or protected veterans. Nondiscrimination provisions also remain intact, along with outreach requirements (Subpart C), complaint procedures (Subpart D) and most recordkeeping requirements.

VEVRAA regulations revisions – effective September 21, 2026

The VEVRAA revisions are modest. They remove cross-references to EO 11246, relocate administrative enforcement procedures to 41 CFR Part 60-300, and codify the coverage threshold increase from $150,000 to $200,000 (which had already been implemented in October 2025).

Next steps

The three rules have different effective dates and should be tracked accordingly. By September 21, 2026, contractors should discontinue use of the CC-305 disability self-identification form and review policies and HR systems for compliance with remaining disability affirmative action obligations. By October 26, 2026, contractors should retire any remaining race- and sex-based AAP obligations. Contractors should also consult employment counsel regarding previously collected self-identification data and remain mindful that Title VII, the ADA, and applicable state and local antidiscrimination laws continue in full force. VEVRAA obligations remain largely unchanged.

If you have any questions about these developments, please reach out to a member of the Cooley employment team.

USDA Disclosure Rule Could Snag Energy Project Deals

Thu, 24 Sep 2026 03:49:00 Z

Mona Dajani, partner and co-chair of Cooley’s infrastructure, real estate and energy practice, was quoted in a Law360 article on how proposed US Department of Agriculture foreign ownership disclosure requirements could increase due diligence and compliance considerations for energy infrastructure projects. Dajani noted that foreign ownership analysis could shift from a specialized issue in certain transactions to a routine part of diligence from the earliest stages of project development.

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Cooley Bolsters Congressional Investigations Practice With Veteran Republican Capitol Hill Counsel

Wed, 23 Sep 2026 17:26:00 Z

WASHINGTON, DC – September 23, 2026 – Cooley today announced that Jessica Donlon joined the firm as a partner in its congressional investigations practice and global litigation department in Washington, DC.

Donlon’s arrival further strengthens Cooley’s Chambers-ranked bipartisan congressional investigations practice, deepening its firsthand congressional experience and ability to counsel clients through high-stakes oversight matters. She brings more than 15 years at the highest levels of congressional oversight and investigations, including senior leadership roles with the House committees on Energy and Commerce and Oversight and Government Reform, as well as the White House Office of Management and Budget (OMB).

“Since Susanne arrived in 2024, she has catapulted Cooley’s congressional investigations practice to the top of the market,” said Ian Shapiro, partner and chair of the firm’s global litigation department. “Now, as she reunites across the aisle with Donlon, few, if any, firms will have as much experience at the center of congressional oversight over the last 15 years. We are excited to deploy Donlon, Grooms and the rest of their team in the service of Cooley’s innovative clients.”

Donlon joins the firm from the US House of Representatives, where she served as general counsel to the House Energy and Commerce Committee under Chairman Brett Guthrie, and previously served as general counsel and deputy staff director to the House Oversight and Government Reform Committee under Chairman James Comer. She also served as deputy general counsel for oversight at the White House OMB, where she managed the administration’s response to congressional requests, briefings and hearings.

“Navigating congressional scrutiny requires sound judgment, credibility and a deep understanding of the people and institutions that drive decisions in Washington,” said Susanne Sachsman Grooms, partner and chair of Cooley’s congressional investigations practice. “Having worked alongside Jessica for many years, I know that her impeccable reputation and long-standing relationships across the Hill and throughout DC will be invaluable as we help clients anticipate and navigate the new oversight dynamics that could emerge following the midterm elections. We are very excited to have our clients benefit from Jessica’s extensive experience on the Hill and at OMB and the breadth of perspective that she brings to our team.”

“Cooley is the natural choice for my move into private practice,” said Donlon. “The firm advises many of the most innovative companies and industries increasingly at the center of congressional attention, and I’m excited to bring my experience to those clients while working alongside Grooms and other exceptional colleagues in the congressional investigations practice and across the global litigation department.”

Cooley’s congressional investigations practice counsels companies and individuals through their most sensitive and high-profile matters involving significant business and reputational risk. Its bipartisan team brings deep experience with the principal investigative committees in both chambers of Congress and under leadership from both parties. The team has successfully handled numerous investigations across major industries for public companies, privately held businesses, individuals and other entities facing congressional oversight. Donlon will join a team that includes numerous practitioners with deep experience on the Hill, including Heather Sawyer, Janet Kim, Sean Quinn and Vince Sampson.

Cooley’s global litigation department includes more than 500 lawyers in the US and Europe representing technology, life sciences and other innovative companies. Since 2025, Cooley has added numerous elite, next-generation lawyers to its litigation department throughout the US, including Elizabeth Prelogar, Raymond Tolentino, Ephraim McDowell, Brian Nelson, Janet Kim and Meredith Halama in DC; Simona Agnolucci, Ben Hur, Jonathan Patchen, Eduardo Santacana, Joshua Anderson and Tiffany Lin in San Francisco; Michael Rome and Brian Klein in Los Angeles; Lyndsey Kruzer, Andrea Reid, Andrew Wilkins and John Rearick in Boston; and James Kim, Tejal Shah, Sean Quinn and Michael La Marca in New York.

How AI Is Disrupting the IPO Market: Cooley CEO on New OpenAI Partnership

Wed, 23 Sep 2026 15:05:00 Z

Rachel Proffitt, Cooley partner and CEO, joined Forbes to discuss how AI is transforming the initial public offering (IPO) process and the launch of GO Public, Cooley’s AI-powered IPO tool developed with OpenAI to help lawyers identify key issues earlier in the preparation process and focus more time on higher-value analysis and judgment.

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Cooley Partner Shortlisted for Dealmaker of the Year

Tue, 22 Sep 2026 20:32:22 Z

Cooley partner Bram Couvreur was named a finalist for Los Angeles Business Journal’s (LABJ) Dealmaker of the Year for its 2026 M&A Awards. He was recognized for representing For The Record on its acquisition by Tyler Technologies in February 2026. This marks Couvreur’s second consecutive listing.

Additionally, Cooley was named as part of the deal team advising Mach Industries on its acquisition of Exquadrum, which was honored as LABJ’s M&A Deal of the Year (under $100 million).

Read the full list of honorees

Attys 'Itching' To Join Congressional Probes Of Trump Admin

Tue, 22 Sep 2026 15:11:18 Z

Susanne Grooms, partner and leader of Cooley's bipartisan congressional investigations practice, was quoted in Law360 about how congressional committees could rapidly staff up and launch investigations if control of Congress changes after the 2026 midterm elections. Grooms said Democratic members have identified a broad set of investigative priorities and would need to move quickly after the election to hire experienced personnel to pursue that agenda.

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Permission to Innovate: SEC Carves Out Path for On-Chain Stock Trading

Tue, 22 Sep 2026 15:00:00 Z

Temporary relief creates a notice-based pathway for qualifying tokenized securities venues and certain AMM liquidity providers while the SEC considers permanent rules

Bottom line: The SEC is opening a controlled pathway for secondary trading of tokenized US equities through permissioned automated market makers, but the relief is temporary and conditional.

Introduction and policy context

On September 17, 2026, the Securities and Exchange Commission (SEC) issued the long-awaited “Innovation Exemption,” an order under Section 36(a)(1) of the Securities Exchange Act of 1934 granting two forms of temporary, conditional relief. The first exempts qualifying tokenized securities venues (TSVs) from the definition of “exchange,” while the second exempts qualifying liquidity providers, termed “Covered Firms,” from the definition of “dealer” with respect to specified activity in a TSV’s automated market maker (AMM) liquidity pool. The relief expires five years after its publication, subject to earlier modification by the SEC, and the SEC has solicited comment on whether and how to revise, extend or make it permanent.^{^[1]}

The Innovation Exemption arrives at a pivotal moment. Just two days before the order was issued, the Senate rejected cloture, 49 – 50, on the motion to proceed to HR 3633, the CLARITY Act. In an accompanying statement, SEC Chair Paul Atkins expressly linked the two events, describing the exemption as a “bridge toward durable rulemaking.”^{^[2]} The implication is clear: With market-structure legislation stalled, the SEC intends to use rulemaking, exemptive orders and staff-level relief to facilitate on-chain securities activity within its existing authority. Commissioner Hester Peirce struck a similar chord, emphasizing that the exemptions should permit experimentation, self-custody and greater investor autonomy while generating the practical experience needed to inform permanent rules. Commissioner Mark Uyeda likewise characterized the order as a controlled, data-producing experiment designed to advance technology-neutral rulemaking without compromising investor protection or market integrity.^{^[3]}

Notably, the order comes on the heels of the SEC’s separate June 2026 proposal to rescind Regulation National Market System (NMS) rules 611 and 610(e), reinforcing the view that the existing NMS framework may warrant broader structural reform.^[4] The SEC’s central premise is that the NMS framework is fundamentally incompatible with AMM-based trading – including because pool-ratio pricing may not accommodate Rule 611’s trade-through requirements; continually shifting pool compositions and asset allocations complicate Rule 602(a)’s quotation obligations; and AMMs may quote at increments finer than Rule 612 permits. At the same time, the order acknowledges that the transaction, price movement and participant interaction transparency provided by AMMs may potentially obviate the need for certain existing regulations, and it identifies a range of potential benefits that AMM trading can provide for market participants, including self-custody, around-the-clock trading, fractional ownership, near-instantaneous settlement, improved sanctions screening, enhanced auditability and recordkeeping, lower operating and transaction costs, and reduced information asymmetries.^{^[5]}

The order also builds on a series of recent SEC staff statements addressing securities intermediaries and the trading of tokenized securities. First, the December 2025 custody statement identified conditions under Rule 15c3-3(b)(1) for broker-dealer physical possession or control of crypto asset securities. Second, the January 2026 statement set out a taxonomy of tokenized securities, including the distinction between issuer-sponsored and third-party-tokenized securities; further distinguished custodial third-party tokenization from synthetic third-party products; and confirmed that tokenization changes form, but not legal status. Third, the April 2026 interface statement provided a conditional, time-limited staff position for certain self-custodial interfaces used to prepare crypto asset securities transactions. Together, these statements address custody, product characterization and interfaces; the order addresses venues and liquidity providers.^{^[6]}

It is also noteworthy how the order marks a sharp departure from the prior commission’s approach. In 2022, the SEC proposed amendments to Exchange Act Rule 3b-16 that would have expanded the definition of “exchange” to encompass systems using non-firm trading interest and “communication protocols” – capturing a broad range of blockchain and decentralized finance systems, among them the very AMMs that the Innovation Exemption now seeks to accommodate. That proposal drew extensive comment and calls for clarification and was formally withdrawn effective June 17, 2025.^{^[7]}

TSV exemption from definition of ‘exchange’

The order defines a “TSV” as an organization, association or group of persons that brings together buyers and sellers of “Tokenized NMS Stock” by providing one or more AMM liquidity pools for permissioned participants and setting standards for access. The definition is functional: a website, browser extension or other software application that enables a participant to enter, display or agree to trade terms may itself form part of the TSV.^{^[8]}

A TSV that satisfies the order’s conditions is exempt from the definition of “exchange” for Exchange Act purposes and is therefore not required to register as a national securities exchange or operate under the alternative trading system (ATS) exemption. Because the TSV also falls outside the definitions of “trading center” and “market center” under Regulation NMS, the trade-through, access and other provisions of Regulation NMS applicable to those categories do not apply.^{^[9]}

The Innovation Exemption incorporates extensive guardrails designed to ensure investor protection, maintain fair, orderly, and efficient markets, and facilitate capital formation. These include:

Limited eligible securities and issuer objections. Eligible Tokenized NMS Stock encompasses both issuer-sponsored stock and third-party-tokenized stock, but excludes synthetic linked securities, security-based swaps, rights and warrants. Before listing a third-party-tokenized security, the TSV must notify the issuer of the underlying stock and allow at least 30 calendar days to elapse following receipt. A timely issuer objection bars trading, and the TSV must publicly disclose the objection within five business days.^{^[10]} The offshore issuance and trading of synthetic linked securities without issuer consent has generated significant recent controversy; the SEC accordingly scoped the order narrowly to exclude synthetic instruments and to afford issuers an objection right with respect to third-party tokenization of their stock.
Equivalent holder rights. The TSV must verify that each Tokenized NMS Stock confers the same rights and privileges as the equivalent traditional share, including economic, dividend, voting and liquidation rights. For third-party-tokenized stock, related proxy materials and issuer communications must be made available at no cost to the issuer or its shareholders. Notably, the order does not expressly require that the Tokenized NMS Stock be convertible or redeemable into a conventionally recorded share.
Permitted pairs. Tokenized NMS Stock may be paired against another Tokenized NMS Stock, a nonsecurity crypto asset (including a payment stablecoin) or a tokenized money market fund. A nonsecurity crypto asset or tokenized money market fund may trade on the TSV only when directly paired with a Tokenized NMS Stock.
Secondary trading only; registration and participant status unchanged. A TSV may facilitate only secondary trading; primary issuances and initial offerings of securities are not permitted. All offers and sales of Tokenized NMS Stock on a TSV must be registered or exempt under the Securities Act, and the TSV Exemption does not alter the registration status or other regulatory obligations of TSV Participants.^{^[11]}
Permissioned access, US nexus and eligibility. Only verified or credentialed participants and wallet addresses may trade on a TSV, though participation is not limited to institutions or registered entities. Where a third-party provider performs permissioning services on a TSV’s behalf, the TSV retains responsibility for compliance. The TSV itself must be a US person and must comply with applicable Office of Foreign Assets Control (OFAC) sanctions requirements. A TSV generally may not rely on the exemption if it includes a person subject to statutory disqualification, unless the SEC or the relevant self-regulatory organization has approved that person’s continued participation.^{^[12]}
Volume limits and broader market controls. The order categorizes Tokenized NMS Stock into two tiers that mirror the established Limit Up-Limit Down Plan and sets separate symbol and volume caps for each. A TSV may trade up to 75 Tier 1 Tokenized NMS Stock symbols, with volume in each capped at 0.25% of its prior-month average daily share volume, and up to 250 Tier 2 Tokenized NMS Stock symbols, with volume in each capped at 2.5%. Affiliated TSVs must aggregate both their trading volume and their symbol counts. These differentiated thresholds are designed to reflect liquidity differences across stocks, permit meaningful experimentation, and contain potential price dislocations or other spillovers between tokenized and conventional markets during the data-gathering period. Enforcement follows a stepped approach: The first time a TSV exceeds a volume threshold for a given stock, no action is required beyond ensuring future compliance; any subsequent breach triggers an immediate three-month pause in trading of the affected security.^{^[13]}
Transparency and recordkeeping. A TSV must make US-dollar-denominated transaction data – including symbols, price, size, time and direction – freely and publicly available in machine-readable format, updated within 10 minutes of each transaction. The TSV must also maintain comprehensive books and records covering, among other things, trading interest, execution details, permissioning information, fees, stoppages and daily share volume. In addition, the TSV must immediately notify “TSV Participants,” and promptly notify the SEC, of any event that has a significant impact on the operation of the TSV or on its participants.
Stoppages. Although a TSV may offer around-the-clock trading, it must stop trading in a Tokenized NMS Stock concurrently with any halt or suspension of the underlying stock on its primary listing exchange and immediately notify TSV Participants of the stoppage.
No leverage. A TSV may not borrow securities or nonsecurity crypto assets (whether on a secured or unsecured basis), directly or indirectly hypothecate or arrange for the hypothecation of any such assets, or extend credit to a TSV Participant for the purpose of purchasing Tokenized NMS Stock.
Built on public infrastructure. The distributed ledger applications (i.e., smart contracts) used by a TSV must be auditable, publicly available and deployed on a public, permissionless distributed ledger – meaning anyone can read or write to the ledger without authorization. This condition is designed to enhance transparency, support market integrity, and reduce systemic and operational risk by enabling TSV participants and third parties to inspect the applications, audit how trades are effected, report vulnerabilities and better assess the risks of trading on a particular TSV.^{^[14]}

Reliance on the TSV Exemption is notice-based and does not require affirmative SEC approval. It creates no presumption that the TSV would otherwise constitute an “exchange.” In order to qualify for the TSV Exemption, the TSV must publish a detailed notice on its website at least 30 calendar days before commencing operations and, within one business day after publication, notify the SEC by email providing contact information and the notice URL. The notice must disclose, among other things, that the TSV is not registered with the SEC, is not subject to Regulation NMS, and is not subject to the fair-access requirements applicable to registered exchanges and certain ATSs. Once operational, the TSV must update its notice within five business days for new or ceased listings, volume-related pauses, issuer objections and material inaccuracies; 20 calendar days before material operational changes; and within 30 calendar days after quarter-end for nonmaterial changes.^{^[15]}

Covered firm exemption from definition of ‘dealer’

The order also establishes the “Covered Firm Exemption,” which provides temporary, conditional relief from the definition of “dealer” under Section 3(a)(5) of the Exchange Act for certain AMM liquidity providers. As a threshold matter, the SEC recognizes that merely supplying liquidity to an AMM pool does not, standing alone, constitute dealer activity; absent additional indicia, an AMM liquidity provider would ordinarily be characterized as a “trader” rather than a “dealer.”[16] The analysis may become less clear cut, however, where a provider also quotes prices to customers, exercises control over pricing or inventory, enters into market-making arrangements, or enters into agreements, arrangements, or understandings to provide committed capital.^{^[17]}

The Covered Firm Exemption is therefore designed to provide additional certainty for liquidity providers that deploy proprietary capital into Tokenized NMS Stock in an AMM pool operating under the TSV Exemption and that may engage in those additional activities. To qualify, a Covered Firm must: trade solely for its own account; refrain from holding customer assets; maintain records documenting its financial resources, liquidity commitments, agreements and compensation arrangements; disclose on any public-facing website that it is not a registered broker-dealer and may receive liquidity incentives; notify the SEC in writing regarding its business model, controls, arrangements and compensation; confirm that neither it nor its affiliates is subject to statutory disqualification; and consent to SEC requests for information. As with the TSV Exemption, the notification is notice-based and does not require affirmative SEC approval, and reliance creates no presumption that the firm would otherwise be a dealer.^{^[18]}

What the order does not cover

Notwithstanding the breadth of the relief granted, the Innovation Exemption leaves several significant areas of securities regulation undisturbed. The following obligations and limitations remain fully in effect and are not modified, waived or otherwise affected by the order:

Antifraud and anti-manipulation laws. The order provides no relief from Section 10(b), Rule 10b-5, insider-trading restrictions, or any other federal antifraud or anti-manipulation provision. A TSV must also disclose whether and how it monitors for spoofing, wash trading, front-running, pump-and-dump schemes and other manipulative or abusive conduct.^{^[19]}
No broader registration safe harbor. The relief is limited to the exchange status of a qualifying TSV and the dealer status of a qualifying Covered Firm. It does not exempt securities offerings from Securities Act registration, provide relief under the Investment Company Act, determine the regulatory status of token issuers or TSV Participants, or extend to securities activity conducted outside the TSV.
Broker registration unaffected. The Covered Firm Exemption applies solely to the definition of “dealer.” Any person effecting securities transactions for others, soliciting transactions, receiving transaction-based compensation or otherwise acting in a broker capacity must independently assess its broker-dealer registration obligations. The April 2026 interface statement offers only a narrow, time-limited staff position for qualifying self-custodial interfaces that prepare user-directed transactions and satisfy detailed conditions. It does not extend to interfaces that negotiate transaction terms, solicit specific securities transactions, make recommendations or provide advice, arrange financing, process trade documentation, conduct independent asset valuations, handle user assets, execute or settle transactions, or take or route orders.^{^[20]} Registered broker-dealer participants remain subject to all applicable SEC and FINRA requirements; the order solicits comment on whether additional Regulation NMS relief may be warranted but grants none.
Model- and product-specific relief. The exemption does not extend to primary offerings, synthetic tokenized products, unrestricted securities trading, leveraged activity or every on-chain trading model.

The Innovation Exemption represents a welcome and meaningful step toward enabling experimentation and innovation in the trading of tokenized securities, but significant regulatory work remains – both in refining the contours of this relief and in establishing the durable, comprehensive framework that market participants will ultimately need. Peirce separately stated that the order is “not about decentralized finance,” expressed the view that truly decentralized, permissionless systems may not require the relief, and invited market participants operating under alternative models to engage directly with the SEC.^{^[21]}

^{^[1]} SEC, Order Granting Temporary Conditional Exemptive Relief, Exchange Act Release No. 34-106402, at 1 – 7, 57, 60 (Sept. 17, 2026) (the “order”); 15 USC § 78mm(a)(1).

^{^[2]} Paul S. Atkins, Chairman, SEC, Statement on the Innovation Exemption: A Bridge Toward Durable Rulemaking (Sept. 17, 2026); US Senate, Roll Call Vote No. 234 (Sept. 15, 2026).

^{^[3]} Hester M. Peirce, Commissioner, SEC, Slumber Number: Innovation Exemption Statement (Sept. 17, 2026); Mark T. Uyeda, Commissioner, SEC, Statement on the Innovation Exemption (Sept. 17, 2026).

[4] SEC, “The Trade-Through Rule and Locked and Crossed Markets Provisions of Regulation NMS,” Exchange Act
Release No. 34-105655, 91 Fed. Reg. 36,656 (June 17, 2026) (proposed June 11, 2026).

^{^[5]} Order at 11 – 14, especially 12 – 13 (discussing Rules 602(a), 611, and 612, the potential redundancy of certain regulations, and potential benefits of TSVs and distributed-ledger technology).

^{^[6]} SEC divisions of Corporation Finance, Investment Management, and Trading and Markets, Statement on Tokenized Securities (Jan. 28, 2026); SEC Division of Trading and Markets, Statement on the Custody of Crypto Asset Securities by Broker-Dealers (Dec. 17, 2025); SEC Division of Trading and Markets, Staff Statement Regarding Broker-Dealer Registration of Certain User Interfaces Utilized to Prepare Transactions in Crypto Asset Securities (Apr. 13, 2026). Staff statements have no legal force or effect and do not alter applicable law.

^{^[7]} SEC, Amendments Regarding the Definition of “Exchange” and Alternative Trading Systems (ATSs) That Trade US Treasury and Agency Securities, National Market System (NMS) Stocks, and Other Securities, Exchange Act Release No. 34-94062, 87 Fed. Reg. 15,496 (Mar. 18, 2022); SEC, Supplemental Information and Reopening of Comment Period for Amendments Regarding the Definition of “Exchange,” Exchange Act Release No. 34-97309, 88 Fed. Reg. 29,448 (May 5, 2023); SEC, Notice of Withdrawal of Proposed Regulatory Actions, Release Nos. 33-11377, 34-103247, IA-6885, and IC-35635 (June 12, 2025) (withdrawal effective June 17, 2025).

^{^[8]} Order at 1 – 3, 7 – 10 and n.28. By comparison, the prior Rule 3b-16 proposal would have replaced “orders” with the broader concept of “trading interest” and added “communication protocols” as an example of an established, nondiscretionary method, potentially reaching systems such as AMMs. See Rule 3b-16 Fact Sheet.

^{^[9]} Order at 14 – 15.

^{^[10]} Order at 8, 21 – 23; SEC divisions of Corporation Finance, Investment Management, and Trading and Markets, Statement on Tokenized Securities (Jan. 28, 2026) (distinguishing custodial third-party tokenization from synthetic linked securities and security-based swaps); Atkins, “Bridge Toward Durable Rulemaking” (identifying “No Synthetics” and “Issuers Can Object” as key conditions). The order notes that issuers may be concerned about shareholder-register administration, price dislocation and adverse effects on the underlying stock. Order at 21 – 22.

^{^[11]} Order at 15 – 17, 22 – 23. The order also does not provide Investment Company Act relief. Id. at 7 n.22.

^{^[12]} Order at 16 – 19. The exemption is unavailable if an organization, association or person within the TSV group is subject to statutory disqualification, unless the SEC or relevant self-regulatory organization has permitted continued participation. Id. at 16. Permissioned trading may be deployed on a public, permissionless blockchain. Id. at 18 n.55.

^{^[13]} Order at 23 – 28. The SEC used the established Limit Up-Limit Down tiers, set separate symbol and volume limits to reflect liquidity differences, and explained that the limits are intended to reduce the risk that price dislocations in tokenized stock affect the broader NMS market while still allowing meaningful trading. The stepped approach applies to volume breaches, not symbol-limit breaches; affiliated TSVs must pause the same security after a subsequent breach. Id. at 26 – 28 and nn.74 – 75.

[14] Order at 10 n.31, 18 – 19 and nn.54 – 55. Required applications must be auditable, public and deployed on a public, permissionless ledger, but access to the TSV remains permissioned. Public deployment is intended to facilitate independent review, vulnerability reporting, transparency, market integrity and operational resilience. A TSV remains responsible for a third-party permissioning provider.

^{^[15]} Order at 13 n.37, 19 – 21, 28 – 47. The public notice must cover operations, access standards, assets, technology, conflicts, fees, risks, safeguards, market oversight and trading stoppages. Material changes require 20 calendar days’ advance notice; nonmaterial changes must be reported within 30 calendar days after quarter-end. Id. at 20 – 21.

[16] Section 3(a)(5)(B) excludes from “dealer” a person that buys or sells securities for its own account, individually or in a fiduciary capacity, but not as part of a regular business – the so-called “trader” exception. Dealer status remains a facts-and-circumstances inquiry. Order at 52 – 54 and nn.111 – 12; 15 USC § 78c(a)(5)(B).

^{^[17]} Order at 52 – 54.

^{^[18]} Order at 54 – 57. The Covered Firm Exemption runs in parallel with the TSV Exemption and expires on September 17, 2031. Id. at 55, 57.

^{^[19]} Order at 15 – 16, 45 – 46, 55. The order requires disclosure of whether a TSV monitors for specified forms of fraudulent or manipulative activity but does not itself mandate a particular surveillance model. Id. at 45.

[20] SEC Division of Trading and Markets, Staff Statement Regarding Broker-Dealer Registration of Certain User Interfaces Utilized to Prepare Transactions in Crypto Asset Securities (Apr. 13, 2026). The statement is a time-limited staff position under Section 15 and has no legal force or effect.

^{^[21]} Peirce, Slumber Number. Peirce’s statement reflects her individual views and is not an additional condition of the order.

FTC Challenges Interlock Tied to Beretta-Ruger Minority Investment

Tue, 22 Sep 2026 07:00:00 Z

Last week, the Federal Trade Commission (FTC) announced another “interlocking directorate” enforcement action, demonstrating the antitrust agencies’ continued aggressive enforcement of Section 8 of the Clayton Act. The proposed consent order resolves antitrust allegations arising from Beretta Holding’s minority acquisition of shares in Sturm, Ruger & Co. The order settles allegations that the agreement, which allowed Beretta to appoint two members to Ruger’s board of directors, would create an illegal interlocking directorate since the parties are direct competitors in the production and sale of firearms. This action follows the FTC’s announcement that three individuals resigned from the board of Sevita Health in September 2025 due to FTC scrutiny and recent unconfirmed reports that the Department of Justice (DOJ) is investigating a venture capital firm for potential Section 8 violations.

In the Beretta-Ruger matter, the FTC alleged that under the parties’ agreement, Beretta, a subsidiary of Upifra, agreed to increase its stake in Ruger to as much as 25% of Ruger’s outstanding shares. In exchange, Beretta obtained contractual board designation rights: The agreement provided that Ruger’s board “shall” appoint two directors sourced by Beretta to the board, with those directors included on Ruger’s slate of nominees for the 2027 and 2028 annual meetings.

Section 8 of the Clayton Act is a strict liability statute that prohibits the same person from serving as an officer or director of two competing companies, known as an interlocking directorate, regardless of whether the arrangement has any actual anticompetitive effect. The antitrust agencies have interpreted the statute, which refers to the same “person” sitting on the board of competitive corporations, to extend to “representatives” of the relevant corporations.

The rule applies when the companies compete with one another and exceed certain statutory size thresholds, unless one of the statute’s de minimis exceptions applies. Those exceptions generally exempt interlocks where the companies’ overlapping sales are relatively small, either in absolute terms or as a percentage of total sales. Section 8 also provides a one-year grace period to unwind an interlock that becomes unlawful due to changed circumstances, such as a transaction that increases competitive sales above the relevant threshold.

The FTC’s complaint alleged that this arrangement would create an illegal interlocking directorate in violation of Section 8 of the Clayton Act and an unfair method of competition under Section 5 of the FTC Act. According to the complaint, Beretta and Ruger are horizontal competitors across multiple lines of firearms, which the FTC alleged Ruger had acknowledged in its securities filings.

The FTC took particular issue with the fact that, although the agreement nominally required Beretta’s board designees to be “independent,” it lacked robust independence safeguards and permitted waiver of certain independence requirements, potentially allowing Beretta personnel or other non-independent individuals to sit on Ruger’s board. Of note, the FTC did not allege that Beretta intended to appoint an officer or director of Beretta to the Ruger board – the apparent focus was on the alleged lack of “fulsome requirements” on independence for any director. Also of note, the order does not eliminate the appointment right altogether.

The proposed consent order permits the transaction to proceed but imposes structural safeguards on Beretta’s board rights, including that Beretta:

May not appoint, nominate or otherwise cause any person to be appointed or nominated to Ruger’s board unless that person is a genuinely “Independent Director,” as defined to exclude anyone with a “Material Relationship” with Beretta or its parent.
Must give the FTC at least 15 days’ advance written notice before any board appointment, designation, nomination or election involving Ruger.
May not hire or enter into any financial or other relationship with an independent director it nominates that would compromise that director’s fiduciary duties, or that would facilitate the flow of Ruger’s nonpublic information to Beretta, for one year after that director leaves the Ruger board.
May not otherwise seek or receive Ruger’s nonpublic information from any director it nominates.

The order runs for five years, with interim and annual compliance reporting obligations, and requires Beretta to circulate the order to new board members and officers on an ongoing basis.

Why this matters

The enforcement action extends beyond officers or directors of competing corporations to appointed “representatives” and requires that those representatives be “independent.” The FTC scrutinized the substance of the independence protections in the agreement, not just the label. Contractual board rights that merely describe designees as “independent,” without a robust definition and without limits on waiver, will not insulate an interlocking directorate arrangement between competitors from scrutiny.
The current administration has shown it is broadly open to remedies, including Section 8 enforcement. Often companies remedy interlocking directorate concerns by having the offending director step down from the relevant board, but without signing a consent. Here, the FTC required a consent order, but the order does not block the appointment power outright. The FTC’s consent order provides a framework for parties considering investments in competitors, including independence requirements, information-sharing restrictions and a cooling-off period for departing directors.
The FTC is prepared to use its administrative complaint and consent order process to address board interlocks proactively, before they are ever seated. The FTC press release announcing the Beretta enforcement action stated, “This latest enforcement action serves as a warning that the FTC will take action to prevent anticompetitive board of director overlaps between competitors.”
Building on increased enforcement activity in the Biden administration, the current administration has also been focused on interlocking directorate issues, and Section 8 enforcement remains a priority. In announcing the September 2025 Sevita enforcement action that resulted in three individuals resigning from the Sevita Health board, the FTC noted, “We are committed to enforcing the Clayton Act’s prohibition on interlocking directorates, which risk suppressing competition.” This action follows attention from the DOJ and FTC to interlocking directorates, including a wave of board resignations obtained by the DOJ in 2022 and 2023 without formal litigation. Given this continued scrutiny, it is important for companies to ensure that their boards comply with Section 8, including reviewing board memberships when board members are added as a result of new investments.

Out With the Old: SEC Proposes to Trim Long-Standing Proxy Requirements

Tue, 22 Sep 2026 07:00:00 Z

On September 16, 2026, the Securities and Exchange Commission (SEC) proposed amendments intended to modernize several proxy solicitation rules under Regulation 14A of the Securities Exchange Act of 1934, as amended (Exchange Act), by eliminating the delivery deadline that applies when documents are incorporated by reference into a proxy statement (or Form S-4/F-4 prospectus), eliminating the requirement to file soliciting material for certain exempt solicitations, shortening the minimum broker search period for proxy solicitations and eliminating the requirement to deliver an annual report to security holders (proxy solicitation proposal). These changes eliminate or shorten fixed timing deadlines and duplicative filing requirements that the SEC views as outdated in light of EDGAR access and electronic communications.

The same day, the SEC also proposed separate amendments that would eliminate the federal rule allowing shareholders to include their proposals in a company’s proxy statement (Exchange Act Rule 14a-8) and would broaden companies’ ability to exercise discretionary voting authority on timely received shareholder proposals submitted outside of the Rule 14a-8 process (Exchange Act Rule 14a-4(c)). The proposing release raises distinct and significant questions of its own, including the shift of shareholder proposal rights to state law and company bylaws, and is addressed separately in our September 17 alert on that topic – SEC Proposes Rescission of Rule 14a-8: What Comes Next?

Comments on the proxy solicitation proposal and proposal to rescind Exchange Act Rules 14a-8 and 14a-4(c) are due on or before November 20, 2026.

At a glance: Current framework versus proposed changes

The proxy solicitation proposal would make several changes as follows:

Eliminate minimum delivery period for proxy statements (or Form S-4/F-4 prospectuses) incorporating documents by reference Schedule 14A (Note D.3); Forms S-4/F-4
Current framework	Proposed change
A proxy statement (or Form S-4/F-4 prospectus) that incorporates information by reference generally must be sent to shareholders at least 20 business days before the meeting	Eliminate the 20-business-day minimum delivery period entirely, on the rationale that the incorporated filings are readily accessible on EDGAR
Eliminate ‘Notice of Exempt Solicitation’ requirement Rule 14a-6(g)
Current framework	Proposed change
Shareholders beneficially owning more than $5 million of a company’s securities at the start of a written exempt solicitation must file a “Notice of Exempt Solicitation” on EDGAR	Rescind Rule 14a-6(g) in full, eliminating both the mandatory notice for large shareholders and the practice of voluntary notices by shareholders with beneficial ownership below the threshold
Shorten broker search period Rule 14a-13
Current framework	Proposed change
A company must commence its broker search – identifying how many sets of proxy materials record holders must forward to beneficial owners – at least 20 business days before the meeting’s record date¹	Shorten the minimum broker search period to five business days, citing technological advances that the SEC notes can now often be completed in as few as three days
Eliminate annual report to security holders and stock performance graph Rule 14a-3; Item 201(e) of Regulation S-K
Current framework	Proposed change
Companies electing directors must accompany or precede the proxy statement with a separate annual report to shareholders, including a stock performance graph²	For companies with a Form 10-K already on file, eliminate the separate annual report and stock performance graph requirements given their substantial overlap with Form 10-K disclosure
Addition of cover page contact information Schedule 14A/14C cover pages
Current framework	Proposed change
No requirement to identify a company representative or contact information on the cover page	Require Schedule 14A/14C cover pages to identify a company representative, including that person’s contact information – an approach similar to that taken with registration statements under the Securities Act of 1933, as amended

Why this matters: A consistent theme of technology-driven modernization

The proxy solicitation proposal is perhaps best understood as part of a broader and consistent pattern under the current SEC administration to revisit disclosure and delivery requirements designed for a paper-based world, and to recalibrate such requirements to match how investors and market participants share and process information today, primarily through EDGAR and electronic channels.³ Several recent, related developments illustrate the same underlying logic:

Tender offer timing and dissemination methods. In April 2026, the SEC’s Division of Corporation Finance (Corp Fin) issued an exemptive order halving the minimum tender offer period for qualifying negotiated, all-cash tender offers from 20 to 10 business days.⁴ Corp Fin conditioned that relief in part on the offeror issuing a widely disseminated press release with a hyperlink to the complete offer materials at commencement, rather than relying on the traditional tombstone advertisement, reflecting the same view that modern information dissemination has outpaced decades-old delivery assumptions.⁵ In July 2026, Corp Fin expanded the permissible dissemination methods for certain tender offer materials at commencement to allow a press release through a widely disseminated news or wire service containing a hyperlink to the full offer materials in lieu of a summary newspaper advertisement or a mailing to shareholders.⁶
Default electronic delivery. On July 16, 2026, the SEC proposed Regulation E-Delivery, which would make electronic delivery the default method for satisfying disclosure delivery obligations across the federal securities laws, reversing the current opt-in framework. As part of that same proposal, the SEC would eliminate the 40-calendar-day e-proxy deadline in Rule 14a-16 under the Exchange Act, on the reasoning that the deadline existed to give shareholders time to receive a paper notice, request paper materials and review them before voting – a rationale that falls away once the paper notice itself is eliminated.⁷

This same rationale drives the proxy solicitation proposal’s most significant delivery change: eliminating the 20-business-day delivery period for proxy statements and Form S-4/F-4 prospectuses that incorporate documents by reference. That period predates EDGAR and the current regime of mandatory electronic filing, and assumed shareholders needed extra time to track down materials that were not otherwise in their hands. The SEC notes that the filings eligible for incorporation by reference are now freely available on EDGAR, that it has taken numerous steps to facilitate electronic delivery, and that investors increasingly expect, and often prefer, electronic delivery of required disclosures.⁸

Those developments, the SEC concludes, have made the 20-business-day period unnecessary today independent of any other reform. The pending Regulation E-Delivery proposal reinforces the same point from another direction: Once electronic delivery becomes the default method of satisfying delivery obligations generally, including for business combination transactions, the case for retaining a paper-era mailing buffer weakens further. Rather than merely shortening the period, the SEC has proposed eliminating it outright, though it has also asked whether a shorter period should be retained instead. A company would still need to deliver a copy of any incorporated document promptly upon a shareholder’s request, preserving a paper-copy option for shareholders who want one.

Eliminating the notice of exempt solicitation

The proxy solicitation proposal would also rescind Rule 14a-6(g), eliminating the requirement for shareholders beneficially owning more than $5 million of a company’s securities to file a Notice of Exempt Solicitation on Form PX14A6G when conducting certain written exempt solicitations. This change follows a sequence of related developments:

Rising voluntary filings. The SEC cited data showing that voluntary filings had grown increasingly common: Proportion of Notices of Exempt Solicitation filed on a voluntary basis grew from roughly 40% of such filings in 2018 to roughly 80% in 2025.⁹ That rising share of voluntary filings suggests many filers were using the notice to publicize their campaign, not because the proxy rules required it.
Corp Fin’s January 2026 guidance. Corp Fin sought to curb voluntary filings by issuing guidance objecting to voluntary Form PX14A6G filings by shareholders below the $5 million threshold, reversing a long-standing practice of not objecting to such filings.¹⁰
The proxy solicitation proposal takes a different approach. Rather than continuing to police who may file voluntarily, the proxy solicitation proposal would eliminate the notice requirement for mandatory and voluntary filers alike, on the conclusion that the distinction between the two no longer serves a meaningful purpose.

Since Corp Fin’s January 2026 guidance, market participants have already turned increasingly to press releases, other media and third-party platforms to publicize campaigns – all still subject to the proxy rules’ antifraud provisions. If the notice requirement is eliminated entirely, companies will need to monitor these channels with greater frequency rather than principally relying on EDGAR to learn they are the target of an exempt solicitation.

Next steps

Companies and investors should continue to comply with the current proxy solicitation rules, including the existing 20-business-day delivery period and the Notice of Exempt Solicitation requirement, unless and until the SEC adopts final rules. Corp Fin has already signaled comfort with a shorter broker search timeline through interpretive guidance, so companies should confirm their current practice reflects that guidance in addition to monitoring this rulemaking.

The SEC has invited commenters to submit feedback before the public comment period closes on November 20, 2026. Given the 60-day comment period, final rules may not take effect before most companies have already locked in their 2027 annual meeting timelines, so proxy statement preparation and meeting planning for the 2027 proxy season should proceed on the assumption that the current framework will remain in place. Companies should nonetheless track the rulemaking closely and start thinking now about how their delivery practices, exempt solicitation monitoring and broker search procedures would need to change if the proxy solicitation proposal is adopted substantially as proposed, and companies should expect these topics to come up in shareholder engagement over the months ahead.

Cooley’s corporate governance and securities regulation attorneys are available to discuss these issues with you.

Notes

In January 2026, the SEC’s Division of Corporation Finance issued guidance stating that the Staff will not object to a broker search commenced in less than 20 business days before the record date, provided the company reasonably believes its proxy materials will be timely disseminated to beneficial owners and otherwise complies with Rule 14a-13. Proxy Rules and Schedules 14A/14C, Corporation Finance Interpretation Question 133.02 (Jan. 23, 2026).
Smaller reporting companies are not currently required to include the stock performance graph in their annual reports to security holders. See Instruction 6 to Item 201(e) of Regulation S-K and Proxy Solicitation Modernization, Proposing Release No. 34-106385 at Footnote 22 in II.A.2 (Sept. 16, 2026).
This theme is not limited to the current SEC administration. The 2023 amendments to Regulation 13D-G, adopted under the prior SEC administration, accelerated Schedule 13D and 13G filing deadlines based on a similar premise that modern systems and market infrastructure support faster information dissemination and processing. See Cooley alert, SEC Adopts Amendments to Beneficial Ownership Reporting Rules: What Investors Need To Know (Oct. 30, 2023).
The order applies to negotiated, all-cash, fixed-price tender offers for all outstanding shares of the target class, subject to a prompt target recommendation and other conditions, and does not extend to going-private transactions or cross-border offers relying on the Exchange Act’s cross-border exemptions. SEC Division of Corporation Finance, Exemptive Order for Tender Offers for Equity Securities (April 16, 2026
Corp Fin cited market efficiency, technological modernization and reduced exposure to intervening market volatility as the policy rationale for the shortened period. See Cooley M&A’s blog post SEC Exemptive Order Halves Minimum Tender Offer Period for Negotiated All-Cash Transactions (May 7, 2026).
Tender Offer Rules and Schedules, Corporation Finance Interpretation Questions 104.03 and 131.04 (July 9, 2026).
For additional information regarding Regulation E-Delivery, please refer to this Cooley alert, From Opt In to Opt Out: SEC Proposes Electronic Delivery as Default for Required Disclosures (July 22, 2026).
See Proxy Solicitation Modernization, at II.B.2.
See Proxy Solicitation Modernization, at II.C.2.
Proxy Rules and Schedules 14A/14C, Corporation Finance Interpretation Question 126.06 (Jan. 23, 2026).

AbbVie and Iambic Announce Collaboration to Accelerate AI-Driven Drug Discovery

Tue, 22 Sep 2026 05:08:00 Z

San Diego – September 21, 2026 – Cooley advised Iambic, a clinical-stage life sciences and technology company developing novel medicines through its AI-driven discovery and development platform, on its multi-year collaboration with AbbVie to accelerate the discovery and development of small molecule therapies with first-in-class and best-in-class potential across immunology, neuroscience and oncology.

Lawyers Charity Williams, Emily Mason, David Suh, Joe Perry, Rachel Thorn, David Burns, Amanda Pacheco, Charles Haley, Karen Tsai, Carol Laherty, Xander Lee and Andrew Epstein led the Cooley team advising Iambic.

Cooley Advised Harver on Acquisition of Symphony Talent

Mon, 21 Sep 2026 19:22:27 Z

Cooley advised Harver, a global leader in predictive talent assessment and reference checking, on its acquisition of Symphony Talent, a leader in recruitment marketing, employer brand, and candidate relationship management.

The transaction was announced publicly in this press release.

Kester Spindler, Danielle Fortier, Eric Walker, Ann Bevitt, Len Jacoby, Jonathan Rivinus, David Wilson and Addison Pierce led the Cooley team advising Harver.

Reid Evanich, Josh Morris, Eileen Leman, Kafeel Azher, Sam Dodson, Jordan Landers, Kathryn Sorenson, Arabella Murrison, Ally Ni and Patrick Sharma provided invaluable support.

Lisata Therapeutics Announces Acquisition of Marea Therapeutics, Concurrent $225 Million Private Placement

Fri, 18 Sep 2026 05:19:00 Z

New York – September 17, 2026 – Cooley advised the placement agents to Marea Therapeutics, a clinical-stage biotechnology company harnessing the latest advances in human genetics to develop first-in-class, next-generation medicines for cardioendocrine diseases, in connection with a $225 million private placement concurrent with its acquisition by Lisata Therapeutics (Nasdaq: LSTA). The financing included participation from leading life sciences investors including RA Capital Management, Forbion, Third Rock Ventures, Alpha Wave, Perceptive Advisors, Sofinnova Investments, Omega Funds, Surveyor Capital (a Citadel company), Columbia Threadneedle Investments, Nantahala Capital, Affinity Asset Advisors, LLC, venBio, Rock Springs Capital and other institutional investors.

Partners Evan Leitner, Darah Protas, Richard Segal and Charlie Kim and Denny Won led the Cooley team advising the placement agents.

Cooley Launches GO Public With OpenAI

Thu, 17 Sep 2026 18:55:00 Z

San Francisco – September 17, 2026 – Cooley today announced the launch of Cooley GO Public, a proprietary AI-enabled offering developed by Cooley’s capital markets lawyers and legal engineers to be used with ChatGPT Enterprise to transform how companies prepare to enter the public markets. Cooley was a design partner with OpenAI to build the new experience.

The first GO Public offering enhances the Form S-1 drafting process using a system of purpose-built AI agents. Combining client information and agent-powered research with Cooley’s know-how, judgment and deep market experience, GO Public accelerates research and drafting so working groups and management teams can focus on critical strategic questions sooner.

“GO Public marks a major advance in legal service delivery, focused in an area we know deeply and designed to give clients greater speed, certainty and insight,” said Rachel Proffitt, partner and CEO of Cooley. “GO Public reflects our ongoing commitment to lead our industry as legal work becomes more technology-enabled and outcome-focused while remaining deeply grounded in human judgment. We’re excited to build on this model across our practices as we expand how AI-enabled legal services can take shape.”

Purpose-built for each IPO

Drawing on Cooley’s decade-long leadership at the top of the US IPO market[1], GO Public is designed to:

Start with the client, not a precedent. Build the initial draft leveraging company-specific information and deep research, using Cooley drafting guidance, detailed background instructions and curated precedent to inform the work.

Accelerate speed to quality. Prepare an initial, bespoke S-1 draft in minutes rather than days, allowing our team to apply substantive judgement and experience to issues sooner.

Adapt as the deal evolves. Update the S-1 as transaction terms change, with thoughtful prompts and targeted review.

Increase efficiency and predictability – including around cost. Give management teams more time to focus on running their businesses and other aspects of the IPO process while supporting more predictable planning around time, resources and spend.

Keep judgment with Cooley lawyers. Our experienced capital markets lawyers are involved every step of the way, including the legal analysis and the final work product.

Rethinking capital markets execution

GO Public’s underlying architecture also has potential applications beyond IPOs across a variety of equity and debt capital markets transactions.

“GO Public is our vision for the future of capital markets practice,” said Dave Peinsipp, partner and co-chair of Cooley’s global capital markets group. “Our collaboration with OpenAI has allowed us to rethink how this work gets done – moving lawyers and management teams more quickly through intensive preparation and into questions that require judgment, market experience and strategic thinking. We see enormous potential not only for IPOs but for capital markets transactions more broadly.”

“We want to give firms the ability to build AI around the expertise that makes them distinctive,” added Jason Boehmig, GM Legal Industry at OpenAI. “Working side by side with Cooley, our forward-deployed engineers are helping turn that expertise into tools like GO Public – combining frontier intelligence with the firm’s own data, workflows and ways of working to support lawyers through complex, high-stakes transactions.”

Extending the model through Cooley AI

GO Public is the first in a series of capabilities Cooley is developing through Cooley AI, its AI services company focused on making the firm more AI-native – enhancing how work gets done while rethinking how legal services are staffed, priced and delivered, with human judgment and client relationships at the center.

Cooley AI brings together legal, AI, data, product, engineering and operational skill and knowledge to put that strategy into practice and create more responsive, insightful and predictable experiences for clients.

Beyond capital markets, Cooley AI plans to focus initially on private companies, funds and M&A before expanding into additional practices.

About Cooley LLP

Clients partner with Cooley on transformative deals, complex IP and regulatory matters, and high-stakes litigation.

Cooley has nearly 1,400 lawyers across 19 offices in the United States, Asia and Europe, and a total workforce of more than 3,000 people.

Cooley’s global capital markets practice is a leader in advising innovative companies and investment banks on complex equity and debt transactions – in particular, high-value IPOs, direct listings, follow-on offerings, convertible note offerings, special purpose acquisition companies (SPACs) and deSPAC mergers. Cooley advised on 180 deals globally in 2025, totaling more than $51.5 billion in deal volume. The firm has consistently ranked at the top of the US IPO market over the past decade (Deal Point Data) and has advised on more venture-backed IPOs than any other firm over the past 20+ years (IPO Vital Signs, 2025).

[1] Source: Deal Point Data. Based on completed US IPOs since January 1, 2016.

Beta Bionics Announces $172.5 Million Public Offering of Common Stock and Pre-Funded Warrants

Thu, 17 Sep 2026 16:29:00 Z

San Diego – September 17, 2026 – Cooley advised Beta Bionics (Nasdaq: BBNX), a pioneering leader in the development of advanced diabetes management solutions, on its $172.5 million underwritten public offering of common stock and pre-funded warrants. Beta Bionics issued and sold 7,652,175 shares of its common stock at a price to the public of $17.25 per share and, in lieu of shares of common stock to certain investors, pre-funded warrants to purchase 1,043,484 shares of common stock at a purchase price of $17.2499 per share, which equals the public offering price per share of the common stock less the $0.0001 exercise price per share of each pre-funded warrant. In addition, the underwriters exercised their option in full and purchased 1,304,348 additional shares of common stock.

Lawyers Carlos Ramirez, Mark Weeks, Charlie Kim, Brittany Wightman, Heidi Wang, Rebeca Kinslow and Sunny Liu led the Cooley team advising Beta Bionics.

Cooley previously advised Beta Bionics on its upsized $234.6 million initial public offering and concurrent $17 million private placement in January 2025.

Cooley Advised OpenZeppelin on Acquisition by S&P Global

Thu, 17 Sep 2026 16:00:00 Z

Cooley advised OpenZeppelin, the security standard for onchain finance, on its agreement to be acquired by S&P Global.

The transaction was announced publicly in this press release.

Ben Shribman, Wesley Dietrich, Arabella Murrison, Nicola Squire, Kafeel Azher, Bethan Chalmers, Leo Spicer-Phelps, David Wilson, Eerik Kukebal and Garth Osterman led the Cooley team advising OpenZeppelin.

Marzia Di Candido, Juan Nascimbene, Mo Swart, Chris Stack, Jack Jones, Ann Bevitt, Ondrej Hajda, Morgan McCormack, Gerard O'Shea, Pia Pyrtek and Will Merriam provided invaluable support.

Electra Therapeutics Announces Upsized $350 Million IPO

Thu, 17 Sep 2026 15:47:00 Z

San Diego – September 17, 2026 – Cooley advised Electra Therapeutics, a late clinical-stage biopharmaceutical company focused on pioneering a new class of precision medicines for the treatment of immune-mediated diseases and cancer, on its upsized $350 million initial public offering (IPO). Electra Therapeutics offered 23,333,334 shares of its common stock priced at $15 per share, with a 30-day option for the underwriters to purchase up to an additional 3,500,000 shares. Electra Therapeutics’ common stock will begin trading on the Nasdaq Global Select Market on September 18, 2026, under the ticker symbol ETRA.

Lawyers Charles Bair, Sara Semnani, Charlie Kim, Dylan Kornbluth, Madhuri Roy, Scott McCall, Natasha Leskovsek, Todd Gluth and Jennifer Shanley led the Cooley team advising Electra Therapeutics. The team also included Megan Drill, Mark Windfeld-Hansen, Christian Lee, Emma Plankey, Rena Kaminsky and Karen Tsai.

Cooley previously advised Electra Therapeutics on its $183 million Series C in October 2025.

Aethlon Medical and North Immunology Announce Merger, Concurrent $180 Million Private Placement

Thu, 17 Sep 2026 07:29:00 Z

New York – September 17, 2026 – Cooley advised the placement agents to North Immunology, a privately held biotechnology company developing bispecific antibodies that target orthogonal inflammatory pathways in immune and inflammatory diseases, in connection with an approximately $180 million private placement concurrent with its merger with Aethlon Medical (Nasdaq: AEMD). The financing was supported by a syndicate of leading healthcare-focused institutional investors including Bain Capital Life Sciences, Janus Henderson Investors, Deep Track Capital, Longitude Capital, Soleus Capital, Invus, Sirenia Capital Management, funds managed by Farallon Capital Management, Adage Capital Partners and TCGX. The combined company plans to operate under the name North Immunology, Inc.

Partners Evan Leitner, Darah Protas and Daniel Goldberg led the Cooley team advising the placement agents.

SEC Proposes Rescission of Rule 14a-8: What Comes Next?

Thu, 17 Sep 2026 07:00:00 Z

On September 16, 2026, the Securities and Exchange Commission (SEC) proposed to rescind Rule 14a-8 under the Securities Exchange Act of 1934 in its entirety. If adopted, the proposal (proposed amendments) would eliminate the federal mechanism that for more than 80 years has allowed qualifying shareholders to require public companies to include their proposals in company proxy materials. In the same release, the SEC also proposed amendments to Rule 14a-4(c) that would expand companies’ ability to exercise discretionary voting authority on shareholder proposals submitted outside of the Rule 14a-8 process.

In a separate proposal issued the same day, the SEC proposed to modernize other aspects of the proxy rules, including to: eliminate the requirement that companies deliver an annual report to security holders, eliminate the delivery deadline when documents are incorporated by reference into a proxy statement, eliminate the requirement to include a stock performance graph in annual reports, eliminate the requirement and the ability to submit Notices of Exempt Solicitation (both required and voluntary filings), and shorten the minimum broker search governing the period by which record holders forward proxy materials to their customers (the beneficial owners of a company).

These are proposals, not immediate rule changes. The SEC must complete the public notice and comment process and, if it decides to proceed, adopt final rules. Any final rescission of Rule 14a-8 would likely face substantial litigation. We therefore expect that Rule 14a-8 will remain in effect through the 2027 proxy season. Even so, the proposed amendments could affect proponent behavior now. If proponents view 2027 as a possible last opportunity to use Rule 14a-8, they may use it more aggressively, including to seek company-specific proposal rights that would survive Rule 14a-8’s rescission.

Comments on the proposed amendments are due 60 days after publication of the proposing release in the Federal Register.

Key takeaways

The proposed amendments would rescind the federal shareholder proposal framework of Rule 14a-8. This would eliminate long-standing rules that allow qualifying proponents to include their proposals in a company’s proxy materials.
Do not expect proposed rules to be effective for the upcoming proxy season. The proposed amendments must move through the public notice and comment period and survive other hurdles, including likely litigation, before becoming effective. Companies should therefore plan for the 2027 season under the existing rules.
2027 could become a “last chance” season. The prospect of rescission may drive a surge in shareholder proposal submissions under Rule 14a-8, including both traditional governance proposals and proposals designed to create a shareholder proposal proxy access right that would survive a rescission of Rule 14a-8. Some companies have already received such proposals for this upcoming proxy season. Cooley’s June early proxy season alert previewed many of these themes.
Private ordering may become the central battleground. The closest analogy may be proxy access for director nominations by shareholders. After the SEC’s mandatory proxy access rule was vacated in 2011, shareholder proposals submitted under Rule 14a-8 drove company-by-company adoption of proxy access for director nominations by shareholders. Given the proposed rescission of Rule 14a-8, proponents may have only a limited window to use the Rule 14a-8 process to establish company-specific proxy access rights for shareholder proposals.
State law and governing documents would take on greater significance. Texas has already enacted an opt-in statutory framework addressing shareholder proposal rights more broadly. In Delaware, whether shareholders have an inherent right to bring precatory proposals remains unsettled; the debate could move to the legislature and the courts.
Rescission of Rule 14a-8 would redirect activism, not eliminate it. Activism efforts are likely to shift toward other strategies, including director “vote no” campaigns, proxy contests, litigation, direct engagement and targeted publicity campaigns. If adopted, the proposed Rule 14a-4(c) amendments would provide companies with greater flexibility to exercise discretionary voting authority on shareholder proposals submitted outside of the Rule 14a-8 process, subject to disclosure and an affirmative shareholder opt-out election. Importantly, however, while the proposed amendments to Rule 14a-4(c) are intended to address the concern that “zero slate” campaigns can pressure companies to include in their proxy materials shareholder proposals that might otherwise be excludable under Rule 14a-8, effectively circumventing the Rule 14a-8 process, the amendments would not prohibit zero slate campaigns. Indeed, if adopted and Rule 14a-8 is rescinded, they could further elevate zero slate campaigns as a prominent activist tool, providing a means for bringing shareholder proposals to a vote.

Rule 14a-8 in brief: An 80-year federal shareholder proposal mechanism under pressure

The SEC first adopted the federal shareholder proposal mechanism in 1942. Rule 14a-8 generally requires a company subject to the federal proxy rules to include, at the company’s expense, a qualifying shareholder proposal and any accompanying supporting statement in its proxy materials if the shareholder satisfies minimum ownership, holding period and other procedural requirements. The rule also provides procedural and substantive bases for exclusion, including ordinary business or micromanagement, substantial implementation, duplication of another proposal and resubmission of a substantially duplicative proposal.

The proposing release rests principally on the SEC’s view that Rule 14a-8 exceeds the agency’s statutory authority under Section 14(a) of the Exchange Act. The SEC takes the position that Section 14(a) authorizes regulation of the proxy solicitation process but does not authorize it to displace state law on the corporate governance question of which matters shareholders may present or require to be included in company proxy materials.

The SEC also cites independent policy reasons for rescission, including its view that some of Rule 14a-8’s original justifications are unsubstantiated in practice or less compelling today, that the rule requires the SEC to make judgments about state law, and that a uniform federal regime has inhibited development of state law and private ordering.

The proposed amendments follow the dismantling of the SEC staff’s long-standing Rule 14a-8 no-action process. For decades, companies seeking to exclude proposals routinely sought SEC staff concurrence, creating a substantial body of interpretive precedent. In November 2025, the SEC staff largely stepped back from substantive no-action responses, and on August 14, 2026, it announced that it would stop responding to shareholder proposal no-action requests altogether, while leaving companies’ obligations to provide notice of exclusions pursuant to Rule 14a-8(j) in place. See the SEC staff’s August 14, 2026, statement.

The proposed amendments also follow years of debate over the politicization of the shareholder proposal process. Proposal volume rose sharply over the past decade, with submissions approaching 1,000 at Russell 3000 companies in recent peak seasons. A relatively small group of serial individual proponents, policy-focused investment funds, labor and advocacy organizations, and, more recently, anti-ESG proponents have accounted for a significant share of submissions. Many proposals address contested social or political topics, including climate, diversity, equity and inclusion (DEI), and other environmental, social and governance (ESG) matters. SEC staff guidance has also shifted across administrations, particularly on environmental and social (E&S) proposals (see Cooley’s February 2025 client alert).

More broadly, the proposed amendments reflect the SEC’s current willingness to revisit long-standing rules it views as imposing unnecessary cost and complexity for public companies or making the public markets less attractive. Alongside other recent initiatives to reduce public company burdens and facilitate capital formation, rescinding Rule 14a-8 would be a significant step in that agenda.

What the proposed amendments would do

Rescind Rule 14a-8

The proposed amendments would rescind Rule 14a-8 in its entirety. Once effective, public companies would no longer have a federal obligation under Rule 14a-8 to include qualifying shareholder proposals in company proxy materials, and the rule’s ownership thresholds, procedural requirements, substantive exclusions and Rule 14a-8(j) exclusion notice framework would fall away with it.

Rescission would not prevent shareholders from raising matters at meetings or conducting their own solicitations. It would instead shift the default away from a uniform federal inclusion right and toward state corporate law, company charters and bylaws, advance notice provisions, and the remaining federal proxy rules governing independent solicitations.

Expand discretionary voting authority under Rule 14a-4

The proposed amendments also would amend Rule 14a-4 to broaden companies’ ability to exercise discretionary voting authority on timely received shareholder proposals submitted outside of the Rule 14a-8 process. Under current Rule 14a-4(c)(2), a proponent can prevent the company from exercising that authority by furnishing its own proxy materials to holders of at least the percentage of shares needed to approve the proposal. The proposed amendments would eliminate that solicitation threshold. Instead, a company could exercise discretionary voting authority if it satisfies the following three conditions:

Its proxy statement briefly describes the proposal and states how it intends to exercise that authority.
Its proxy card cross-references that disclosure.
It includes a check box on its proxy card allowing shareholders to prevent the company from exercising discretionary authority with respect to their individual shares. A company could use a single opt-out box for multiple proposals.

The proposed amendments to Rule 14a-4(c) are intended to address the concern that zero slate campaigns, first employed at Warrior Met Coal during the 2024 proxy season, can pressure companies to include in their proxy materials shareholder proposals that might otherwise be excludable under Rule 14a-8, effectively circumventing the Rule 14a-8 process. However, the amendments would not prohibit zero slate campaigns. Indeed, if adopted and Rule 14a-8 is rescinded, they could further elevate zero slate campaigns as a prominent activist tool, providing a means for bringing shareholder proposals to a vote. See Cooley’s 2024 proxy season alert for additional background on zero slate campaigns.

Clarify application of advance notice deadlines and amend related disclosure requirements

Proposed amendments to Rule 14a-4(c)(1) would clarify that a company’s advance notice provision, or an applicable state law provision, generally determines whether a proposal is timely received for purposes of exercising discretionary voting authority. The current 45-day federal default deadline would apply only if no such provision exists. Similarly, the proposed amendments to 14a-4(c)(1) provide that if a company did not hold an annual meeting during the prior year, or if the date of the meeting has changed more than 30 days from the prior year, any deadline established under the company’s advance notice provision, or an applicable state law provision, would govern instead of the default deadline in the current rule (which is “a reasonable time before the registrant sends its proxy materials”). Proposed amendments to Rule 14a-5(e) would, if Rule 14a-8 is rescinded as proposed, align proxy statement deadline disclosures with governing documents or applicable state law for proposals seeking inclusion in a company’s proxy materials and with amended Rule 14a-4(c)(1) for proposals not seeking inclusion. If the date of the next annual meeting changes by more than 30 days, proposed amendments to Rule 14a-5(f) would also require companies to disclose updated shareholder proposal and director-nomination deadlines, to the extent applicable.

Change preliminary proxy filing requirements

The proposed amendments also would amend Rule 14a-6 so that the submission of a shareholder proposal outside the 14a-8 process would not itself trigger a preliminary proxy filing. A preliminary filing instead would only be required when the company knows, or reasonably should know, that a nonexempt “solicitation in opposition” is being conducted by the shareholder proponent. A “solicitation in opposition” would be broadly defined to include any solicitation (other than a solicitation exempt under Rule 14a-2): subject to Rule 14a-19, to vote against or withhold votes from any of the company’s director nominee(s), to vote against a proposal that the company expressly supports in its proxy materials, and to vote in support of a proposal that the company does not expressly support in its proxy materials.

Do not expect an overnight change

The proposed amendments do not change Rule 14a-8 today. The SEC must solicit public comment, review the resulting record, and, if it decides to proceed, adopt a final rule that addresses the significant issues raised by commenters. Companies should therefore continue planning for the 2027 proxy season under the existing rule.

Significant or controversial rulemakings can take time. The SEC’s 2026 proposal to permit optional semiannual reporting, for example, reportedly generated roughly 200,000 comments and form letter submissions. A proposal to eliminate an 80-year-old federal shareholder proposal framework likewise is likely to attract substantial participation.

Any final rescission also would likely face substantial litigation. The now-stayed climate disclosure rules illustrate how rulemaking and litigation can extend the timeline: The SEC proposed the rules in March 2022, adopted them in March 2024 and stayed them after legal challenges were filed. The SEC later changed course after the 2024 election. Similar litigation here could delay effectiveness, and challengers could seek a judicial stay. With the 2028 presidential election approaching, the process could extend into another administration.

2027 could be the ‘last chance’ Rule 14a-8 season

While Rule 14a-8 is expected to remain in effect through the 2027 proxy season, the proposed amendments could have an immediate effect on proponent behavior. Many calendar-year companies begin receiving shareholder proposals in the fall, and a credible prospect of rescission could create a rush to use the federal process while it remains available, potentially reversing the recent decline in proposal volume.

That dynamic would arrive against an already unsettled backdrop. As discussed in our June 2026 shareholder proposal season review, the SEC staff’s retreat from the no-action process altered company-proponent negotiations during the 2026 season and was accompanied by increased proponent litigation. The staff’s August 2026 decision to stop responding to no-action requests entirely means companies should expect to enter the 2027 season without the substantive staff concurrence that historically provided greater predictability around exclusion decisions. As a result, exclusion decisions may require a more litigation-focused approach. Companies should identify potentially excludable proposals early, preserve the Rule 14a-8(j) notice deadline (generally 80 calendar days before filing definitive proxy materials), develop a robust legal analysis supporting any exclusion decision, and assess in advance their risk tolerance for excluding a proposal without SEC staff concurrence. Companies should also anticipate that exclusion decisions could prompt litigation, public campaigns or director-focused pressure, and consider whether early engagement with proponents may help mitigate those risks.

Under these circumstances, some companies may prefer to skip the exclusion or negotiation process and simply allow many proposals to go to a vote, particularly on less sensitive topics or where low support is expected. Conversely, the SEC’s stated view in the proposing release that Rule 14a-8 exceeds its statutory authority may cause some companies to view both the litigation risk and the reputational consequences associated with exclusion as more manageable and, as a result, take more aggressive positions on whether particular proposals may be excluded.

The most consequential submissions may not be ordinary E&S or governance proposals, but proposals designed to preserve shareholder proposal rights in a post-Rule 14a-8 world. Proponents may pursue precatory proposals asking boards to adopt a shareholder proposal bylaw and, where permissible, binding bylaw amendments creating a company-specific right to submit proposals independent of Rule 14a-8. Those proposals could address ownership and holding thresholds, notice and procedural requirements, permissible subject matter, supporting statements, resubmission standards and bases for exclusion. Some companies have already received proposals on this topic for the upcoming proxy season, including proposals from a prominent conservative proponent, one of which is scheduled for a vote in October.

That makes timing particularly important. If Rule 14a-8 is rescinded and a company has no contractual or bylaw-based proposal right, shareholders may no longer have a comparable low-cost mechanism to force a proposal onto the company’s proxy card. Moreover, if the proposed Rule 14a-4 amendments are adopted, companies would have broader discretion to vote proxies on shareholder proposals submitted outside of the Rule 14a-8 process, subject to disclosure and an affirmative shareholder opt-out election. Proponents may therefore place greater emphasis on securing company-specific proposal rights while Rule 14a-8 remains available.

Private ordering: Proxy access redux?

Proxy access provides a useful precedent for company-by-company governance change. In 2010, the SEC adopted Rule 14a-11, which would have created a mandatory federal proxy access regime for shareholder director nominees. The US Court of Appeals for the District of Columbia Circuit vacated that rule in 2011. But amendments to Rule 14a-8 permitting shareholders to submit company-specific proxy access proposals survived, and those proposals became a defining governance campaign of the 2015 proxy season and ultimately drove widespread adoption of proxy access bylaws through private ordering.

The dynamic here would differ in one important respect. Proxy access private ordering was enabled by Rule 14a-8 after the mandatory federal rule disappeared. Here, Rule 14a-8 itself is the federal mechanism that may disappear. That makes the coming proxy season potentially more consequential: Proponents may seek to use Rule 14a-8 one last time to create the company-specific proposal rights that will replace it. If those proposals gain broad institutional support, market-standard terms could develop quickly, just as they did with proxy access.

Companies receiving these proposals would face strategic choices beyond a simple include-or-exclude decision. Depending on the proposal and shareholder base, a company could oppose the proposal, negotiate more tailored terms or adopt its own framework. Boards should be prepared for proposal access rights to become a mainstream governance topic rather than a niche procedural issue.

Could alternative shareholder proposal rights attract investor support?

That possibility warrants attention. Overall support for shareholder proposals, particularly E&S proposals, has declined from prior peaks, and institutional investors and proxy advisory firms have become more selective. Governance proposals involving traditional shareholder rights have proved more resilient. Proposals addressing special meeting rights, written consent, board declassification and supermajority voting requirements continue to attract comparatively strong support, and several categories achieved majority support during the 2026 season.

Tesla’s November 2025 annual meeting provides a potentially relevant data point on investor sentiment. Shareholders considered a proposal requesting that the board seek shareholder approval before adopting any bylaw amendment, as permitted under Texas law, that would impose ownership thresholds or solicitation requirements for shareholder proposals above those specified in Rule 14a-8. The proposal received approximately 49% support overall and, assuming all insiders voted against it, approximately 67% support from non-insider shareholders. Although the proposal would not itself have created a new shareholder proposal right, the result suggests that a proposal framed around preserving shareholder access to the Rule 14a-8 process could attract significant – and potentially majority – support.

There is no established market model for a Rule 14a-8 replacement bylaw today, and investor and proxy advisor views would likely depend heavily on the terms. The combination of durable support for traditional shareholder rights proposals and a perceived “now or never” dynamic means companies should treat these proposals as a real voting risk, not a theoretical one.

A key variable will be how major institutional investors and proxy advisory firms respond. If influential investors or proxy advisors adopt policies favoring shareholder proposal access bylaws, or otherwise press companies to adopt them, private ordering could accelerate quickly. If they do not, proponents may need to build support company by company.

State law could become the next battleground

Rescission would immediately raise a state law question that Rule 14a-8 has largely allowed companies and proponents to avoid: What right does a shareholder have to require that a matter be presented for a shareholder vote? Rule 14a-8 is a federal proxy rule governing when a company must include a qualifying proposal in its own proxy materials. It does not resolve all questions regarding the underlying state law right to present a proposal at a meeting. That question received relatively little attention while a broadly available federal mechanism existed, but it could become central if that mechanism disappears.

Texas has already moved in this direction. Its corporate law permits certain public companies to impose materially higher ownership and solicitation requirements for submitting shareholder proposals than those under Rule 14a-8. Those provisions were directly implicated in the Tesla proposal discussed above and provide an early example of how state law can shape shareholder proposal access.

Other states could respond by creating their own shareholder proposal regimes. Those regimes need not mirror the federal rule: States could provide a proposal right while setting ownership, holding period, solicitation or other eligibility thresholds materially different from Rule 14a-8. That could make state of incorporation and governing documents even more important to shareholder proposal access, and differences between states could become another factor in reincorporation decisions.

Delaware presents a different and still unsettled question. Delaware courts have not squarely resolved whether shareholders have an inherent right to bring precatory proposals for a vote. Recent commentary has argued that no such right exists absent a right created by statute, the certificate of incorporation, bylaws or board action; other scholars have reached the opposite conclusion. If Rule 14a-8 is rescinded, pressure may build for Delaware to address that uncertainty legislatively. One possible approach would be to codify that shareholders have no inherent right to submit precatory proposals unless the corporation affirmatively provides one, leaving the issue principally to private ordering.

Rule 14a-8 may disappear – shareholder pressure won’t

Rescission of Rule 14a-8 would eliminate a widely used tool of shareholder activists, but companies should not expect the underlying pressure to disappear. Proponents and other activists are likely to redirect their efforts toward director “vote no” campaigns, proxy contests, opposition to say-on-pay and other management proposals, litigation, direct engagement and targeted publicity campaigns. Companies also could face pressure to adopt shareholder proposal rights voluntarily.

Publicity and board-focused campaigns may become especially important. Rule 14a-8 gives proponents a relatively low-cost way to place an issue in a company’s proxy statement, attract public attention and engage the board. If that channel disappears, proponents may try to recreate the same pressure through targeted media campaigns, dedicated websites, open letters and other public pressure tactics, as well as campaigns aimed directly at directors. Some of these tactics are already emerging: During the 2026 season, proponents litigated exclusions, threatened or pursued Rule 14a-4 zero slate campaigns, and used director elections and public campaigns as alternative pressure points.

Rescission of Rule 14a-8 therefore may change the channel for shareholder activism more than the level of activism itself. For now, companies should continue preparing for the 2027 proxy season under the existing Rule 14a-8 framework while considering whether their advance notice bylaws, shareholder engagement approach, state of incorporation and broader activism preparedness remain appropriate if the federal shareholder proposal framework ultimately disappears.

Cooley Named European Lifestars Deal Adviser of the Year Finalist

Thu, 17 Sep 2026 05:23:40 Z

London – September 16, 2026 – Cooley has been named a finalist for Deal Adviser of the Year in the 2026 European Lifestars Awards, which recognize achievements across the European life sciences industry.

Introduced this year as the awards’ first law firm category, Deal Adviser of the Year recognizes law firms for their work advising on life sciences transactions and the impact of their advisory teams whose work has significantly contributed to advancing the industry through strategic guidance, innovative solutions, and value creation.

View the 2026 finalists

Winners will be announced on November 16 at the European Lifestars Awards ceremony in London.

Ninth Circuit Comet Ruling Spotlights Trade Secret Proof Burdens

Wed, 16 Sep 2026 19:30:00 Z

Cooley partners Amanda Main, Bobby Ghajar, Mark Lambert, Heidi Keefe and Erin Trenda co-authored an article for Law360 examining the Ninth Circuit’s decision to reverse a $40 million trade secret verdict in Comet Technologies USA Inc. v. XP Power LLC based on an erroneous jury instruction. The article discusses the differing burdens of proof under the federal Defend Trade Secrets Act and California’s Uniform Trade Secrets Act, as well as key considerations for litigants involving jury instructions, damages models and remedies in trade secret cases.

Read the article

2026 09 16 Sangamo Therapeutics Announces Closing of Chapter 11 Asset Sale Transactions

Wed, 16 Sep 2026 19:24:00 Z

New York – September 16, 2026 – Cooley advised Sangamo Therapeutics, a publicly traded genomic medicine company, on the closing of its asset sale transactions with PTC Therapeutics and Eli Lilly and Company as part of its Chapter 11 restructuring.

Cooley is representing Sangamo in its Chapter 11 restructuring and complex Section 363 sale process involving the company’s genomic medicine programs, platform technologies and intellectual property. Working on an accelerated timeline, the Cooley team helped structure a competitive sale process that began with Eli Lilly and Astellas Pharma serving as stalking-horse bidders and ultimately resulted in Eli Lilly and PTC Therapeutics emerging as the successful bidders following a court-supervised auction.

The winning bids together provided approximately $161 million in cash consideration at closing, plus up to $100 million in potential future milestone payments. The transactions included the sale of Sangamo’s Fabry disease program, isaralgagene civaparvovec, or ST-920, to PTC and the sale of its capsid delivery, zinc finger, and modular platforms and prion disease program, ST-506, to Eli Lilly.

Lawyers Cullen Speckhart, Marya Postner, Lauren A. Reichardt, Robert Eisenbach, Lindsey O’Crump Crow and Miriam Peguero Medrano led the Cooley team advising Sangamo.

Bulk-Power System Order: What Utilities and Industry Players Need to Know

Wed, 16 Sep 2026 18:23:00 Z

On August 26, 2026, President Donald Trump signed Executive Order 14421 (EO), declaring a national emergency arising from foreign exploitation of vulnerabilities in the bulk-power system and imposing new restrictions on transactions involving that system. While framed in country-neutral terms, the EO’s operative definitions, historical precedent and underlying threat assessment make clear that Chinese companies and China-linked supply chains likely are its principal targets. Companies that source equipment, components, software, firmware or maintenance services from Chinese manufacturers – or from joint ventures, subsidiaries or contract manufacturers with Chinese ownership or jurisdictional ties – face the most immediate exposure and should be evaluating their risk now.

China is expressly listed among countries subject to a policy of denial under International Traffic in Arms Regulations (ITAR) section 126.1 – the specific provision the EO incorporates to define “Covered Foreign Entities.” The Department of Energy’s (DOE) only prior implementing action under the predecessor 2020 order exclusively targeted Chinese-linked equipment. As discussed in detail below, final regulations implementing the EO must be published by the DOE in December; however, now is the time for companies with any Chinese nexus in their bulk-power supply chains to conduct supply chain audits, review financing contracts and assess their exposure. Companies should also consider participating in the rulemaking process to shape key definitions and provisions.

The EO prohibits “any acquisition, importation, transfer, or installation of any foreign-produced bulk-power system electric equipment (transaction) by any person, or with respect to any property, subject to the jurisdiction of the United States,” where:

A foreign country or national has any interest in the transaction (including through a supply contract).
The transaction was initiated after August 26, 2026.
The secretary of energy determines that:
1. The equipment (or associated components, software, firmware, digital services, maintenance services or remote-access capabilities) was designed, developed, manufactured or supplied by persons owned by, controlled by or subject to the jurisdiction or direction of a “Covered Foreign Entity.”
2. The transaction poses an undue risk of sabotage, subversion, unauthorized access, supply disruption or catastrophic effects on US critical infrastructure or the economy, or otherwise poses an unacceptable risk to US national security or the safety of US persons.

Scope of covered infrastructure

The “bulk-power system” encompasses facilities and control systems necessary to operate an interconnected electric energy transmission network, plus generation facilities needed for reliability, including transmission lines rated at 69 kV or higher. Local distribution facilities are expressly excluded.

Scope of covered equipment

“Bulk-power system electric equipment” is defined by a detailed illustrative list: reactors, capacitors, substation transformers, utility-scale and grid-connected inverters, battery energy storage systems, uninterruptible power supply (UPS) systems supporting critical infrastructure, generators, generation turbines, high-voltage circuit breakers, protective relaying, metering equipment and industrial control systems – including remote terminal units (RTUs), programmable logic controllers (PLCs) and intelligent electronic devices (IEDs). Agencies may also consider associated software, firmware, remote-access capabilities, life cycle maintenance and supply chain dependencies. Equipment with broader application unrelated to the identified national security concerns is excluded.

‘Foreign produced’

An article is “foreign produced” if it is not manufactured, produced or assembled in the United States. The EO provides no customs-style rules for substantial transformation, country of origin or de minimis foreign content. A product assembled domestically from foreign components may have a textual argument that the final article is not “foreign produced,” but this is not a categorical safe harbor. DOE may examine critical components, firmware, remote access and supply chain dependencies, and the EO separately prohibits transactions structured to evade its requirements.

Existing equipment

The secretary of energy may impose conditions on the continued use, operation, maintenance, servicing or updating of qualifying foreign equipment already installed before August 26, 2026, including requiring its identification, isolation, monitoring, disconnection, replacement or removal. Before ordering the more disruptive remedies, the secretary must consider reliability and safety effects, replacement availability and continuity of essential service, and may phase compliance. This does not create an immediate fleetwide “rip-and-replace” mandate, but installed assets may become subject to technical conditions, increased monitoring, restricted maintenance arrangements or accelerated replacement requirements – creating potentially material exposure for asset owners, lenders and project buyers.

Impacted industries

The EO’s practical reach will depend on DOE’s implementing rules, but its express terms create direct exposure for utilities and transmission owners/operators (particularly those procuring or operating equipment rated 69 kV or above from higher-risk jurisdictions); energy infrastructure developers across all generation technologies; grid technology, storage and inverter suppliers (the most significant expansion relative to 2020); data center developers and operators to the extent their equipment ties into the bulk-power system; equipment manufacturers and supply chain vendors facing expanded country-of-origin and ownership disclosure demands; investors, lenders and M&A participants who should add the EO to regulatory and R&W insurance diligence; and federal contractors who may be affected by forthcoming Federal Acquisition Regulation (FAR) revisions prioritizing US-manufactured energy infrastructure.

Mitigation, pre-qualification and anti-evasion

The secretary may negotiate mitigation measures as a precondition to approving an otherwise prohibited transaction and may publish a pre-qualified equipment and vendor list exempt from the prohibition, while retaining authority to later regulate even pre-qualified equipment or suppliers. Any transaction that evades, avoids or attempts to violate the order – and any conspiracy to do so – is separately prohibited. Companies should document sourcing determinations and business rationales and avoid restructurings designed to obscure country, ownership or service provider connections.

Implementation timeline

Within 120 days (by December 24, 2026), the secretary of energy – in consultation with the Office of Management and Budget, the secretaries of war and homeland security, and the national intelligence director – must publish implementing rules, including criteria for identifying Covered Foreign Entities and licensing procedures for otherwise prohibited transactions. Within 180 days (by February 22, 2027), the secretary must submit recommended FAR revisions to integrate national security screening into federal energy infrastructure procurement and prioritize US-manufactured equipment; the FAR Council then has 90 days to consider proposing those revisions for notice and comment.

As a first step toward implementation, on September 9, 2026, DOE published a request for information (RFI) seeking stakeholder input on key implementation questions, including the scope of covered equipment and transactions, risks associated with Covered Foreign Entities, supply chain and remote-access practices, mitigation of existing equipment, licensing and pre-qualification procedures, domestic manufacturing capacity, federal procurement, and potential economic, reliability, safety and small-entity impacts. Written responses are due by October 9, 2026.

Broader scope than prior bulk-power regulation

The EO is not the first attempt to regulate foreign equipment in the bulk-power system. On May 1, 2020, the first Trump administration declared a similar national emergency and authorized DOE to prohibit transactions involving equipment connected to “foreign adversaries.” DOE implemented that order in December 2020 with a Prohibition Order targeting limited transmission-level equipment from China at critical defense facilities. However, full implementation of this effort was suspended in January 2021 with the change in administration. Several features distinguish the 2026 EO from its predecessor.

First, existing, already-installed equipment is now in scope. The 2020 order applied only to transactions initiated on or after specified effective dates; neither it nor the Prohibition Order reached previously installed equipment. The 2026 order expressly authorizes the secretary to require isolation, disconnection, replacement or removal of qualifying equipment installed before the order, subject to reliability and phased-compliance safeguards – materially expanding reach into the existing installed base.

Second, the covered entity standard has broadened. The 2020 order turned on “foreign adversary.” The 2026 order uses “Covered Foreign Entity,” defined to include countries or persons connected to a government subject to a US arms embargo or sanctions regime under ITAR, or that the secretary determines is engaged in conduct detrimental to US national security or foreign policy. This is broader in structure – embracing sanctions- and embargo-linked jurisdictions generally – and gives the secretary considerable discretion to designate additional countries or entities case by case.

Third, equipment coverage now expressly reaches grid modernization technology. The 2026 order’s illustrative list calls out utility-scale and grid-connected inverters, battery energy storage systems, UPS systems supporting critical infrastructure, and associated software, firmware, digital services and remote-access capabilities – categories not covered by the 2020 order or its narrower Prohibition Order (which centered on transformers, circuit breakers and reactive power equipment at 69 kV and above).

The order also follows the Federal Communications Commission’s (FCC) recent addition of foreign-produced power inverters to its Covered List. The FCC and DOE frameworks use different legal authorities and triggers; companies procuring or supplying inverters should conduct a parallel analysis rather than assuming compliance under one regime resolves the other.

Ambiguities and open interpretive questions

Several aspects of the EO are unresolved and will depend on DOE’s implementing rules, due by December 24, 2026. We flag these because they bear directly on near-term considerations:

When is a transaction “initiated”? The EO does not define this term, nor does it explain whether acquisition, importation, transfer and installation are separate transactions for timing purposes. It is unclear how the term applies to purchase orders placed but not yet performed before August 26, 2026, deliveries or payments under pre-existing master supply agreements, or change orders and amendments. This is especially important for equipment with multistage procurement: A contract may have been signed before August 26 while manufacturing, importation and installation occur afterward. Because the EO applies “notwithstanding any contract entered into or any license or permit granted prior to the date of this order,” pre-existing contractual protections may not shield a transaction that DOE treats as “initiated” after the effective date. Companies should not assume a pre-August 26 contract places all subsequent performance steps outside the EO’s reach.
Which countries and entities will be designated Covered Foreign Entities? The definition combines an objective prong (countries subject to a US arms embargo or ITAR-referenced sanctions regime) with a discretionary prong (persons the secretary determines are engaged in conduct detrimental to US national security or foreign policy). Until DOE publishes designations, affected companies cannot be certain which suppliers, countries or ownership structures are covered – even though the underlying prohibition is already in effect.
How will DOE apply the “owned by, controlled by, or subject to the jurisdiction or direction of” standard? This test is not further defined – no percentage ownership threshold, no guidance on indirect or minority ownership, joint ventures or contractual control. Several additional undefined concepts will determine practical reach: “critical component,” “critical infrastructure” for covered UPS systems, “foreign manufactured or operated” for existing equipment, and the degree of foreign component, software or service content sufficient to establish a Covered Foreign Entity nexus. These questions are particularly significant for minority investments, joint ventures, third-country subsidiaries, contract manufacturers, dual-sourced products, and equipment assembled domestically but reliant on foreign firmware or ongoing foreign technical support.
What does the pre-qualified vendor list process look like? The EO allows, but does not require, the secretary to publish a pre-qualified list and expressly reserves authority to later regulate even pre-qualified equipment. It is unclear whether or when DOE will publish such a list, what certification process vendors would follow, and how much reliance companies can place on it given that reserved authority.

China-specific implications

The order does not name China in its operative text; “Covered Foreign Entity” is defined generically by reference to US arms embargo or sanctions status or through a case-by-case determination. However, China is expressly listed among countries subject to a policy of denial under ITAR section 126.1, the specific provision incorporated into the definition. On its face, this may reach beyond Chinese state-owned enterprises or companies on US sanctions and export-control lists, creating potential exposure for privately owned companies organized in China and certain subsidiaries, joint ventures, and suppliers whose relationship to China is jurisdictional rather than equity-based. Several additional features point to particular relevance for China-linked entities and supply chains.

Direct historical precedent targeting China

DOE’s only prior implementing action under the 2020 order targeted equipment manufactured or supplied by persons owned by, controlled by or subject to the jurisdiction or direction of China, based on DOE’s assessment that the Chinese government was “equipped and actively planning to undermine the electric power system in the United States.” Companies should expect DOE to draw on this factual record when implementing the 2026 order, making Chinese-linked equipment and suppliers a likely early focus of forthcoming designations.

China-linked AI and grid-technology intersections

The order’s threat rationale explicitly ties bulk-power system security to “advanced manufacturing, data centers, artificial intelligence, and defense production.” Given the administration’s broader scrutiny of Chinese involvement in AI infrastructure, DOE may initially focus on grid technologies with Chinese-origin software, cloud or remote-access components. Potential targets include grid-connected inverters, battery management software and remote-monitoring or predictive-maintenance platforms, particularly when integrated with AI-driven grid optimization or data center energy management.

Potential transaction restrictions

Because the prohibition reaches any transaction where a foreign country or national has any interest – including through a contractual interest in equipment supply – transactions with Chinese equipment manufacturers, joint venture partners or component suppliers initiated after August 26, 2026, are at risk of being deemed void or subject to unwinding if DOE later designates the relevant entity or country as a Covered Foreign Entity, notwithstanding any prior contract, license or permit. Companies with pending or planned procurement from Chinese-linked suppliers should treat this as an active transaction risk during the pre-implementation period.

Practical guidance and action steps

Inventory pipeline transactions and the existing installed base

Identify all pending, planned or recently initiated (on or after August 26, 2026) acquisitions, imports, transfers or installations of qualifying bulk-power system equipment, mapping each supplier’s country of manufacture, ultimate ownership, and the origin of associated software, firmware, maintenance services and remote-access capabilities. In parallel, compile an inventory of currently installed equipment by manufacturer, country of origin and ownership/control chain so the company can quickly assess exposure if DOE designates a Covered Foreign Entity.

Build supply chain disclosure into contracts and do not assume pre-existing contracts provide protection

Update procurement templates and requests for proposals (RFPs) to require supplier certifications on country of manufacture, beneficial ownership, and origin of embedded software, firmware, remote access and maintenance services. New and amended contracts should address notification obligations, audit rights, product substitution and domestic sourcing rights, cooperation with DOE inquiries, and allocation of removal, replacement and delay costs. Because the EO applies “notwithstanding any contract entered into or any license or permit granted prior to the date of this order,” companies should not treat existing master supply agreements, purchase orders or long-term contracts as insulating a transaction from the prohibition.

Monitor DOE’s implementing rulemaking and vendor list developments

DOE’s rules are due by December 24, 2026, and will define Covered Foreign Entities, identify equipment warranting scrutiny and establish licensing procedures. Companies with material exposure should build a process to reassess procurement and vendor decisions promptly after publication. If DOE publishes a pre-qualified vendor list, treat qualification as an increasingly important procurement input – while recognizing that DOE retains authority to regulate even listed equipment or vendors.

Coordinate diligence across overlapping regimes

This order operates alongside the Committee on Foreign Investment in the United States (CFIUS), Federal Energy Regulatory Commission/North American Electric Reliability Corporation (FERC/NERC) supply chain standards, the FCC’s Covered List for foreign-produced power inverters, and other China-specific restrictions (such as foreign entity of concern rules for certain tax credits). Compliance under one regime does not resolve the others; companies should coordinate workstreams rather than treating them as independent silos.

Develop technical mitigations and incorporate the EO into deal diligence

For higher-risk equipment, evaluate whether remote access can be eliminated, firmware independently validated, networks segmented and maintenance localized. Transaction teams should assess potential DOE restrictions as part of regulatory, sanctions and supply chain diligence; purchase agreements and financing documents may need specific disclosure schedules, covenants, closing conditions, indemnities, and reserves for remediation or replacement.

Engage counsel before initiating higher-risk transactions

Given uncertainty around when a transaction is “initiated” and which entities will be designated Covered Foreign Entities, companies contemplating significant procurement of foreign-manufactured bulk-power system equipment – particularly equipment with any China nexus – should seek legal input before signing or performing the transaction.

Cooley Partners Recognized on Forbes’ 2026 America’s Top Lawyers List

Wed, 16 Sep 2026 15:13:00 Z

Palo Alto – September 16, 2026 – Forbes recognized Cooley partner and CEO Rachel Proffitt alongside partners Michael Attanasio and Travis LeBlanc on its 2026 America’s Top Lawyers list, which honors lawyers defining modern legal excellence while remaining client-centered.

Forbes selected honorees through a multistage editorial process evaluating recent accomplishments, reputation, client impact, advocacy and leadership.

View the list

Cooley Advised Yardi on Acquisition of Sidero Labs

Tue, 15 Sep 2026 16:56:24 Z

Cooley advised Yardi, a leading provider of software solutions for real estate companies of all types and sizes worldwide, on its acquisition of Sidero Labs, the company behind Talos Linux, the secure open-source operating system for Kubernetes, and Omni, its fleet management platform.

The transaction was announced publicly in this press release.

Erin Kirchner, Len Jacoby, Jack Silverman, John DelMastro, Sam Dodson, Ryan Montgomery and Megan Drill led the Cooley team advising Yardi.

Cooley previously advised Yardi on its acquisition of LCP Media (2025), Deskpass (2024), and transactions related to WeWork (2024).

Cooley advised Chimagen Biosciences on Agreement to Sell Asset to GSK for Up to $750 Million

Tue, 15 Sep 2026 15:40:09 Z

Cooley advised Chimagen Biosciences, a privately held biotechnology company, on the agreement to sell a potential best-in-class trispecific T cell-engager (TCE) to GSK. Under the terms of the agreement, GSK will pay an upfront fee to acquire full global rights to the TCE programme. Chimagen will also be eligible to receive success-based development and commercial milestone payments. The agreement has a total potential value of up to $750 million.

The transaction was announced publicly in this press release.

Rama Padmanabhan, Marya Postner, Yiming Liu, Jenny Ge and Zack Gong led the Cooley team advising Chimagen.

Shawn Yu, Monica Xu, Alexander Lee, David Wilson, Hardy Zhou, Ivy Wang, Zijing Yang, Jack Jones, Eerik Kukebal, David Burns, Sharon Connaughton, Stella Sarma, Zhijing Yu, Natasha Leskovsek, Tom Epps and Ben Sharrock-Mason provided invaluable support.

Cooley previously advised Chimagen Biosciences on the sale of CMG1A46, a dual CD19- and CD20-targeted T cell engager, to GSK for up to $850 million in upfront cash and milestone payments.

Tenable Holdings Announces Upsized $800 Million Convertible Senior Notes Offering

Tue, 15 Sep 2026 14:50:00 Z

San Francisco – September 15, 2026 – Cooley advised Tenable Holdings (Nasdaq: TENB), the exposure management company, on its $800 million aggregate principal amount of 0.25% convertible senior notes due 2031 in a private placement only to persons reasonably believed to be qualified institutional buyers pursuant to Rule 144A under the Securities Act of 1933, as amended. This includes the full exercise of the initial purchasers’ option to purchase up to an additional $75 million aggregate principal amount of the notes.

Lawyers Jon Avina, Mischi a Marca, Jason Savich, Darah Protas, Madison Jones, Shimeng Cheng, Jayne Munger, Winda Fung, Yoni Horn and Brenna McGuire led the Cooley team advising Tenable.

Cooley previously advised Tenable on various acquisitions over the past six years, as well as its $425 million debt financing in July 2021 and $288 million initial public offering in August 2018.

Transformation Capital Closes Fund IV at $850 Million

Tue, 15 Sep 2026 02:42:11 Z

Boston – September 14, 2026 – Cooley advised Transformation Capital, the largest dedicated digital health venture and growth equity firm, on the final close of Transformation Capital Fund IV at its $850 million hard cap, exceeding its target in an oversubscribed fundraise completed this summer. Fund IV brings Transformation Capital's total assets under management to more than $2.5 billion across four funds.

Lawyers Matthew Smith, Jaclyn Rabin, Stephanie Gentile, Stacey Song, Charles Chen, Kevin Beckoff, Chris Bates, Jeewon Lee, Charles Koech, Sigan Chen, Ifunanya Okobi-Harris, Meredith Ashlock and Hardy Zhou led the Cooley team advising Transformation Capital.

India’s IPO Boom Is Rewriting the Exit Playbook for Global Investors

Mon, 14 Sep 2026 17:05:00 Z

Cooley partner Shashwat Tewary authored an e27 article examining how India’s deepening domestic capital base is making local initial public offerings (IPOs) a more viable exit option for global private equity and venture capital sponsors. The article explains that investors should consider the possibility of an Indian IPO earlier in the investment life cycle, as the country’s evolving public markets increasingly influence decisions around corporate structure, governance, financial reporting and eventual liquidity.

Read the article on e27.

Law 2026: John ‘Jack’ Lavoie

Fri, 11 Sep 2026 17:13:30 Z

John Lavoie, partner in charge of Cooley’s Reston office, has been recognized by Virginia Business in the law category of Virginia 500: The 2026–27 Power List, which features 500 of the most powerful and impactful leaders in Virginia across business, government, nonprofits and higher education.

Read Lavoie's profile (subscription required)

Data Center Deals Continue Benefiting Big Law Client Relationships

Fri, 11 Sep 2026 05:36:00 Z

Mona Dajani, partner and co-chair of Cooley’s infrastructure, real estate and energy practice, was quoted in a Law.com article about competition among law firms for data center work, noting that much of it stems from longstanding client relationships. Dajani also highlighted the value lawyers can provide by bridging the diverse industries involved in data center projects, including technology and utility companies, private equity, real estate and power development.

Read the article (subscription required)

Sequen AI Announces $90 Million Series B

Thu, 10 Sep 2026 19:16:00 Z

New York – September 10, 2026 – Cooley advised Sequen AI, the world’s first recursive ranking intelligence platform for the enterprise, on its $90 million Series B at a $1.44 billion valuation. The round was led by Prysm Capital, with participation from Threshold Ventures and White Star Capital.

Lawyers Ariel Rom, Liz Gold and Brittany Sanok led the Cooley team advising Sequen.

Cooley has advised Sequen since its incorporation.

Mach Industries Raises Additional $600 Million

Thu, 10 Sep 2026 19:10:00 Z

New York – September 10, 2026 – Cooley advised Mach Industries, a defense manufacturer developing advanced autonomous systems for the US military and its allies, on its $600 million continuation of its Series C financing, bringing the company's valuation to $3.7 billion. The round included participation from existing investors Ribbit Capital, Infinite Capital, Bedrock Capital and Sequoia, among others.

Lawyers Stephane Levy, Robert Warshaw, Walter Musgrave, Michael Bruno, Von Bryant, Sydney Weigert, Xander Lee, Jason Savich, Annie Froelich, Nyron Persaud, Sharon Davidov and Sharon Connaughton led the Cooley team advising Mach Industries.

Cooley previously advised Mach on its $300 million Series C funding in June 2026, its acquisition of Exquadrum in May 2026 and its $100 million Series B financing in June 2025.

The 2026 Tech Titans

Thu, 10 Sep 2026 02:13:00 Z

For the third consecutive year, Cooley partners Mike Lincoln, vice chair of the firm, and Travis LeBlanc, co-chair of the firm's cyber/data/privacy practice, have been recognized on the Washingtonian's 2026 Tech Titans list, which spotlights leading figures making an impact across the Washington, DC, technology community.

Their inclusion this year marks LeBlanc’s third appearance on the list and Lincoln’s 10th recognition by the publication.

View the full list of Tech Titans

Cooley Advised GreenArrow on Acquisition of MSL Electric

Wed, 09 Sep 2026 14:28:55 Z

Cooley advised GreenArrow, a leading provider of transportation electrical services, on its acquisition of MSL Electric, a full-service electrical contracting firm based in Anaheim, California.

The transaction was announced publicly in this press release.

Kester Spindler, Jack Silverman, Jacob Clark, Jonathan Rivinus, David Walsh, Sofia Chadwick, Carly Gibbons, Rick Jantz and Karun Ahuja led the Cooley team advising GreenArrow.

Cooley previously advised GreenArrow on its acquisitions of Kuharchik Construction, Wyoming Electric & Signals, Bear Electrical Solutions, James D. Hinson Electrical, and Earthbound Electric.

Cooley Advises Uber on €4.5 Billion Investment-Grade Bond Offering

Wed, 09 Sep 2026 13:42:00 Z

San Francisco – September 9, 2026 – Cooley advised Uber Technologies, Inc. (NYSE: UBER), a technology platform that uses a massive network, leading technology, operational excellence and product expertise to power movement from Point A to Point B, on its €4.5 billion investment-grade bond offering. This is Uber’s debut Euro bond transaction.

Mischi a Marca, Addison Pierce, Carlos Ramirez and Eric Blanchard led the Cooley team advising Uber, with support from Siana Lowrey, David Peinsipp, Matt Kong, Xueqing Li, Yoni Horn, Alexander Gefter, Peter Haddad and Zach Polen. Eileen Marshall and Timothy Shapiro advised on tax matters.

Cooley has advised Uber on various matters since 2014, including its recent €14 billion bridge financing agreement in connection with its offer to acquire Delivery Hero in July 2026, partnership with Rivian Automotive in March 2026 and strategic partnership with Wayve in February 2026.

Banque Misr Penalties a ‘Wake-Up Call’ for Banks Over Hidden Iran Ties, Lawyers Say

Tue, 08 Sep 2026 17:47:00 Z

Cooley partner Brian Nelson was quoted in the National Law Journal about the Financial Crimes Enforcement Network's proposed Section 311 action against Banque Misr UAE amid heightened US enforcement against financial institutions suspected of facilitating Iranian finance. Nelson, former Treasury Department under secretary for terrorism and financial intelligence, said the measure can amount to a “death penalty” for foreign banks that transact in US dollars and noted that banks generally treat proposed Section 311 actions as final.

Read the article (subscription required)

Cooley Bolsters Private Equity Bench With Fund Formation Hire in Chicago

Tue, 08 Sep 2026 16:00:00 Z

Chicago – September 8, 2026 – Michael Black has joined Cooley’s Chicago office as a partner in the firm’s fund formation practice, further strengthening Cooley’s private equity fund capabilities to meet the evolving needs of its growing client base.

“Michael is an outstanding addition to our fund formation team and to Cooley’s Chicago office,” said John Clendenin, partner and chair of Cooley’s global fund formation practice. “He combines a sophisticated technical skill set with a practical, collaborative approach and a deep understanding of the needs of emerging and established private equity managers. Michael is highly regarded in the market and exceptionally effective with clients.”

Black brings a versatile practice spanning the full life cycle of private investment funds. He counsels established and emerging managers on the formation, structuring and operation of private investment funds – including buyout, growth equity, search, debt, real estate and single-asset funds – and special purpose vehicles.

Joining Cooley from Kirkland & Ellis, Black deepens Cooley’s capabilities serving emerging and established sponsors in the middle markets. He has significant experience leading fund closings representing billions of dollars in aggregate committed capital, and advising on the formation of private investment funds, including funds established by first-time sponsors. In 2026, Cooley has continued to strategically invest across its fund formation platform, with Black following the additions of partners Derek Pease, Corey Zarse and Jon Brose.

“A fundraise sets the foundation for a partnership that can shape how a firm operates for the next decade. Middle-market managers need counsel who understand the significance of those decisions and can provide advice tailored to their needs,” said Black. “Cooley combines that judgment with the ability to execute at the highest level.”

The firm’s fund formation practice is among the largest and most active in the country, providing primary counsel to more than 1,000 investment fund clients. The team advises managers across the full spectrum of strategies and fund structures, including private equity, venture capital, growth equity and other private investment funds, supporting sponsors from formation and fundraising through ongoing operations, liquidity solutions and strategic transactions.

DOJ Announces ‘Historic’ $250 Million Penalty for HSR Filing Violations

Fri, 04 Sep 2026 20:39:00 Z

On August 26, 2026, the US Department of Justice (DOJ) announced a proposed settlement with private equity firm KKR & Co. to resolve a complaint alleging repeated and “systemic” Hart-Scott-Rodino (HSR) Act violations. Under the settlement, KKR will pay a “historic” civil penalty of $250 million – “more than 20 times any prior HSR penalty,” as noted by Associate Attorney General Stanley Woodward.

The DOJ’s January 2025 complaint alleged that KKR violated the HSR Act in at least 16 separate transactions during 2021 and 2022. According to the DOJ, KKR altered documents in HSR filings for eight transactions, omitted required documents for 10 transactions and failed to make the required HSR filing in two transactions. In a statement, KKR disagreed with the DOJ’s position, noting that it believed it had “acted in good faith … consistent with industry practice” in its HSR filings but wanted to resolve the matter without further litigation. Notably, KKR also added that outside law firms would fully reimburse KKR for the civil penalties.

This settlement comes weeks after the Federal Trade Commission (FTC) announced $12 million in penalties against Edwards Lifesciences Corp. and Genesis MedTech Group Limited for HSR Act violations. At the time, that penalty was the largest ever for failure to make an HSR filing. The FTC alleged that the parties structured the transaction with the aim of avoiding an HSR filing requirement by splitting the consideration between a purchase price for the target below the HSR threshold coupled with a separate investment into the seller. The combined value would have triggered an HSR filing.

Why this matters

HSR Act violations can result in significant penalties. The maximum civil penalty for an HSR Act violation is currently $53,088 per day per violation, and the DOJ initially sought more than $650 million in penalties in the KKR complaint. With the recent settlements, the DOJ and the FTC are signaling that both agencies take HSR evasion and incomplete filings seriously. Given the time that may pass between agency enforcement and the required time of filing, penalties can accrue rapidly. It is essential to conduct a thorough reportability analysis at the outset of a transaction.

Ensure compliance with HSR document collection. Sweep broadly and comprehensively in the collection process for documents that should be included with the HSR filing. The DOJ’s complaint discussing alleged omitted documents underscores the importance of identifying all key custodians and ensuring that their materials are collected and reviewed.

Adhere to document creation and hygiene guidelines. In the KKR complaint, the DOJ alleged that KKR made alterations to responsive business documents in some transactions to minimize the competitive impact of the proposed deal. Altering documents is of course an immediate red flag, but not creating “hot” documents in the first instance is the best approach. Involving antitrust counsel to review drafts before broad circulation to officers or directors reduces the risk of unnecessarily inflammatory language in responsive materials.

White House Steps Up Trade Fraud Enforcement With AI

Thu, 03 Sep 2026 19:32:50 Z

The White House recently announced that “the age of untraceable illegal transshipment is over.” In an August 13 report titled, “The Great Transshipment Scam,” the White House Office of Trade and Manufacturing Policy issued what it called a “warning to the world” – “stop evading and avoiding the Trump tariffs through illegal transshipment. Those who continue will be caught.”

Illegal transshipment, which is the practice of routing goods from higher-tariff countries through lower-tariff jurisdictions to evade US tariffs, reportedly costs America tens of billions of dollars annually. To counter illegal transshipment, US Customs and Border Protection (CBP) is developing an AI-enabled “detective border” that will analyze shipment data, routing histories, product classifications and other information to purportedly “reveal[] inconsistencies that no human could catch at scale.”

On the same day the White House report was released, the US Department of Justice (DOJ) issued a memorandum identifying trade fraud as a top enforcement priority, underscoring the risk of criminal prosecution for companies and individuals engaged in tariff evasion or other fraud schemes.

The government’s focus on illegal transshipment can affect any company engaged in foreign commerce, but those connected to China supply chains should pay particular attention. Now is a good time to evaluate import practices, strengthen compliance programs and prepare for this new era of data-driven enforcement.

CBP’s new AI ‘detective border’

The White House report estimates that transshipment “is draining the US treasury” of $10 billion to $100+ billion in lost tariff revenue each year.

According to the report, since the first Trump administration imposed Section 301 tariffs on China in 2018, goods that previously moved directly from China to the US are increasingly being routed through third-country jurisdictions – including Vietnam, Malaysia, Thailand, Mexico and Cambodia – to take advantage of lower tariff rates. The report makes clear that the government is aware of these routing patterns and views them as a principal driver of tariff revenue losses. Other higher-tariff countries are allegedly beginning to adopt similar practices, but China-origin transshipment remains the enforcement priority.

One step being taken to counter transshipment is the development of an AI-enabled “detective border.” The AI detective border is described as an “AI-driven net that never sleeps, never tires, and never forgets.” The AI architecture will fuse “anomaly detection, link analysis, capacity validation, and mirrored-flow verification into a single predictive platform.” The platform will continuously analyze data to attempt to identify “anomalous routing patterns, suspicious bills of lading, false-origin claims, value mismatches, and capacity inconsistencies.” Additionally, AI will play a role in identifying potential mismatches between a product’s “digital identity” and its “physical reality” by analyzing “container markings, packaging patterns, and X-ray imaging.” CBP will leverage these findings to bring enforcement actions.

DOJ memo outlines enforcement priorities for fraud

Also on August 13, the National Fraud Enforcement Division (NFED) issued a memorandum setting forth its enforcement priorities. As we discussed previously, the NFED is a new division within the DOJ for investigating and prosecuting fraud against federal government programs.

The memo states that the NFED will utilize sophisticated data analytics tools and other new technology to build a “data-driven white-collar law enforcement” group. The NFED is expected to have 500 attorneys and other staff by late August and will “continue to rapidly grow for the next two years.”

The memo identifies five enforcement priorities:

Global trade and commerce, which will target “illicit transshipment schemes, country-of-origin fraud, the undervaluation of imported goods designed to evade duties, sanctions evasion, and foreign forced labor schemes.”
Public trust and financial integrity, including government procurement fraud (such as bid rigging, self-dealing and billing fraud), as well as benefit and grant programs (such as student loans and small business programs).
Healthcare, such as Medicare or Medicaid fraud, controlled substance diversion, home health and hospice schemes, and deceptive marketing of unsafe products and services.
Internal revenue, which will focus on criminal tax enforcement.
Corporate misconduct, which will focus on “fraud and other economic crimes.”

Echoing the White House report, the memo emphasizes that trade fraud and customs evasion “undermine American industry” and “deprive the public fisc of vital external revenue.”

Implications

With the administration viewing trade fraud as a significant threat to American industry and the broader US economy, companies with global supply chains should expect heightened scrutiny of their import practices. That scrutiny will be increasingly data-driven and take advantage of new technology. The consequences of noncompliance may extend beyond civil penalties to criminal prosecution. Companies should consider reviewing and strengthening their compliance programs to identify and address potential issues or weaknesses in their supply chain.

Companies that receive notice that they are the subject of a trade fraud investigation – whether through a CBP Request for Information, a subpoena or Civil Investigative Demand from the DOJ, or a formal notice of detention or seizure – should act quickly and deliberately to evaluate the allegations and potential defenses. Companies with China-connected supply chains should be particularly alert, as enforcement agencies are actively scrutinizing import patterns involving Chinese-origin goods routed through third countries.

As an initial matter, companies should retain experienced counsel before responding to any government inquiry or making statements to investigators. Companies should also take immediate steps to preserve all potentially relevant documents and data, including shipping records, customs filings, supplier agreements and internal communications relating to import practices. In parallel, companies should consider initiating an internal investigation to assess the scope of the issue, determine whether voluntary self-disclosure is appropriate and develop a strategy for engaging with the government. Throughout this process, companies should be mindful that trade fraud investigations often involve multiple agencies – including CBP, DOJ and the Department of Commerce – and that early coordination across enforcement tracks is critical.

How we can help

Cooley’s global tariffs task force is a team of high-stakes litigators, former prosecutors, including the former chief of the public corruption unit of the US Attorney’s office, and investigation counsel. We have extensive experience in cross-border investigations, particularly those involving Asia and China, and our team includes Mandarin-speaking lawyers who can communicate directly with clients and counterparties in their native language. Companies that receive an inquiry or notice that indicates they may be the subject of a government investigation can reach a member of our team by emailing zCooleyTariffsTeam@cooley.com.

USPTO Appeals Review Panel Reinstates Double Patenting Rejections, Limits Allergan in Examination

Wed, 02 Sep 2026 17:11:25 Z

Executive summary

In Ex parte Baurin (Appeal 2024-002920), the US Patent and Trademark Office (USPTO) Appeals Review Panel (ARP) reversed the Patent Trial and Appeal Board (PTAB) and reinstated six obviousness-type double patenting (OTDP) rejections against US Application No. 17/135,529.¹ The decision adopts a narrow reading of Allergan USA, Inc. v. MSN Laboratories Private Ltd. and confirms that a later-filed, later-expiring patent can still support an OTDP rejection, even where issuance of the challenged claims would not extend patent exclusivity.²

The decision turns on OTDP’s second rationale: preventing harassment through enforcement by separate owners of patentably indistinct patents. Relying on Fallaux, Hubbell and Cellect, the ARP held that this anti-harassment rationale independently supports an OTDP rejection, even when there is no improper extension of patent term.³

Still, the ARP was not entirely comfortable with that outcome. It said that absent binding precedent, it would not treat hypothetical future harassment as a stand-alone basis for rejection, and it sketched a more streamlined, term-focused framework it might adopt in the future. That framework is not the law yet. Until the Federal Circuit says otherwise, examiners will keep applying pre-Allergan practice, except in the narrow circumstances where the ARP found Allergan applies.

Background

The ’529 application is directed to antibody-like binding proteins, was filed December 28, 2020, and has a patent-term filing date of March 28, 2012, giving it an ordinary expiration of March 2032.⁴

The examiner rejected claims 1 – 18 for OTDP over six reference patents/applications, each combined with US 2009/0162359 A1 (the ’359 publication). The principal reference, US Patent No. 10,882,922 (the ’922 patent), was filed April 13, 2017, issued January 5, 2021, and expires April 13, 2037, after a 70-day patent term adjustment (PTA) award. The ’529 application and the ’922 patent are commonly owned by Sanofi and share several inventors; it was undisputed that the pending claims would have been obvious over the ’922 patent in view of the ’359 publication.

The anti-harassment rationale

OTDP rests on two justifications. The first, and historically dominant, one prevents a patentee from obtaining a second, later-expiring patent on a patentably indistinct invention that would unjustifiably extend exclusivity. The second, the anti-harassment rationale, guards against patentably indistinct rights ending up with separate owners, each able to assert the same technology against an infringer or licensee. A licensee that cleared rights under one patent could face a separate claim from another owner of related, indistinct claims. The common-ownership provision required in a terminal disclaimer exists to prevent that outcome, even where the patents’ terms are already aligned.

The PTAB reversed the OTDP rejections in November 2024 and denied rehearing in a 2 – 1 decision (with dissent) in December 2025. On March 5, 2026, the director sua sponte convened the ARP, inviting briefing from the applicant and 11 amici on the scope of Allergan, projected expiration dates and whether separate ownership risk independently supports an OTDP rejection. On August 6, 2026, the ARP reversed the PTAB and reinstated all six rejections.

The decision

Allergan applies only in narrow circumstances

The ARP rejected the PTAB’s broader application of Allergan. In Allergan, the Federal Circuit held that a first-filed, first-issued, later-expiring claim could not be invalidated for OTDP based on a later-filed, later-issued, earlier-expiring reference claim sharing a common priority date.

On the ARP’s reading, Allergan applies where the challenged and reference claims are in the same family and share the same patent-term filing date, and the challenged claims are first-filed, first-issued and later-expiring within that family.

The ’529 application met none of these: It lacks the first actual filing date in its family, remains pending (so is not first-issued) and does not share a patent-term filing date with the ’922 patent, which is from a different family. A pending continuation will rarely qualify as first-issued during ordinary prosecution, so the ARP instructed examiners to continue pre-Allergan practice outside this narrow fact pattern.

Anti-harassment can independently support an OTDP rejection

The PTAB treated the absence of a term extension concern as dispositive. The ARP disagreed, concluding that its reading of Federal Circuit precedent recognizes two independent OTDP rationales: preventing unjustified timewise extension and preventing multiple suits by different owners of patentably indistinct rights.

The ARP viewed Fallaux and Hubbell as controlling because the Federal Circuit affirmed OTDP rejections even where the challenged claims would have expired before the references and relied on Cellect’s recognition of divided ownership risk. It rejected the PTAB’s view that this reasoning was dicta, since that would leave those affirmances with no articulated basis at all.

The practical result: Claims in a later-filed, later-expiring patent can support an OTDP rejection of earlier-expiring foundational claims even though issuance of the foundational claims would not extend exclusivity, so long as the challenged claims are not patentably distinct from the reference claims.

The ARP questions the rule it applies

Although the ARP reinstated the rejections, it was candid about its discomfort with the rule it applied. Absent controlling precedent, the panel said it would not treat hypothetical future harassment as a stand-alone basis for rejection: Without evidence that an applicant actually split ownership and exposed the public to separate suits, the USPTO is simply speculating. The ARP also credited the amici’s concern that a broad anti-harassment rule creates a backward-looking problem, since a later improvement could threaten earlier foundational claims. That concern is particularly acute in collaborative research, licensing-driven portfolios and situations involving inventor mobility. The tension is sharpest because a terminal disclaimer requires continued common ownership: It is easiest to obtain where the harassment risk is most hypothetical, and unavailable precisely where separate ownership already exists.

A proposed new framework, but not yet the law

If the Federal Circuit determines anti-harassment cannot stand alone, the ARP outlined a term-focused alternative. For references outside the application’s family, examiners would ask only whether the reference has a later patent-term filing date than the application. If so, the term extension inquiry ends there. If earlier, the examiner would compare the claims for patentable distinctness. Examiners would rely on known facts, such as an existing terminal disclaimer or already awarded PTA, rather than speculate about future events.

Within a single family, the analysis would instead turn on actual filing (and issue) dates: A later-filed application could be rejected over an earlier-filed parent, but not the reverse. This is consistent with Allergan’s principle that the first-filed, first-issued patent sets the family’s maximum period of exclusivity. The ARP also floated narrowing any surviving anti-harassment rationale by requiring actual evidence of prior ownership-splitting, or a two-way obviousness showing, before it alone could support a rejection. None of this is presently in effect; the ARP expressly conditioned it on further Federal Circuit guidance.

Key takeaways

1. Allergan protection remains narrow and family specific.

The Allergan exception protects only a first-filed, first-issued, later-expiring claim against a later-filed, later-issued, earlier-expiring reference sharing the same patent-term filing date within the same family. That is not the fact pattern most applicants will see during original prosecution; it is more likely to come up in reexamination, reissue or a later validity dispute.

2. Anti-harassment remains a live, independent ground for rejection.

Applicants should expect examiners to keep making OTDP rejections based on later-filed, later-expiring patents, including cross-family references, wherever the claims are not patentably distinct and a common ownership or inventorship link exists. Under the ARP’s current guidance to the USPTO, an earlier expiration date will not by itself defeat that kind of rejection.

3. Terminal disclaimers deserve more strategic attention than they typically get.

A terminal disclaimer is not just a formality. It imposes a common ownership requirement that can affect licensing, assignments, acquisitions and enforcement, and it may cut short a patent term that would otherwise result from PTA. Where common ownership cannot be achieved or maintained, for example in university-industry collaborations, joint development arrangements or after an inventor leaves, a disclaimer will not cure an OTDP rejection. Prosecution strategy, inventorship and ownership provisions need to be coordinated up front in those situations.

Alignment with Federal Circuit precedent

The ARP treated its result as compelled by Fallaux, Hubbell and Cellect, while acknowledging the Federal Circuit’s more recent focus on patent term in Gilead, Cellect and Allergan. Baurin is precedential within the USPTO and binds office personnel, but it does not bind the Federal Circuit or district courts. That leaves an open question the ARP expressly asked the Federal Circuit to resolve – whether the anti-harassment rationale is, by itself, still enough to reject an earlier-expiring claim under the current patent-term regime?⁵

Recent developments in this space

That question is now squarely before the Federal Circuit in In re Ablynx N.V., Appeal No. 26-1333, arising from Ex parte Baumeister. A decision there could address the continuing force of Fallaux and Hubbell, the scope of Allergan and the ARP’s proposed framework. A further appeal from Baurin itself could offer a second vehicle for review.⁶

Notes

Ex parte Baurin, Appeal 2024-002920, Application No. 17/135,529 (USPTO Appeals Review Panel, Aug. 6, 2026) (precedential).
Allergan USA, Inc. v. MSN Laboratories Private Ltd., 111 F.4th 1358, 1369-70 (Fed. Cir. 2024).
See In re Fallaux, 564 F.3d 1313, 1318-19 (Fed. Cir. 2009); In re Hubbell, 709 F.3d 1140, 1145-48 (Fed. Cir. 2013); In re Cellect, LLC, 81 F.4th 1216, 1229-30 (Fed. Cir. 2023).
See Cooley, PTAB Rehearing Limits Double Patenting Rejections of Earlier Patent Applications From Later-Filed Family Members, Jan. 26, 2026.
See Gilead Sciences, Inc. v. Natco Pharma Ltd., 753 F.3d 1208, 1214-17 (Fed. Cir. 2014); In re Cellect, LLC, 81 F.4th at 1226-30; Allergan, 111 F.4th at 1367-70.
In re Ablynx N.V., Appeal No. 26-1333 (Fed. Cir.) (appeal from Ex parte Baumeister, Appeal 2026-000193).

Rising Star: Cooley's Denny Won

Wed, 02 Sep 2026 11:38:04 Z

Cooley partner Denny Won was recognized by Law360 as a capital markets attorney rising star. In his profile, he discusses the initial public offerings (IPOs) he’s worked on, why he’s a capital markets attorney and how he thinks AI will change the practice. Won highlighted his work advising the underwriters of StubHub's $800 million IPO in September 2025, Uber on its $8.1 billion IPO in May 2019, the underwriters of Heatflow's upsized $364.2 IPO in August 2025, the underwriters of Andersen's $202.4 million IPO in December 2025,, the underwriters of BillionToOne's upsized $314 million IPO in November 2025 and Olema Pharmaceuticals’ upsized $240.4 million IPO in November 2020.

Read the full profile (subscription required)

OSC Releases ‘Call for Interest’ in Space Commerce Certification Pilot Program

Wed, 02 Sep 2026 07:00:00 Z

On August 20, 2026, the Department of Commerce Office of Space Commerce (OSC) announced a call for interest for companies interested in participating in a pilot phase of the newly established Space Commerce Certification (SCC) framework. Submissions are due October 5, 2026, and should be submitted to Space.Certification@noaa.gov.

Space Commerce Certification framework

Under the proposed framework, companies would apply for per-mission certification and commit to adhering to the OSC-imposed “light-touch” requirements, such as orbital debris mitigation and payload review. OSC would conduct basic due diligence while simultaneously circulating the application to relevant portions of the interagency to identify any concerns relating to national security, foreign policy or international obligations, and safety of operations. Agencies involved in the process would include OSC’s Commercial Remote Sensing Regulatory Affairs department, Federal Communications Commission, Federal Aviation Administration, National Aeronautics and Space Administration and Department of War. If no concerns are identified, certification would be granted within 120 days of submission.

The SCC framework is a process designed to facilitate approval of mission authorizations for activities not explicitly governed by existing regulatory frameworks and provide additional certainty for such operators. Novel space activities include, but are not limited to, in-space manufacturing, orbital datacenters, satellite servicing, lunar operations and commercial inhabitable stations.

Participation in SCC pilot phase

OSC is inviting expressions of interest in participating in a pilot phase intended to test and further develop the new framework. Participants will have the opportunity to provide the agencies with feedback on the process. OSC will be highly selective during this pilot phase and will prioritize missions that are critical to industry advancement, are sufficiently likely to occur and represent high-utility use cases.

Interested companies must include in their submission to OSC:

The nominated entity’s full name, any affiliations and contact information.
Evidence of US entity ownership/operation.
A clear description of the intended operations, the space objects involved and the targeted launch/deployment timeline.
A statement confirming the submitter’s commitment to working with OSC, in a manner as transparent to the public as possible, to develop best practices.

If you are interested in learning more about the SCC pilot phase or framework, please reach out to one of the Cooley lawyers listed below.

New Federal Program Deputizes Private Companies to ‘Hack Back’

Tue, 01 Sep 2026 21:33:03 Z

On August 12, 2026, President Donald Trump signed a memorandum titled “Expanding Capabilities to Combat Transnational Cyber-Enabled Crime” (memorandum). Historically, private companies have faced the imperative to defend themselves against cybercriminals while being legally barred from fighting back or “hacking back” – also known as active defense or active cyber response (ACR). The concept of ACR stems from a situation where participants in the program respond on behalf of victims of hacking by launching various offensive counterattacks against the hacker, with the intent of mitigating the effects of the attack. Business, scholars and politicians alike have debated this historical prohibition on “hacking back,” arguing over the limits on the tools available to the private sector to defend itself when it holds the vast majority of the world’s online infrastructure.

The memorandum directs the federal government to authorize vetted private companies to conduct offensive cyber operations, including surveillance and disruptive effects operations under federal oversight, against suspected foreign criminal hacking groups. For cybersecurity firms, threat intelligence providers and defense contractors, this memorandum potentially opens up new lines of activity and opportunity, but not without potential risk and exposure.

What the memorandum enables

The memorandum directs the National Coordination Center (NCC) to create and manage a program that would authorize certain preapproved “Participating Companies” to conduct cyber surveillance operations and cyber effects operations, under federal control and oversight, against foreign cyber-enabled transnational criminal organizations.

A cyber surveillance operation means accessing another organization’s computer systems or networks, without authorization from the owner or operator or by exceeding authorized access, primarily to passively collect information or intelligence, including information that could support a future cyber effects operation, with the intent to remain undetected.
A cyber effects operation means an operation that actually manipulates, disrupts, denies, degrades or destroys another organization’s information systems, networks or data, going beyond mere observation.

The program will be overseen jointly by the Department of Justice (DOJ) and the Department of Homeland Security (DHS), which must coordinate with each other to approve any operation, and every resulting action must be conducted on behalf of, and under the supervision of, these agencies.

The opportunity: a new kind of government relationship

For companies that provide offensive or clandestine cyber capabilities, this program provides a potential opportunity to become a partner to the US government. Participating companies would enter into contractual agreements with DOJ or DHS.

The memorandum also directs the government to build out the terms of this relationship over the coming months. By October 11, 2026, the program’s executive directors must establish operating procedures, including minimum standards for participation covering technical proficiency, proven performance, facility security, personnel vetting, competence and reliability. In establishing these procedures and standards, the executive directions must ensure eligibility criteria that allows for participation by both large companies, which would provide capacity and volume, and smaller or more specialized companies, which would potentially be better suited to more discrete tasks.

The guardrails: federal oversight

The memorandum builds in several layers of federal oversight, including requiring:

Individual approval of each operation by the program’s executive directors.
Participating Companies halt operations that stray outside of the approved scope and notify the NCC.
Participating Companies to maintain a bond or escrow of at least $1 million, to be forfeited if the company falls out of compliance with its contractual agreement.
Annual evaluation of Participating Companies for continued participation in the program.

The risk: residual liability

The harder question for any company considering this program is what happens when something goes wrong, and the memorandum signals that the government is also conscious of potential risks.

Authorized operations can have unexpected results

If a Participating Company discovers that an authorized operation has exceeded its approved parameters, such as by unintentionally targeting a US person, a US-based information system or a system controlled by a US person, it must immediately stop the operation, take steps to minimize the impact and notify the NCC, which then notifies the DOJ. Companies must also immediately report any imminent attack on US critical infrastructure they discover, or any reasonable belief that an approved operation may result in loss of life or serious injury, or rise to the level of use of force or armed attack under international law. The fact that the memorandum specifically anticipates and requires reporting on scenarios this serious is a signal of just how much can go sideways, even with rigorous vetting and federal sign-off.

Anti-hacking laws at home and abroad

The Computer Fraud and Abuse Act (CFAA) is an avenue for exposure, as it bars cyber activity undertaken without authorization or that exceeds authorized access – the very activity this memorandum enables. Anyone who suffers damage or loss from a violation of the CFAA may sue the violator for damages and equitable relief.

It is unclear whether this private right of action would survive against a defendant acting as a Participating Company under the program. The memorandum references compliance with the CFAA, alluding to an exemption for “any lawfully authorized investigative, protective or intelligence activity of a law enforcement agency of the United States [and certain other government entities].”¹ But it’s unclear the extent to which the exemption can apply to the actions of private entities undertaken on behalf of the government. This uncertainty means that a Participating Company could find itself exposed to a civil suit from whoever was harmed, having to litigate the exemption’s scope.

Foreign law adds another layer that the memorandum does not seek to address or resolve. These operations are meant to target servers, networks and infrastructure located outside the United States, and most countries have their own computer crime statutes that make unauthorized access to a computer system a domestic offense wherever it originates. A US government contract does not extend to a foreign hacking law and does not confer immunity from prosecution or civil suit in that country. A Participating Company conducting an approved operation against infrastructure or targets sitting in a foreign jurisdiction could still face criminal or civil exposure under that jurisdiction’s own laws.

No new swords or shields

Federal oversight also does not mean federal immunity for a company that steps outside the lines. The memorandum expressly caveats that it does not create any right or benefit, procedural or substantive, that any party can enforce against the United States or its officers and employees. That language lays out the government’s position that a Participating Company cannot point to this memorandum as a federal government indemnity for claims brought against the company, and a private party harmed by an operation gone wrong has no new claim against the government created by this memorandum.

Who else should be paying attention

This is not only a story for companies that might apply to the program. Cloud and hosting providers, internet service providers and critical infrastructure operators have reason to watch closely too, because these operations could touch their infrastructure without warning. A hosting provider or network operator whose infrastructure sits between a Participating Company and its intended target may lack visibility into an authorized operation running through its systems until something breaks.

The program also contemplates Participating Companies entering into commercial agreements with other private sector entities to receive threat intelligence in support of their cyber operations. Managed security service providers and incident response firms should also take note, even if they never seek Participating Company status themselves. However, such entities also run the risk of identifying operations by Participating Companies when responding to incidents at foreign entities, which may present conflicts of interest between their incident response and threat intelligence services.

Before entering into any threat intelligence sharing arrangement with a Participating Company, a company should understand exactly how its data and its name could end up feeding into a federally authorized cyber operation, and what obligations or exposure that creates for the company supplying the intelligence, not just the company acting on it.

Looking ahead

The program’s operating procedures are not due until October, so the details of eligibility, vetting and contract terms are still being written. But companies in the defense industrial base, cybersecurity, and cyber operations, threat intelligence and managed security spaces should start thinking now about:

Whether becoming a Participating Company, or a commercial data partner to one, fits the company’s risk tolerance and business strategy.
What contractual protections, insurance and indemnification the company would need before agreeing to conduct operations under this kind of federal authorization.
Developing a legal strategy and assessing potential exposure under the CFAA and other anti-hacking laws (including outside of the US).
Preparedness for inadvertent or intentional retaliation or escalation from targets of cyber operations conducted under the program.
Whether the company’s infrastructure or client base could be swept into someone else’s authorized operation, even without any direct involvement in the program.

This memorandum marks a shift in how the government defines the private sector’s role in the fight against cybercrime. Companies in this space have an opportunity to contribute to the disruption of cyber-enabled transnational criminal organizations, but the legal exposure runs alongside the opportunity, not behind it. If you have questions about whether your company should participate in this program, how to structure a commercial data-sharing arrangement tied to it or how to manage the liability that comes with operating in this space, please contact the Cooley cyber/data/privacy practice.

Notes

18 USC § 1030(f).

FTC, Requiring Divestitures, Approves Final Consent Decree in Ascension/AmSurg Deal

Tue, 01 Sep 2026 21:11:00 Z

On August 25, 2026, the Federal Trade Commission (FTC) announced it had finalized a consent order resolving antitrust concerns arising from Ascension Health Alliance’s $3.9 billion acquisition of AmSurg. This order arrives against the backdrop of heightened FTC attention to the healthcare sector. In March 2026, FTC Chairman Andrew Ferguson directed the agency to form a Healthcare Task Force to pursue a “coordinated, integrated approach” to healthcare enforcement and advocacy in coordination with other agencies and law enforcement partners (such as the Department of Health and Human Services and Department of Justice). The final order in the Ascension/AmSurg matter reflects this continued focus and offers a useful window into how the FTC is applying it in practice.

The final order requires Ascension to divest seven AmSurg ambulatory surgery centers (ASCs) across five metro areas, settling allegations that the deal would substantially lessen competition for certain outpatient surgical services. The order also imposes a 10-year prior notice obligation on Ascension for future ASC acquisitions in the affected markets, as well as transition assistance, nonsolicitation, asset maintenance and monitor provisions typical of recent FTC healthcare merger remedies. True to FTC form, the matter demonstrates the agency’s continued scrutiny of vertical and horizontal healthcare consolidation at the local, service level – even where the overall transaction value and combined entity size might not otherwise trigger significant antitrust concern nationally.

Background

On June 2, 2026, the FTC announced a proposed consent order requiring Ascension, a national nonprofit health system, to divest several ASCs in order to proceed with its proposed acquisition of AmSurg. The FTC’s June 1 complaint alleged that the combination of Ascension and AmSurg, both providers of outpatient surgical services ranging from cataract surgeries to colonoscopies, would limit competition for certain outpatient surgical services performed by gastroenterologists, ophthalmologists and orthopedists in the Nashville, Tennessee, Panama City, Florida, Tulsa, Oklahoma, Waco, Texas, and Wichita, Kansas, metropolitan areas. The FTC alleged that this loss of competition would likely lead to higher surgery prices for patients while also threatening to lower the quality of care and limit innovation in surgical services. Daniel Guarnera, director of the FTC’s Bureau of Competition, stated that, “[a]ccess to quality surgical care at an affordable price is critically important for millions of Americans across the country,” and that the divestitures would “help preserve a competitive market that will allow patients to get the care they need at a fair price.”

Under the terms of the proposed order, Ascension agreed to divest seven AmSurg ASCs located in the markets where the FTC identified competitive concerns. Six of the centers were to be divested to SC Affiliates, while the seventh, located in Panama City, was to be divested to Florida Gastroenterology Center (referred to in the order as the Panama City Doctors), a physician group that already held a minority stake in that facility and would assume full ownership. The proposed order also required Ascension, Ambulatory Topco and AmSurg to provide up to one year of transition assistance, protect confidential information, maintain the viability of the divested assets pending transfer and refrain from interfering with employment relationships at the affected facilities. The FTC further required the appointment of a monitor to oversee compliance and imposed a 10-year prior notice obligation on Ascension for any future ASC acquisitions in the relevant metro areas.

The FTC’s investigation was conducted in coordination with the state attorneys general of Florida, Oklahoma and Tennessee, and the vote to issue the complaint and accept the consent agreement for public comment was 2 – 0. The proposed order was then placed on the public record for a 30-day comment period.

Why this matters

Local market power, not deal size, still drives FTC scrutiny. The FTC’s focus here was narrow. It did not object to the transaction as a whole, but to the loss of competition in five specific metro areas for three specific types of outpatient surgery. This demonstrates that deal size alone does not determine whether the FTC intervenes: A modest, local overlap in a single service may be enough to trigger a complaint and require a remedy. Companies acquiring ambulatory surgery centers, physician practices or other outpatient providers should expect the FTC to continue to analyze competition market by market and service by service, not just at the level of the overall transaction.
A 10-year leash: Prior notice extends well beyond Hart-Scott-Rodino (HSR) obligations. The order also puts Ascension under long-term FTC oversight – for the next 10 years, Ascension must notify the FTC at least 30 days before acquiring any interest in an outpatient surgery center in the five affected metro areas. This notice obligation applies even to deals that are too small to require a standard HSR filing. This means that the FTC can review Ascension’s future, smaller deals in these markets that might otherwise escape antitrust review entirely. Companies with a history of FTC healthcare enforcement should expect similar long-term reporting or notice conditions in future settlements.
The FTC is backing its words with action. The Ascension/AmSurg divestitures demonstrate yet another example of the FTC following through on its enforcement priorities, not just announcing them. Just days before finalizing this order, the FTC won a full trial in federal court blocking Henkel’s proposed acquisition of Liquid Nails, a construction adhesives merger, and secured a permanent injunction rather than settling for a preliminary one. That case was the first merger challenge litigated entirely in federal court under Ferguson’s stated preference for bringing merger cases only in federal court and bypassing the FTC’s in-house Part 3 administrative process. Similarly, the Ascension/AmSurg order highlights the agency’s announced commitment to working with other law enforcement partners to pursue coordinated enforcement efforts in the healthcare sector. Taken together, the Ascension/AmSurg order and the Henkel litigation win show that the agency is pursuing its stated priorities in practice, and that the FTC is prepared to both negotiate strong structural remedies and litigate mergers to a final result in federal court when a negotiated fix is not available.

Dizal Announces Global Exclusive License Agreement with AstraZeneca

Tue, 01 Sep 2026 19:55:00 Z

Shanghai – September 1, 2026 – Cooley advised Dizal, a biopharmaceutical company dedicated to the discovery, development and commercialization of differentiated therapeutics for the treatment of cancer and immunological diseases, on its global exclusive license agreement with AstraZeneca for Zegfrovy (sunvozertinib), a novel oral irreversible epidermal growth factor receptor inhibitor for patients with lung cancer. AstraZeneca will acquire worldwide rights to develop and commercialize Zegfrovy.

AstraZeneca will make an upfront payment to Dizal of $600 million and additional payments of up to $900 million upon achievement of specific development, regulatory and sales-related milestones. Additionally, Dizal will receive tiered royalties on the global sales of Zegfrovy.

Lawyers Geoffrey Spolyar, Yiming Liu and Zack Gong led the Cooley team advising Dizal.

Rising Star: Cooley's Bill Roegge

Tue, 01 Sep 2026 12:19:51 Z

Cooley partner Bill Roegge was recognized by Law360 as a life sciences attorney rising star. In his profile, Roegge discusses his most notable deal (advising Personalis on its acquisition by Tempus AI in July 2026), proudest moment as an attorney and motivations.

Read the full profile (subscription required)

CFTC’s Innovation Advisory Committee Holds Inaugural Meeting

Tue, 01 Sep 2026 07:00:00 Z

The Innovation Advisory Committee of the Commodity Futures Trading Commission (CFTC) held its inaugural meeting on August 20. The meeting brought together industry representatives from crypto, traditional financial markets and technology to discuss crypto assets, AI and prediction markets.

Roadmap for the new frontier of finance

In his opening remarks, CFTC Chairman Michael Selig previewed a “roadmap for the new frontier of finance,” stating that if the pending CLARITY Act, legislation that would establish a federal regulatory framework for digital assets, does not advance, he would direct CFTC staff to move swiftly to propose crypto market structure rules under the CFTC’s existing authority. Specifically, Selig directed CFTC staff to explore rules that could enable current registrants, as well as unregistered crypto exchanges, to be designated by the CFTC as a type of designated contract market (DCM) known as a “crypto asset market” and offer crypto asset trading on a leveraged or margined basis under the CFTC’s regulatory oversight.

Selig also directed staff to engage with developers of on-chain finance protocols to establish pathways for developers to offer their protocols in a legal and compliant manner in the United States. Selig’s remarks came a day after President Donald Trump noted in a White House press conference attended by crypto industry leaders that the CFTC was working to bring Hyperliquid, the most prominent perpetual swap exchange, into the United States.

On prediction markets, Selig outlined a three-part roadmap, which is reflected in a series of recently or soon-to-be proposed rules and amendments:

First, proposed amendments to CFTC Rule 40.11 to define key terms, such as “gaming,” and enumerate public interest criteria for evaluating certain event contracts, seeking to provide clarity on issues that have been hotly debated in connection with sports and election event contracts.
Second, a proposed rule to modernize the reporting framework for fully collateralized event contracts.
Third, anticipated amendments to Parts 38 and 40 of the CFTC’s regulations to modernize the core principles and listing rules governing DCMs that list event contracts, and to institute consumer protection requirements, including clearer expectations for product governance, market design and incentive programs.

Selig also reiterated the CFTC’s position that federally regulated event contracts fall within its exclusive jurisdiction and stated that the CFTC would continue defending that jurisdiction against efforts by states to apply state gaming laws to DCMs.¹

As part of the roadmap’s AI agenda, Selig highlighted a request for comment on compute markets issued earlier that week, describing plans to develop a regulatory framework supporting transparent markets for compute capacity as a commodity with reliable price discovery and effective hedging.

Industry feedback and recommendations

Throughout the meeting, Committee Chair Walt Lukken, president and CEO of the Futures Industry Association, posed questions to participants seeking feedback for the CFTC’s policy and rulemaking priorities. The discussion reflected both frustration with prior regulatory uncertainty and regulation by enforcement and appreciation for the CFTC’s shift toward engagement and regulatory action.²

1. Harmonization and speed to market

Industry participants were candid about their experiences under the prior administration. Several described facing investigations, Wells notices, litigation, de-banking, and overlapping federal and state requirements without clear rules governing their products. Participants said these conditions caused companies to move personnel and products overseas, incur significant legal costs, or discouraged entrepreneurs from building crypto businesses in the United States.

Against this backdrop, participants welcomed collaboration between the CFTC and Securities and Exchange Commission (SEC)³ and called for greater harmonization to reduce the costs and friction associated with overlapping regulatory regimes. Certain cross-agency products were cited as needing coordinated guidance, including equity perpetual contracts, KPI event contracts referencing company earnings and Bitcoin index options. Participants also noted that emerging structures, such as vaults, may require a collaborative approach given their mixed securities, commodities and derivatives characteristics.

One participant called for clarity on whether futures commission merchants may self-custody customer segregated funds in tokenized form, while another highlighted the value unlocked by the joint SEC-CFTC conditional exemptive orders issued in April 2026 permitting customer cross-margining across treasury cash positions and futures positions. More broadly, several participants noted their support for the CLARITY Act, but urged the CFTC to continue using its existing authority rather than wait indefinitely for market structure legislation. Speed was a recurring concern, with participants arguing that regulatory uncertainty and state-by-state requirements have placed US firms at a competitive disadvantage to offshore firms, and urging faster regulatory decision-making within a principles-based framework capable of keeping pace with changing technology.

2. Balancing innovation and market integrity in prediction markets

Prediction markets generated the sharpest debate of the meeting. Several participants urged the CFTC to defend its federal jurisdiction, preserve the ability of DCMs to self-certify contracts, and maintain a unified federal framework rather than subject federally regulated platforms to differing state regimes. Supporters argued that prediction markets can provide price discovery, risk-management tools and useful information while offering consumer protection that may not exist on offshore or state-regulated venues.

Much of the discussion focused on where the CFTC should draw the line on permissible event contracts. The CFTC’s proposed amendments to Rule 40.11 would define terms such as “gaming” and establish criteria for determining when contracts involving enumerated activities may be prohibited as contrary to the public interest. Participants differed over how restrictive those standards should be. Some argued that these sensitive markets may provide valuable information to the public, while others emphasized that contracts whose outcomes can be materially influenced by a single person or small group raise significant market integrity concerns.

One participant proposed a presumption in favor of listing novel contracts unless an identifiable public harm exists, coupled with consideration of whether the contract bears a direct causal relationship to that harm and the degree to which the outcome is susceptible to manipulation. The discussion exposed a broader divide between traditional exchange operators and novel prediction market platforms over whether the existing self-certification framework provides adequate safeguards against manipulation, particularly for sports, “mention” and other event contracts whose outcomes may be influenced by individual actors. Prediction market operators emphasized the importance of rapid self-certification for markets tied to current events, while other participants urged closer scrutiny of contracts that may present heightened manipulation risks.

The discussion also extended to retail safeguards and competitive parity. Participants raised concerns regarding potential regulatory arbitrage between direct-to-DCM and Futures Commission Merchant-intermediated retail access, including differences in know your customer (KYC) and customer identification requirements, and several supported applying comparable protections regardless of the access model.

Participants also raised concerns about US users accessing offshore platforms through VPNs and discussed the need for clearer and more consistent expectations regarding surveillance, product governance, responsible trading and other consumer protections. The debate underscored the CFTC’s challenge in facilitating innovation while maintaining consistent market integrity and customer protection standards across rapidly evolving prediction market business models.

3. AI: Focus on conduct, not technology

In respect of AI’s growing role in algorithmic trading and market operations, participants urged the CFTC to regulate conduct rather than specific models or tools. One participant cited the prior Regulation Automated Trading proposal, and the controversy surrounding proposed access to source code, as a cautionary example, recommending that the CFTC focus on attribution and accountability so that a responsible person or entity remains identifiable regardless of whether an order originates from an AI model, traditional algorithm or other automated system.

Cybersecurity and operational resilience of market infrastructure were a related focus. Participants described AI as both a threat vector and a defensive tool (useful for automated code review, formal verification of on-chain smart contracts, vulnerability detection and market surveillance) and suggested that advances in formal verification could over time support more stringent software reliability expectations. Others cautioned against restricting access to frontier AI models, arguing that broad access helps security researchers find vulnerabilities before attackers do, and that restrictions offer limited benefit where comparable models remain available offshore.

What’s next?

The meeting reflected a shift in the CFTC’s approach toward facilitating innovation through rulemakings and engagement with industry. Market participants should watch three developments in particular:

Potential crypto-market-structure rulemaking under the CFTC’s existing authority if the CLARITY Act stalls.
The pending Rule 40.11 proposal and forthcoming Parts 38 and 40 amendments governing prediction markets, including retail protections, product governance and market-design standards.
Continued CFTC-SEC coordination on products that implicate both securities and derivatives regulation.

The CFTC’s parallel work on compute markets also bears watching, as it considers how its existing commodity and derivatives framework may apply to an emerging market for compute capacity.

Notes

On April 2, 2026, the CFTC, together with the Department of Justice, filed lawsuits against Arizona, Connecticut and Illinois challenging state efforts to apply state law to CFTC-registered designated contract markets. On April 24, the CFTC sued New York to halt the state’s application of state gambling laws to CFTC-regulated markets, and it subsequently brought similar actions against Wisconsin, Minnesota, New Mexico and Kentucky. The CFTC also moved to intervene in litigation in Rhode Island and has filed amicus briefs in prediction-market litigation involving Nevada, Massachusetts and Ohio.
For example, on May 29, 2026, the CFTC issued a policy statement addressing the listing of perpetual contracts. On June 10, 2026, it proposed amendments to its rules governing event contracts involving enumerated activities; on June 18, 2026, the CFTC and SEC jointly requested comment on opportunities to clarify and harmonize derivatives product definitions and related jurisdictional issues; on June 22, 2026, the CFTC requested comment on 24/7 trading and perpetual contracts referencing certain energy commodities; and, on August 19, 2026, the CFTC requested comment on the listing of derivatives contracts referencing computing capacity.
This collaborative posture may in part reflect Selig’s prior service as a senior advisor to SEC Chairman Paul Atkins.

a16z Announces Expansion of Fifth Growth Fund to $8.5 Billion

Mon, 31 Aug 2026 16:00:00 Z

Boston – August 31, 2026 – Cooley advised Andreessen Horowitz (a16z), a venture capital firm that backs entrepreneurs building the future through technology, on the close of additional capital, bringing its fifth Growth fund to a total of $8.5 billion.

Lawyers Matthew Smith, Stephanie Gentile, Stacey Song, Charles Chen, Charles Koech, Bella Berkley, Meredith Ashlock and Kelly Zhao led the Cooley team advising a16z.

Cooley previously advised a16z on its $2.2 billion fifth crypto fund in May 2026, its fundraising of more than $15 billion for five funds in January 2026 and its closing of $7.2 billion for five funds in April 2024.

2026 Proxy Season Highlights: Final Shareholder Proposal Results and Management Proposals

Mon, 31 Aug 2026 15:25:00 Z

Despite uncertainty heading into the 2026 proxy season (January 1 – June 30 meetings), final voting results largely continued established patterns. Governance proposals attracted the strongest support, while environmental and social (E&S) proposals and proposals from anti-environmental, social and governance (ESG) proponents received considerably less support. Director elections and say-on-pay proposals continued to receive strong shareholder support, and ISS recommendations were again associated with sharp differences in voting outcomes across shareholder and management proposals.

Building on our early review of the 2026 shareholder proposal season, this alert reviews final 2026 shareholder proposal voting results across the Russell 3000, with separate analyses of tech companies, life sciences companies and, for the first time, “recently public companies,” defined as Russell 3000 companies that went public since 2016. This additional lens complements Cooley’s inaugural Post-IPO Governance Trends Report, which examines how governance practices and annual meeting voting outcomes evolve during companies’ early years as public companies. We also highlight key trends in director elections and say-on-pay votes across each of these groups, and we review voting results for select nonroutine management proposals across the Russell 3000.

This alert precedes the SEC’s expected September proposal to rescind Rule 14a-8. This proposal is currently under review by the White House, and Cooley’s June alert includes a discussion of how such a proposal may impact the 2027 proxy season.

Shareholder proposals

Although the SEC staff’s withdrawal from its traditional role in the Rule 14a-8 no-action process created substantial uncertainty, 2026 voting results largely followed recent patterns. Governance proposals remained the best-supported category, averaging 34% support, compared with 16% for environmental proposals, 15% for social proposals and 5% for proposals from anti-ESG proponents. The results reinforce a familiar divide: proposals addressing core governance and shareholder rights matters continue to attract materially more investor support than E&S proposals. Looking ahead, the forthcoming SEC proposal to rescind Rule 14a-8 and the SEC staff’s recent decision to end no-action responses entirely could produce more significant change in 2027, including more aggressive efforts by proponents to challenge exclusions or other actions to preserve access to companies’ proxy materials.

2026 shareholder proposals at Russell 3000 companies

ISS recommendations and shareholder support

ISS recommendations were closely associated with voting outcomes across every proposal category. Across all Russell 3000 companies, proposals backed by ISS averaged 33% support for environmental matters, 34% for social matters, 41% for governance matters and 24% for proposals from anti-ESG proponents, compared with 14%, 10%, 17% and 3%, respectively, when ISS opposed them. Although these results reflect correlation rather than causation, they underscore the continuing importance of proxy advisor recommendations to voting outcomes.

Average shareholder support varied sharply with ISS recommendations

Sector trends

Tech companies

Governance proposals at tech companies substantially outperformed other proposal categories, averaging 37% support compared with 13% for both environmental and social proposals. Proposal activity also remained concentrated among large-cap tech companies, with recipients having a median market capitalization of $61 billion.

Tech companies continued to be the primary target of anti-ESG proponents, accounting for 28% of their proposal submissions in 2026. Most of these proposals focused on social topics, with diversity, equity and inclusion (DEI), viewpoint and ideological discrimination, AI and data privacy representing the most common topics. Consistent with the broader market, shareholder support for social-focused proposals submitted by anti-ESG proponents at tech companies remained low in 2026, averaging 2%.

2026 shareholder proposals at tech companies

Life sciences companies

While shareholder proposal activity remained relatively limited at life sciences companies, voting outcomes were generally consistent with broader market trends. Governance proposals averaged 32% support, compared with 14% for social proposals and 1% for proposals from anti-ESG proponents, and no environmental proposal went to a vote. Proposal activity also remained concentrated among large-cap life sciences companies, with recipients having a median market capitalization of $30 billion.

2026 shareholder proposals at life sciences companies

Recently public company trends

Among Russell 3000 companies that went public since 2016, shareholder proposal activity was relatively limited and skewed toward larger companies. We identified 34 publicized proposals – representing less than 6% of total publicized submissions – and the median market capitalization of recently public companies receiving proposals was $14.8 billion. Of the 26 recipient companies, 16 had market capitalizations above $10 billion, and none went public after 2021. Where proposals did reach recently public companies, governance issues dominated. Each of the four proposals receiving majority support addressed a foundational governance matter: two sought board declassification, one sought majority voting for director elections and one sought majority voting for director removal. These results are consistent with a broader post-IPO pattern: As companies mature and their ownership bases broaden, IPO-era governance structures attract increasing shareholder scrutiny.

2026 shareholder proposals at recently public companies

Management proposals

Director elections

Director election results remained strong in 2026. Average support was 95.4% across Russell 3000 companies, compared with 94.3% at tech companies, 92.4% at life sciences companies and 92.9% at recently public companies. Similarly, 87.2% of all Russell 3000 director nominees received more than 90% support, compared to 83.6%, 71.8% and 75.3% of director nominees at tech, life sciences and recently public companies, respectively.

Director election vote results by support level

ISS opposition continued to correlate meaningfully with voting outcomes across all companies, although its incidence varied significantly by group. ISS recommended against 11.6% of all Russell 3000 director nominees, compared with 15% at tech companies, 26.1% at life sciences companies and 36.2% at recently public companies. Despite receiving the highest opposition rate, director nominees at recently public companies averaged nearly 93% support. As discussed in our Post-IPO Governance Trends Report, proxy advisors frequently oppose directors at newly public companies because of governance provisions commonly adopted at the time of IPO, but these recommendations generally have a more limited impact on voting outcomes, likely reflecting concentrated ownership and greater investor tolerance for these governance structures during the early post-IPO period, particularly among large institutional investors that often afford newly public companies more time to evolve their governance practices.

Variance in director election support levels by ISS recommendation

Say-on-pay

Say-on-pay results also remained strong, with average support of 92% across the Russell 3000, 89.7% at tech companies, 90.8% at life sciences companies and 92% at recently public companies. Each group saw year-over-year increases in average support and in the percentage of proposals receiving more than 90% support.

Say-on-pay vote results by support level

ISS recommendations were again closely associated with say-on-pay voting results. Across the Russell 3000, ISS-supported proposals averaged 94.4% support, compared with 73.5% for ISS-opposed proposals. The gap was widest among tech companies at 22 percentage points, though this gap was down from 26 points in 2025. Recently public companies had a higher rate of ISS opposition than the broader Russell 3000, but adverse recommendations had a smaller effect on their voting outcomes. As with director elections, this likely reflects concentrated ownership and greater investor patience during the early post-IPO period, particularly among large institutional investors that often afford newly public companies more time to mature their compensation practices.

Variance in say-on-pay support levels by ISS recommendation

Select nonroutine management proposals

Responsive governance proposals

Management proposals seeking to unwind long-standing governance provisions declined in 2026. Board declassification proposals declined from 44 in 2025 to 31 in 2026, while proposals to eliminate supermajority vote requirements fell from 70 to 47. The decline likely reflects market maturation rather than diminished focus on these core governance issues, as many larger-cap, consumer-facing companies that historically faced the greatest investor pressure to eliminate these structures have already done so.

Shareholder support remained relatively steady, averaging 79% for declassification proposals and 77% for supermajority-elimination proposals, compared with 80% for both proposal types in 2025. However, passage rates notably declined, from 75% to 68% for declassification proposals and from 70% to 57% for supermajority-elimination proposals. The lower passage rates appear to reflect stringent charter or bylaw amendment thresholds rather than declining shareholder support. Many such amendments require approval by a supermajority of outstanding shares, and in each of 2025 and 2026, only one proposal to eliminate a supermajority vote requirement failed to receive support from a majority of outstanding shares.

DExit reincorporation proposals

Nevada and Texas remained the primary destinations for companies seeking to leave Delaware, with Texas emerging as the top destination in 2026. Nevada attracted four Delaware exit (DExit) proposals in 2024 and eight in 2025, but only three in 2026, while Texas increased from one proposal in 2024 and none in 2025 to 10 in 2026.

Notably, nearly 70% of the 26 companies that have sought shareholder approval to reincorporate from Delaware to Nevada or Texas since 2024 had a controlling shareholder or a significant insider voting bloc. This trend is consistent with the role that controlling shareholder concerns have played in driving the broader DExit movement.

Although 88% of DExit proposals have passed, this high success rate appears to reflect concentrated insider ownership at many of the companies pursuing these reincorporations rather than broad investor support. Assuming insiders voted all of their shares in favor, estimated noninsider support averaged 43% across all DExit proposals, including 30% at controlled companies and 55% at noncontrolled companies. This disparity suggests that institutional investors are generally more skeptical of DExit proposals at controlled companies.

Support from the Big Three – BlackRock, Vanguard and State Street – for DExit proposals has also been limited. While all three firms supported Tesla’s 2024 move to Texas, among Nevada reincorporation proposals in 2024 and 2025, BlackRock, Vanguard and State Street supported only 25%, 17% and 0%, respectively. Voting data for institutional investors on 2026 reincorporation proposals will become available in September 2026.

Officer exculpation proposals

Among Delaware-incorporated Russell 3000 companies, officer exculpation proposals continued to decline in prevalence following the initial wave of proposals after Delaware authorized officer exculpation in 2022. Proposal volume fell from 115 in 2025 to 53 in 2026, average support declined from 72% to 66% and the passage rate decreased from 93% to 87%. The decline occurred despite a modest increase in ISS support, as the percentage of proposals receiving favorable ISS recommendations rose from 84% in 2025 to 87% in 2026. Nevertheless, officer exculpation proposals continued to pass at a high rate.

Notes

The data presented in this alert are sourced from ISS Voting Analytics, as well as other databases, information publicized by shareholder proposal proponents and companies, and independent research, and focus exclusively on Russell 3000 companies.
For purposes of shareholder proposals discussed in this alert, “tech” includes core hardware, software and computing companies, as well as web-focused businesses in retail, transportation, business services and other industries, such as ride share, ecommerce and fintech companies, to approximate the commonly understood scope of the tech sector. Due to the volume of management proposals, discussion of management proposals in this alert involves a more restrictive definition of tech, focusing on companies classified under Global Industry Classification Standard (GICS) codes 4510 (Software & Services), 4520 (Technology Hardware & Equipment) and 4530 (Semiconductors & Semiconductor Equipment).
For purposes of all proposals discussed in this alert, “life sciences” refers to companies classified under GICS code 3520 (Pharmaceuticals, Biotechnology & Life Sciences).
For purposes of all proposals discussed in this alert, “recently public companies” refers to public companies that went public since 2016.