SEC Announces Spring 2021 Regulatory Agenda

Kramer Levin Naftalis & Frankel LLP

On Friday, June 11, the Securities and Exchange Commission (SEC) filed its Agency Rule List for Spring 2021 with the Office of Management and Budget. The Agency Rule List gives clarity to when companies can expect to see proposed rules on topics including environmental, social and governance (ESG) disclosures, cybersecurity risk governance, Rule 10b5-1 plans, security-based swaps, special purpose acquisition companies (SPACs), proxy voting advice, and share repurchases.

The SEC intends to promulgate rules related to issuers’ climate change disclosures, human capital management disclosures and corporate board diversity by October 2021. Then-acting Commissioner Allison Herren Lee previously requested comments regarding the SEC’s regulation of climate change disclosures by June 13, 2021. An ESG rule related to requirements for investment companies and investment advisers, including ESG claims and related disclosures, is proposed to follow in April 2022.

Also by October 2021, the SEC is scheduled to propose rule amendments that address concerns about Rule 10b5-1’s affirmative defense provision. Rule 10b5-1 provides an affirmative defense to corporate insiders and issuers who buy or sell their holdings, if they adopt their trading plans in good faith, before becoming aware of material nonpublic information. Earlier this month, SEC Chair Gary Gensler publicly repeated his concerns about the use of 10b5-1 trading plans and announced that he has asked staff to make recommendations for the SEC’s “consideration on how we might freshen up Rule 10b5-1.”

The SEC expects to propose rule amendments to enhance issuer disclosures regarding cybersecurity risk governance the same month. The SEC also announced that in October it would seek public comment on potential rules to prevent fraud, manipulation and deception in connection with security-based swaps in accordance with Section 9(j) of the Exchange Act. The SEC set a target date of April 2022 for proposed amendments to rules governing SPACs, which follows staff pronouncements earlier this year regarding SPAC warrants and disclosure considerations for SPACs.

Other matters of interest that are slated to be proposed in April 2022 concern proposed amendments to enhancing market transparency, including proxy voting advice, disclosure related to beneficial ownership or interests in security-based swaps, and modernizing disclosure of share repurchases.[1]

 

[1] On Monday, June 14, the two Republican members of the commission, Hester M. Peirce and Elad L. Roisman, issued a statement noting, among other things, the absence of proposed rules to provide clarity on digital assets and expressing concern relating to the commission’s plan to revisit areas that had been the subject of recent rulemaking, such as proxy updates, resource extraction payments, the definition of accredited investor, and whistleblowers.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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