General – Duane Morris on Capital Markets

On September 30, 2026, the Securities and Exchange Commission voted to propose a package of rule amendments aimed at expanding retail investor access to private market strategies. The SEC also issued a separate request for comment on new ways for individuals to qualify as accredited investors. Chairman Paul Atkins said the effort is intended to facilitate individual investor participation in private markets while protecting investors from bad actors and fraud. He noted that it complements the President’s Executive Order on Democratizing Access to Alternative Assets for 401(k) Investors. The SEC has also published a fact sheet on the proposals.

The Proposed Amendments

The proposals would:

Expand the ability of registered investment advisers to receive performance-based compensation, calculated on capital gains or capital appreciation, from additional categories of clients, including regulated funds. Under the Investment Adviser Performance-Based Compensation Modernization proposal, this would extend an arrangement long associated with hedge fund, private equity, and venture capital strategies to advisers of regulated funds, which may make those advisers more likely to offer private market strategies to retail investors.
Amend certain fund registration and reporting forms to require disclosure of performance-based compensation.
Update the interval fund framework under the Interval Fund Modernization proposal, including by allowing repurchases to be scheduled at times that better match the liquidity profile of the portfolio.
Replace the existing exemptive orders that regulated closed-end funds currently rely on with a rules-based regime permitting the issuance of multiple share classes.

Possible New Paths to Accredited Investor Status

Separately, the SEC is seeking comment on additional ways individuals could qualify as accredited investors without relying solely on income or net worth. Rule 501(a)(10) of Regulation D permits the SEC to designate professional certifications, designations, or credentials as a basis for accredited investor status, and the SEC is considering the following:

Passing an accredited investor examination to be developed by FINRA;
Holding a U.S. CPA license;
Holding a CFA charter;
Holding a CFP certification in the United States; or
Holding a Series 79, Series 86, or Series 87 license.

Takeaways

For fund sponsors and advisers, the proposals could open a meaningful distribution channel by making it more feasible to bring private-market-style strategies into registered fund structures. Sponsors should consider how the new performance-fee and interval fund provisions would affect product design, liquidity terms, and disclosure.

Issuers conducting private offerings should watch the accredited investor proposals closely. A credential- or exam-based pathway could expand the pool of eligible investors for Regulation D offerings, though the details remain to be seen.

The comment periods will remain open for 60 days after the proposing releases and notices are published in the Federal Register, so market participants have an opportunity to shape the final rules.

Duane Morris will continue to monitor these proposals. If you have questions about how they may affect your fund, offering, or advisory business, please contact Driscoll R. Ugarte, R. Charles (Chuck) Miller, or any other member of the Duane Morris Capital Markets team.

June 3, 2026June 3, 2026 by Driscoll R. Ugarte

SEC Formally Proposes to Rescind Climate-Related Disclosure Rules: What Happens Next?

By Driscoll R. Urgate

On May 29, 2026, the SEC voted unanimously to propose rescinding in their entirety the climate-related disclosure rules adopted by a 3-2 vote in March 2024 (the Climate Rules). Chairman Paul Atkins framed the action around materiality, stating that SEC disclosure obligations should be “guided by materiality as the North Star” and “imposed only when the expected benefits justify the likely costs and burdens.”

The Climate Rules, which would have mandated reporting on climate risks, Scope 1 and 2 greenhouse gas emissions, transition plans, and financial statement footnotes for severe weather events, never took effect. Immediately upon adoption, trade associations, state attorneys general, and business groups challenged the Climate Rules, with litigation consolidating in the Eighth Circuit (Iowa v. SEC, No. 24-1522). The Commission stayed the Climate Rules on April 4, 2024, and they have remained inoperative since.

Timeline of Key Events

The path to this proposed rescission includes several notable milestones. In February 2025, Acting SEC Chairman Mark Uyeda directed Commission staff to request that the Eighth Circuit refrain from scheduling oral arguments and outlined his concerns about the Commission’s statutory authority to adopt the Climate Rules. On March 27, 2025, the Commission voted to withdraw its defense of the Climate Rules, with Commissioner Caroline A. Crenshaw dissenting. Following the SEC’s withdrawal, a coalition of 18 states and the District of Columbia intervened to uphold the Climate Rules. On September 12, 2025, the Eighth Circuit issued an order holding the consolidated petitions for review in abeyance until such time as the Commission reconsidered the Climate Rules through notice-and-comment rulemaking or renewed its defense.

The Commission has now taken the step contemplated by that order, proposing to rescind the Climate Rules through a formal notice-and-comment rulemaking.

Meanwhile, climate disclosure requirements continue to advance at the state level. In February 2026, the New York State Senate passed the Climate Corporate Data Accountability Act, which is legislation modeled in significant respects on California’s climate disclosure laws. The bill remains pending before the New York Assembly.

Rationale for Rescission

The Commission now believes the 2024 Climate Rules “were a dramatic overreach of the Commission’s statutory authority and, independently, unsound as a matter of policy.” Even assuming it had authority to adopt the Climate Rules, the Commission identifies independent policy grounds for rescission: the Climate Rules are inconsistent with a registrant-specific, materiality-based disclosure framework; they stray beyond the policy concerns of the federal securities laws; they impose substantial costs not justified by informational benefits; and they conflict with the Commission’s objectives of facilitating capital formation and promoting public company status.

Commissioner Uyeda, in his supporting statement, emphasized that the concept of materiality, including as it relates to climate change, is already well embedded in the SEC’s existing disclosure obligations, whether in the description of the business, risk factor disclosure, management’s discussion and analysis, financial statements, or notes thereto. He characterized the Climate Rules as “a rule to influence how a business operates hidden under a cloak of disclosure.”

Commissioner Hester Peirce likewise supported the proposal, noting that adherence to a merit-neutral, materiality-centered disclosure framework is consistent with both the SEC’s statutory authority and the healthy functioning of U.S. capital markets. The Commission’s proposing release, Release No. 33-11421, sets forth the legal and policy bases for rescission in detail.

Next Steps

The public comment period will remain open for 60 days following publication of the proposing release in the Federal Register. Given that the original 2022 climate proposal generated more than 16,000 public comments, a similarly robust comment process is anticipated. After reviewing public comments, the Commission would be required to vote again before the rescission could become final.

In the meantime, the Climate Rules remain in place and have never been operative. As discussed in the accompanying Client Alert, companies should not assume that the absence of federal climate disclosure mandates means the end of climate-related reporting obligations. California’s SB 253 and SB 261, New York’s proposed Climate Corporate Data Accountability Act, the European Union’s Corporate Sustainability Reporting Directive, and various international standards under the International Sustainability Standards Board framework continue to advance. As a result, many public and private companies may remain or become subject to climate-related reporting obligations regardless of what the SEC ultimately does.

We will continue to monitor developments and provide updates as the SEC’s rulemaking process unfolds. Read a more detailed analysis of this update on the Duane Morris LLP website.

April 6, 2026April 6, 2026 by Duane Morris

From Hourly to Strategic: How Fixed Fees Are Reshaping Public Company Counsel

By Driscoll R. Ugarte

Public company leaders face an increasingly difficult balancing act. Disclosure obligations, SEC scrutiny and governance expectations have steadily expanded, while boards and management teams operate under relentless pressure to control costs and demonstrate disciplined stewardship of corporate resources. For many companies, the challenge is not simply regulatory compliance but how to obtain timely, high-quality legal guidance without creating unpredictable legal spend. It shapes when and how executives seek legal advice, how in-house legal departments allocate scarce time and attention, and how companies navigate the fine line between compliance and strategic agility. In this environment, the mechanics of how legal services are purchased can matter almost as much as the substance of the advice itself.

Read the full article in Daily Business Review on the Duane Morris LLP website.

November 19, 2024November 19, 2024 by Duane Morris

Another Turning Point for Bitcoin—Options Mark Bullish Sentiment

On November 19, the Options Clearing Corporation (OCC) and Nasdaq launched Bitcoin ETF options—starting with BlackRock’s iShares Bitcoin Trust (IBIT)―signaling a new era of cryptocurrency financial instruments. The launch of Bitcoin ETF options in the United States marks a new moment for cryptocurrency markets. Options promise to transform how institutional and retail investors engage with Bitcoin.

The launch of Bitcoin ETF options enables Bitcoin to expand in the market and unlock larger trading volumes, while also providing retail and institutional investors the ability to hedge prices and manage their risk. Specifically, options create the right in the future to buy or sell at predetermined prices, allowing protections against volatility. Options also afford investors the ability to manage risk without selling underlying assets. Options enable greater portfolio diversification, offering flexible exposure to Bitcoin while providing investors a method to make strategic decisions on their portfolio without full ownership and without reducing overall portfolio risk through derivative strategies.

The options will also increase institutional investor access—notably, derivatives currently make up less than 1% of Bitcoin’s $1.8 trillion spot market cap. Options will enable investors with more sophisticated hedging and allocation strategies. Investors will have access to traditional option risk controls, including standardized contract terms and clearance through regulated exchanges (e.g., the OCC). Ultimately, the structured management framework with Bitcoin ETF options will follow traditional equity and commodity market development patterns, creating more access to and opportunities in Bitcoin for investors.

Recently, the Commodity Futures Trading Commission (CFTC) confirmed via a staff advisory notice on November 15, 2024, that the clearance and settlement of options on spot Bitcoin ETFs fall under U.S. Securities and Exchange Commission jurisdiction. The CFTC’s notice helped paved the way for the OCC and Nasdaq to offer trading on Bitcoin ETF options.

By integrating Bitcoin more deeply into established financial infrastructure, these ETF options could accelerate mainstream crypto adoption and market sophistication. Presumably, Bitcoin ETF option trading should signal enhanced market confidence and a growing mainstream acceptance of cryptocurrency.

August 8, 2023 by Duane Morris

SEC Final Rules Layout Companies’ Reporting Duty for Cybersecurity Incidents, Risk Management, Strategy and Governance

On July 26, 2023, the U.S. Securities and Exchange Commission (SEC) adopted final rules requiring U.S. public companies to disclose material cybersecurity incidents on Form 8-K and, on an annual basis, disclose material information regarding their cybersecurity risk management, strategy and governance on Form 10-K. The final rules also require foreign private issuers to make comparable disclosures on Forms 6-K and 20-F.

Read the full Alert on the Duane Morris LLP website.

March 22, 2022 by Darrick M. Mix

SEC Proposes Climate Disclosure Rules for Public Companies

On March 21, 2022, the Securities and Exchange Commission proposed, in a 510-page release, rule changes that would require registrants to include certain climate-related disclosures in their registration statements and periodic reports, including information about climate-related risks that are reasonably likely to have a material impact on their business, results of operations, or financial condition, and certain climate-related financial statement metrics in audited financial statements. The required information about climate-related risks also would include disclosure of a registrant’s greenhouse gas emissions. The commissioners voted on party lines to approve the proposal on a three to one vote.

SEC Chair Gary Gensler commented that “if adopted, [the rule changes] would provide investors with consistent, comparable, and decision-useful information for making their investment decisions, and it would provide consistent and clear reporting obligations for issuers.” Mr. Gensler believes that the proposal would help issuers more efficiently and effectively disclose climate risks and meet investor demand and that “companies and investors alike would benefit from the clear rules of the road proposed in the release.”

Republican SEC Commissioner Hester Peirce voted against the proposal and issued a dissenting statement. “We are here laying the cornerstone of a new disclosure framework that will eventually rival our existing securities-disclosure framework in magnitude and cost, and probably outpace it in complexity,” Ms. Peirce said. She also warned that the proposed rules will enrich “the climate-industrial complex” while hurting investors, the economy and the SEC.

The proposed rule changes would require a registrant to disclose information about:

the registrant’s governance of climate-related risks and relevant risk management processes;
how any climate-related risks identified by the registrant have had or are likely to have a material impact on its business and consolidated financial statements, which may manifest over the short-, medium-, or long-term;
how any identified climate-related risks have affected or are likely to affect the registrant’s strategy, business model, and outlook; and
the impact of climate-related events (severe weather events and other natural conditions) and transition activities on the line items of a registrant’s consolidated financial statements, as well as on the financial estimates and assumptions used in the financial statements.

For registrants that already conduct scenario analysis, have developed transition plans, or publicly set climate-related targets or goals, the proposed amendments would require certain disclosures to enable investors to understand those aspects of the registrants’ climate risk management.

In what is likely to be a more burdensome and costly disclosure requirement, the proposed rules also would require a registrant to disclose information about its direct greenhouse gas (GHG) emissions (Scope 1), indirect emissions from purchased electricity or other forms of energy (Scope 2), and GHG emissions from upstream and downstream activities in its value chain (Scope 3). Disclosure of Scope 3 emissions would be mandatory only if output of GHG is material, or significant to investors, or if companies outline specific targets for them. According to the SEC, these proposals for GHG emissions disclosures would provide investors with decision-useful information to assess a registrant’s exposure to, and management of, climate-related risks, and in particular transition risks. Adding to the cost of these requirements, accelerated filers and large accelerated filers would be required to include an attestation report from an independent attestation service provider covering Scopes 1 and 2 emissions disclosures.

The proposing release will be open for public comment for a relatively short period of 30 days after publication in the Federal Register, or 60 days after the date of issuance and publication on sec.gov, whichever period is longer.

September 28, 2020 by Duane Morris

Shareholder Proposal Rule Amended by SEC

On September 23, 2020, the Securities and Exchange Commission adopted the amendments to its shareholder proposal rule, which governs the process for a shareholder to have a proposal included in the company’s proxy statement for consideration by all shareholders. Typical shareholder proposals include recommendations that a company or its board of directors take specified actions. The amendments are designed to promote engagement between the company and the proponent, raise eligibility thresholds for shorter-term investors and further restrict repeat proposals garnering minimal support.

To read the full text of this Duane Morris Alert, please visit the firm’s website.

September 28, 2020September 28, 2020 by Duane Morris

“Accredited Investor” and “Qualified Institutional Buyer” Get Updated Definitions in SEC Final Rule

On August 26, 2020, the U.S. Securities and Exchange Commission (SEC) adopted final rules amending the definitions of “accredited investor” and “qualified institutional buyer” (QIB). The purpose of the amendments is to identify more effectively institutional and individual investors that have sufficient knowledge and expertise to participate in investment opportunities without investor protections provided by registration under the Securities Act of 1933.

The final amendments will be published in the Federal Register soon and become effective 60 days after publication.

To read the full text of this Duane Morris Alert, please visit the firm website.

August 4, 2020 by Darrick M. Mix

SEC Adopts Final Amendments to Proxy Rules on Proxy Voting Advice

On July 22, 2020, the U.S. Securities and Exchange Commission adopted amendments to its rules under the Securities Exchange Act of 1934 that exempt persons furnishing proxy voting advice from the information and filing requirements of the federal proxy rules. The most prominent proxy advisory firms that provide such proxy voting advice in the United States today are Institutional Shareholder Services and Glass Lewis & Co. Pursuant to the amendments, the SEC codified its view that proxy voting advice generally constitutes a “solicitation,” imposed new conditions to exemptions under Exchange Act Rule 14a-2(b) and added examples of what may be “misleading” within the meaning of Exchange Act Rule 14a-9. The SEC also published supplemental guidance to assist investment advisers on assessing how to consider registrant responses to proxy voting advice in light of the new amendments to the proxy rules.

The new rules have the potential to alter the dynamics between public companies and proxy advisory firms, with public companies gaining some leverage. The new rules have been criticized by some industry participants with an interest in maintaining the prior system.

Duane Morris’ client alert on these new rules was issued on July 30, 2020 and is available here.

May 22, 2020May 22, 2020 by Darrick M. Mix

SEC Adopts Amendments to Financial Reporting Requirements in Acquisitions and Dispositions of Businesses

Yesterday, May 21, 2020, the Securities and Exchange Commission announced that it approved amendments to its rules and forms “to improve for investors the financial information about acquired or disposed businesses, facilitate more timely access to capital, and reduce the complexity and costs to prepare the disclosure.” The 267-page final rule release is available by clicking here.

The amendments update SEC rules which have not been comprehensively addressed since their adoption, some over 30 years ago. Jay Clayton, the SEC’s Chairman, said that amendments are “designed to enhance the quality of information that investors receive while eliminating unnecessary costs and burdens [and] will benefit investors, registrants and the market more generally.”

Among other things, the amendments:

update the significance tests (i.e., to determine when financial statements regarding an acquisition or disposition must be included) in Rule 1-02(w) and elsewhere by revising the investment test to compare the registrant’s investments in and advances to the acquired or disposed business to the registrant’s aggregate worldwide market value if available; revising the income test by adding a revenue component; expanding the use of pro forma financial information in measuring significance; and conforming, to the extent applicable, the significance threshold and tests for disposed businesses to those used for acquired businesses;
modify and enhance the required disclosure for the aggregate effect of acquisitions for which financial statements are not required or are not yet required by eliminating historical financial statements for insignificant businesses and expanding the pro forma financial information to depict the aggregate effect in all material respects;
require the financial statements of the acquired business to cover no more than the two most recent fiscal years;
permit disclosure of financial statements that omit certain expenses for certain acquisitions of a component of an entity;
permit the use of, or reconciliation to, International Financial Reporting Standards as issued by the International Accounting Standards Board in certain circumstances;
no longer require separate acquired business financial statements once the business has been included in the registrant’s post-acquisition financial statements for nine months or a complete fiscal year, depending on significance; and
make corresponding changes to the smaller reporting company requirements in Article 8 of Regulation S-X, which will also apply to issuers relying on Regulation A.

The amendments will be effective on Jan. 1, 2021, but voluntary compliance will be permitted in advance of the effective date.