Davis Polk Discusses Federal Banking Agency Guidance on Capital Treatment of Tokenized Securities
The Office of the Comptroller of the Currency, the Federal Reserve Board and the FDIC issued FAQs clarifying that tokenized securities receive the same capital treatment as their traditional counterparts only when they confer identical legal rights. The guidance defines "eligible tokenized securities" and mandates parity risk weights, including for derivatives referencing them. It also confirms that eligible tokenized securities can qualify as financial collateral, and that the capital framework is technology‑agnostic, applying equally to permissioned and permissionless blockchains. Banks must perform fact‑specific legal reviews to verify eligibility before applying the treatment.
Fairness and the SEC’s Competing Regulatory Paradigms
The SEC’s recent rulemaking has come under heightened scrutiny for relying on fairness arguments without solid empirical evidence, especially in its cost‑benefit analyses. Critics focus on the Alternative Uptick Rule, a short‑selling restriction triggered by a 10% daily price drop,...
Davis Polk Discusses DOJ Self-Disclosure Policy for Criminal Cases
On March 10, 2026 the Department of Justice released its first department‑wide corporate enforcement policy for criminal cases, offering companies a declination—no fines or monitors—if they voluntarily self‑disclose, fully cooperate, and remediate without aggravating circumstances. The policy also defines a...
How Antitrust Law Is Taking on Big Oil
Michigan Attorney General Dana Nessel filed a landmark antitrust lawsuit in January 2026 accusing major fossil‑fuel companies of colluding to suppress electric‑vehicle adoption and renewable heating solutions. The complaint pivots from traditional climate‑liability claims to the Sherman Act and Michigan...
What Do Courts Mean by “Corporate Democracy”?
The forthcoming article surveys more than 250 judicial opinions that invoke the phrase “corporate democracy,” revealing that courts consistently treat the concept as a narrow, procedural construct. Courts focus on two core principles: fair, competitive director elections and limited shareholder...
Paul Weiss Discusses Surveillance Pricing and Algorithmic Pricing
Surveillance pricing—using personal data to set individualized prices—is drawing heightened scrutiny from state regulators. New York’s Section 349‑a now mandates a clear disclosure when algorithms rely on consumer data, while California’s proposed AB 2564 would outright ban the practice and impose...
How Reverse Breakup Fees Can Affect Antitrust Approval
In early 2026, Paramount acquired Warner Bros. Discovery by offering a $7 billion reverse breakup fee that would be paid if antitrust regulators blocked the merger. Reverse breakup fees—buyer‑paid penalties for failed deals—have become common, appearing in high‑profile transactions such as...
Davis Polk Discusses Agency Guidance on Capital Treatment of Tokenized Securities
The OCC, Federal Reserve and FDIC released FAQs clarifying that tokenized securities that confer identical legal rights to their paper counterparts are treated the same under U.S. capital rules. This "eligible tokenized security" designation means the same risk weights, haircuts...
How Moelis’ Void/Voidable Distinction May Affect Advance Notice Bylaw Challenges
The Delaware Supreme Court in *Moelis & Company v. West Palm Beach Firefighters’ Pension Fund* clarified that corporate provisions that could be remedied through a charter amendment are “voidable,” not “void,” thereby allowing equitable defenses such as laches. This nuanced...
Liability Management’s Limited Runway: Corporate Restructuring Today
Recent research on coercive, non‑pro rata liability management exercises (LMEs) shows they provide only a brief, fragile runway for distressed firms. Within a year, fewer than half avoid a second default, and after two years just 22 % remain out of...
The Role of Independent Advisers in Issuer Governance and IPO Pricing
Companies planning IPOs increasingly hire independent advisers to oversee underwriting and pricing. A new working paper covering U.S. and European IPOs from 2010‑2023 finds that adviser involvement correlates with lower first‑day returns and tighter offer‑price adjustments, without affecting underwriting spreads...
John C. Coffee, Jr.: Event Contracts and Prediction Markets
Legal scholar John C. Coffee highlights how prediction‑market platforms like Polymarket and CFTC‑regulated Kalshi have allowed traders to profit from bets on U.S. military action and leadership changes in Iran. The Commodity Futures Trading Commission (CFTC) possesses authority under Rule 40.11...
Why Corporate Charters?
The essay challenges the continued reliance on publicly filed corporate charters, especially in Delaware where retrieval is costly and slow. It traces charter evolution from 19th‑century incorporation formalities to today’s streamlined but opaque system. The author argues that charters serve...
Why the MM Theorem Is Not a Special Case of the Coase Theorem
A new paper argues that the Modigliani‑Miller (MM) theorem and the Coase theorem are conceptually distinct and neither is a special case of the other. The authors highlight that MM relies on strong‑form market efficiency, no taxes and fixed investment,...
What Start-Up Lawyers Should Know About Bankruptcy
A forthcoming book chapter maps the bankruptcy considerations that start‑up lawyers must weigh for social enterprises. It introduces a “Mission, Form, Fundraising, Growth, Downturn” framework to help companies preserve purpose during financial distress. The author highlights how corporate form, fiduciary...
Latham & Watkins Discusses the FCA’s Enforcement Strategy
The FCA has moved to a more selective enforcement model, aiming for “impactful deterrence” by concentrating on cases likely to succeed quickly. In the first half of 2025 it opened 23 new operations, with a notable emphasis on senior‑manager accountability...
Banking, Technology, and Instability
The article warns that the rapid rise of banking‑as‑a‑service (BaaS) is reshaping the traditional bank‑IT outsourcing model by having fintech firms outsource core banking functions to partner banks. While BaaS promises faster, cheaper digital experiences, it operates in a regulatory...
Cleary Gottlieb Discusses Significant Developments in DOJ Enforcement Priorities
In 2025 the DOJ Criminal Division overhauled its white‑collar enforcement strategy, issuing a White Collar Enforcement Plan that identifies ten high‑impact priority areas—from government fraud and customs evasion to digital‑asset crime. The Department also revised the Corporate Enforcement and Voluntary...
The Pros and Cons of IPOs and SPAC Mergers
The article examines whether fast‑growing firms should go public via a traditional IPO or a SPAC merger, emphasizing the role of forward‑looking statements. SPAC deals historically allow more detailed projections, which can attract both sophisticated and unsophisticated investors. The SEC’s...
Cleary Gottlieb Discusses Delaware Chancery’s Refusal to Dismiss Aiding, Abetting in De-SPAC Transaction
The Delaware Court of Chancery refused to dismiss a claim that Jefferies, the financial advisor to Forum III, aided and abetted fiduciary breaches in a de‑SPAC merger. The court applied the Dole factors, inferring that Jefferies knowingly participated by preparing...
Gibson Dunn Discusses CFIUS’ Known Investor Program
On February 6, 2026, CFIUS issued a request for information (RFI) to refine its Known Investor Program (KIP), a fast‑track review mechanism for repeat foreign investors in U.S. advanced‑technology sectors. The RFI outlines eligibility thresholds—at least three covered filings in...
Want More Public Companies? Encourage More Stock Repurchases
The SEC’s new leadership is targeting the 40 percent decline in U.S. public companies by easing regulatory burdens, especially those that hinder share repurchases. It proposes reforming the safe‑harbor under Rule 10b‑18 to make buybacks more accessible to mid‑cap firms. Currently, the...
Litigation Finance Plays an Important Role in Capital Markets
Litigation finance turns contingent legal claims into a source of capital, positioning them alongside other non‑traditional assets like future receivables and intellectual property. By providing non‑recourse funding, it lets companies—especially SMEs lacking traditional credit—access cash without equity dilution or restrictive...
Crypto-Derivatives Regulation Is Too Fragmented
A new comparative study finds crypto‑derivatives regulation is highly fragmented across major financial hubs, despite the products mirroring traditional derivatives in structure and risk. Regulators have forced crypto‑derivatives into existing regimes, leading to divergent rules based on settlement method, underlying...
SEC Chair Testifies Before Senate Committee on Banking, Housing, and Urban Affairs
SEC Chair Paul S. Atkins testified before the Senate Banking Committee, outlining a three‑pillar plan to revitalize IPOs, cut costly reporting burdens, and modernize crypto oversight. He highlighted that public companies spend $2.7 billion annually on filing reports and announced a...
Independent Monitorships, Corporate Culture, and the Limits of Compliance Reform
Independent monitorships have moved from rare court‑appointed roles to a standard tool in DOJ, SEC, and other settlements, tasked with overseeing remediation of systemic misconduct. While they aim to restore trust by providing external oversight, critics highlight high costs, opaque...
Debevoise Discusses Third Circuit Decision on the Limits of the Best Price Rule
The U.S. Court of Appeals for the Third Circuit affirmed that the Best Price Rule applies only to shares actually taken up and paid for in a tender offer, not to shares the offeror cannot lawfully acquire. The ruling arose...
Gibson Dunn Discusses SEC Corporate-Finance Division’s Helpful Updates to Guidance
On January 23, 2026 the SEC’s Division of Corporation Finance released a suite of updated Compliance and Disclosure Interpretations covering proxy filings, executive compensation in spin‑offs, tender‑offer mechanics, lock‑up agreements, and securities‑offering integration. The revisions eliminate voluntary PX14A6G filings for...
