October 2025 One-Minute Reads

October 2025 One-Minute Reads

SEC spring 2025 regulatory agenda

Securities and Exchange Commission (SEC) Chair Paul Atkins issued a statement that the Office of Information and Regulatory Affairs had released the spring 2025 Unified Agenda of Regulatory and Deregulatory Actions. Per the chair:

This regulatory agenda reflects that it is a new day at the Securities and Exchange Commission. The items on the agenda represent the Commission’s renewed focus on supporting innovation, capital formation, market efficiency, and investor protection. The agenda covers potential rule proposals related to the offer and sale of crypto assets to help clarify the regulatory framework for crypto assets and provide greater certainty to the market. ... It also covers a number of envisioned deregulatory rule proposals to reduce compliance burdens and facilitate capital formation, including by simplifying pathways for raising capital and investor access to private businesses. It discusses amending existing rules to improve and modernize them as well as address disclosure burdens. ... Importantly, the agenda reflects our withdrawal of a host of items from the last Administration that do not align with the goal that regulation should be smart, effective, and appropriately tailored within the confines of our statutory authority.

Note that two of the withdrawn items are Corporate Board Diversity and Conflict Minerals Amendments. See this TheCorporateCounsel.net blog for insight into the agenda, including this list of the status of some of the potential SEC rules:

Prerule stage

• Foreign Private Issuer Eligibility (no date)

Proposed rule stage

• Rule 144 Safe Harbor (April 2026)
• Crypto Assets (April 2026)
• Enhancement of Emerging Growth Company Accommodations and Simplification of Filer Status for Reporting Companies (April 2026)
• Shelf Registration Modernization (April 2026)
• Updating the Exempt Offering Pathways (April 2026)
• Rationalization of Disclosure Practices (April 2026)
• Shareholder Proposal Modernization (April 2026)
• Crypto Market Structure Amendments (April 2026)

See also this TheGovernanceBeat.com blog and this Law360 article.

SEC-CFTC issue crypto joint staff and joint chair statements

The SEC’s Division of Trading and Markets and the Commodity Futures Trading Commission’s (CFTC) Division of Market Oversight and Division of Clearing and Risk announced a cross-agency initiative in furtherance of the SEC’s “Project Crypto” and the CFTC’s “Crypto Sprint” to coordinate efforts regarding the process for enabling the trading of certain spot crypto asset products. In their joint statement, the SEC chair and CFTC acting chair said: “It is a new day at the SEC and the CFTC, and today we reaffirm the need to ensure regulation does not stand in the way of progress. By working in lockstep, our two agencies can harness our nation’s unique regulatory structure into a source of strength for market participants, investors, and all Americans.” See this Law360 article for more information and this TheCorporateCounsel.net blog regarding a September 29 SEC-CFTC roundtable on regulatory harmonization.

SEC updates filer status determinations C&DI

The SEC published a new compliance and disclosure interpretation (C&DI), Question 130.05, relating to annual SEC filer status determination. While the SEC published it without much fanfare, this new C&DI provides that a non-accelerated filer can now continue to be a non-accelerated filer (and therefore not need to provide a SOX 404(b) auditor attestation) for the fiscal year immediately following loss of small reporting company (SRC) status, on the basis that the issuer is eligible to use SRC-scaled reporting until its first quarter 10-Q of the year following loss of SRC status. See this TheGovernanceBeat.com blog. Cooley’s “Guide to Determining Securities Exchange Act Filer and Smaller Reporting Company Status” reflects the new Question 130.05 C&DI.

SEC clarifies mandatory arbitration will not affect effectiveness of registration statement

The SEC announced its policy statement that decisions about whether to accelerate the effectiveness of a registration statement will not be affected by the presence of a provision requiring arbitration of investor claims arising under the federal securities laws. In the announcement, Chair Atkins stated: “While many people will express views on whether a company should adopt a mandatory arbitration provision, the Commission’s role in this debate is to provide clarity that such provisions are not inconsistent with the federal securities laws. We have fulfilled that role through the issuance of this policy statement.”

The announcement continues:

Issuers have periodically asked whether a mandatory arbitration provision for investor claims arising under the federal securities laws would impact the acceleration of the effectiveness of their registration statement. Today’s statement provides the Commission’s view that, based on the Supreme Court’s current interpretation and application of the Federal Arbitration Act, the existence of such a provision will not impact determinations whether to accelerate the effective date of a registration statement.

As a result, when deciding on whether to accelerate effectiveness of a registration statement, the Commission staff will focus on the adequacy of the registration statement’s disclosures, including disclosure regarding the arbitration provision.

The SEC also made a related change to Rule 431(e) of the Rules of Practice so that the delegated authority for the staff to declare registration statements effective matches this new policy change. See Chair Atkins’ open meeting statement. For more insight, see this TheGovernanceBeat.com blog and this TheGovernanceBeat.com blog. For discussion of potential litigation and investor impact, see this Law360 article and this Law360 article.

ExxonMobil no-action letter and retail voting program

The SEC’s Division of Corporation Finance and Office of Mergers and Acquisitions issued this no-action letter saying they will not recommend enforcement under Exchange Act Rule 14a-4(d)(2) or Rule 14a-4(d)(3) if Exxon Mobil Corporation implements the retail voting program described in its letter. The staff noted the following representations for their recommendation:

• The Retail Voting Program would be available to all retail investors, including any registered owner or beneficial owner (via their bank, broker or plan administrator) of ExxonMobil’s shares at no cost, and each would be offered the same opportunity to enroll in the program.
• The Retail Voting Program would not be available to investment advisers registered under the Investment Advisers Act of 1940 exercising voting authority with respect to client securities.
• Retail shareholders that have opted in to the Retail Voting Program will receive an annual reminder, during the time period when the Company is not soliciting votes for its annual shareholder meeting, of their opt-in status and selection, and will be reminded of their ability to opt out and cancel their standing voting instruction with respect to subsequent meetings.
• Participating retail shareholders will have the ability and choice to opt out and cancel the standing voting instruction at no cost, as well as the ability to override the instruction with respect to any particular proposal or proposals at no cost.
• Participating retail shareholders will continue to receive all proxy materials filed for upcoming shareholder meetings and the Retail Voting Program will not limit or restrict shareholders from voting at any time using the proxy materials they received for each meeting.
• The Company will make full disclosure on its website and in its proxy statements of the Retail Voting Program.

ExxonMobil announced its retail voting program here. For interesting insight, see this TheGovernanceBeat.com blog and this TheCorporateCounsel.net blog. See this TheGovernanceBeat.com blog for insight into ExxonMobil’s solicitation materials related to its retail voting program.

Results of ISS’ Annual Global Benchmark Policy Survey

ISS Governance announced the release of the results of its Annual Global Benchmark Policy Survey. ISS received a total of 248 responses, 165 of which were from institutional investors and investor-affiliated organizations and 83 of which were from companies, corporate-affiliated organizations and other non-investor respondents. The 2025 survey covered a range of topics, including shareholder rights, executive compensation, board governance, shareholder proposals and risk management. For insight into the survey responses, see this TheGovernanceBeat.com blog, this TheCorporateCounsel.net blog (artificial intelligence oversight and disclosures), this TheCorporateCounsel.net blog (board diversity), this TheCorporateCounsel.net blog (dual-class, overboarding and independent chairs), and this CompensationStandards.com blog (compensation topics).

ISS 2025 proxy season review – executive compensation

ISS has announced the release of its “2025 Proxy Season Review: United States – Executive Compensation” (available to institutional subscribers). Key takeaways from the report include:

• Shareholder support for say-on-pay proposals decreased slightly (94.9% to 94.5%) while failure rates remained near an all-time low (1.2%).
• CEO pay reached a record high ($16.9 million) in the S&P 500 for the second consecutive year.
• Golden parachute support increased, and failure rate decreased.
• Equity plan support levels declined to the lowest level in more than 10 years, and failure rate increased slightly.
• The number of compensation-related shareholder proposals declined (to 46 from 50 in 2024), and none received majority support.

Directors resign from board in response to FTC’s interlocking directorates enforcement efforts

The Federal Trade Commission (FTC) announced that three individuals have resigned from their positions on the board of directors of Sevita Health in response to the FTC’s enforcement of the Clayton Act, which generally prohibits directors and officers from serving simultaneously on the boards of competitors. Sevita and Beacon Specialized Living Services both provide services, including residential facilities, to individuals with intellectual and developmental disabilities. Despite this, they had common representation on each firm’s board of directors. The resignations made in response to the FTC’s enforcement efforts have now resolved the competition concerns raised by the three individuals serving as directors for Sevita and Beacon simultaneously.

Nasdaq proposes rule change to modify certain initial and continued listing requirements and to adopt additional initial listing criteria for companies primarily operating in China

Per this notice, Nasdaq is proposing to amend Listing Rules 5405(b)(1)(C) and 5505(b)(3)(C) to increase the minimum market value of unrestricted publicly held shares (MVUPHS) requirement for companies listing under the net income standard on the Nasdaq Global and Capital Markets, respectively, to $15 million. Nasdaq is also proposing to suspend from Nasdaq trading and immediately delist (rather than providing a compliance period) any company that becomes noncompliant with one or more of the listing requirements contained in Rule 5450 or Rule 5550 and that has a market value of listed securities of less than $5 million. The text of the proposed rule change can be found here. Per this notice, Nasdaq proposes to adopt additional initial listing criteria for companies primarily operating in China, including the Hong Kong Special Administrative Region and the Macau Special Administrative Region. The text of the proposed new criteria can be found here.

CARB publishes guidance ahead of January 1 SB 261 deadline

On September 2, the California Air Resources Board (CARB) published a draft checklist for climate risk report disclosures under SB 261. This document largely repeated guidance from CARB’s August 21 webinar, summarized in an August 25 Cooley alert. Although significant questions remain regarding the content of required disclosures, this guidance provides helpful clarity for companies rushing to prepare reports before the January 1 deadline. Unlike SB 261, there is no firm deadline yet for greenhouse gas emissions reports under SB 253, but CARB has suggested this may be set at June 30, 2026. Given the looming SB 261 deadline, companies that meet the $500 million revenue and other tests should prioritize compliance preparation in Q4 if they have not started already.

Berkeley Fall Forum on Corporate Governance

The Berkeley Fall Forum on Corporate Governance takes place October 28 and 29 in San Francisco and virtually. The topics and Cooley speakers can be found on the forum’s website. See also this TheGovernanceBeat.com blog and this CapitalXchange blog.