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Washington’s CEMA Amendments Take Effect June 11 – What Consumer-Facing Companies Should Know

Tue, 09 Jun 2026 18:42:32 Z

Background: The litigation wave

Recent court decisions have significantly expanded the reach of Washington’s Commercial Electronic Mail Act (CEMA), a statute enacted in 1998 in response to dial-up era concerns. The claims driving today’s litigation wave follow a recognizable pattern: A merchant sends a promotional email with a subject line announcing that a sale “ends tonight” or “ends today” – and then, days or a week later, announces the sale has been extended. Under the expansive reading of CEMA adopted by the Washington Supreme Court in April 2025, that sequence could give rise to a statutory claim for each email sent, regardless of whether the email body contains qualifying language.

In Brown v. Old Navy, 4 Wn. 3d 580 (2025), the court rejected a narrower reading of CEMA, under which the statute reached only false or misleading subject-line information concerning the commercial nature of the email. Instead, the court held that CEMA’s prohibition on “false or misleading” email subject lines reaches any inaccurate subject line claim – including otherwise routine promotional language like “ends tonight,” “today only” or “50% off” – regardless of whether the email body clarifies the claim. Separately, CEMA prohibits sending or “assisting” the sending of unconsented commercial text messages.

The result has been a surge in class action filings. With $500 in statutory damages per violation – and no express statutory requirement that the plaintiff prove actual harm or intent on the part of defendants – the potential aggregate exposure from a single campaign often reaches into the tens or hundreds of millions of dollars for large retailers. A CEMA violation is also automatically deemed an “unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying” Washington’s Consumer Protection Act (CPA), enabling plaintiffs to sue retailers and other defendants under both statutes. More than 100 CEMA lawsuits were filed in the 12 months following Brown, compared to just eight over the preceding two decades.

What the 2026 amendments change

On March 23, 2026, Washington Gov. Bob Ferguson signed HB 2274 into law, providing tailored reforms to CEMA that take effect on June 11, 2026.

Reduced statutory damages. Per-violation statutory damages are reduced from $500 to $100. This is significant, but high-volume senders remain exposed to substantial aggregate liability even at the lower amount. A campaign reaching one million Washington recipients could still generate up to $100 million in statutory exposure.
Knowledge requirement. For email subject line claims, the statute now includes an express requirement that the sender knew, or that knowledge was fairly implied from objective circumstances, that the subject line was false or misleading at the time of sending. In practice, this may provide a defense where a sender can document that a sale’s end date was set in good faith and an extension was genuinely unplanned, but it may not help where internal records show that extensions were routine or anticipated. For text message claims, the knowledge standard remains unchanged.
Prospective application only. The amendments apply only to lawsuits “commenced on or after” June 11, 2026.

Warning: The pre-June 11 filing surge

Given the amendments’ application to all lawsuits “commenced on or after” June 11, 2026, it is no surprise that the plaintiffs’ bar is actively filing new cases to access that higher-value remedies framework while they still can.

Geographic reach: Risk is not limited to businesses in Washington

CEMA has been interpreted to apply to commercial emails and text messages sent to Washington residents, regardless of where the sender is located. Any retailer or consumer-facing business with customers in Washington faces potential exposure, even if it has no physical presence in the state.

Practical risk mitigation: What companies should do now

Audit existing campaigns for subject lines that contain duration, discount or urgency claims that were later qualified or extended.
Ensure subject lines are independently accurate – do not rely on email body text to correct or qualify a claim in the subject line.
Document the good-faith basis for subject line representations at the time each email is sent, including promotional calendars and approval records.
Audit third-party and affiliate email partners to ensure their practices meet the same standards.

European Union: The Single Market’s Invisible Borders

Tue, 09 Jun 2026 16:00:00 Z

Brussels has territorial supply constraints in its sights. The European Commission has opened a public consultation on one of the most politically charged supply-chain issues in the European Union (EU). Brand owners, manufacturers and distributors should pay close attention.

The direction of travel is clear. Political support for action is broad and growing, and Brussels has set an ambitious timetable. Where this ends up, however, is far from certain. Soft measures – voluntary codes or nonbinding guidelines – are unlikely to satisfy the political appetite that has built around the issue. Harder legislative options carry real legal and commercial risk. For those who have not gotten involved already, now is the time.

Borders without barriers? Not quite

Territorial supply constraints (TSCs) are business practices that restrict customers – especially retailers and wholesalers – from engaging in cross-border arbitrage: buying products in “low-price” EU Member States and reselling them in “high-price” ones. A manufacturer in Spain, say, who receives an order from a Danish retailer may refer that retailer to its Danish subsidiary. If the retailer cannot source at the lower Spanish price, it is less able to compete on price in the higher-cost Danish market.

The EU’s single market does not aim to ensure a single price for every product. But its rules on free movement and nondiscrimination are meant to facilitate cross-border trade. TSCs, in effect, partition the market along national lines. Views differ as to why they exist. Some see them as strategies by manufacturers to create and preserve fat profit margins. Others blame divergent national regulation. Still others regard them as mechanisms that balance commercial relations within domestic value chains. If perspectives differ on the disease cause, they differ on the cure, too.

Are trustbusters not enough? Not always

TSCs are not new. For decades, the Commission has wielded the EU’s antitrust rules against practices that partition the single market: parallel trade restrictions, cross-border price discrimination and the like. The courts have mostly backed this approach, and a rich body of case law has evolved.

Enforcement remains vigorous. Mondelēz was fined €337.5 million for anticompetitive arrangements limiting cross-border sales of chocolates, biscuits and coffee. AB InBev paid €200 million for abusing a dominant position in Belgian beer by hindering cheaper imports of its Jupiler beer from the Netherlands into Belgium. In April 2026, the Commission sent inspectors on dawn raids at Ferrero on suspicion of market segmentation between Member States and obstacles to multicountry purchases.

Yet, despite decades of enforcement, the Commission in 2025 designated TSCs one of the “Terrible Ten” – the 10 most harmful barriers to trade in the single market. Its single-market strategy promised “new tools” to tackle unjustified TSCs beyond the reach of antitrust law, which has inherent limits. Enforcement presupposes either an “agreement” between firms or unilateral action by a “dominant” one. Investigations drag on: The Mondelēz case took four-and-a-half years; AB InBev’s took six or seven. A perceived regulatory gap has been identified, particularly for unilateral practices by firms that are not dominant.

A bandwagon gathers speed

TSCs may not be new, but the political momentum for regulatory action is – and it is considerable. For instance:

Enrico Letta, Italy’s former prime minister, called TSCs out by name in his 2024 report on the single market. He argued that they recreate internal economic frontiers contrary to the fundamental freedoms of movement and the principle of nondiscrimination and recommended strengthening national authorities’ capacity to tackle suspected TSCs through a formal procedure for cross-border cases.
In May 2025 the European Parliament published a briefing paper calling TSCs “an unaddressed barrier to single market integration”. It noted that regulatory progression – from partial regulation through competition law to full internal-market legislation – may be required.
The European Council followed suit. In its conclusions of 19 March 2026, it called for measures to address the negative impact of TSCs as a high priority.

Four ways to fill the gap

On 28 May 2026, the Commission launched the next formal step: a 12-week public consultation on regulatory options, open until 20 August. The indicative timetable for a proposal is tight: the fourth quarter of 2026.

The consultation seeks input from all stakeholders on the sources, prevalence, nature and justifications of TSCs. Crucially, stakeholders can submit evidence and real-world experience to help define the problem and shape potential solutions.

Four policy options are on the table:

Option 1 – Self-regulatory action (e.g. a code of conduct). Stakeholders identify practices that hamper the sourcing of products from across the EU and when these practices may be justified.
Option 2 – Guidelines for national authorities and market operators. The Commission identifies practices that hamper the sourcing of products from across the EU and when these practices may be justified.
Option 3 – Legislation based on the concept of economic dependence that would cover territorial supply constraints resulting from unilateral decisions by nondominant operators (assessment on a case-by-case basis).
Option 4 – Legislation identifying a list of prohibited practices and when they may be justified.

Brace for impact

Critics may call this a broad regulatory initiative in search of a problem. There is genuine debate about root causes – whether TSCs stem from imperfect national regulation, corporate rent-seeking or some combination of the two.

No matter. Political calls for intervention are strong. Member States, the European Parliament, the Commission and various stakeholders all want action – and an expansion of regulatory powers beyond the existing, well-oiled antitrust framework.

The regulatory options under consideration are wide-ranging, and they center on corporate business practices rather than regulatory barriers. Both suppliers and buyers of goods in the EU would be wise to engage in the consultation and the debate that surrounds it. The goal should be regulation that is well-calibrated and proportionate – aimed at real-world distortions, not a phantom menace.

PhysicsX Raises $300 Million Series C

Mon, 08 Jun 2026 20:41:08 Z

London – June 8, 2026 – Cooley advised PhysicsX, the physics AI company for industrials, on its $300 million Series C financing at a valuation of approximately $2.4 billion. The round was led by Temasek, with participation from new investors M&G Investments and Intrepid Growth Partners, alongside existing investors including Applied Materials, Atomico, General Catalyst, July Fund, NGP, NVIDIA, Radius and Siemens.

Lawyers Aaron Archer, Charles Baker, Ellen Dewhurst, Maddie Drabble and Kevin King led the Cooley team advising PhysicsX.

Cooley previously advised PhysicsX on its $135 million Series B financing in June 2025.

Cooley Features Among Forbes’ Top Women Lawyers

Mon, 08 Jun 2026 16:00:00 Z

San Francisco and New York – June 8, 2026 – Forbes has recognized Cooley’s CEO and a leading litigator from the firm’s New York office on its inaugural list of America’s Top Women Lawyers.

Rachel Proffitt, partner and CEO, focuses on shaping and executing the firm’s strategic priorities, reinforcing and strengthening its unique culture, and promoting the continued elevation of Cooley’s powerful brand.

Rebekah Donaleski, the head of business litigation for New York, handles complex commercial disputes, high-stakes white-collar defense and investigations, and federal and state trials.

Forbes’ list honors 200 women lawyers who “distinguished themselves through notable deals and transactions, impressive trial work, sound judgment, and the respect of clients, peers and industry leaders.” Honorees were rated on multiple factors, including notable litigation, leadership, client impact, firm and community involvement, and recognition within the broader legal industry.

Cooley Recognized with Equity Market Deal of the Year at the ALB SE Asia Law Awards 2026

Mon, 08 Jun 2026 16:00:00 Z

Singapore – June 8, 2026Cooley was recognized by Asian Legal Business (ALB) in its annual SE Asia Law Awards series, which honours outstanding performance by private practitioners and in-house legal teams.

The firm’s work was honored as Equity Market Deal of the Year based on the representation of AvePoint’s SG$260 million underwritten SEC-registered public offering and concurrent listing on the Mainboard of the Singapore Exchange. The award is based on the legal expertise, client service, and cross-border collaboration required of the deal.

The award was presented during the annual awards ceremony in Singapore. Cooley was also shortlisted as International Deal Firm of the Year, Private Equity and Venture Capital Law Firm of the Year, and SE Asia Law Firm of the Year.

Federal Circuit Insulet Ruling Narrows DTSA Time-Bar Window, Prompting Concerns Over Rushed Claims

Mon, 08 Jun 2026 15:17:57 Z

Cooley partner Elizabeth Prelogar was quoted in an IAM article about the US Court of Appeals for the Federal Circuit overturning a major jury verdict, holding that Insulet Corp’s trade secret claims against EOFlow were filed too late under the Defend Trade Secrets Act (DTSA). Prelogar emphasized that the ruling highlights the importance of acting without delay in asserting trade secret violations, describing the decision as a significant win for EOFlow and for innovation.

Read the article (subscription required)

AI Executive Order Creates Voluntary Framework for Frontier Models, Advances Critical Infrastructure Cybersecurity

Mon, 08 Jun 2026 14:40:51 Z

On June 2, 2026, President Donald Trump signed a new executive order (EO) addressing the intersection of artificial intelligence and cybersecurity. This EO has direct implications for AI developers, critical infrastructure companies, and any business operating at the intersection of AI and cybersecurity. The EO directs federal agencies to take a series of actions (many within 30 to 60 days) with the purposes of upgrading the cyber defenses of government information systems, establishing a voluntary framework for the deployment of advanced AI models and reinforcing criminal enforcement against the misuse of AI. Below, we summarize the key provisions of the EO and highlight potential implications for AI developers, critical infrastructure operators and other stakeholders.

Importantly, the EO does not impose mandatory licensing or pre-clearance; the EO’s voluntary framework for frontier model deployment creates a structured pathway for engagement with the federal government, but participation is not mandatory. The EO also does not create new civil liability, and it does not address AI governance beyond the cybersecurity context.

Background

The EO frames the United States’ continued leadership in AI as a product of private-sector innovation and a regulatory environment that avoids overly burdensome restrictions. At the same time, the EO acknowledges that advanced AI capabilities introduce new national security considerations requiring coordinated federal action.

Key issues for developers

The most significant provision for AI developers is the direction to the secretary of the Treasury, the secretary of Defense (through the director of the National Security Agency (NSA)) and the secretary of Homeland Security (through the director of the Cybersecurity and Infrastructure Security Agency (CISA)), in consultation with other senior officials, to develop within 60 days:

A classified benchmarking process. This classified benchmarking process will assess the advanced cyber capabilities of AI models and determine the threshold at which a model should be designated a “covered frontier model” for purposes of the EO. The director of NSA will make such designations in consultation with the National Cyber Director, the assistant to the president for Science and Technology, the director of CISA and other Department of Defense representatives. The benchmarking will be classified, and the process is to be “developed and maintained,” presumably to reflect the changing “frontier” of development, in contrast with the EU AI Act's publicly available risk-tier classification criteria.

A voluntary developer framework. The EO provides for a voluntary framework through which AI developers would be able to:
- Engage the federal government to determine whether models under development meet the “covered frontier model” designation.
- Provide the government with access to covered frontier models for up to 30 days before releasing them to trusted partners (subject to confidentiality, cybersecurity, insider risk and intellectual property protections).
- Collaborate with the government to select trusted partners for early access to promote secure innovation and strengthen critical infrastructure cybersecurity.

Notably, the EO expressly provides that nothing in that portion of the EO shall be construed to authorize the creation of a mandatory governmental licensing, preclearance or permitting requirement for the development, publication, release or distribution of new AI models, including frontier models. This voluntary framing is consistent with the administration's broader deregulatory posture.

Additional elements of the EO

In addition to the benchmarking process and voluntary developer framework, the EO imposes additional instructions to other government agencies regarding AI.

Upgrading federal cyber defenses

The EO imposes aggressive 30-day deadlines on federal agencies to prioritize and enhance the cybersecurity of government information systems. The Committee on National Security Systems and the secretary of Defense are each directed to prioritize the cyber defense of National Security Systems and Department of Defense information systems, respectively. The secretary of Homeland Security, acting through the director of CISA, is directed to release Binding Operational Directives and other guidance to:

Expedite the cyber defense of civilian federal information systems.
Establish or expand federal programs that enhance AI-enabled defensive tools.
Facilitate access to cybersecurity tools and services – including, where appropriate, covered frontier models – for agencies, state and local authorities, and critical infrastructure operators, such as rural hospitals, community banks and local utilities.

AI cybersecurity clearinghouse

The secretary of the Treasury, in consultation with the National Cyber Director, the secretary of Defense(through the director of the NSA) and the secretary of Homeland Security (through the director of CISA), is directed to establish an AI cybersecurity clearinghouse. This clearinghouse would operate in voluntary collaboration with the AI industry and critical infrastructure operators to coordinate and deconflict vulnerability scanning, discover and validate such vulnerabilities, and coordinate and prioritize remediation and distribution of vulnerability patches.

Grant funding and workforce

The director of the Office of Management and Budget, in coordination with the National Cyber Director and the director of CISA, is directed to identify federal grant programs with available funding that can be directed toward advanced AI vulnerability detection. Separately, within 60 days, the director of the Office of Personnel Management must expand the US Tech Force information cybersecurity specialist hiring and placement pathways.

Deadline	Agency/actor	Required action
30 days	CISA	Release Binding Operational Directives on cyber defense of civilian federal systems
30 days	Committee on National Security Systems/ secretary of Defense	Prioritize cyber defense of National Security Systems
60 days	Treasury, NSA, CISA	Develop classified benchmarking process and voluntary developer framework
60 days	Office of Personnel Management	Expand US Tech Force cybersecurity hiring pathways
Ongoing	Attorney general	Prioritize enforcement against AI-facilitated cyber crimes

The EO also directs the attorney general to prioritize enforcement of 18 USC §§ 1028 (identity fraud), 1030 (computer fraud and abuse) and 1343 (wire fraud), and all other applicable federal criminal laws, against anyone who utilizes AI to illegally access or damage a computer without authorization, or who utilizes AI in furtherance of such illegal access to commit other crimes. This includes breaching any public or private information technology system or employing AI agents to unlawfully access data or information that is subsequently used for a criminal or unlawful purpose. While these statutes already apply to AI-facilitated conduct, the EO signals the administration’s intent to make such prosecutions a priority.

Key next steps

The EO’s voluntary framework for frontier model deployment creates a structured pathway for engagement with the federal government, but participation is not mandatory.

For AI developers

Monitor the forthcoming classified benchmarking process and assess whether models may meet the "covered frontier model" threshold.
Establish an internal working group to evaluate the costs and benefits of voluntary framework participation before the 60-day window closes.
Ensure IP, confidentiality and cybersecurity protocols can accommodate government pre-release access if you choose to participate.

For critical infrastructure operators (healthcare, financial services, utilities)

Monitor CISA for Binding Operational Directives expected within 30 days.
Evaluate participation in the AI cybersecurity clearinghouse.
Assess eligibility for federal grant funding for AI vulnerability detection.

For all companies

Review cyber incident response plans in light of the heightened federal enforcement priority.
Assess whether your AI deployments introduce any potential liability exposure under the prioritized statutes.

Importantly, the EO does not impose mandatory licensing; it does not create new civil liability; and it does not address AI governance beyond the cybersecurity context.

How Cooley can help

Cooley’s AI and cyber/data/privacy teams are available to advise on voluntary framework participation, IP and confidentiality protections, and incident response planning.

2026 Shareholder Proposal Season Early Review and Look Ahead to 2027

Fri, 05 Jun 2026 17:48:00 Z

’Cause when life looks like Easy Street, there is danger at your door

Despite the heightened drama of the 2026 shareholder proposal season – precipitated by the landmark announcement from the staff of the Division of Corporation Finance of the SEC (SEC staff) that it would generally not respond to no-action requests during the 2026 proxy season – the year-over-year trends remained largely consistent with the prior year. Overall proposal volume continued to decline, driven primarily by fewer environmental and social (E&S) proposals, while governance and anti-ESG proposal activity and support levels remained broadly consistent with last year.

This alert provides an overview of proposal submissions and early voting trends for the 2026 season, examines exclusion and litigation developments under the SEC staff’s new no-action policy, as well as evolving proponent tactics, and considers the implications for what may be an even more chaotic 2027 season.

Key takeaways so far:

Overall submission and voting trends in 2026 are consistent with 2025: Aggregate proposal volumes continue to decline, driven primarily by fewer E&S proposals, which continue to attract low shareholder support, while governance proposals remain steady with continued robust support.

The SEC staff’s effective withdrawal from the Rule 14a-8 no-action process introduced significant uncertainty in 2026, contributing to a likely increase in negotiated withdrawals and a marked reduction in companies submitting unilateral Rule 14a-8(j) exclusion notices relative to prior-year no-action requests.

A significant uptick in proponent litigation in 2026 may introduce a disruptive dynamic into the 2027 season, further complicating how companies navigate shareholder proposal management.

The prospect of an SEC rulemaking to substantially revise or rescind Rule 14a-8 altogether may shape proponent strategies in 2027, though any such rule change would almost certainly face substantial legal and procedural challenges and would likely not take effect before the next proxy season.

Shareholder proponents and activists have continued to deploy innovative strategies in 2026, which may preview the pressure tactics companies can expect in 2027 or following a potential Rule 14a-8 rescission.

Recap of SEC actions

In September 2025, SEC Chairman Paul Atkins indicated that the SEC staff would explore ways to give companies additional tools to challenge shareholder proposals. In that speech, Atkins suggested the SEC staff might take a favorable view of companies submitting Delaware law opinions asserting that precatory proposals are improper under state law or adopting bylaw amendments that impose submission requirements beyond those in Rule 14a-8. Atkins also signaled the SEC was considering a comprehensive reassessment of Rule 14a-8’s role and purpose. Although amendments to Rule 14a-8 are on the SEC’s current rulemaking agenda, the SEC has not yet advanced a rule proposal.

In November 2025, the SEC staff announced a new policy for the 2026 proxy season under which it would no longer provide substantive responses to Rule 14a-8 no-action requests from companies seeking to exclude shareholder proposals from their definitive proxy materials, except for requests based on Rule 14a-8(i)(1) state law violation arguments. Companies seeking to exclude a shareholder proposal must still submit a notice of intent to exclude the proposal under Rule 14a-8(j). While the policy may have been intended to encourage companies to pursue the types of Delaware state law violation arguments under Rule 14a-8(i)(1) contemplated by Atkins, no companies have done so to date.

Initial expectations that the policy would lead to widespread unilateral exclusions and greater proponent flexibility in negotiating withdrawals have not fully materialized. As discussed below, a significant number of companies chose to exclude proposals, and the uncertainty generated by the SEC staff’s current no-action policy appears to have influenced some negotiations. However, the percentage of proposals included in proxies remained generally consistent with prior years, and in some proposal categories (social and anti-ESG proponent proposals) increased. In addition, the emergence of proponent-initiated litigation in March may further complicate the landscape if the SEC staff, as expected, maintains its current no-action policy for the 2027 season.

Notably, anticipated proxy advisor opposition to companies that unilaterally excluded shareholder proposals this season did not materialize, notwithstanding policy statements issued by Institutional Shareholder Services (ISS) and Glass Lewis indicating they would scrutinize companies’ Rule 14a-8(j) exclusion notices. Adverse vote recommendations on that basis were virtually nonexistent, with proxy advisors generally deferring to companies’ judgments where companies provided substantive explanations in support of the exclusion. Should proxy advisors adopt a more aggressive approach for the 2027 proxy season, companies would need to incorporate the prospect of proxy advisor opposition into their shareholder proposal exclusion analysis.

Proposal submissions and early vote results

The analysis below reflects shareholder proposals submitted for annual shareholder meetings at Russell 3000 companies scheduled between January 1 and June 30, 2026 (the 2026 proxy season). This alert adopts a January 1 through June 30 measurement period for all years referenced in the analysis – a departure from prior-year alerts, which used a July 1 through June 30 period – to align with the SEC staff’s announcement of its no-action policy for the 2026 season.[1] Vote results capture outcomes through May 25, leaving 131 proposals, approximately 32% of all proposals appearing in proxy statements to date, to be voted on this season. As a result, the voting trends discussed herein are preliminary and will continue to evolve as additional meetings are held.

Overview

The 2026 proxy season reflects a continuation of several multiyear trends, including a steep and sustained decline in E&S proposal submissions, steady governance proposal volume and a growing share of submissions from anti-ESG proponents. Of the 626 proposals submitted this season, approximately 66% have appeared in proxy statements, generally consistent with recent years (59% in 2025 and 63% in 2024). Average support across all proposal categories has risen slightly to 24.6% in 2026, up from 22.7% in 2025 and 22.5% in 2024.

A notable development this season is the sharp increase in ISS support rates. After recommending in favor of only 34.1% of proposals in 2025, ISS has supported 47.9% of proposals to date this season, broadly in line with its 47.3% support rate in 2024. That shift is reflected across all proposal categories, most strikingly for environmental proposals, where ISS support jumped from 0% in 2025 to 16.7% in 2026. The return of ISS support is likely a contributing factor to the modest improvement in average vote outcomes this season.

Anti-ESG proponents submitted 105 proposals in 2026, consistent with recent years, and average support for those proposals edged up to 5.3% from approximately 2.5% in each of the prior two years, principally driven by higher investor support for independent board chair proposals from those proponents.

Governance proposals

Governance proposals remained steady in volume and continue to receive relatively robust support. Proponents submitted 319 governance proposals in 2026, compared to 305 in 2025 and 316 in 2024, and average support of 33.8% is only slightly below the 35.2% and 35.1% averages observed in 2025 and 2024, respectively. As in prior seasons, governance proposal submissions were heavily concentrated among a small group of serial proponents, who collectively accounted for more than 75% of this season’s submissions.

Several governance proposal topics stand out this season:

Independent board chair – Submissions surged to 99 submissions in 2026 from just 31 in 2025, with average support of 24.6% (down from 31.3% in 2025).

Shareholder written consent rights – Submissions increased sharply to 51 submissions in 2026 from 11 in 2025, all from the same group of proponents referenced above, and average support increased to 38.3% (from 26.3% in 2025).

Shareholder special meeting rights – This remained a prominent proposal topic in 2026, with 59 submissions (down from 70 in 2025), and average support of 39.2% (up from 32.8% in 2025).

Simple majority voting – Proposals to eliminate supermajority voting provisions from governing documents declined to 32 submissions in 2026 from 40 in 2025, but remain among the highest-supported proposal topics at 59.1% average support, albeit down from 71.9% in 2025.

The following governance proposal topics have achieved majority support in 2026 to date:

Elimination of supermajority voting provisions from governing documents (5 proposals)

Establishment of shareholder special meeting rights (4)

Establishment of shareholder written consent rights (3)

Board declassification (3)

Shareholder approval prior to issuance of blank check preferred shares (2)

Adoption of a majority vote standard for director removal (1)

Shareholder approval of certain change-in-control severance agreements (1)

Notably, Exxon Mobil Corporation received a proposal this season relating to its new retail voting program, launched in September 2025, which allows retail holders to opt in to provide standing instructions to vote their shares at all future meetings in line with the board’s recommendations. The proposal requested that the company modify the program to offer additional voting options not aligned with the board’s recommendations. It failed with 23.5% support, but litigation challenging Exxon’s program remains ongoing.

Social proposals

Social proposal submissions continued their sharp multiyear decline. Proponents submitted 133 social proposals in 2026, down from 208 in 2025 and 298 in 2024, while average support has modestly increased to 16.4% (from 16% in 2025, though it has fallen from 19.6% in 2024).

The decline in lobbying proposals was particularly pronounced, falling from 38 submissions in 2025 to just seven in 2026. This drop likely reflects both successful exclusions in 2024 and 2025 on Rule 14a-8(i)(7) grounds and the low support these proposals received in 2025 (13.3%), though average support has rebounded to 26.5% this season. By contrast, political contributions proposals increased to 29 submissions (from 18 in 2025), likely buoyed by strong support last year (40.9%), though support has moderated to 28.2% this season.

Diversity proposals also continued their multiyear decline, falling to 19 submissions from 44 in 2025 and 68 in 2024. Average support declined to 13.6%, down from 14.3% in 2025 and 21.7% in 2024.

AI proposals attracted renewed attention in 2026. After first emerging in 2024, proponents submitted 14 AI-related proposals this season, compared to eight in 2025 and 11 in 2024. To date, only two AI-related proposals have been voted on, both submitted by anti-ESG proponents, and they received average support of 5.3%.

No social proposals have received majority support to date this season, but several topics have garnered more than 25% support:

Political contributions (6 proposals)

Lobbying payments (1)

Collective bargaining rights (1)

Environmental proposals

Environmental proposal submissions also continued their pronounced decline, falling to 69 proposals in 2026 from 107 in 2025 and 163 in 2024. Despite this reduced volume, average support for environmental proposals has increased moderately to 17% in 2026 from 12.4% in 2025 – a shift that correlates with the reversal in ISS recommendations this season.

Proposals focused on emissions-related reporting reflect the broader trend, declining from 42 submissions in 2025 to 22 in 2026, while average support is up to 22.9% from 12.9% in 2025 (though still below the 26.6% average in 2024). Among environmental proposals, emissions-related reporting is the only topic to receive greater than 25% support to date this season (3 proposals).

Impact of withdrawn proposals

Shareholder proposal data is subject to inherent uncertainty each year due to the impact of nonpublic proposal withdrawals. While withdrawals following a Rule 14a-8(j) exclusion notice or proxy filing, as well as those publicized by proponents, are reflected in the data, many companies and proponents negotiate withdrawals privately and before any filings or other proponent disclosures occur. The uncertainty created by the SEC staff’s current no-action policy appears to have increased the incentive for such negotiations in 2026, and our experience suggests that withdrawal volumes were likely higher this season than in prior years.

As discussed in our 2025 proxy season alert, the mid-season publication of Staff Legal Bulletin No. 14M in February 2025, which rescinded perceived proponent-friendly guidance published in 2021 that had limited companies’ ability to exclude proposals raising issues with “broad societal impact,” may also have contributed to elevated withdrawal activity last year. As a result, the year-over-year declines in submitted proposals between 2026 and 2025, and between 2025 and earlier years, may be meaningfully overstated due to the likelihood that a significant number of negotiated withdrawals were not publicized.

Proposal exclusions and litigation

As of June 1, companies had submitted 170 Rule 14a-8(j) exclusion notices under the SEC staff’s current no-action policy since its announcement in November 2025, compared to 360 no-action requests submitted during the comparable period of the prior season (November 2024 through May 2025). Even accounting for the year-over-year decline in proposal submissions, the magnitude of this decrease – a 53% reduction in exclusion-related filings against a 15% reduction in proposal submissions – suggests that a meaningful number of companies that would have sought no-action relief in prior years elected not to pursue exclusion under the SEC staff’s revised approach.

Companies’ decisions appear to have reflected a probability/magnitude assessment of the risks associated with unilateral exclusion. For many companies, even a relatively low probability of costly shareholder litigation (along with the negative publicity such litigation can generate), together with the prospect of adverse proxy advisor recommendations against individual directors, was sufficient to outweigh the benefits of exclusion, given the severity of those potential consequences. While anticipated proxy advisor opposition largely failed to materialize, litigation challenging proposal exclusions emerged later in the season, as discussed below.

The 170 Rule 14a-8(j) exclusion notices submitted this season included a mix of substantive and procedural exclusion bases, as reflected below. Notably, however, companies relied considerably less on certain substantive arguments requiring more subjective judgments. This trend was particularly evident for ordinary business and micromanagement exclusions under Rule 14a-8(i)(7), which appeared in only 33% of Rule 14a-8(j) exclusion notices this season, down markedly from the 56% rate observed in 2025 no-action requests. This may reflect a broader inclination among companies to adopt a more conservative posture under the SEC staff’s current no-action policy, favoring more objective bases for exclusion. This season’s Rule 14a-8(j) exclusion notices included:

51 exclusions based purely on procedural grounds

51 exclusions citing Rule 14a-8(i)(7) (ordinary business/micromanagement)

34 exclusions citing Rule 14a-8(i)(10) (substantial implementation)

17 exclusions citing Rule 14a-8(i)(3) (false/misleading)

Following the SEC staff’s announcement of its no-action policy for the 2026 season, early commentary focused on the potential for proponent litigation in the absence of the SEC staff’s role as arbiter, and the possibility that this risk would drive conservative company approaches to unilateral exclusions under the new policy. Early Rule 14a-8(j) exclusion notices appeared to confirm this expectation, emphasizing procedural and relatively straightforward substantive bases. Beginning in February, however, companies increasingly asserted 14a-8(i)(7) and other more expansive exclusions, suggesting an increase in company confidence. That trend shifted again in late February, when the first of what are now six proponent lawsuits was filed challenging the validity of company exclusions under Rule 14a-8.

Of the six lawsuits filed to date, one covered a human rights and diversity proposal, four covered E&S proposals, and one covered a political spending and lobbying proposal. In five of the six cases, the company relied on the “ordinary business” exclusion under Rule 14a-8(i)(7); the sixth was based on procedural defects.

As of June 2, 2026, three lawsuits have been settled, with companies agreeing either to implement the proposal or include it in their proxy materials. One case was voluntarily dismissed, and two remain pending. In the pending matters, one company filed its 2026 proxy statement with the proposal included after the court denied the company’s motion to dismiss and granted the proponent’s motion for injunctive relief, while the other filed the proxy without the proposal after the court denied the proponent’s motion for a preliminary injunction.

An even earlier look at 2027

Prospects for Rule 14a-8 repeal

The SEC’s 2026 rulemaking agenda includes a potential proposal addressing Rule 14a-8, and many observers have speculated that the SEC may seek to rescind the rule entirely. Any such proposal would be subject to the SEC’s standard rulemaking process, including notice-and-comment procedures. Given Rule 14a-8’s central role in the shareholder proposal landscape, a rescission proposal would likely generate a substantial volume of public comments (e.g., investor groups are already petitioning to keep Rule 14a-8 in place), requiring meaningful consideration by the SEC before adoption of a final rule. Recent SEC rulemakings have frequently taken more than a year to progress from proposal to adoption, suggesting that one or more proxy seasons could continue under the SEC staff’s current no-action policy before any rescission could become effective. In addition, a rescission of Rule 14a-8 would almost certainly face legal challenges, which could result in injunctive relief or a voluntary SEC stay (as occurred with the SEC’s 2024 climate rules). Consequently, uncertainty surrounding the future of Rule 14a-8 could persist past the 2028 presidential election.

2027 shareholder proposal landscape

Regardless of the timing of any SEC rulemaking, the prospect of a Rule 14a-8 rescission is likely to influence the 2027 proxy season. An imminent or pending rescission proposal may create a highly contentious “last chance” environment in which proponents seek to maximize leverage while the SEC staff’s current no-action policy remains in effect. One potential consequence may be proponents submitting precatory or binding bylaw proposals designed to provide shareholders with proposal access rights independent of Rule 14a-8.

The 2027 season could be further complicated if the SEC staff maintains its current no-action policy. Under that scenario, companies may have reduced leverage in negotiations with proponents, particularly given proponents’ demonstrated willingness during the 2026 season to use litigation as a means of challenging proposal exclusions.

Faced with elevated proposal volumes and heightened litigation risk, some companies may conclude in 2027 that allowing a greater number of proposals to proceed to a vote presents the lower-risk path, particularly on E&S topics, where shareholder and proxy advisor support continues to erode. That calculus may differ, however, for proposals addressing more consequential matters, such as binding bylaw amendments, or proposals with a greater likelihood of attracting substantial shareholder support.

To date, no company has taken up Atkins’ invitation to seek exclusion of a shareholder proposal on state law grounds under Rule 14a-8(i)(1). As the shareholder proposal landscape continues to evolve, however, some companies may become more willing to explore that avenue during the 2027 proxy season.

Evolution of proponent tactics

Even in the absence of further SEC staff policy changes, shareholder proponents continue to experiment with new ways to pressure companies to advance their objectives. Facing headwinds from the SEC staff’s current no-action policy, declining levels of shareholder support for certain proposal categories and the prospect of a future rescission of Rule 14a-8, proponents have continued to test innovative strategies in 2026, many of which may provide insight into how proponents could seek to maintain influence in a world where Rule 14a-8 plays a diminished role or has been repealed. These strategies include:

Litigation challenging proposal exclusions.

Running or threatening Rule 14a-4 “zero slate” campaigns where multiple shareholder proposals are submitted on the proponent’s universal proxy card while sidestepping the parameters of Rule 14a-8 (see, e.g., BJ’s Wholesale Club and Nexstar Media Group in 2026, following a strategy similar to that employed at Warrior Met Coal, as discussed in our 2024 shareholder proposal alert).

Withhold campaigns targeting directors, threatening to make director elections an alternative forum for E&S and governance activism.

Public campaigns criticizing companies that exclude proposals or are perceived as insufficiently responsive to shareholder concerns.

Binding bylaw amendment proposals submitted pursuant to Rule 14a-8 or through independent solicitation efforts.

The 2026 proxy season has been characterized by significant policy changes, strategic experimentation and legal uncertainty, and those dynamics are likely to persist into 2027. The practical effects of SEC skepticism toward shareholder proposals and E&S activism, political and regulatory scrutiny of proxy advisors, and declining support for certain categories of E&S proposals may be offset, at least in part, by evolving proponent strategies and continued uncertainty regarding the future of Rule 14a-8. In this environment, companies should prepare for a range of potential outcomes. Boards and management teams may benefit from ongoing education regarding developments in the shareholder proposal landscape, proactive engagement with shareholders and other key stakeholders, and periodic reassessments of governance and disclosure practices in light of evolving investor expectations and regulatory developments.

[1] Proposal submission and voting figures in this alert accordingly differ from those reported in prior-year alerts.

SEC Proposes Broad Expansion of Shelf Registration Access and Capital Markets Efficiencies

Fri, 05 Jun 2026 15:24:02 Z

The Securities and Exchange Commission (SEC) has proposed amendments to the rules and forms governing registered securities offerings, with the stated goal of enabling a significantly broader universe of public companies to access shelf registration and the capital markets efficiencies that accompany it.

The rulemaking, titled “Registered Offering Reform,” would expand eligibility to use Form S-3, replace the well-known seasoned issuer (WKSI) framework with a new tiered structure extending similar benefits to a wider set of exchange-listed issuers, preempt state securities law registration requirements for all registered offerings, and introduce related reforms for business development companies (BDCs), registered closed-end funds, certain registered annuity products and issuers using Form S-1.

If the rules are adopted, approximately 74% of existing US Exchange Act reporting issuers would be eligible to raise capital by filing an automatically effective shelf registration statement, without waiting for the SEC to review and declare it effective – compared to 36% currently. Additionally, nearly all US Exchange Act reporting issuers would be able to use Form S-3 for shelf offerings in unlimited amounts – compared to 61% currently. See Appendix A for a plain-language tabular comparison of the current and proposed frameworks – and our predictions for the real-world impact.

Expanded Form S-3 eligibility (and why it matters)

Under the current framework, approximately 3,400 issuers are able to use Form S-3 for unlimited primary offerings – i.e., for registered offers and sales by the issuer.¹The proposal would extend access to this more flexible capital raising process to nearly all US Exchange Act reporting issuers – more than 2,000 additional issuers – an improvement that would be particularly useful to smaller issuers. The proposal would also relax certain existing limitations that may currently apply when using Form S-3 to register securityholders’ resales, otherwise known as “secondary” offerings.

Background: What is Form S-3?

Form S-3 is a short-form registration statement that eligible issuers can use to register offerings of securities on a delayed or continuous basis – often referred to as offerings off the “shelf.” Once the Form S-3 registration statement is effective and generally for three years after its initial effective date, the issuer can use it to offer and sell securities in one or more primary offerings without waiting for further SEC staff review or action. This provides eligible issuers with important flexibility in capitalizing on opportunistic market windows.

Form S-3 also allows issuers to omit certain information initially and to automatically incorporate by reference to future filings the issuer makes under the Securities Exchange Act of 1934, as amended (Exchange Act). Issuers use this accommodation to keep the registration statement up to date and to satisfy the post-effective amendment undertakings provided for in Item 512 of Regulation S-K.

Current eligibility requirements and ‘baby shelf’ limitations

Under current rules, an issuer must meet certain issuer eligibility requirements to use Form S-3, which include being subject to Exchange Act reporting for at least 12 calendar months. Form S-3 is also currently available only for certain types of transactions. The most common transaction-based limitation is colloquially known as the “baby shelf” limitation, which applies to primary offerings by issuers having a public float of less than $75 million and limits these issuers to selling no more than one-third of their public float during a rolling 12-month calendar period. For all practical purposes, the baby shelf limitation substantially impairs the utility and flexibility of Form S-3 by issuers subject to that limitation, including small-cap issuers for which at-the-market (ATM) offerings may be an important means of raising additional capital. Issuers with a public float of $75 million or more are not subject to this cap.

The proposal would simplify eligibility

The proposed amendments would streamline Form S-3 eligibility by simply requiring the issuer to:

Be subject to the reporting requirements of the Exchange Act.
Have filed all reports and other materials required under Sections 13(a), 14(a), 14(c) and 15(d) of the Exchange Act during the preceding 12 calendar months (or for such shorter period that the registrant was required to file such reports and materials), and any portion of a month immediately preceding the filing of the registration statement.
Be timely in their Exchange Act reporting, other than specified reports on Form 8-K, but the proposal would create a limited exception that preserves Form S-3 eligibility if an issuer has a single untimely filing within the relevant lookback period, i.e., 12 months, so long as that filing is submitted within seven calendar days of its original due date.
- Where Exchange Act Rule 12b-25 applies, the seven calendar days would still be calculated from the original due date of the report and not the extended due date.
- For Exchange Act filings, such as Form 8-Ks where Rule 12b-25 does not apply, the proposed seven-day grace period would effectively eliminate the need for an issuer to seek confirmation from the SEC staff about continued Form S-3 eligibility when the issuer has filed a single Form 8-K merely hours or one day late.

The proposal would eliminate:

The one-year seasoning requirement.
The $75 million public float threshold for primary offerings of unlimited amounts (i.e., the baby shelf limitation described above).
All other transaction requirements, including complex restrictions on the types and amounts of securities that can be offered, such as the requirement that issuers register nonconvertible securities (other than common equity) only if they meet certain issuance-volume or WKSI-related thresholds, and the conditions on registering securities issuable upon exercise of outstanding rights, warrants or options.
The limitation on using Form S-3 for secondary (resale) offerings of securities that are not listed on a national securities exchange or quoted on the automated quotation system of a national securities association, which currently applies if an issuer has less than $75 million public float.
The eligibility requirement to file all electronic filings and interactive data files.
The eligibility requirement that issuers must not have failed to pay dividends or sinking fund installments on preferred stock or defaulted on indebtedness.

Any issuer satisfying the proposed registrant eligibility requirements would be able to use Form S-3 for primary or secondary registered offerings in any amount – whether the offering relates to convertible or nonconvertible debt or equity, common or preferred equity, or other types of securities. The proposal would have the effect of simplifying what is currently a complex process of determining whether certain offerings can be registered on Form S-3, especially for companies that are not WKSIs under the current framework.

Background: Understanding the impact on debt and ATM offerings

Because the proposal would significantly expand access to ATM offerings, it would also amend Rule 415 to limit eligibility to conduct ATM offerings to securities listed or traded only in specified markets, in order to facilitate capital formation in a manner that is consistent with investor protection.

The SEC indicates in the proposal that the OTCQX Best Market and OTCQB Venture Market tiers of the OTC Link ATS would likely qualify based on current criteria, though neither has been formally designated. Currently, Rule 415(a)(4) defines “at the market offering” as “an offering of equity securities into an existing trading market for outstanding shares of the same class at other than a fixed price.” The proposed amendment would include a nonexclusive list of attributes that the SEC would consider in determining whether to designate a market as a “trading market” or to withdraw a market’s status as a “trading market.” For exchange-listed issuers that already conduct ATM offerings, the proposal would not introduce any new requirements – national securities exchanges would be certain to qualify as trading markets.

For debt offerings, although the elimination of the nonconvertible debt issuance requirements broadens Form S-3 eligibility on its face, practitioners should note that registered debt offerings are less common in practice. Investment-grade and high-yield debt deals are overwhelmingly structured as Rule 144A transactions even for companies that already maintain an effective Form S-3. The practical significance of this particular change is therefore limited for most of the issuers described in this alert.

See our observations and commentary below for additional practical takeaways.

Ineligible issuers and offerings

Under the proposal, a new “ineligible issuer” category would expressly bar certain categories of issuers from using Form S-3, including issuers that are, or that have been during the past three years, or that have any predecessor that was a(n):

Blank check company, shell company (other than a business combination-related shell company), though a domestic issuer would not be considered a shell company solely because it has a special purpose acquisition company (SPAC) predecessor, preserving Form S-3 eligibility for deSPAC companies, or issuer of penny stock.
Specified bad actor.
Foreign private issuer (FPI), including an FPI that chooses to report on domestic Exchange Act forms.
Asset-backed issuer.
Registered investment company.
BDC.

As is currently the case, Form S-3 would not be available for exchange offers or business combination transactions.

A note on subsidiary eligibility

The proposal would also permit certain majority-owned subsidiaries that are not Exchange Act reporting companies to continue to register guarantee-related offerings on a parent’s Form S-3, provided their parent is eligible to use Form S-3 and the parent and subsidiary are identified on the registration statement as co-registrants.

Additionally, the proposal would permit a majority-owned subsidiary that is independently eligible to use Form S-3 to be treated as an eligible listed issuer (ELI) or seasoned eligible listed issuer (SELI) under the new tiered framework described below. The determination would be based on its parent’s status for purposes of registering nonconvertible securities other than common equity. If the parent were a SELI, the majority-owned subsidiary could be treated as a SELI with respect to the offering, meaning that the majority-owned subsidiary could register the offering on an automatic shelf registration statement with the parent as a co-registrant. This provision is most relevant for structured finance and holding company structures.

New tiered framework: ELIs and SELIs

Since 2005, enhanced registration flexibility has been available to the WKSI category of issuers, compounding the traditional benefits of Form S-3. For example, WKSIs’ shelf registration statements are automatically effective upon filing, they can use a “pay-as-you-go” filing fee process (so that the shelf registration statement does not need to specify the total dollar amount of securities to be offered), and they have more flexibility to communicate about an offering. Current rules require an issuer to have at least $700 million in public float or $1 billion in registered debt offerings to qualify as a WKSI.

The proposal would replace the existing domestic WKSI concept with two new issuer categories, which issuers would assess on an annual basis:

Eligible listed issuer (ELI): A Form S-3 eligible issuer that has at least one class of common equity securities listed on a national securities exchange.
Seasoned eligible listed issuer (SELI): An ELI that has additionally been subject to Exchange Act reporting requirements for at least 12 months.

Most of the enhanced benefits currently available only to WKSIs would, under the proposal, become available to all ELIs. The most significant additional benefit of SELI status over ELI status is automatic effectiveness for Form S-3 shelf registration statements – meaning the SEC staff does not review the registration statement, and there is no need to request acceleration of effectiveness from the SEC staff. The registration statement is effective when filed and can be easily used for subsequent offers and sales.

For the 36% of issuers that currently qualify as WKSIs, automatic shelf registration has streamlined processes and enhanced both planning and flexibility. Under the proposal, approximately 74% of Exchange Act reporting issuers would qualify as SELIs and be eligible to use this streamlined process. For companies already qualifying as WKSIs, the transition to SELI status will largely be seamless in practice. The proposal would retain the WKSI category for FPIs.

Blue-sky preemption extended to all registered offerings

The proposal would substantially expand federal preemption of state securities registration requirements. Securities Act Section 18 currently preempts state “blue sky” registration and qualification requirements for “covered securities,” a category that has generally been limited to securities listed on national securities exchanges and certain other specified transactions.

The proposal would amend Rule 146 to add a new definition of “qualified purchaser,” and for purposes under Section 18(b)(3) of the Securities Act, to include any person offered or sold securities in any registered offering under the Securities Act. If adopted as proposed, all registered offerings – including offerings of securities not listed on any national exchange –would constitute “covered securities” and would be exempt from state registration and qualification requirements.

This would resolve pain points for federally registered offerings of securities that are not listed on a national securities exchange – such as side-by-side offerings of common stock and unlisted warrants, employee equity plans of over-the-counter-traded issuers, or unlisted registered direct offerings. Currently, these types of transactions may need to comply with a patchwork of state law registration and qualification requirements – and while manageable, navigating the patchwork requires time and attention. States would retain antifraud enforcement authority.

BDCs, closed-end funds and registered annuity products

The proposal would extend parallel reforms to investment funds and insurance products. Exchange Act-listed BDCs and registered closed-end funds would become eligible to use an expanded “Short-Form N-2” and access certain enhanced registration and communication benefits under the same ELI/SELI framework described above. Unlisted affected funds² would continue to operate under the existing Rule 486 framework.

For annuity products, the proposal would amend Rule 482 to permit broad-based advertising of registered index-linked annuities (RILAs) and registered market value adjustment (MVA) annuities, without requiring Form S-3 eligibility or reliance on Rule 433 prospectus-delivery mechanics. This expanded advertising flexibility would be subject to tailored conditions, including constraints on the presentation of RILA performance information, fee and expense disclosure requirements, and filing obligations with the SEC or Financial Industry Regulatory Authority (FINRA).

Form S-1 modernization and other proposed amendments

In addition to expanding access to Form S-3, the proposal would make using the traditional “long form” registration statement on Form S-1 less burdensome. Specifically, it would expand the ability of issuers to incorporate filings by reference to Form S-1 in two ways:

Eliminate the requirement that an issuer must have filed a Form 10-K for the most recently completed fiscal year before having the ability to incorporate certain disclosure by reference in a Form S-1 (an issuer that has not been required to file a Form 10-K since becoming subject to Exchange Act Section 13(a) or 15(d) would incorporate by reference to a Securities Act or Exchange Act filing containing “Form 10 information”).
Expand forward incorporation by reference – the ability to automatically incorporate future Exchange Act filings into a registration statement – to all qualifying Form S-1 issuers, not just smaller reporting companies (SRCs).

The proposal would also modernize the “delaying amendment” procedure for Form S-1. Delayed effectiveness would become the default for most registration statements (other than those that become automatically effective in accordance with SEC rules), rather than the current framework of every registration statement including an archaic legend.

Are Form S-1 and Form S-3 converging?

As noted in the proposal, if Form S-1 were amended as proposed, it effectively would serve as a short-form registration statement for issuers that are eligible for and choose to use backward and forward incorporation by reference. Nonetheless, there would still be key distinctions between Form S-1 and Form S-3. Delayed primary shelf offerings and ATM offerings by or on behalf of an issuer under Rule 415 would remain limited to offerings registered or qualified to be registered on Form S-3.

FPIs, investment companies and BDCs also would be expressly prohibited from using Form S-1. The SEC expects minimal impact from this limitation. FPIs tend to file on Form F-1, rather than using domestic forms, and investment companies and BDCs are required to use other specific forms.

Elimination of income-related conditions for financial statements grace period

The proposals would eliminate the income-related conditions in Regulation S-X Rules 3-01 and 8-08 that currently affect the staleness dates for audited financial statements in registration statements and proxy statements filed close in time to the end of the most recently completed fiscal year. Under existing rules, issuers are not required to provide, in a registration statement or proxy statement, audited financial statements for the most recently completed fiscal year when the date of effectiveness of such registration statement or mailing date of such proxy statement falls within the first 45 days after such fiscal year-end – and this “grace period” may be extended for up to 45 more days depending on filer status and certain other conditions.

The current conditions imposed under Rule 3-01(c) and Rule 8-08(b) may result in a situation in which loss-generating issuers – which may have a greater need for capital but are ineligible for the extended grace periods – incur greater compliance costs in connection with filing a registration statement or conducting certain proxy solicitations than higher-income registrants, as they may be required to expedite the preparation of audited annual financial statements for the most recently completed fiscal year before they would otherwise be required in an annual report on Form 10-K.

Essentially, the proposal would align the financial statement requirements with the applicable issuer’s Form 10-K due date. If this proposal and the SEC’s recent proposal to simplify its filer status framework are both adopted as proposed, most public companies would be non-accelerated filers and would have 90 days after fiscal year-end to provide audited financial statements for the most recently completed fiscal year, regardless of timing of a registration statement or proxy statement, unless the financial statements become available earlier. ³

Open questions and areas for comment

The proposal raises many interpretive and policy questions on which the SEC has invited comment, and that may attract significant attention from practitioners and issuers, including:

Whether the elimination of a one-year seasoning requirement for Form S-3 eligibility is appropriate.
The appropriateness of eliminating Form S-3 transaction requirements (including the $75 million public float requirement to conduct unlimited primary offerings) and the minimum public float requirement.
The appropriateness of the categories of issuers identified as ineligible to use Form S-3 and of the three-year lookback period applicable to certain types of issuers.
Whether prohibiting FPIs from using Form S-3 at any time is appropriate, and if not, what the transition period should be.
Whether the replacement of the current categories of domestic issuers with the ELI/SELI framework is appropriate.
The appropriateness of proposed Form S-1 changes to expand backward and forward incorporation by reference, including whether to align forward incorporation eligibility more closely with Form S-3 eligibility.
Whether prohibiting FPIs, investment companies and BDCs from using Form S-1 is appropriate.

Observations and commentary

The proposal, if adopted, would restructure the registered offering framework. The significance of the changes will depend on where an issuer sits in the capital markets landscape. For large-cap, exchange-listed issuers that are WKSIs under the current rules, current practices will be largely unaffected by the transition to the ELI/SELI framework. For mid-cap and small-cap exchange-listed issuers that do not currently qualify as WKSIs, the changes could be more significant. See Appendix A for a tabular comparison of the current and proposed frameworks – and our predictions for the real-world impact. Below, we highlight several key takeaways for our client base:

Expanded access to shelf registration benefits for exchange-listed issuers. All domestic issuers would be Form S-3 eligible immediately after completing their IPO. Moreover, the proposed replacement of the WKSI framework with the ELI/SELI structure means that any exchange-listed Form S-3 eligible issuer would, as an ELI, gain access to pay-as-you-go registration fees, pre-filing communication flexibility, the ability register additional securities or additional classes of securities by filing a post-effective amendment to a nonautomatic shelf registration statement before the issuer satisfies the 12-month Exchange Act reporting requirement to be a SELI, and the ability to omit information as to whether an offering is a primary offering or secondary offering and pricing and deal-specific terms from the shelf registration statement at the time of effectiveness. These are capabilities currently reserved for WKSIs.
- Newly eligible issuers should begin assessing their readiness to take advantage of the proposed framework, including evaluating Exchange Act reporting history, potential ineligible issuer disqualifications, and the cost and timing differences between registered and exempt offering pathways. For many smaller issuers, the combination of Form S-3 eligibility, pay-as-you-go registration fees and full blue-sky preemption could shift the economics of capital raising away from exempt structures such as structured private investments in public equity (PIPEs), toward registered offerings.
- That said, practitioners should note that many of the communication flexibility benefits – in particular, the ability to conduct pre-filing investor outreach – are already available to non-WKSIs through the testing-the-waters provisions of Section 5(d) of the Securities Act and Rule 163B, which permit communications with qualified institutional buyers (QIBs) and institutional accredited investors regardless of WKSI or ELI status. The incremental benefit on the communications side is therefore most significant for mid-market issuers not currently taking advantage of those exemptions.
Significant expansion of automatic shelf registration eligibility. For issuers that meet the SELI threshold – ELI status plus 12 months of Exchange Act reporting – the principal additional benefit is automatic shelf registration. For most exchange-listed companies that have been public for more than a year, SELI status will be the default, and this benefit should be built into capital formation playbooks accordingly.
DeSPAC companies would not be automatically barred from Form S-3. This change would make the deSPAC pathway more attractive from a capital markets perspective and is consistent with the SEC’s previously stated objective of aligning disclosure and regulatory requirements for deSPAC companies with those applicable to companies completing traditional IPOs.
- However, a deSPAC company would not be permitted to count the Exchange Act reporting history of the former SPAC toward the 12-month seasoning requirement for SELI status and automatic shelf registration eligibility. Additionally, because FPIs are separately prohibited from using Form S-3 under the proposal, the SPAC predecessor carve-out would effectively benefit only domestic issuers.
- In addition, while the proposal does not address Rule 144(i) or Rule 145 under the Securities Act, meaning that shareholders of deSPAC companies would still be subject to the rolling 12-month current public information requirement if seeking to rely on the Rule 144 safe harbor for resales of securities issued by a deSPAC company, in addition to the statutory underwriter provision under Rule 145, the proposed amendments would mitigate these downsides because of the expanded availability of Form S-3. For private resales, unless and until Rule 144(i) and Rule 145 are addressed through separate rulemakings, deSPAC companies and their shareholders would still have to consider the risks imposed by these rules in connection with resales of securities.
A potentially less favorable regime for former FPIs. The proposal does not extend to FPIs, which would continue to use Form F-3. Form F-3 retains its existing 12-month seasoning and $75 million public float requirements. The SEC has deferred FPI-related changes pending its separate review of the FPI definition and various issues that it identified in its June 2025 Concept Release.
- Former FPIs that have converted to domestic issuer status, a transition that can occur automatically based on changes in shareholder composition or other factors, may find themselves in a worse position under the proposed framework, at least temporarily. Under the proposal, Form S-3 would be unavailable to any issuer that has been an FPI at any point during the preceding three years, while Form F-3 would remain unavailable to issuers that no longer qualify as FPIs. During that period, the issuer’s only registered offering option would be Form S-1. This creates a gap that does not exist under the current framework, where a former FPI that was eligible to use Form F-3 could seamlessly transition to using Form S-3 (assuming it meets the other eligibility criteria).
- For this reason, the proposal may accelerate a trend toward domestic issuer status at the time of IPO for foreign companies that are on the margin of FPI eligibility. Electing domestic issuer status at IPO could avoid the three-year Form S-3 eligibility lag if it is likely that the issuer will eventually lose FPI status down the road. Moreover, the proposed rule may make the domestic election more favorable, since domestic issuers will gain substantially expanded shelf access. Historically, FPI status has been attractive because it carries meaningful accommodations, including reduced executive compensation disclosure, exemption from complying with the proxy rules, and the ability to report on a semi-annual rather than quarterly basis, with relatively limited downside from a capital markets perspective, given that FPIs have generally had access to Form F-3 on terms largely comparable to those available to domestic issuers under Form S-3. Under the proposed framework, however, domestic issuers would gain substantially expanded access to shelf registration, automatic effectiveness, pay-as-you-go filing fees, and enhanced communication flexibility – benefits that would not be extended to FPIs. Additionally, the SEC previously proposed rules which, if adopted, would permit domestic issuers to elect semi-annual reporting – a benefit that is currently available only to FPIs.⁴
Form S-1 modernization. The proposed changes to Form S-1 would simplify ongoing offering programs and reduce the burden of post-effective amendments and prospectus supplement updates for issuers that rely on the long-form registration statement, by expanding the ability to incorporate by reference. The structural advantages of Form S-3 – including the takedown mechanics, automatic effectiveness and pay-as-you-go fee structure – remain exclusive to Form S-3 eligible issuers.
Elimination of income-related conditions for financial statements grace period. This change to Regulation S-X, to extend to loss-generating issuers the grace period for updated audited financial statements in connection with filing a registration statement or conducting certain proxy solicitations, would facilitate these issuers – who may have a greater need for capital than higher-income registrants – in raising capital or completing strategic transactions without the need to expedite the preparation of audited annual financial statements for the most recently completed fiscal year before they would otherwise be required in an annual report on Form 10-K.
ATM offering implications. Although the proposed “existing trading market” requirement would introduce a new constraint on ATM offerings, its practical significance may be modest given the SEC’s indication that the OTCQX Best Market and OTCQB Venture Market tiers would likely qualify for designation. Overall, the proposal intends to expand access to ATM offerings for issuers while balancing investor protections.
Blue-sky preemption extended to warrant coverage in registered offerings. Under current law, when an issuer conducts a registered offering of listed common stock concurrently with non-prefunded warrants (a structure that is common in certain industries, including life sciences), the common stock is already exempt from state blue-sky requirements by virtue of its exchange listing. The warrants, however, are not exchange-listed and therefore do not benefit from that exemption. As a result, practitioners must currently conduct a jurisdiction-by-jurisdiction blue-sky analysis for the warrants – an additional procedural step that must be tracked and completed for each such transaction. If the proposal is adopted, this friction would be eliminated because all securities offered and sold in a registered offering would constitute “covered securities” under the proposed definition of “qualified purchaser.” The warrants would be preempted from state registration and qualification requirements on the same basis as the listed common stock.

Call for additional IPO process modernization

On May 26, 2026, SEC Chairman Paul Atkins recommitted to the SEC’s agenda to “Make IPOs Great Again,” and discussed the steps currently taken by the SEC to fulfill that agenda. As noted above, in addition to the proposed amendments to reform registered offerings that are the subject of this alert, the SEC has proposed amendments to reform its filer status rules, which would extend meaningful disclosure and filing deadline accommodations to approximately 80% of US public issuers and allow a 60-month ramp-up to full disclosure requirements for all newly public companies, and has proposed amendments to permit domestic issuers to file semiannual reports in lieu of the current quarterly reporting regime.⁵

At the conclusion of his speech, Atkins solicited written comment on broader ideas for modernizing IPOs, including ways to improve the SEC’s communication or other IPO-related rules and identifying ways the SEC can remove roadblocks to nontraditional paths to going public.

Next steps

The comment period closes on July 27, 2026, including the larger call for comment on additional ways the SEC can modernize the IPO process. Issuers, underwriters, placement agents, fund sponsors, insurance companies and their counsel who participate in registered offerings should review the proposal carefully and evaluate whether to submit comments. Exchange-listed companies that expect to qualify as ELIs or SELIs under the proposed framework should also begin evaluating their readiness to take advantage of the proposed changes. Cooley’s capital markets attorneys are available to discuss these issues. Reach out to your existing Cooley contact or email the Cooley capital markets team.

Appendix A

Plain-language guide to enhanced benefits

The table below explains the key registration and communication benefits available under the current and proposed frameworks:

Benefit	Current framework	Proposed framework	Real-world impact
Registration benefits
Form S-3 eligibility Eligible issuers can use Form S-3 to register offerings of securities on a delayed or continuous basis – often referred to as offerings off the “shelf.” Once the Form S-3 registration statement is effective and generally for three years after its initial effective date, the issuer can use it to offer and sell securities in one or more primary offerings without waiting for further SEC staff review or action. This provides eligible issuers with important flexibility in capitalizing on opportunistic market windows.	One-year seasoning requirement for all issuers. For deSPAC issuers, the 12-month seasoning requirement does not begin to run until the business combination closes. “Baby shelf” limitations for issuers with less than $75 million public float. Various other complex transaction requirements.	Domestic issuers would be Form S-3 eligible immediately after completing the IPO. ⁶ DeSPAC issuers would no longer be “ineligible issuers” and would be immediately eligible to use Form S-3, though they would not be permitted to count the Exchange Act reporting history of the former SPAC toward the seasoning requirement for SELI status. No public float limitations. Limited exception for late filings. No other transaction requirements. No iXBRL eligibility requirement.	Enhances capital formation flexibility, especially for equity offerings by issuers that are smaller, newly public or previously SPACs (for example, issuers can now establish ATMs within the first year of going public). Newly public companies could also incorporate disclosures by reference from their Form S-1 for the IPO, reducing time and expense.
Registration of additional securities or additional classes of securities (Rule 413) Permits an issuer to register additional securities or additional classes of securities, including securities of a majority-owned subsidiary, via automatically effective post-effective amendments.	☒ WKSIs ☒ WKSI affected funds	☒ ELIs ☒ ELI affected funds	Allows for a greater number of issuers to benefit from expedited execution and certainty in timing public securities offerings.
Omission of certain information from base prospectus (Rule 430B(a)) The shelf registration statement does not need to include the type of offering (primary and/or secondary), offering price, size or other transaction-specific details; these are filled in at the time of each shelf takedown via a prospectus supplement.	☒ WKSIs ☒ WKSI affected funds	☒ ELIs ☒ ELI affected funds	Broadens access to the basic shelf takedown structure for non-WKSI ELIs.
Omission of identities of selling securityholders and amount of securities to be registered on their behalf from a base prospectus (Rule 430B(b)).	☒ WKSIs ☒ Non-WKSIs eligible for primary offerings under General Instruction I.B.1 of Form S-3, subject to certain conditions ☒ Seasoned affected funds	☒ All Form S-3 eligible issuers ☒ ELI affected funds	Broadens access to operational flexibility for secondary offerings, requiring only a prospectus supplement rather than a post-effective amendment to name selling securityholders.
Free-writing prospectus flexibility (Rule 433) Issuers can use supplemental marketing materials (term sheets, pitch decks, etc.) during an offering without first delivering a complete Section 10-compliant prospectus.	☒ WKSIs ☒ Non-WKSIs eligible for primary offerings under General Instructions I.B.1, I.B.2 or 1.C of Form S-3 ☒ Seasoned affected funds	☒ All Form S-3 eligible issuers ☒ Affected funds will rely on Rule 482 advertisement requirements	This change would simplify compliance and provide flexibility. Similar to the caveat above, much of this flexibility is already accessible to non-WKSIs through Rule 163B for testing-the-waters communications. The incremental benefit is most notable for ELIs that do not currently qualify as WKSIs.
Pay-as-you-go registration fees (Rules 456(b) and 457(r)) Issuers do not need to calculate or pay the full registration fee upfront when filing shelf registration statements; instead, fees are paid at each actual takedown, based on the securities sold.	☒ WKSIs ☒ WKSI affected funds	☒ ELIs ☒ ELI affected funds	Eliminates upfront cash outlay and the need to update fee calculations as shelf amounts change, and enhances usefulness and flexibility of the shelf registration process. Meaningful for issuers maintaining large, frequently used shelf registration statements.
Automatic shelf registration (Rule 462) The shelf registration statement takes effect the instant it is filed – no waiting for SEC staff review, and no acceleration request needed. Issuers can move directly from filing to launching an offering.	☒ WKSIs ☒ WKSI affected funds	☒ SELIs ☒ SELI affected funds	This is the most operationally significant benefit for frequent issuers. Under the proposal, ~74% of Exchange Act reporting issuers would qualify, up from ~36% today.
Blue-sky preemption	Preemption applies to “covered securities” – generally limited to securities listed on national securities exchanges	All registered offerings – including offerings of securities not listed on any national exchange – would constitute “covered securities” and would be exempt from state registration and qualification requirements. States would retain antifraud enforcement authority.	Resolves administrative complexity for registered offerings not involving an exchange-listed security. Most relevant to side-by-side offerings of common stock and unlisted warrants, employee equity plans of OTC-traded issuers, or unlisted registered direct offerings.
Form S-1 incorporation by reference The ability to incorporate by reference to prior filings frees issuers from the need to repeat lengthy information. The ability to incorporate by reference to future filings allows issuers to keep the Form S-1 updated on an ongoing basis without manually filing post-effective amendments and prospectus supplements when making other SEC filings.	Issuers must file a Form 10-K before being eligible to incorporate previously filed information into Form S-1. Only smaller reporting companies are permitted to incorporate future Exchange Act filings by reference into Form S-1.	Any issuer that has made a Securities Act or Exchange Act filing that contains Form 10 information would be eligible to incorporate by reference to previously filed information as well as to future filings.	While S-1 remains unavailable for delayed primary shelf offerings, the modernized approach to incorporation by reference would allow more issuers to mitigate duplicative disclosure and compliance costs – e.g., for follow-on offerings on Form S-1 or for ongoing secondary offerings.
Communication benefits
Research report safe harbor (Rule 139) Broker-dealers can publish issuer-specific research reports and make buy/sell recommendations about a company while participating in its registered offering, without those reports being treated as part of the offering.	☒ WKSIs ☒ Non-WKSIs eligible for primary offerings under General Instructions I.B.1 or I.B.2 of Form S-3 ☒ Covered investment funds that have a public float greater than $75 million	☒ All Form S-3 eligible issuers ☒ All covered investment funds	Brings the benefits of Rule 139 to a broader universe of issuers, although Rule 139 remains unavailable for issuer-specific research if the research analyst has not initiated coverage prior to the commencement of the registered offering at issue.
Pre-filing offers (Rule 163) Issuers and underwriters can engage in oral and written communications about an upcoming offering – including road show materials and investor contacts – before the registration statement is filed, without those communications constituting a prohibited “gun-jumping” offer.	☒ WKSIs ☒ WKSI affected funds	☒ ELIs ☒ ELI affected funds	Provides more flexibility in early-stage deal preparation. Note, however, that many pre-filing communications for non-WKSI issuers are already permissible through testing-the-waters communications, Section 5(d) and Rule 163B, which allow QIB and institutional accredited investor outreach before and after filing, regardless of WKSI status.

Notes

Out of 5,555 Exchange Act reporting companies (excluding asset-backed issuers, shell companies and BDCs) that filed a Form 10-K in 2024.
Throughout this alert and in the SEC’s proposal, the term “affected fund” refers to a registered closed-end fund or BDC whose securities are listed on a national securities exchange, and that has a specified advisory or management relationship with a WKSI (under the current framework) or, under the proposed rule, with an ELI or SELI. These funds are treated analogously to their affiliated operating company parent for purposes of the enhanced registration and communication benefits described in this alert and Appendix A.
On May 19, 2026, the SEC proposed amendments to substantially simplify its domestic public company filer status framework and extend existing scaled disclosure and other accommodations, including filing due dates. The proposal would eliminate the current rubric of overlapping filer status categories – large accelerated filer (LAF), accelerated filer, nonaccelerated filer (NAF), SRC and emerging growth company – and replace it with two primary reporting categories: LAF and NAF. For NAFs, the Form 10-K would be due 90 days after fiscal year end. See Cooley’s alert, SEC Proposes Simplified Filer Status Rules and Expanded Disclosure Accommodations, published May 22, 2026, for a more fulsome discussion of the proposed amendments.
See Cooley’s alert, The SEC’s Semiannual Reporting Proposal: Fare Thee Well Quarterly Reporting?, published May 11, 2026, for a more fulsome discussion of the proposed amendments.
See Cooley’s alerts, SEC Proposes Simplified Filer Status Rules and Expanded Disclosure Accommodations, published May 22, 2026, and The SEC’s Semiannual Reporting Proposal: Fare Thee Well Quarterly Reporting?, published May 11, 2026.
Other than “ineligible issuers” as defined in the proposal and described above.

Litigator of the Week Runners-Up and Shout-Outs

Fri, 05 Jun 2026 14:21:41 Z

Cooley lawyers Elizabeth Prelogar, Michael Sheetz, Betsy Flanagan, John Bostic, Lowell Mead, Reuben Chen, Alexandra Mayhugh and Sale Kwon earned a runners-up spot on The American Lawyer’s Litigation Daily Litigator of the Week Runners-Up and Shout Outs list for securing a ruling from the US Court of Appeals for the Federal Circuit for its client EOFlow, overturning a $52 million jury verdict on trade secret claims and vacating a permanent injunction that prohibited EOFlow from selling certain wearable and disposable drug delivery products worldwide.

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Cooley Continues Upward Trajectory in Chambers USA 2026 Rankings

Fri, 05 Jun 2026 00:54:00 Z

New York – June 4, 2026Cooley has continued to strengthen its position in the Chambers USA 2026 guide, achieving expanded recognition for both its practices and lawyers. The firm is now ranked in 84 practice areas, with 173 lawyers recognized for excellence in their respective fields. Each year, Chambers & Partners conducts extensive research to provide detailed rankings of the country’s top law firms, legal departments, and lawyers.

In the latest guide, Cooley received seven new practice area rankings, seven higher practice area rankings, 37 new individual rankings and 45 improved individual rankings, with 30 lawyers receiving one or more top Band 1 rankings. The results also include 26 Band 1 practice rankings.

The firm maintained multiple nationwide Band 1 rankings in leading practice areas – including Artificial Intelligence; Corporate Governance; International Arbitration: Highly Regarded; Life Sciences; Privacy & Data Security The Elite; Privacy & Data Security: Litigation; Product Liability: Regulatory; Startups & Emerging Companies; and Venture Capital: Fund Formation.

The firm also was newly ranked in Band 1 for nationwide Financial Services Regulation: Consumer Finance (Enforcement & Investigations). Additionally, the firm is recognized in the inaugural Chambers USA nationwide category for General Commercial Litigation: The Elite, as well as being newly ranked in Privacy & Data Security: Healthcare; and Securities: Regulation: Advisory.

The following is a complete list of Cooley’s Chambers USA 2026 practice rankings.

Leading practices

Nationwide
Artificial Intelligence
Banking & Finance
Capital Markets: Convertible Debt
Capital Markets: Equity: Issuer Counsel
Capital Markets: Equity: Manager Counsel
Corporate Governance
Corporate/M&A: The Elite
Employee Benefits & Executive Compensation
Financial Services Regulation: Consumer Finance (Compliance)
Financial Services Regulation: Consumer Finance (Enforcement & Investigations) +
Government Relations: Congressional Investigations
Higher Education +
Impact Investing
Intellectual Property
International Arbitration: Highly Regarded
International Trade: CFIUS Experts
International Trade: Export Controls & Economic Sanctions: The Elite +
Life Sciences
Litigation: General Commercial: The Elite *
Privacy & Data Security: Healthcare *
Privacy & Data Security: Litigation
Privacy & Data Security: The Elite
Product Liability: Regulatory
Securities: Litigation
Securities: Regulation: Advisory *
Space
Startups & Emerging Companies
Technology
Venture Capital: Fund Formation

California
Banking & Finance
Capital Markets: Debt & Equity
Intellectual Property: Patent Litigation
Intellectual Property: Patent Prosecution
Intellectual Property: Trademark, Copyright & Trade Secrets
Labor & Employment: Highly Regarded *
Life Sciences: Corporate/Commercial
Life Sciences: IP/Patent Litigation
Litigation: General Commercial: The Elite +
Litigation: Securities
Litigation: White-Collar Crime & Government Investigations
Technology
Venture Capital

California: Los Angeles & Surrounds
Corporate/M&A: The Elite
Employee Benefits & Executive Compensation

California: San Diego
Corporate/M&A
Litigation: General Commercial

California: San Francisco, Silicon Valley & Surrounds
Corporate/M&A: The Elite
Employee Benefits & Executive Compensation

California: Southern
Tax

Colorado
Corporate/M&A
Intellectual Property
Tax *

District of Columbia
Antitrust
Bankruptcy/Restructuring *
Corporate/M&A & Private Equity
Healthcare: Pharmaceutical/Medical Products Regulatory
Intellectual Property: Litigation
Intellectual Property: Patent Prosecution
Intellectual Property: Trademark, Copyright & Trade Secrets
Litigation: General Commercial: Highly Regarded
Litigation: White-Collar Crime & Government Investigations +
Media & Entertainment: Regulatory
Telecom, Broadcast & Satellite

Illinois
Capital Markets: Debt & Equity *

Massachusetts
Capital Markets
Corporate/M&A
Intellectual Property
Life Sciences
Litigation: General Commercial
Litigation: Securities
Litigation: White-Collar Crime & Government Investigations
Private Equity: Fund Formation
Private Equity: Venture Capital Investment
Technology

New York
Banking & Finance
Corporate/M&A: Highly Regarded +
Litigation: General Commercial: Highly Regarded
Litigation: White-Collar Crime & Government Investigations: The Elite +

Virginia: Northern
Corporate/M&A
Intellectual Property
Real Estate
Real Estate: Zoning/Land Use

Washington
Corporate/M&A
Intellectual Property

Indicates Band 1 ranking
* Indicates new ranking
+ Indicates improved ranking

Semble Secures £30M Series C

Thu, 04 Jun 2026 20:32:00 Z

London – June 4, 2026 – Cooley advised Semble, a healthcare technology company, on its £30 million Series C funding round. European growth investor Revaia led the round, with participation from a second new investor Partech, alongside existing investors Mercia Ventures and Octopus Ventures.

Lawyers Ali Ramadan, Laurence Nelson and Sonja Jounus led the Cooley team advising Semble.

Cooley Launches Global Hearings Practice As Scrutiny Rises

Thu, 04 Jun 2026 19:14:26 Z

Cooley partners Susanne Sachsman Grooms and Sascha Grimm were featured in a Law360 article highlighting the firm’s global hearings and inquiries practice to help companies prepare comprehensive strategies as they face increased regulatory scrutiny across multiple jurisdictions. The newly formalized practice will tackle a broad range of topics facing technology companies, including questions about privacy, challenges around AI governance, consumer pricing issues and child safety.

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Court Overturns Insulet’s $59M Trade Secret Verdict Against EOFlow

Thu, 04 Jun 2026 19:08:04 Z

Cooley partner Elizabeth Prelogar was quoted in a Medtech Dive article about the US appeals court’s decision overturning Insulet’s $59.4 million trade secret verdict against EOFlow, calling the ruling a “sweeping victory for EOFlow and for innovation.”

Read the article

Cooley Wins Eight LBG Life Sciences EMEA Awards

Thu, 04 Jun 2026 15:04:00 Z

London – 4 June 2026 – Cooley and its life sciences practice won eight awards, including Licensing & Collaboration Firm of the Year for the second consecutive year, and Venture Capital Firm of the Year at the Legal Benchmarking Group (LBG) Life Sciences EMEA (Europe, the Middle East and Africa) Awards.

Partner Frances Stocks Allen received Licensing & Collaboration Lawyer of the Year, and associate Alexandra Paterson was recognised as M&A Rising Star.

Additionally, the firm earned four Impact Deal awards based on representations of:

Araris Biotech on its $1.14 billion acquisition by Japan-based Taiho Pharmaceutical

Apoha Emerges From Stealth With $36 Million in Funding

Wed, 03 Jun 2026 21:06:00 Z

London – June 3, 2026 – Cooley advised Apoha, a deep tech and AI startup, on its Series A funding round, as the company emerged from stealth with $36 million in funding to build Liquid State Intelligence, positioning molecular behavior as the third fundamental data class in molecular science.

The round was led by European venture capital firm Singular, with participation from Draper Associates and continued backing from existing seed investors Redalpine, Seedcamp, Wilbe and Nucleus and angels.

Lawyers Ali Ramadan, Charles Baker and Sonja Jounus led the Cooley team advising Apoha.

Cooley Expands Infrastructure, Energy and Real Estate Group With Two Partner Hires

Wed, 03 Jun 2026 20:15:00 Z

New York – June 3, 2026 – Cooley today announced that Kevin Donahue and Jacob Clark have joined the firm’s infrastructure, energy and real estate group as partners in the New York office. Together, they strengthen Cooley’s ability to guide clients through the full life cycle of infrastructure investments, from site acquisition and development to financing, M&A, private equity transactions and restructurings.

Their additions follow the recent arrivals of partners Mona Dajani and John Goldman to the infrastructure, energy and real estate group. Dajani joined as the group’s co-chair in May. Combined with Cooley’s existing bench of practitioners – comprising decades of experience in the real estate, data center and digital infrastructure sectors – Donahue and Clark further enhance the firm’s fully integrated, multichannel infrastructure platform.

“Kevin and Jacob bring formidable transactional and infrastructure capabilities to our fast-growing group,” said Peter Werner, partner and chair of Cooley’s global business department. “We are investing deliberately to meet growing client demand at the convergence of infrastructure, energy and the digital economy, and we are capable of handling the most complex, high-value matters in the space.”

Donahue and Clark are highly adept, accomplished advisors to sponsors, private equity firms, institutional investors and sovereign wealth funds on complex real estate, financing and transactional matters underpinning large-scale data center and infrastructure development. They join Cooley from Kirkland & Ellis.

“The opportunity to join Cooley and the infrastructure, energy and real estate group was highly compelling,” said Donahue. “Few firms combine the range of trusted relationships across the global technology and investment communities with deep data center experience in the way that Cooley does.”

“Financing and infrastructure are evolving in new ways, and providing integrated and seamless solutions to our clients is critical to their success,” said Clark. “Cooley’s collaborative culture and its role advising many of the world’s most dynamic companies make this the ideal platform to support clients pursuing increasingly complex infrastructure strategies.”

Cooley’s infrastructure, energy and real estate practice partners across the full life cycle of complex projects. Aligning power supply, development, capital and investment strategy, the practice enables the growing demand for the platforms fueling the global economy. With a fully integrated approach, Cooley operates across asset types, financing models and geographies, helping clients navigate an increasingly dynamic and complex commercial landscape. Cooley’s coordinated team structures sophisticated solutions to manage risk, mobilize capital and advance next-generation initiatives where speed, agility and execution are critical.

Celcuity Announces Upsized $500 Million Convertible Senior Notes Offering

Wed, 03 Jun 2026 19:19:00 Z

New York – June 3, 2026 – Cooley advised the underwriters of Celcuity (Nasdaq: CELC), a clinical-stage biotechnology company focused on the development of targeted therapies for the treatment of multiple solid tumor indications, in connection with Celcuity’s upsized underwritten public offering of $500,000,000 aggregate principal amount of its 0.250% convertible senior notes due 2032. Celcuity has granted the underwriters of the offering a 30-day option to purchase up to an additional $75,000,000 aggregate principal amount of convertible notes, solely to cover over-allotments.

Jefferies, J.P. Morgan, TD Cowen and Guggenheim Securities are acting as joint book-running managers. LifeSci Capital is acting as lead manager. Craig-Hallum and Wolfe | Nomura Alliance are acting as co-managers.

Lawyers Daniel Goldberg, Evan Leitner, Mischi a Marca, Jason Savich, Darah Protas, Richard Segal, Timothy Nguyen, Olivia Creser, Winda Fung, Jayne Munger and Camille Awono led the Cooley team advising the underwriters. The team also included Timothy Shapiro, Calvin Lee, Michael Egan, Allison Nostdahl, Natasha Leskovsek and Marcelo Pomeranz.

UK Reporting for Share Plans With UK Participants Due 6 July

Wed, 03 Jun 2026 18:33:00 Z

The deadline is approaching for the HM Revenue & Customs (HMRC) year-end reporting requirements for companies in the UK, US and elsewhere with share options and other share awards granted to – and share acquisitions by – UK employees between 6 April 2025 and 5 April 2026. Reporting also may be required in respect of non-UK resident employees who carry out work duties in the UK.

Companies must submit these annual returns by midnight (UK time) on Monday, 6 July 2026, via the HMRC employment-related securities (ERS) online service. By such date, the company must have:

Registered to use the service.
Registered each plan or arrangement.
Self-certified any UK tax-advantaged plans.
Reported each share award grant and share acquisition related to a share award that occurred during the relevant reporting period.

If you have not yet registered to use the ERS online service, you should do so as soon as possible and by no later than 29 June 2026, as registration may take several days.

Which arrangements does this apply to?

The requirements catch all share options and share awards granted to – as well as shares acquired by – UK employees by reason of their employment, including participation in non-UK arrangements, such as US employee stock purchase plans (ESPPs). The requirements also cover the cancellation of existing share awards and certain other events, such as variations, lapses and sales of shares for more than market value.

View the ERS annual return templates and associated HMRC guidance.

How are tax-advantaged awards reported?

A separate online return must be filed to report transactions under each registered UK tax-advantaged plan – enterprise management incentives (EMIs), company share option plans (CSOPs), save-as-you-earn (SAYE) plans and share incentive plans (SIPs) – by the 6 July deadline.

Grants of EMI options must also be notified to HMRC by the same 6 July deadline, otherwise they will not qualify as EMI options. This is also done through the ERS online service and is in addition to the annual return.

Non-tax-advantaged plans or arrangements

Non-tax-advantaged plans or arrangements are referred to on the HMRC website as “other” plans. You can choose whether to file separate returns for each arrangement or a single return covering transactions occurring under all non-tax-advantaged plans and arrangements. The returns are required to contain details of any share options that have been granted or exercised, as well as any other reportable events in relation to employment-related securities (including cancellations, variations, lapses, transactions in relation to restricted stock units, and sales of shares for more than market value).

What if no awards have been granted or other actions taken during the year?

A return is still required for each plan covering UK employees even if there have been no reportable events (e.g. no grants or option exercises) under the plan in the relevant tax year for UK reporting periods (which run from 6 April to the following 5 April), until you have notified HMRC that the plan has ceased through the ERS online service.

Penalties for noncompliance

Failure to timely file the required annual returns results in an automatic penalty of £100 per plan/arrangement, and any benefits from tax-advantaged plans may be lost. Additional penalties will apply where annual returns remain outstanding on 6 October 2026 (an additional £300) and on 6 January 2027 (a further £300), with HMRC having discretion to impose further penalties in respect of any annual returns that remain outstanding after 6 April 2027.

In addition to penalties for failing to file annual returns, failure to register a tax-advantaged plan will affect the tax treatment of future participants – and additionally, in the case of CSOPs, current participants.

Cooley Highlighted as a Leading Firm for Associates Seeking Lateral Moves in Chambers 2026 Survey

Wed, 03 Jun 2026 17:37:21 Z

New York – June 3, 2026 – Cooley ranks as one of the leading law firms that associates most aspire to lateral to, according to a newly released Chambers and Partners survey of thousands of associates working in the US legal market.

Cooley’s strong culture, reputation for collaboration and teamwork, and career development opportunities positioned the firm highly on Chambers’ 2026 top 10 list, with associates in the survey highlighting firm culture as a key factor in their choice of firm and reason for seeking a career move.

Chambers researchers surveyed 8,200 associates across 82 US law firms, asking about their motivations, challenges and experiences.

View the full report and rankings

Navigating Antitrust Scrutiny of Algorithmic Software

Wed, 03 Jun 2026 16:13:00 Z

Federal and state antitrust enforcers are sending a clear signal to companies: An algorithm is not a shield for anticompetitive conduct. As algorithmic pricing becomes a primary focus for regulators, particularly in California, companies must prepare for aggressive enforcement.

Algorithms as the new frontier of conspiracies to restrain trade

Federal and state authorities are prioritizing enforcement actions where software platforms act as a “hub” in a hub-and-spoke conspiracy, allegedly allowing competitors to exchange competitively sensitive information and align prices without direct communication. Two recent settlements highlight the type of conduct likely to garner scrutiny from the antitrust authorities:

United States v. RealPage: In November 2025, the Department of Justice (DOJ) reached a landmark settlement with RealPage to resolve claims that its revenue management software facilitated an algorithmic information-sharing conspiracy among competing landlords. Under the proposed settlement agreement, RealPage must stop, inter alia, utilizing rivals’ nonpublic, competitively sensitive data to generate real-time rental price recommendations and remove or modify product features, such as “auto-accept” defaults, that steer users toward aligned pricing or competitive terms.
United States et al. v. Agri Stats, Inc.: In May 2026, the DOJ and a coalition of States reached a settlement in the Agri Stats antitrust case challenging a data analytics firm’s provision of reports containing price, output, and cost information to competing meat processors. The proposed settlement prohibits the reporting of nonpublic pricing information, granular metrics, participant identities and competitor rankings, while enforcing strict age limits on surviving historical data and requiring that remaining reports be made transparently available to all domestic purchasers on equal terms.

State enforcement: California leading the charge

California’s AB 325 – The Cartwright Act

The States continue to take aggressive action to fill a perceived gap left by the federal government when it comes to antitrust regulation and enforcement. Effective January 1, 2026, California’s AB 325 set a new national benchmark for algorithmic regulation by expressly prohibiting certain pricing algorithms. While other states, like New York, have enacted algorithmic pricing bans in certain industries (real estate) and disclosure requirements, California has gone the farthest in policing algorithmic pricing tools.

Ban on use of algorithms to restrain trade: The law makes explicit that it is unlawful under the Cartwright Act to use or distribute a “common pricing algorithm” as part of an agreement to restrain trade or fix prices.
Coercion focus: The law prohibits one party from “coerc[ing]” another to set a price or commercial term recommended by a common pricing algorithm. “Coercion” is not defined in the statute; at a recent conference, speakers suggested algorithms with auto-populating or auto-accepting features could be viewed as forms of coercion.
Broad scope: A pricing algorithm is considered “common” if it has two or more users and uses competitor data to recommend or influence prices or commercial terms.

While California has yet to bring a suit under AB 325, at a recent conference, California’s Senior Assistant Attorney General for Antitrust Paula Blizzard indicated her view that:

The focus is on the “coercion” prong of the statute.
“Competitor data” as used in AB 325 includes any competitor data, even publicly available information.

Practical compliance checklist

To mitigate risk in this high-scrutiny environment, firms should consider the following practical compliance steps (these may differ depending on whether the firm is a developer or user of the algorithm):

Audit algorithmic inputs: Assess the data that is input and used to train your algorithmic tools. Do the tools utilize competitor data? Is the data proprietary or publicly scraped?
Ensure users have free choice: Avoid penalizing partners that don’t use pricing features or rewarding those that do. Consider avoiding “auto-accept” or “auto-populate” pricing features and instead ensure implementation authority requires independent human decision-making.
Who has access? Are the algorithmic recommendations available broadly to anyone in the industry or only offered to one side of the transaction (e.g., suppliers versus customers)?
Who else is using the algorithm? What do you know about who else is using the algorithm? For example, be careful about marketing materials that indicate the algorithmic software is used industrywide or by all competitors, or that the value of the tool can be obtained only through broad adoption.
Discovery awareness: Enforcers are increasingly targeting AI prompts and log information. Treat all prompts and log information entered into AI agents as discoverable material, similar to executive emails. Document the “procompetitive” benefits of tools where appropriate and accurate – e.g., efficiently matching supply and demand to increase output in competition with others.

Wordsmith Raises $70 Million Series B

Wed, 03 Jun 2026 16:00:00 Z

London – June 3, 2026 – Cooley advised Wordsmith AI, the new standard for in-house legal, on its $70 million Series B funding. The round was led by Highland Europe and Index Ventures among others.

Lawyers Robert Warshaw, Helen Pantelides, Harriet Fraser, Leo Spicer-Phelps, Juan Nascimbene, Anna Caro and Marzia Di Candido led the Cooley team advising Wordsmith.

Cooley previously advised Wordsmith on its $25 million Series A funding in June 2025.

Alnylam and Inceptive Form Strategic AI Collaboration to Accelerate the Discovery of RNAi Therapeutics

Wed, 03 Jun 2026 14:13:00 Z

Palo Alto – June 3, 2026 – Cooley advised Inceptive Nucleics, Inc., a biotechnology research company that builds foundation models of life, on its strategic collaboration agreement with Alnylam Pharmaceuticals, Inc. to increase the pace of therapeutic innovation. The collaboration is valued at up to $2 billion with upfront consideration of $30 million, including cash and the purchase of Inceptive equity. Inceptive is eligible to receive additional payments based on the achievement of preclinical, regulatory, and commercial sales milestones.

Lawyers Marya Postner, Mark Weeks, Rena Kaminsky, Len Jacoby, Charles Haley, Ryan Bowers, Daniel Lee, Yichen Liu and Zi Ye led the Cooley team advising Inceptive.

Cooley has represented Inceptive since its inception.

SEC Proposes to Rescind 2024 Climate-Related Disclosure Rules

Wed, 03 Jun 2026 14:08:16 Z

On May 29, 2026, the Securities and Exchange Commission (SEC) proposed to rescind in their entirety the climate-related disclosure rules it adopted in March 2024 (the 2024 rules). The proposal – Rescission of Climate-Related Disclosure Rules –would withdraw all amendments to Regulation S-K (including Items 1500 through 1508), Regulation S-X, Regulation S-T, Securities Act Rule 436, and related Securities Act and Exchange Act registration statement and report forms, including Forms S-1, S-3, S-4, S-11, F-3, F-4, 10, 10-Q, 10-K and 20-F.

Key takeaways

The 2024 climate rules never went into force, so the proposed rescission should not have a practical impact on companies’ SEC reporting obligations.
Companies may remain subject to reporting obligations in other jurisdictions, such as California (where SB 261 remains subject to a judicial stay, and SB 253 reports are due in August) or the European Union.
The SEC recently proposed several other impactful rulemakings and has an ambitious agenda of other potential proposals. The need to complete a formal rulemaking process for the climate rule rescission may add to administrative burdens for the SEC.

The 2024 rules (see Cooley’s March 7, 2024, alert, “SEC Adopts Climate Reporting Requirements”) would have required domestic registrants and foreign private issuers to include specified climate-related information in their registration statements and annual reports. Those rules never took effect and have been stayed since April 4, 2024, pending judicial review before the US Court of Appeals for the Eighth Circuit. Following the 2024 presidential election, then-acting SEC Chair Mark Uyeda directed the SEC to cease defending the 2024 rules in litigation, raising novel questions about whether agencies may effectively rescind rules through inaction rather than formal rulemaking. The Eighth Circuit, however, subsequently held the consolidated petitions in abeyance pending the SEC’s reconsideration of the 2024 rules through notice-and-comment rulemaking. The proposed rescission is the SEC’s formal response to that abeyance order.

Rationale for rescission

The SEC argues that the 2024 rules were a dramatic overreach of its statutory authority and, independently, unsound as a matter of policy. On the legal question, the SEC asserts that its rulemaking authority is limited to the types of disclosures Congress contemplated and must be tied to information about a registrant’s business and financial characteristics. The SEC further states that its disclosure authority should elicit information pursuant to the materiality standard established by the US Supreme Court (i.e., information that a reasonable investor would consider important in buying or selling securities), and that existing disclosure requirements and anti-fraud provisions already elicit climate-related information to the extent it is material to a registrant’s circumstances.

On the policy front, the SEC identifies several independent policy reasons supporting rescission. It argues that the 2024 rules are unnecessary under a registrant-specific, materiality-based disclosure framework, extend beyond the policy concerns underlying the federal securities laws, and impose substantial costs not justified by their informational benefits. The SEC also contends that the rules’ compliance burdens would deter companies from accessing the public capital markets, potentially widening the transparency gap between public and private companies and undermining capital markets’ information efficiency.

Comment solicitation

The SEC has solicited comment on a range of issues that may shape the outcome of this rulemaking. Key areas of focus include:

Whether the 2024 rules should be rescinded in full or whether specific provisions could be retained and function independently.
Whether alternatives to full rescission, such as limiting the rules to a narrower subset of registrants or replacing the current prescriptive framework with less burdensome climate-related disclosure requirements, would better serve investors.
Whether the proposed rescission would adversely affect any reasonable reliance interests that market participants may have developed, notwithstanding the stay, and whether registrants incurred meaningful costs in preparing to comply during the stay period.
Whether existing disclosure requirements, including the SEC’s 2010 guidance on climate-related disclosure and existing Regulation S-K and Management Discussion and Analysis (MD&A) obligations, adequately elicit material climate-related information, and whether updated guidance would be appropriate.
How recent developments in voluntary and mandatory climate reporting practices, including international standard-setting by the International Sustainability Standards Board (ISSB) and domestic regulatory activity, affect the underlying policy rationale for the 2024 rules.

Despite the scope of these questions, given the current SEC’s pronounced skepticism toward regulation related to environmental, social and governance (ESG), and prior statements regarding the 2024 rules, it is broadly expected that the final rulemaking will result in a comprehensive rescission of the 2024 rules.

Practical impacts

Given that the 2024 rules never took effect and have already been set aside by most companies, a formal rescission of the 2024 rules is unlikely to materially affect companies’ reporting plans, investor expectations or the broader ESG disclosure landscape. Nonetheless, several practical considerations remain:

Continued applicability of existing disclosure obligations. Rescission of the 2024 rules would not eliminate registrants’ obligations to disclose climate-related information that is material to their specific circumstances. Existing requirements under Regulation S-K, including Items 101 (business description), 103 (legal proceedings) and 105 (risk factors), along with MD&A requirements, continue to require disclosure of material climate-related risks and opportunities. The proposed rescission would mark a return to the SEC’s generally principles-based approach to disclosure of climate-related matters, which uses performance standards based on the concept of materiality. Registrants should continue to assess whether their climate-related risk disclosures reflect a current and accurate picture of the risks they face.

Interaction with state-level and international requirements. Rescission of the 2024 rules would eliminate the federal climate disclosure framework but would not affect state-level requirements – such as California’s climate disclosure laws, SB 253 (greenhouse gas emissions disclosure) and SB 261 (Climate-Related Financial Risk Act), the latter of which is currently subject to an ongoing stay in the Ninth Circuit (see Cooley’s November 24, 2025, alert, “Ninth Circuit Stays SB 261 as CARB Announces Numerous Company-Friendly Expectations for First-Year California Climate Reporting”). Rescission also would not affect international reporting obligations, including the EU’s Corporate Sustainability Reporting Directive (see Cooley’s December 10, 2025, alert, “EU Reaches Agreement on ‘Omnibus I’ Impacting CSRD and CSDDD Compliance for US Companies”). Many companies also continue to voluntarily report on climate and other ESG topics.

Impact on SEC rulemaking agenda. The SEC has an ambitious rulemaking agenda, including recently proposed rules affecting quarterly reporting (see Cooley’s May 11, 2026, alert, “The SEC’s Semiannual Reporting Proposal: Fare Thee Well Quarterly Reporting?”), filer status (see Cooley’s May 22, 2026, alert, “SEC Proposes Simplified Filer Status Rules and Expanded Disclosure Accommodations”), and registered offerings, as well as potential rulemakings related to shareholder proposals under Rule 14a-8 and executive compensation and other Regulation S-K disclosure requirements. Although the rescission of the 2024 rules was once viewed as a procedural afterthought, the need to complete a formal rulemaking may affect the timing and prospects of other rulemaking initiatives. The SEC will likely be required to devote additional administrative resources to reviewing comments and preparing a final rule. However, unlike the 885-page 2024 rules, which drew more than 24,000 comments and took nearly two years from proposal to adoption, the rescission effort is not expected to approach that scale.

Next steps

Comments on the proposed rescission are due August 3, 2026. Registrants, investors, assurance providers and other market participants with views on the scope of the rescission, the adequacy of existing disclosure requirements, reliance interests, or preparation costs incurred during the stay period should consider whether to submit comments during that period.

Cooley’s corporate governance and securities regulation attorneys are available to discuss these issues. Reach out to your existing Cooley contact or email the Cooley capital markets team.

Teva Ruling Offers Patentees New Support For Genus Claims

Tue, 02 Jun 2026 19:48:12 Z

Cooley partners Geoffrey Biegler, John Rearick and Dan Knauss co-authored a Law360 article examining how the Federal Circuit’s precedential decision in Teva Pharmaceuticals International GmbH v. Eli Lilly and Company strengthens patentees' ability to sustain broad genus claims by clarifying what kind of proof if needed to demonstrate that the full scope of those claims is enabled.

Read the article

Mach Industries Raises $300 Million in Series C Funding

Tue, 02 Jun 2026 15:42:00 Z

New York – June 2, 2026 – Cooley advised Mach Industries, a leading defense manufacturer building advanced unmanned systems for modern defense, on its $300 million Series C funding, valuing the company at $1.8 billion. Infinite Capital and Ribbit Capital co-led the round, joining longstanding backers including Bedrock Capital, Sequoia Capital, and Khosla Ventures.

Lawyers Stephane Levy, Robert Warshaw, Bram Couvreur, Michael Bruno, Walter Musgrave, Cameron Gyorffy and Nyron Persaud led the Cooley team advising Mach Industries.

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

Avenzo Therapeutics to be Acquired by Rallybio

Mon, 01 Jun 2026 19:08:23 Z

Cooley advised Avenzo Therapeutics, a clinical-stage biotechnology company developing next-generation oncology therapies, on its agreement to be acquired by Rallybio, a clinical-stage biotechnology company.

The transaction was announced publicly in the following press release, which can be viewed here.

Rama Padmanabhan, Charles Bair, Wade Andrews, Rajdeep Bains, Marjorie O’Neill and Brittany Wightman led the Cooley corporate and M&A team advising Avenzo.

Charity Williams, Jonathan Kaufman, Noah Goldman, Kimberly Bolin, Mark Westwood, Alessandra Murata, Tony Guan, Ross Eberly, Jacob Lahana, Todd Gluth, Stephanie Gentile, Andrew Epstein, Allison Nostdahl, Natasha Leskovsek, Phil Mitchell, Sharon Connaughton, John DelMastro, Vittoria Rainone and Sunny Liu provided invaluable support.

Biotech IPO Market Strengthens in 2026, but Quality Bar Remains High

Mon, 01 Jun 2026 18:02:08 Z

Cooley partners Charlie Kim and Div Gupta were featured in a BioXconomy Q&A about the current healthcare and life sciences sector initial public offering (IPO) market, comparing it to prior years. They also analyzed the key factors driving IPO activity, valuation trends and their outlook for the second half of 2026, as well as the biggest challenges and advice for companies planning to go public now.

Read the Q&A

Cooley Recognized by IAM Patent 1000

Mon, 01 Jun 2026 17:40:16 Z

Palo Alto – June 1, 2026 – Cooley was recognized by IAM Patent 1000, a top resource for market intelligence on the discipline, based on interviews with clients and lawyers in private practice. The IAM Patent 1000 shines a spotlight on the firms and lawyers that are considered outstanding in the pivotal area of patent law.

For 2026, Cooley was ranked in seven practices across geographies in the US and the UK. The publication also recognized 19 Cooley lawyers in their respective practice areas.

Cooley Expands Chicago Litigation Practice With Former Federal Prosecutor

Fri, 29 May 2026 19:12:37 Z

Chicago – May 29, 2026 – Cooley today announced that Tom Peabody has joined the firm’s global litigation department in Chicago. He is the third former federal prosecutor, alongside Matt Kutcher and Tiana Demas, to join that office since its founding in 2021. Like Kutcher and Demas, Peabody brings considerable trial experience to Cooley’s commercial litigation and white collar defense and investigations practices.

“Since coming to Chicago in 2021, Cooley has sought to recruit only the best of the next generation to its litigation practice there, with an emphasis on former federal prosecutors who have substantial trial experience,” said Ian Shapiro, partner and chair of Cooley’s global litigation department. “We are confident that Tom also represents the best of Chicago’s next generation of trial lawyers, and we are looking forward to his emerging as one of the cornerstones of an elite Chicago litigation practice.”

Peabody clerked for Judge Amy J. St. Eve, first on the U.S. District Court for the Northern District of Illinois and then the U.S. Court of Appeals for the Seventh Circuit. In September 2020, he joined the U.S. Attorney’s Office for the Northern District of Illinois, and since July 2025, he has been its Deputy Chief for National Security and Cybercrime, leading and supervising grand jury investigations and trying cases to verdict relating to computer hacking, crypto-related offenses, sanctions evasion, export violations, terrorism, interstate threats, and state-sponsored and economic espionage.

“Cooley was the best place for me to return to private practice. It has national, top-tier talent, especially in its trial, white collar and national security groups,” said Peabody. “And equally importantly, Cooley has an unmatched platform of clients and business colleagues. I am excited and thankful for the opportunity to join the team.”

Cooley’s global litigation department includes more than 500 lawyers in the US and Europe and is the leading litigation department for the representation of technology, life sciences and other innovative companies.

Former SG Prelogar Discusses Tenure, First Supreme Court Argument as Private Lawyer

Fri, 29 May 2026 14:24:00 Z

Cooley partner Elizabeth Prelogar was featured in a Law.com profile highlighting her tenure as former US solicitor general, her return to Cooley, and preparation for her 36^th argument before the Supreme Court – her first as a private lawyer. Prelogar also shared her ambitions for the future and continued growth of the firm’s supreme court and appellate practice.

Read the article

Inside the Tireless Lives of Data Center Attorneys

Fri, 29 May 2026 14:14:25 Z

Cooley partner Mark Looney was quoted in a Law360 article about his personal experience as a lawyer working on data center deals. He spoke about representing data center companies in public hearing meetings that can exceed 24 hours – including one that lasted 27 hours in 2024 – and how he eases the tension during those hearings.

Read the article (subscription required)

Gray Media Purchased Two Television Stations from SagamoreHill Broadcasting

Thu, 28 May 2026 19:44:00 Z

Washington, DC – May 28, 2026 – Cooley advised Gray Media, one of the largest broadcast multimedia companies in the US, on its purchase of SagamoreHill Broadcasting’s WLTZ, the NBC affiliate for the Columbus, Georgia, market and KJTV, the FOX affiliate for the Lubbock, Texas. The deals closed in May 2026.

Cooley lawyers Maureen Nagle, Henry Wendel, Parker Erkmann and Jason Shefferman led the Cooley team advising Gray.

EOFlow Wins Federal Circuit Appeal Overturning $452 Million Jury Verdict

Thu, 28 May 2026 15:27:00 Z

Washington, DC – May 28, 2026 – Cooley secured a significant victory from the US Court of Appeals for the Federal Circuit for its client EOFlow, a medical device company that specializes in wearable and disposable drug delivery systems. The Federal Circuit’s decision overturns a $452 million jury verdict on trade secret claims (later reduced to $59.4 million) and vacates a permanent injunction that prohibited EOFlow from selling certain products worldwide.

In 2018, Insulet saw a prototype of EOFlow’s patch pump product at a trade show. Insulet delayed for more than five years before filing suit. From the outset of the litigation, Cooley argued the suit was untimely, but the district court advanced the case to trial, and Insulet initially won a $452 million jury verdict. The district court later reduced the award to $59.4 million, separately entering a permanent worldwide injunction against EOFlow’s sale of the allegedly infringing products. Cooley argued the appeal before the Federal Circuit on January 5, 2026.

On May 28, 2026, the Federal Circuit reversed the judgment that EOFlow was liable for misappropriating Insulet’s trade secrets. The court held that Insulet “knew or should have known of facts sufficient” to assert its claims long before it filed suit. The Federal Circuit’s ruling eliminates both the jury’s damages verdict and the court’s permanent worldwide injunction.

The case is Insulet Corp. v. EO Flow, Co. Ltd. before the US Court of Appeals for the Federal Circuit (No. 25-1807).

Read the opinion

The Cooley team representing EOFlow was led by partners Elizabeth Prelogar, Michael Sheetz, Betsy Flanagan, John Bostic, Lowell Mead, Reuben Chen, Alexandra Mayhugh and Sale Kwon.

SEC Proposes Sea Change in Compensation Disclosure Rules for All but Largest Issuers

Thu, 28 May 2026 07:00:00 Z

On May 19, 2026, the Securities and Exchange Commission (SEC) proposed sweeping changes to its current filing status rules – arguably the most significant overhaul in decades. The proposal is lengthy and intricate, and a full discussion of its provisions is beyond the scope of this alert, but certain of the changes would dramatically affect executive and director compensation disclosure and practice and warrant immediate attention. A separate May 22 Cooley alert addresses those noncompensation matters.

SEC rules currently set forth five filer statuses that correspond to varying levels of disclosure and other requirements. The proposed rule essentially would provide for only two categories: large accelerated filers (LAFs) and nonaccelerated filers (NAFs), which would be defined simply as all filers that are not LAFs.

While the proposed LAF status determination is complex and beyond the scope of this alert, LAF status generally would be limited to those companies with at least $2 billion in public float, which would encompass a limited number of companies but, per the SEC, 93.5% of the current total market public float. According to the SEC, the percentage of LAFs would decrease from 35.4% of issuers to 19.2%.

From an executive and director compensation perspective, the most important feature of the proposal is that all NAFs (exclusive generally of asset-backed issuers and foreign private issuers) would become entitled to both:

The scaled (i.e., reduced) compensation disclosure requirements presently applicable under Regulation S-K Item 402 to smaller reporting companies.
The special exceptions from compensation disclosure and related requirements presently applicable to only emerging growth companies.

According to the SEC, the percentage of issuers entitled to scaled disclosure relief would increase from 44% to 81% of registrants. The ability to rely on the scaled compensation disclosure is a significant advantage. Among other things, there is no requirement for a Compensation Discussion & Analysis or CEO pay ratio disclosure, disclosure is generally required for only three executives (not five) and for only two years (not three) of historical compensation, and certain compensation tables (such as the grants of plan-based awards table, pension benefits, option exercises, and stock-vested and nonqualified deferred compensation tables) may be omitted. Perhaps more importantly, NAFs would be entitled to the compensation-related accommodations presently afforded to emerging growth companies. That relief would exempt NAFs from the requirement to hold shareholder advisory votes on executive compensation (“say on pay”), the frequency of say-on-pay votes, golden parachute compensation in connection with mergers and acquisitions, and the “pay versus performance” disclosure under Regulation S-K 402(v).

It is worth noting that this relief being proposed by the SEC aligns closely with comments offered by Cooley as part of the SEC’s ongoing review of executive compensation disclosure requirements initiated at its roundtable on June 26, 2025 – one of the few comment letters focused primarily on the reporting burdens shouldered by smaller companies.

A long road remains ahead before the SEC’s issuance of final rules (if any), and there is no certainty as to what any final rule will contain, or whether the final rules will be effective for the 2027 proxy season. We urge companies to voice their views on this SEC proposal and loudly support the long overdue simplification of the compensation disclosure requirements and an easing of the compliance burdens those requirements impose.

Any company that is not now (or will not remain) eligible for the relief afforded to emerging growth companies (exclusive of companies that will remain LAFs under the proposed rule) stands to benefit if the proposed rule is adopted. Moreover, there is now an opportunity to persuade the SEC to expand the proposed relief even further.

Comments on the proposed rule should be delivered to the SEC no later than July 20, 2026. Cooley’s compensation and benefits group is available to assist with the preparation of comments and otherwise address any questions you may have about the SEC proposal and how it might affect your company’s executive and director compensation obligations.

How Should In-House Teams Adopt AI? ‘Carefully’, Says Secrets Expert

Wed, 27 May 2026 19:45:36 Z

Ahead of WIPR Trade Secrets West, Cooley partner Heidi Keefe participated in a Q&A addressing the issues in-house counsel should consider when using artificial intelligence (AI) and how to protect trade secrets.

Read the article (subscription required)

The conference takes place Thursday, May 28, 2026, in San Jose, California. Keefe will moderate a panel “Future-Proofing Trade Secrets: Generative AI Risks, Liabilities & Legal Frontiers.”

Top Intellectual Property Lawyers 2026

Wed, 27 May 2026 19:40:33 Z

The Daily Journal recognized Cooley partners Heidi Keefe and Chad Shear on its Top Intellectual Property Lawyers list that honors California’s top 100 performing attorneys in patent litigation, trademark and copyright law.

Read Keefe’s profile (subscription required)

Read Shear’s profile (subscription required)

Curevo Vaccine to be Acquired by Eli Lilly for up to $1.5 Billion

Tue, 26 May 2026 20:42:00 Z

Cooley advised Curevo Vaccine, a clinical-stage biotechnology company dedicated to developing varicella zoster virus (VZV) vaccines with improved tolerability, on its proposed acquisition by Eli Lilly and Company for up to $1.5 billion.

The transaction was announced publicly in the following press release, which can be viewed here.

Lead team: Bill Roegge, Lindsey O’Crump Crow, Jamie Leigh, Colleen Badgley, Sonya Erickson, Jane Adams, Mike Tuscan, Sarah Buchik, and Phoebe Huang led the Cooley team advising Curevo.

Supporting team: Jordan Phelan, Amarantha Zaniker-Gomez, Joe Honeycutt, Nancy Kyei, Stephanie Gentile, Michael Bergmann, Alison Freeman-Gleason, Navya Dasari, Patrick Sharma, Alexander Ellebracht, Nathan Alamillo, Yasmine Ebrat and Jennifer Fuentes provided invaluable support.

Cooley previously advised Curevo Vaccine on its $60 million Series A financing (2022) and its $110 million Series B financing (2025).

Vaccine Company to be Acquired by Eli Lilly for up to $1.5 Billion

Tue, 26 May 2026 14:48:15 Z

Cooley advised Vaccine Company, a privately held pre-clinical-stage biotechnology company developing next-generation vaccines for infectious diseases, on its agreement to be acquired by Eli Lilly for up to $1.5 billion.

The transaction was announced publicly in the following press release, which can be viewed here.

Lead team: Rama Padmanabhan, Mark Weeks, Allison Peth, Jenny Ge, Jane Adams, Madhuri Roy and Alessandra Murata led the Cooley team advising Vaccine Company.

Supporting team: Megan Browdie, Stella Sarma, Nicollette Kirby, Rena Kaminsky, Ross Eberly, Andrew Epstein, Todd Gluth, Amanda Pacheo, Tony Guan, Breanna Qin, Joanna Zhang, Brionne Frazier and Elaine Huang provided invaluable support.

SEC Proposes Simplified Filer Status Rules and Expanded Disclosure Accommodations

Fri, 22 May 2026 07:00:00 Z

On May 19, 2026, the Securities and Exchange Commission (SEC) proposed amendments to substantially simplify its domestic public company filer status framework and extend existing scaled disclosure and other accommodations, including an exemption from auditor attestation requirements, to more public companies.

If the amendments are adopted as proposed, the SEC estimates that approximately 80% of current public companies would be eligible for less burdensome disclosure requirements. Many small- and mid-cap companies stand to benefit, but so do investors to the extent that these accommodations contribute to companies choosing to go or stay public. The SEC estimates that affected companies represent only 6.5% of total market public float, which means that companies representing the bulk of investor assets would continue to provide the most fulsome level of disclosure. With this proposal, the SEC is seeking to simplify and recalibrate the public company reporting framework so that more companies go and stay public, creating more investment opportunities and improving transparency for the market as a whole.

The proposal would eliminate the current rubric of overlapping filer categories – large accelerated filer (LAF), accelerated filer (AF), non-accelerated filer (NAF), smaller reporting company (SRC) and emerging growth company (EGC) – and replace it with two primary reporting categories under the Securities Exchange Act of 1934, as amended (Exchange Act): LAF and NAF. The NAF designation would provide significant scaled disclosure accommodations, in line with what is currently available to SRCs and EGCs, to the vast majority of public companies, and would relieve them from the obligation to obtain an independent auditor’s attestation on internal control over financial reporting (ICFR) under Section 404(b) of the Sarbanes-Oxley Act (SOX).

Background

Under the existing framework, public companies can be simultaneously assigned to multiple overlapping status categories – LAF, AF, NAF, SRC and EGC – each carrying distinct thresholds and disclosure consequences that do not cleanly integrate across categories. The current LAF threshold is a public float of $700 million or more. A separate SRC category accommodates companies with a public float below $250 million or annual revenues below $100 million and public float below $700 million. The proposal would substantially simplify this structure while materially raising the eligibility threshold for the more demanding LAF disclosure and attestation requirements.

Proposed amendments

The proposal would make the following principal changes to the filer status framework:

Increase LAF public float threshold to $2 billion. The threshold for becoming an LAF would increase from a public float of $700 million to $2 billion. Public float would be calculated based on the number of shares outstanding on the last day of the second quarter of a company’s fiscal year using the average stock price over the last 10 trading days of the second fiscal quarter, rather than a single measurement date.
Enhance filer status stability and predictability. A company would not transition into or out of LAF status unless the $2 billion threshold is met, or not met, for two consecutive years. A single one-year swing in public float would not affect a company’s filer status.
Provide a five-year on-ramp for all newly public companies. A company, regardless of public float size, would need at least 60 consecutive calendar months of Exchange Act reporting history before transitioning to LAF status. This change would effectively create a minimum five-year on-ramp for every new public company, regardless of public float, which builds on existing EGC accommodations.
Eliminate AF and SRC categories. The “accelerated filer” and “smaller reporting company” designations would be eliminated as distinct regulatory classifications. EGC status, which is a statutory category, would be retained; however, all companies, including EGCs, that are not LAFs would become NAFs.
Extend ICFR auditor attestation exemption to more public companies. All companies that are not LAFs would be NAFs, resulting in a decrease in the number of public companies that would be required to obtain an independent auditor’s attestation on ICFR under Section 404(b) of SOX. Management’s annual ICFR assessment under Section 404(a) and existing financial statement audit requirements would continue to apply to NAFs.
Extend scaled disclosures to all NAFs. The proposal would extend to all NAFs the accommodations currently available to SRCs, along with certain EGC accommodations, including:
- Two years of financial statements (with reduced presentation requirements) and management’s discussion and analysis (MD&A), rather than three for LAFs.
- Scaled executive compensation disclosure, including no compensation discussion and analysis (or related compensation committee report), pay ratio or pay-versus-performance disclosure; only three named executive officers (rather than five for LAFs); and only two years of summary compensation table information (rather than three for LAFs).
- Exemption from say-on-pay and say-when-on-pay shareholder advisory votes, as well as golden parachute compensation in connection with mergers and acquisitions.
- Risk factors and market risk disclosure not required in periodic reports.
- Exemption from the requirement that the compensation committee conduct an independence assessment before engaging any compensation adviser.
Eliminate more rigorous related-person transaction disclosure requirements applicable to SRCs. Currently, Item 404(d) of Regulation S-K provides, among other things, a different, more rigorous threshold for disclosure by SRCs of the lesser of $120,000 or 1% of the average total assets at year-end for the last two fiscal years when determining reportable transactions with related persons under Item 404(a). The proposal would eliminate Item 404(d) so that all reporting companies would be subject to the same related-person transaction disclosure requirements under Item 404(a).
Create new “small non-accelerated filer” (SNF) subcategory. A new SNF subcategory for NAFs with total assets of $35 million or less as of the end of each of their two most recent second fiscal quarters would benefit from extended filing deadlines: 120 days for Form 10-K (rather than 90 for other NAFs) and 50 days for Form 10-Q (rather than 45 for other NAFs).
Establish universal disclosure of material unresolved staff comments. The proposal would extend to all registrants, including NAFs, the obligation to disclose material unresolved SEC staff comments in annual reports where specified conditions are met, a requirement currently applicable only to AFs, LAFs and well-known seasoned issuers. In proposing this change, the SEC noted that as its contemporaneous proposed reforms to the securities offering process would make the ability to conduct shelf offerings – which often incorporate by reference information from the issuer’s reports – available to significantly more issuers, including NAFs, investors should be aware of the substance of any material unresolved comments.

The proposal would not expressly change:

Annual requirement to analyze filer status. Companies would continue to assess filer status annually, as of the last day of their fiscal year.
Requirements for audited financials and annual ICFR assessment. As noted under the proposal, NAFs would remain subject to the SEC’s rules under Section 404(a), which require management to establish, state its responsibility to establish and maintain, and provide its assessment of, the company’s ICFR. NAFs would also continue to be required to obtain a financial statement audit by a registered public accounting firm in which the auditor is required to obtain an understanding of ICFR as part of its risk assessment procedures.
EGC status. The proposal does not alter the statutory designation for EGC status. However, relying on the EGC designation to unlock discrete accommodations would become less relevant, because the proposal would extend most EGC accommodations to NAFs.
EGC confidentiality privileges. The SEC does not have authority to extend the statutory confidentiality privilege under Section 6(e)(2) of the Securities Act, which allows EGCs to exclude nonpublic draft registration statements and related correspondence from being produced in response to Freedom of Information Act requests. Non-EGC NAFs can continue to use Rule 83 procedures for confidential treatment of draft registration statements.

Who would be affected

The proposal would affect all domestic public companies currently filing periodic reports with the SEC and companies planning an initial public offering (IPO). The benefits would be most apparent in three scenarios:

The mid-cap “step down”: Companies presently classified as AFs (public floats between $75 million and $700 million), and companies classified as SRCs, EGCs, and many companies with public floats between $700 million and $2 billion presently classified as LAFs, would transition to NAF status if the proposal is adopted as drafted – in many cases gaining access to scaled disclosures and relief from the Section 404(b) auditor attestation requirement not currently available to them.
The large-cap IPO: Newer public companies with fewer than 60 months of Exchange Act reporting history would be NAFs regardless of public float size – a meaningful change for large-cap issuers that have recently completed IPOs.
The SNF: A company with $35 million or less in total assets (tested over its two most recent second fiscal quarters) would gain breathing room for periodic report deadlines.

The SEC indicated that if the proposed amendments were in place today, 19.2% of current public companies would be LAFs (compared to 35.4% currently), and 80.8% would be NAFs. A total of 17.9% of public companies (or 22.2% of NAFs) would be small NAFs.

The following categories of issuers would generally be excluded from the LAF/NAF framework under the proposal:

Asset-backed issuers, which are subject to the separate Regulation AB regime.
Foreign private issuers using FPI-specific forms, such as Form 20-F, for whom existing thresholds would generally remain in place (the $75 million public float threshold for the ICFR auditor attestation under Form 20-F is proposed to remain, absent EGC status).

Open questions and areas for comment

The proposal raises several interpretive and policy questions on which the SEC has invited comment, and that may attract significant attention from practitioners and issuers, including:

Whether the proposed $2 billion LAF threshold and the two-year and 60-month eligibility criteria are appropriately calibrated.
Whether there should be a mechanism for automatically adjusting the $2 billion LAF threshold, and, if so, what the mechanism should be.
How the transition framework should operate for companies currently occupying intermediate categories, including AFs.
Whether the broad extension of scaled disclosures to NAFs is appropriate given the simultaneous elimination of the SRC category.
Whether further conforming amendments are warranted with respect to foreign private issuers.
Whether to add an accommodation for special purpose acquisition companies (SPACs) that would permit a new seasoning period to begin when a business combination between a SPAC and a private operating company occurs.
The appropriate boundary conditions and measurement dates for the SNF subcategory.
How NAFs should practically implement the expanded material unresolved staff comment disclosure obligation.

Observations and commentary

If the SEC’s proposal is adopted, many existing public companies will become eligible for scaled disclosure accommodations that were not previously available to them, and newer public companies will benefit from an extended reporting on-ramp. If adopted, some potential impacts could include:

Consideration of voluntary auditor attestation. Depending on the investor profile, companies that are no longer subject to the ICFR auditor attestation may consider voluntarily obtaining an ICFR auditor attestation to enhance the reliability of management’s assessment of ICFR and improve the reliability of financial statements. Investors may still view the auditor’s attestation as enhancing the quality of financial statements, which investors rely on in making investment and voting decisions.
Adverse recommendations for compensation committee members. Currently, in general, if a company includes a shareholder advisory say-on-pay vote, Institutional Shareholder Services (ISS) addresses its compensation-related recommendations to that proposal. However, if there is no say-on-pay proposal on the ballot, any adverse recommendations related to executive compensation are typically applied to compensation committee members. Without a say-on-pay proposal on the ballot for NAFs, more public company compensation committee members may find themselves subject to adverse recommendations related to executive compensation.
Modeling compliance costs for newly public companies. Presently, a new public company could become an LAF after being an Exchange Act reporting company for 12 calendar months, thereby providing a new public company very little time to prepare for the additional requirements. A five-year on-ramp for every new public company, regardless of public float, would greatly help companies model the increased costs for company personnel, third-party advisors or service providers required to comply with nonscaled disclosure requirements, accelerated reporting deadlines and ICFR auditor attestation.
Impact on SNFs. Although the extended filing deadlines proposed for SNFs would alleviate some timing pressure, the proposed deadlines could result in SNFs filing their 10-K, proxy statement and first quarter 10-Q within days of each other. SNFs may therefore still choose to file earlier than the extended deadline (or opt into semiannual reporting if semiannual reporting rules go into effect as proposed) to avoid managing concurrent workstreams.

Next steps

Comments on the proposed amendments should be received on or before July 20, 2026. Public companies, underwriters, auditors and other market participants with views on the proposal’s scope, thresholds or transition mechanics should consider whether to submit comments during that period.

If adopted as proposed, the transition framework would require existing registrants to make an initial LAF/NAF status determination keyed to the fiscal year before the effective date of any final rules. The availability of NAF scaled disclosures, and SNF extended filing deadlines where applicable, would generally commence with the first filing following the effective date of the final rules and completion of that initial assessment. The proposing release provided the following examples:

Assuming an August 1, 2027, effective date, if a calendar year-end registrant had public float of $2 billion or more for 2026 and 2025 (determined at the end of each of its second fiscal quarters for 2026 and 2025, respectively), and if it had been a reporting company for at least 60 consecutive calendar months as of December 31, 2026, then it would continue as an LAF, and would continue to be required to comply with the reporting requirements for LAFs in its next Securities Act or Exchange Act filing after the initial filer status assessment was performed.
On the other hand, if the calendar year-end registrant were an LAF before effectiveness of final rules on August 1, 2027, but would not meet either the proposed public float or the seasoning requirement for LAF status as of December 31, 2026 (i.e., because its public float at the end of either of its two most recent second fiscal quarters was less than $2 billion and/or it had not met the 60-calendar month seasoning requirement), the reporting company could conduct its assessment as early as August 1, 2027, at which point it would become an NAF, and could begin scaling its disclosure and availing itself of the other accommodations available to NAFs beginning with its next Securities Act or Exchange Act filing made after the initial filer status assessment was completed. If this registrant had total assets of $35 million or less as of the end of each of its two most recent second fiscal quarters before December 31, 2026 (i.e., June 30, 2026, and June 30, 2025), then it would be an SNF, and could begin availing itself of the longer reporting deadlines for SNFs with its next periodic filing (i.e., the Form 10-Q for the fiscal quarter ended September 30, 2027).

Companies should consider modeling their likely status under the proposed rules, in order to anticipate changes to procedures and budgets if the rules are adopted. Companies should monitor the rulemaking for further developments and are encouraged to provide feedback on the proposal.

Cooley’s corporate governance and securities regulation attorneys are available to discuss these issues. Reach out to your existing Cooley contact or email the Cooley capital markets team.

HawkEye 360 Enters Into $125 Million Revolving Credit Facility

Thu, 21 May 2026 18:37:00 Z

Chicago – May 21, 2026 – Cooley advised HawkEye 360 (NYSE: HAWK), the global leader in signals intelligence data and analytics, on a $125 million revolving credit facility maturing in May 2031.

Partner Addison Pierce and associate Charles Watkins led the Cooley team advising HawkEye 360, with assistance from William Corcoran, Eileen Marshall, Karen Tsai and Patrick Sharma.

Cooley previously advised HawkEye 360 on its $416 million initial public offering in May 2026 and the completion of its acquisition of Innovative Signal Analysis, supported by equity and debt financings totaling $150 million in December 2025.

Cooley Bolsters New York Fund Formation Practice With Key Tax Hire

Thu, 21 May 2026 16:00:00 Z

New York – May 21, 2026 – Jon Brose has joined Cooley as a partner in the firm’s tax practice in New York, further strengthening the firm’s tax capabilities for its fund clients.

Brose brings deep experience advising investment funds and their sponsors on the tax aspects of fund formation and ongoing operations. His practice focuses on management entity and fund structuring, seeding arrangements, partnership and international tax issues, compensation arrangements, and transactional matters across the life cycle of investment funds. He joins Cooley from Cadwalader, where he was a partner in the tax group.

“We are excited to welcome Jon to Cooley,” said John Clendenin, partner and chair of Cooley’s global fund formation practice. “Jon’s experience advising investment managers on fund formation and operational tax matters makes him an excellent fit for our platform. As demand continues to grow from sponsors navigating increasingly complex tax and structuring considerations, Jon’s background will be a valuable resource for our fund formation clients.”

Brose has spent significant time advising investment management clients on fund-related matters, building a strong foundation in the tax issues most relevant to sponsors and managers. He has experience across a range of investment strategies and asset classes, including private equity, venture capital, credit, distressed assets, commodities, cryptocurrencies, and real estate, and he works closely with clients to deliver practical, business-oriented tax advice. Brose has received consistent industry accolades for his tax practice, including recognition from The Legal 500 US as a leading practitioner.

“I’m excited to join Cooley and focus my practice on supporting investment managers and fund sponsors,” said Brose. “Cooley’s market-leading fund formation platform and collaborative approach provide an ideal environment to work with clients as they build, grow and manage their funds.”

Cooley’s fund formation practice provides primary counsel to more than 950 investment fund organizations. The practice’s deep bench of 60+ lawyers has helped support $120 billion+ in committed capital in closings over the past five years. Its client investments span the US, China, Europe, India, Vietnam, Singapore, Israel, South America and elsewhere. The group formed the first venture capital limited partnership in the western US and has been active in China for four decades and in India for three. The team advises on every type of fund formation, including private equity, venture capital, hedge funds, fund of funds, evergreen, growth equity and other managers at all states and sizes, from individual angel funds to billion-dollar investment funds.

Cooley’s tax practice provides strategic life cycle tax advice and counseling at every stage of a client’s business. The firm handles sophisticated cross-border transactional tax structuring and annually advises on 2,500+ transactions with complex tax considerations for more than 3,000 clients across technology, life sciences, energy, telecommunications, real estate and other industries. The team focuses on all aspects of US and UK tax law and includes lawyers regularly ranked in The Legal 500 US and UK, Chambers US and UK, and Best Lawyers.

Antitrust Suits Spread Through Fertilizer Industry

Thu, 21 May 2026 15:38:31 Z

Cooley partner Dee Bansal was quoted in a Law.com article about how the surge of antitrust lawsuits against fertilizer companies was likely influenced by reports of a government investigation. Bansal cautioned that these cases could become lengthy and costly, and noted that the filings can serve as a reminder for companies about the importance of maintaining a strong antitrust compliance program.

Read the article (subscription required)

Europe’s New Tech-Licensing Rules: Evolution, Not Revolution

Thu, 21 May 2026 14:20:00 Z

On May 1, the European Union’s revised Technology Transfer Block Exemption Regulation (TTBER) and accompanying Technology Transfer Guidelines came into force. The new rules replace a framework that had been in place since 2014 – an eternity in technology markets. Four years of review and public consultation by the European Commission have produced something that is less a bonfire of the old rules than a careful spring cleaning. The 2026 reform does not rewrite the underlying competition-law logic. Rather, it updates the legal scaffolding that applies it.

In Brussels jargon, technology transfer agreements are those by which a licensor authorizes a licensee to use certain technology rights to produce goods or services. Most such deals are benign, simply spreading technology and spurring research. The TTBER accordingly grants a “block exemption” from the prohibition on competition-restrictive agreements in Article 101(1) of the Treaty on the Functioning of the European Union (TFEU), on the assumption that qualifying agreements meet the efficiency criteria of Article 101(3). Yet, this is no carte blanche. Licensing agreements that fail to satisfy specified conditions, or that contain “hardcore” restrictions, fall outside the exemption – exposing their parties to the risk of severe quasi-criminal fines and civil damages.

The new Technology Transfer Guidelines flesh out how the TTBER should be interpreted and how agreements falling outside it should be assessed. The main changes fall into four areas:

Data licensing: Data encompassed by in-scope rights fall within the TTBER, while Data Act-mandated sharing receives Article 101 comfort.
Market share thresholds: Nascent technologies attributed zero share, and the grace period for threshold breaches increases from two to three years.
Technology pools: Tighter disclosure duties, a new anti-double-dipping rule and an explicit fair, reasonable and nondiscriminatory (FRAND) obligation on pool-granted licenses are imposed.
Licensing negotiation groups: In first-ever EU guidance, a line is drawn between pro-competitive collective bargaining and buyer cartels, though no formal safe harbor is offered.

Data: the elephant in the (server) room

The TTBER covers the licensing or assignment of know-how, patents, utility models, design rights, topographies of semiconductor products, supplementary protection certificates, plant breeder’s certificates and software copyrights. Data licensing agreements, however, were conspicuously absent from the 2014 rules – even as they became ubiquitous in practice.

In the public consultation, stakeholders clamored for guidance while simultaneously warning against a blanket extension of the TTBER to all data licensing – a reflection of the sheer diversity of data types in play. The Commission has threaded the needle. Under the new guidelines (Section 3.3.2), data that qualifies as an existing technology right – production know-how, for instance – falls squarely within the TTBER. Databases protected by copyright or the database sui generis right, being the closest analogues to covered technology rights, will be assessed by analogy with the TTBER’s principles. All other data licensing must be analyzed case by case.

Two further clarifications are worth noting. Information exchanged in the context of database licensing will often not restrict competition “by object” within the meaning of Article 101 of the TFEU. However, exchanges that go beyond what is objectively necessary and proportionate will be scrutinized under the Commission’s Guidelines for Horizontal Co-operation Agreements. And data-sharing agreements mandated by Chapter II of the Data Act will generally be treated as compliant with Article 101 – unless they serve as a fig leaf for hardcore restrictions such as price-fixing or customer allocation.

Market shares: less guesswork, more grace

The TTBER’s safe harbor depends on the parties not exceeding certain market-share thresholds. For competitors, the combined share must stay below 20% on any relevant technology or product market; for noncompetitors, each party’s share must remain below 30%. That’s simple enough in theory – but in practice, calculating shares in technology markets can be devilishly difficult.

Stakeholders told the Commission as much during the consultation, prompting three targeted fixes. First, the TTBER (recital 13) now confirms that technologies which have not yet generated sales of contract products hold a market share of “zero” – a welcome reduction in uncertainty for early-stage and nascent technologies. Second, the TTBER (Article 8(d)) and Technology Transfer Guidelines (Section 3.3.2) provide further methodological guidance on how to calculate technology market shares in the first place. Third, and perhaps most practically significant, the “grace period” during which the block exemption continues to apply after shares breach the thresholds has been extended from two to three years (Article 8(e)). That extra year offers a useful buffer where market shares fluctuate on the back of new technology launches.

Technology pools: tightening the soft safe harbor

Technology pools – arrangements in which two or more parties assemble a package of technology rights for licensing to contributors and third parties alike – sit outside the TTBER itself. But the Technology Transfer Guidelines have long offered a steer for assessment, including a “soft safe harbour” for pools meeting certain conditions. In the consultation, stakeholders broadly endorsed the existing guidance but grumbled that some conditions were too vague.

The revised guidelines (Section 4.4) respond with three sharpened requirements. Pools must now effectively disclose to licensees both the individual rights included and the methodology used to assess their essentiality – though there is no obligation to evaluate every single patent in the bundle. A new “double-dipping” prohibition ensures licensees are not charged twice for the same technology (once under a bilateral license with an individual right holder and again under the pool license). And the existing FRAND condition has been tightened to make explicit that it applies to licenses granted by the pool itself, closing what was seen as an awkward gap in the prior wording.

Licensing negotiation groups: new kids on the block

Licensing negotiation groups (LNGs) – arrangements whereby technology implementers band together to negotiate license terms collectively – are the genuinely novel element of the 2026 package. The 2014 guidelines said nothing about them, for the simple reason that none were known to exist at the time. (The Commission issued its first informal guidance letter on the subject only in July 2025, in relation to the Automotive Licensing Negotiation Group).

The new guidelines (Section 4.5) now provide a framework for assessing these creatures. On the pro-competitive side, LNGs can reduce transaction costs and produce more balanced, better-informed negotiations. On the anticompetitive side, they risk exercising excessive purchasing power to drive royalties below competitive levels, facilitating downstream coordination among participating implementers or foreclosing third-party implementers.

Crucially, the Commission draws a line between genuine LNGs and buyer cartels. Groups that operate transparently, disclose their membership and confine themselves to negotiating license terms will generally not be found to restrict competition “by object.” The guidance identifies specific risk-reduction measures that LNGs can adopt – relating to market power, scope of activity and information barriers – to stay on the right side of Article 101.

Notably, the Commission chose not to offer a formal safe harbor for LNGs. Its reasoning is candid: With so little enforcement experience, prescriptive conditions risked either failing to capture genuine concerns (under-enforcement) or deterring pro-competitive arrangements (over-enforcement). The substance of what might have been safe-harbor conditions has instead been folded into the risk-reduction guidance – a pragmatic hedge.

The bottom line

The 2026 package, then, is a measured refinement rather than a rethink. The core architecture – block-exemption conditions, hardcore restrictions, individual assessment principles – remains intact. What has changed is the scaffolding surrounding it, updated to reflect a world of data licensing, fluctuating technology markets and collective negotiation that the 2014 drafters could not fully have foreseen. Companies with technology licensing agreements touching the EU market would do well to review them against the full updated framework. The consequences for getting it wrong have not become any less severe.

EEOC Proposes to Eliminate EEO-1 Reporting

Thu, 21 May 2026 07:00:00 Z

On May 14, 2026, the Equal Employment Opportunity Commission (EEOC) submitted a proposed rule to the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) titled, “Rescission of EEO-1, EEO-2, EEO-3, EEO-4, EEO-5, and reporting requirements under Title VII, the ADA, GINA, and the PWFA.” If finalized, this could eliminate the annual EEO-1 workforce demographic filing familiar to many large employers. The proposed rule would also eliminate EEO reports currently required by certain labor unions, state and local governments, and school systems.

A requirement since 1966, the EEO-1 Component 1 report is a mandatory annual data collection that requires all private-sector employers with 100 or more employees, and federal contractors with 50 or more employees meeting certain criteria, to submit workforce demographic data, including data by job category and sex and race or ethnicity, to the EEOC. The latest proposal follows a reporting change made last year, in which the Trump administration eliminated the optional reporting of nonbinary employee data pursuant to the January 20, 2025, Executive Order 14168 “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”

Notably, the elimination of EEO-1 data reporting was recommended in Project 2025’s policy playbook, which called for rescinding the collection, noting that, “[c]rudely characterizing employees by race or ethnicity fails to recognize the diversity of the American workforce and forces individuals into categories that do not fully reflect their racial and ethnic heritage.” Current EEOC Chair Andrea Lucas also warned employers that they may not use the information collected and reported in their organization’s EEO-1 report to justify treating employees differently based on their race, sex or other protected characteristics.

What this means

The submission of a proposed rule is an early step in a longer process. Under Executive Order 12866, OIRA has up to 90 days (which may be extended) to review a proposed rule. After OIRA concludes the review, the proposed rule will be published in the Federal Register for a review and comment period.

As these administrative processes will take time, employers covered by the EEO-1 reporting obligations should continue preparing for the next filing cycle and monitor for further updates to the pending proposal. If federal EEO-1 reporting is ultimately rescinded, states may seek to fill the gap by imposing their own workforce demographic data collection and reporting requirements, potentially creating a patchwork of compliance obligations for multistate employers.

Trade Court Rejects Section 122 Tariffs, Appeal Pending

Thu, 21 May 2026 07:00:00 Z

The US Court of International Trade (CIT) recently held in a split decision that the Trump administration’s imposition of a 10% global tariff, effective February 24, 2026, under Section 122 of the Trade Act of 1974 was “invalid” and “unauthorized by law.” While the CIT issued a permanent injunction prohibiting the collection of further Section 122 duties (and the government did not contest that the CIT could order reliquidation of entries and refunds after a final, unappealable decision), that relief was limited to plaintiff importers who paid the challenged tariffs. The CIT declined to issue universal injunctive relief. The US Court of Appeals for the Federal Circuit has since temporarily stayed the judgment, meaning the tariffs remain in effect for the importer plaintiffs for now, pending further ruling by the appellate court.

The CIT’s ruling, the Federal Circuit’s stay and practical implications

After the US Supreme Court held that the tariffs imposed under the International Emergency Economic Powers Act (IEEPA) were unauthorized in February 2026, the administration immediately imposed a new global 10% tariff on most imported goods, invoking Section 122 of the Trade Act of 1974, which authorizes the imposition of tariffs to address “large and serious United States balance-of-payments deficits,” among other specified circumstances. A coalition of states and private importers challenged this executive action.

The CIT held that the tariffs exceeded the scope of the statute but limited injunctive relief to plaintiffs who imported goods subject to Section 122 tariffs. The CIT enjoined the government from collecting Section 122 tariffs solely with respect to these plaintiffs. The CIT declined to enter a universal injunction. The ruling was divided, with a dissenting judge arguing that the tariffs were lawfully imposed pursuant to authority delegated by Congress.

Shortly thereafter, the government appealed the CIT’s decision, and the Federal Circuit issued a temporary stay while it decides whether to issue a broader stay pending resolution of the government’s appeal. The CIT’s ruling and Federal Circuit’s stay underscore the rapidly evolving landscape and leave open questions regarding the relief available and steps affected entities must take to preserve their rights to a potential refund of Section 122 tariffs.

If you have any questions concerning this ruling or its potential implications, please reach out to your Cooley contact or one of the lawyers listed below.

SiTime Corporation Announces Upsized $1.35 Billion Convertible Senior Notes Offering

Wed, 20 May 2026 20:05:00 Z

San Francisco – May 20, 2026 – Cooley advised SiTime Corporation (Nasdaq: SITM), the Precision Timing company, on its upsized registered underwritten public offering of $1.35 billion aggregate principal amount of 0% convertible senior notes due 2031, which includes the full exercise of the underwriters’ option to purchase an additional $150 million aggregate principal amount of notes.

Lawyers Mischi a Marca, Jason Savich, Allison Pang and John McKenna led the Cooley team advising SiTime.

Socket Raises $60 Million Series C at $1 Billion Valuation

Wed, 20 May 2026 15:02:00 Z

San Francisco – May 20, 2026 – Cooley advised Socket, a cybersecurity platform that protects companies from software supply chain attacks, on its $60 million Series C at a $1 billion valuation, bringing its total funding to $125 million. Thrive Capital led the round, with participation from Andreessen Horowitz, Abstract Ventures and Capital One Ventures.

Lawyers Kevin Rooney, Ben Lima, Jessica Dallas, Alice Wu and Sharon Connaughton led the Cooley team advising Socket.

Cooley previously advised Socket on its $40 million Series B financing in October 2024.

Engage Bio Acquired by Eli Lilly for up to $202 Million

Wed, 20 May 2026 12:28:40 Z

Cooley advised Engage Bio, a preclinical biotechnology company pioneering non-viral DNA delivery, on its acquisition by Eli Lilly for up to $202 million in cash, including an upfront payment and subsequent payments upon achievement of specified development milestones.

The transaction was announced publicly in the following press release, which can be viewed here.

Lead team: Charity Williams, Lindsey O’Crump, Mika Mayer and Lauren Creel led the Cooley team advising Engage Bio.

Supporting team: Nitasha Bennett, Alessandra Murata, Josh Himmelstern, Allie Pilmer, Camille Awono, Emily Ianarelli, Ross Eberly, Jonathan Rivinus, Freddy Yip, Stacey Bradford, Megan Browdie, Paula Fleckenstein, Tony Guan, Andrew Epstein, Morgan Perna and Karen Tsai provided invaluable support.

Cooley Extends Run as #1 Ranked Global, US Advisor to Venture-Backed Companies

Tue, 19 May 2026 19:56:01 Z

Palo Alto – May 19, 2026

Cooley was again named the #1 law firm in the US and globally for representing companies raising venture capital, according to PitchBook’s Q1 2026 Global League Tables – a ranking the firm has held for more than six consecutive years. In addition, LSEG’s Global Private Equity & Venture Capital Review for Q1 2026 named Cooley the #1 firm for representing companies raising venture capital based on deal count, as well as the #1 law firm for venture capital firm representations based on overall deal count and overall deal value.

PitchBook also recognized Cooley as the leading life cycle firm, evidenced by its #1 ranking for deals overall in the US and globally based on representations of companies in the combination of venture capital financings, initial public offerings (IPOs), M&A and private equity transactions.

Cooley was #1 in the PitchBook year-end rankings for overall representations in VC financings across several industry sectors, including pharmaceuticals and biotech, healthcare services & systems, IT hardware, and consumer goods & services.

The firm also landed atop PitchBook’s lists for venture deal volume in multiple regions across the US, including the Great Lakes, Mountain and Midwest regions, and was second-most active in the West Coast, New England, Mid-Atlantic states, South and Southeast regions. Cooley was also #1 in the UK and Ireland PitchBook rankings and was second-most active across Europe.

Cooley is the go-to advisor to innovators and disruptors, helping turn great ideas into great companies. We are one of the most active firms globally in advising on early- and late-stage financings, IPOs and M&A, combining our multidisciplinary platform with efficient, tech-enabled resources designed to provide clients with premium counsel through each stage as they scale. Cooley is deeply connected in the venture ecosystem, working with startups, boards, management teams and investors to support more than 7,000 high-growth private companies reshaping the global economy. Our distinctive approach to client relationships, proactive problem-solving and team collaboration ensures clients have a legal partner to take their business to the next level.

Hallmarks of Cooley’s commitment to innovation include Cooley GO, a platform offering easy-to-navigate resources and document generators to help startups grow their businesses; IPO GO, an interactive resource designed specifically for executives, legal teams and finance professionals preparing to go public; and Cooley Protect, a resource providing companies the information they need to make informed decisions about patent protection and strategy.

Media RSS Feed

Washington’s CEMA Amendments Take Effect June 11 – What Consumer-Facing Companies Should Know

Background: The litigation wave

What the 2026 amendments change

Warning: The pre-June 11 filing surge

Geographic reach: Risk is not limited to businesses in Washington

Practical risk mitigation: What companies should do now

We’re here to help

European Union: The Single Market’s Invisible Borders

Borders without barriers? Not quite

Are trustbusters not enough? Not always

A bandwagon gathers speed

Four ways to fill the gap

Brace for impact

PhysicsX Raises $300 Million Series C

Cooley Features Among Forbes’ Top Women Lawyers

Cooley Recognized with Equity Market Deal of the Year at the ALB SE Asia Law Awards 2026

Federal Circuit Insulet Ruling Narrows DTSA Time-Bar Window, Prompting Concerns Over Rushed Claims

AI Executive Order Creates Voluntary Framework for Frontier Models, Advances Critical Infrastructure Cybersecurity

Background

Key issues for developers

Additional elements of the EO

Upgrading federal cyber defenses

AI cybersecurity clearinghouse

Grant funding and workforce

Key next steps

For AI developers

For critical infrastructure operators (healthcare, financial services, utilities)

For all companies

How Cooley can help

2026 Shareholder Proposal Season Early Review and Look Ahead to 2027

’Cause when life looks like Easy Street, there is danger at your door

Key takeaways so far:

Recap of SEC actions

Proposal submissions and early vote results

Governance proposals

Social proposals

Environmental proposals

Impact of withdrawn proposals

An even earlier look at 2027

Evolution of proponent tactics

SEC Proposes Broad Expansion of Shelf Registration Access and Capital Markets Efficiencies

Expanded Form S-3 eligibility (and why it matters)

Current eligibility requirements and ‘baby shelf’ limitations

The proposal would simplify eligibility

Ineligible issuers and offerings

New tiered framework: ELIs and SELIs

Blue-sky preemption extended to all registered offerings

BDCs, closed-end funds and registered annuity products

Form S-1 modernization and other proposed amendments

Elimination of income-related conditions for financial statements grace period

Open questions and areas for comment

Observations and commentary

Call for additional IPO process modernization

Next steps

Appendix A

Plain-language guide to enhanced benefits

Notes

Litigator of the Week Runners-Up and Shout-Outs

Cooley Continues Upward Trajectory in Chambers USA 2026 Rankings

Leading practices

Semble Secures £30M Series C

Cooley Launches Global Hearings Practice As Scrutiny Rises

Court Overturns Insulet’s $59M Trade Secret Verdict Against EOFlow

Cooley Wins Eight LBG Life Sciences EMEA Awards

Apoha Emerges From Stealth With $36 Million in Funding

Cooley Expands Infrastructure, Energy and Real Estate Group With Two Partner Hires

Celcuity Announces Upsized $500 Million Convertible Senior Notes Offering

UK Reporting for Share Plans With UK Participants Due 6 July

Which arrangements does this apply to?

How are tax-advantaged awards reported?

Non-tax-advantaged plans or arrangements

What if no awards have been granted or other actions taken during the year?

Penalties for noncompliance

Cooley Highlighted as a Leading Firm for Associates Seeking Lateral Moves in Chambers 2026 Survey

Navigating Antitrust Scrutiny of Algorithmic Software

Algorithms as the new frontier of conspiracies to restrain trade

State enforcement: California leading the charge

Practical compliance checklist

Wordsmith Raises $70 Million Series B