On June 11, 2021, the Securities and Exchange Commission announced its Spring 2021 Unified Agenda of Regulatory and Deregulatory Actions (RegFlex Agenda). The RegFlex Agenda sets forth the short-term and long-term regulatory actions that the SEC plans to take and is the first RegFlex Agenda released under Chair Gary Gensler.
Among the items on its latest RegFlex Agenda, the SEC highlighted the following list of proposed and final SEC rulemaking areas:
- Disclosure relating to climate risk, human capital, including workforce diversity and corporate board diversity, and cybersecurity risk;
- Market structure modernization within equity markets, treasury markets, and other fixed income markets;
- Transparency around stock buybacks, short sale disclosure, securities-based swaps ownership, and the stock loan market;
- Investment fund rules, including money market funds, private funds, and ESG funds;
- 10b5-1 affirmative defense provisions;
- Unfinished work directed by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, including, among other things, securities-based swaps and related rules, incentive-based compensation arrangements, and conflicts of interest in securitizations;
- Enhancing shareholder democracy, which presumably refers to rulemaking regarding Rule 14a-8;
- Special purpose acquisition companies; and
- Mandated electronic filings and transfer agents.
Some other notable areas on the RegFlex Agenda include:
- Amendments to the conditions to use Rule 144 and to update the electronic filing requirements applicable to Form 144;
- Universal proxy;
- Trading prohibitions under the Holding Foreign Companies Accountable Act and enhanced listing standards; and
- Updates to the exempt offering rules, including updates to financial thresholds for accredited investors, disclosures in Reg D offerings and revisions to the integration framework for registered and exempt offerings.
The RegFlex Agenda items highlighted by the SEC are consistent with the areas of focus in recent remarks made by Chair Gensler and former Acting Chair Allison Herren Lee. Public companies should monitor for developments in these areas, in particular the following rulemakings that are expected by October 2021:
- Final rules amending the conditions to use Rule 144 and to update the electronic filing requirements applicable to Form 144;
- Proposed rules regarding disclosure relating to climate risk, human capital, including workforce diversity and corporate board diversity, and cybersecurity risk; and
- Proposed rules concerning 10b5-1 affirmative defense provisions.