Deal Diary

On September 20, 2023, the U.S. Securities and Exchange Commission (SEC) issued a final rule amending the so-called “Names Rule” (found here) that is “designed to modernize and enhance” protections under Rule 35d-1 of the Investment Company Act of 1940. The final rule is part of the SEC’s holistic efforts to regulate environmental, social and governance (ESG) matters, and is the SEC’s latest attempt to curb greenwashing in U.S. capital markets. The amendments require registered investment funds that include ESG factors in their names to place 80% of their assets in investments corresponding to those factors, thereby extending to ESG funds the SEC’s long-standing approach of regulating the names of registered funds to ensure they are marketed to investors truthfully. Fund complexes with more than $1 billion in assets will have two years from the final rule’s effective date (60 days after publication in the Federal Register) to comply, while fund complexes with less than $1 billion in assets will be given a compliance period of 30 months.

Chair Gary Gensler said “[t]he Names Rule reflects a basic idea: A fund’s investment portfolio should match a fund’s advertised investment focus. In essence, if a fund’s name suggests an investment focus, the fund in turn needs to invest shareholders’ dollars in a manner consistent with that investment focus. Otherwise, a fund’s portfolio might be inconsistent with what fund investors desired when selecting a fund based upon its name.” The sole dissenting vote against the rule modification, Commissioner Mark Uyeda, said “[w]ith these amendments, the Commission overemphasizes the importance of a fund’s name, as if to suggest that investors and their financial professionals need not look at the prospectus disclosures.” Commissioner Uyeda also expressed concern that fund investors will bear the increased compliance costs associated with the rule change.

In light of the health and safety concerns related to coronavirus disease 2019 (COVID-19), the U.S. Securities and Exchange Commission (SEC) has recently issued guidance to assist public companies with upcoming annual shareholder meetings.

Disclosure Updates and Simplification and Regulations S-K and S-X

The SEC has adopted and proposed rule changes to reduce burdens on public companies and encourage broader securities ownership by “Main Street” investors. Among other things, the SEC has adopted significant revisions to the main body of corporate disclosure requirements under Regulation S-K and proposed revisions to simplify financial reporting in connection with debt financing transactions under Regulation S-X. In addition, the new Congress may continue recent legislative initiatives to simplify the burdens of being a public company.

The new 116th Congress convened on Thursday, January 3, 2019 as the partial government shutdown, carrying over from the prior Congress, continued into the new year and has now outlasted previous shutdowns. Although the private sector is getting back to business this month, the shutdown has slowed—and in some cases halted—business with the government. Here are some practical considerations for private parties with proceedings in our federal courts and pending or contemplated capital markets, mergers and acquisitions and regulatory approvals that seek to do business with a range of federal regulatory bodies including the Securities and Exchange Commission (SEC), the Federal antitrust agencies, the Committee on Foreign Investment in the United States (CFIUS), the Federal Communications Commission (FCC) and the Food and Drug Adminstration (FDA). Please contact any of the listed Akin Gump professionals if you have questions about the application of the shutdown to your specific situation.

This week we highlight a post by the Harvard Law School Forum on Corporate Governance and Financial Regulation by Akin Gump attorneys. This article discussed how Dell has been planning to eliminate its tracking stock (DVMT) through a merger with a wholly-owned subsidiary that would effectively convert the outstanding DVMT shares into a new class of publicly traded Dell common stock, and the reluctance of many DVMT stockholders to support the proposed exchange.

Akin Gump has issued an alert highlighting court rulings, SEC statements and other regulations and requirements involving cryptocurrency that have been issued and developed in 2018.

Click here to read the full alert.

Akin Gump labor and employment partner Richard Rabin has been quoted in an article series by The Hedge Fund Law Report on the importance of employee handbooks for fund managers. The articles cover the policies that an investment advisor will want to have in place and who is in the best position to administer the handbook’s policies.

Akin Gump has issued an alert detailing the Securities and Exchange Commission’s (SEC’s) proposed new interpretation of fiduciary duties of investment advisers under the Investment Advisers Act of 1940, as amended. The alert discusses how the SEC interprets the duty of care, the duty of loyalty, the ability to “disclose away” as well as potential additional requirements.