No Small Token: The SEC Proposes Regulation Crypto Assets

On August 18, 2026, the SEC proposed “Regulation Crypto Assets” (the “Proposal”), a tailored offering and reporting regime for certain investment contracts involving non-security crypto assets (each, a “covered investment contract”). Building on the SEC’s March 2026 interpretive release applying the Howey test to crypto assets and transactions, the Proposal goes several steps further by offering issuers two new registration exemptions, tailored disclosure requirements and a codified safe harbor for determining when a covered investment contract has ceased to exist.

The Startup Exemption. The startup exemption would permit an issuer to raise up to $5 million over four years. An issuer would file a short notice on Form NOR, publish the required disclosures on a freely accessible website, update those disclosures annually and file a transition report on Form TR within four years. The exemption generally could be used only once for a crypto asset or a substantially similar asset.

The Fundraising Exemption. A separate exemption, modeled in large part on Regulation A, would permit Tier 1 offerings of up to $20 million and Tier 2 offerings of up to $75 million in any 12-month period. To qualify, an issuer would be required, among other things, to be organized under U.S. federal, state, territorial or District of Columbia law; have a majority of its executive officers or directors be U.S. citizens or residents; have more than 50% of its assets located in the United States; and administer its business principally in the United States. Issuers would be required to file an offering statement on Form 1-CRYPTO and provide financial statements prepared in accordance with U.S. GAAP. For Tier 2 offerings, those financial statements would be required to be audited. Sales could begin only after the offering statement had been qualified by the SEC. Issuers using either tier would also be subject to ongoing annual, semiannual and current reporting on Forms 1-KC, 1-SC and 1-UC.

Principles-Based Disclosure. Both exemptions would require issuers to provide tailored, principles-based narrative disclosures addressing 10 topics specific to crypto assets and crypto systems, rather than relying on existing disclosure frameworks designed for traditional securities offerings.

Investment Contract Safe Harbor. Proposed Rule 400 would provide a formal, nonexclusive route for an issuer to establish that a covered investment contract has ceased to exist. To rely on the safe harbor, the crypto asset must have been issued under a covered investment contract, and the issuer must: (i) have completed or otherwise permanently ceased all essential managerial efforts that it represented or promised it would engage in the covered investment contract, (ii) neither be making nor intend to make any new representations or promises to engage in essential managerial efforts with respect to the crypto asset and (iii) file a transition report on Form TR certifying that the conditions have been satisfied and providing an analysis supporting the certification. If those conditions are satisfied, the SEC would treat the covered investment contract as having ceased to exist and the crypto asset as no longer subject to that investment contract for purposes of the definitions of “security” under the Securities Act and the Exchange Act. The SEC could challenge a certification it believes to be inaccurate, and an issuer could instead rely directly on the March interpretive release without filing Form TR.

Preemption of State Registrations and Qualification Requirements. The Proposal would define purchasers of covered investment contracts in primary offerings under either exemption as “qualified purchasers” for purposes of Section 18(b)(3) of the Securities Act, thereby preempting state registration and qualification requirements for those offerings. The preemption would also extend to secondary‑market resales by persons other than the issuer, an underwriter or a dealer, provided that the issuer has satisfied the requirements of a Regulation Crypto Assets exemption with respect to the covered investment contract and remains subject to, and current with, the applicable disclosure, filing or periodic reporting requirements. 

For more information, see Debevoise In Depth.

SEC Ends Rule 14a-8 No-Action Review Process

On August 14, 2026, the staff of the SEC’s Division of Corporation Finance (the “Division”) announced that it will discontinue responding to all no-action requests under Exchange Act Rule 14a-8, effective immediately and unless and until the Division announces otherwise. The announcement largely extends the Division’s approach to the 2026 proxy season but goes further by providing that the Division will no longer (i) review requests based on Rule 14a-8(i)(1), which permits exclusion of proposals that are not a proper subject for shareholder action under applicable state law, or (ii) issue “no objection” responses to notices submitted by companies under Rule 14a-8(j). Nonetheless, companies intending to exclude a proposal must still notify the SEC and the proponent no later than 80 calendar days before filing a definitive proxy statement.

SEC Chairman Paul Atkins described the 2026 proxy season as a “proof of concept” for resolving shareholder proposal disputes without substantive staff involvement. He noted that overall proposal omission rates remained broadly consistent with the prior year and that several investor groups reported increased engagement with companies. Six shareholder proponents challenged exclusion decisions through litigation during the 2026 proxy season, including one case in which a federal court granted a preliminary injunction requiring BJ’s Wholesale Club Holdings to include a shareholder proposal in its proxy materials. This willingness of shareholder proponents to litigate exclusion decisions increases the importance of early planning, shareholder engagement and consideration of potential litigation and timing issues.

The SEC is separately considering more fundamental changes to the shareholder proposal framework. Its most recent Regulatory Flexibility Agenda includes “Shareholder Proposal Modernization,” and Chairman Atkins has stated that the SEC is “holistically evaluating” Rule 14a-8, including the relationship between the federal shareholder proposal regime and state corporate law and the appropriate federal role in regulating shareholder proposals.

For more information, see The Debrief.

CFTC Orders Federal Employee to Pay More Than $172,000 for Insider Trading of Mention Market Event Contracts

On August 28, 2026, the CFTC issued an order filing and settling charges against Gabriel Perez for misappropriating material, nonpublic information obtained through his federal government employment to trade presidential mention market event contracts for his personal benefit. The CFTC characterized the event contracts as swaps subject to its jurisdiction under the Commodity Exchange Act (the “CEA”).

While working as a White House teleprompter operator, Perez had access to presidential speeches before they were delivered. The order found that Perez used the contents of those speeches to take “Yes” or “No” positions on whether particular words or phrases would be used. Perez traded in 14 presidential mention markets, traded profitably in 39 of 43 contracts and generated $107,539.02 in profits.

The CFTC applied the misappropriation theory of insider trading and found that Perez used confidential government information, in breach of duties of trust and confidentiality, to trade swaps for personal gain. The CFTC found that his conduct violated Sections 4c(a)(3), 4c(a)(4)(C) and 6(c)(1) of the CEA and Commission Regulations 180.1(a)(1) and (3).

The order requires Perez to disgorge all trading profits, pay a $65,000 civil monetary penalty and cease and desist from further violations. It also prohibits him from trading on or being subject to the rules of any CFTC-registered entity for three years. The CFTC stated that Perez received a substantial reduction in the civil monetary penalty under the Division of Enforcement’s new cooperation policy because of his extraordinary cooperation, including promptly participating in an interview, voluntarily providing documents and accepting responsibility for his conduct.

For more information, see CFTC press release.

Delaware Court of Chancery Issues First Significant Ruling on Amended Section 144

On August 26, 2026, the Delaware Court of Chancery handed down the first decision analyzing whether a transaction qualified for protection under the new safe harbors of amended Section 144 of the DGCL. In Dodiya v. Franklin, the court concluded at the pleading stage that the transaction did not qualify for either of the safe harbors asserted by the defendants. The court emphasized, however, that the complaint described an “extreme scenario,” and most of the directors were dismissed from the case under the company’s charter exculpation provisions.

Background. The case arose from the acquisition of Whole Earth Brands by affiliates of Sababa Holdings. According to the complaint, which the court accepted as true for purposes of its decision, Whole Earth’s CEO leaked material, nonpublic information to Sababa, his father’s company, in which the CEO had a financial interest. After the board discovered the leak, the audit committee investigated, but the CEO refused to cooperate or sign a confidentiality undertaking. He was placed on leave and ultimately resigned as CEO but remained on the board. The board subsequently restored his access to confidential information without safeguards, and the complaint alleged that he continued to provide information to Sababa. The company’s proxy statement stated that the former CEO had been entirely walled off from the transaction process.

Section 144(a)(1) Board-Approval Safe Harbor. The defendants argued that the transaction was protected by Section 144(a)(1), which applies, in relevant summary, where the material facts concerning a director’s or officer’s conflict are disclosed or known to the board and a majority of disinterested directors authorizes the transaction in good faith and without gross negligence. Although the court concluded that the CEO’s conflict was known to the board and that a disinterested majority approved the transaction, it found it reasonably conceivable that the board was grossly negligent in failing to protect confidential information from a deeply conflicted fiduciary who had previously leaked information to the buyer.

Section 144(a)(2) Stockholder-Vote Safe Harbor. The court also concluded that the Section 144(a)(2) safe harbor did not apply because the proxy statement’s disclosure that the former CEO had been walled off was allegedly false. After his recusal, he received additional confidential materials, including Special Committee materials, and attended a board meeting at which the Special Committee reported on the negotiations. The court determined that a reasonable stockholder would want to know that the former CEO and son of the acquirer continued to receive confidential updates after his leak had been uncovered. 

Exculpation and Other Aspects of the Decision. Apart from the former CEO and another director who allegedly negotiated a $1.4 million consulting agreement with the surviving company, the court dismissed the claims against the directors because the plaintiff failed to plead non-exculpated claims. The court concluded that the board’s inadequate efforts to restrict the former CEO’s involvement supported a potential duty-of-care claim, rather than an inference of bad faith. The court also addressed the amended statute’s heightened standard for director disinterestedness, dismissed a separate Section 203 claim because that provision does not require an informed stockholder vote and held that Revlon is not entirely absent from the amended Section 144 safe-harbor analysis in a change-of-control transaction.

Practical Implications. The decision illustrates that amended Section 144 provides important protections for directors but does not protect every form of misconduct. At the same time, the dismissal of most of the directors demonstrates the continued strength of Delaware’s exculpation protections. The court’s emphasis on the unusual nature of the alleged conduct suggests that the result was confined to the particular facts pleaded and was not necessarily indicative of how the amended safe harbors will generally operate.

For more information, see Debevoise Update.

SEC Provides Additional Clarification Around Schedule 13G Eligibility for Shareholder Engagements

On September 2, 2026, the staff of the SEC’s Division of Corporation Finance issued three additional CFIs addressing circumstances in which shareholders relying on Rule 13d-1(b) or Rule 13d-1(c) of the Exchange Act may engage in common shareholder communications without losing Schedule 13G eligibility. The new guidance follows related guidance issued in 2025 and provides a framework for distinguishing ordinary-course shareholder engagement from conduct that may indicate a purpose or effect of changing or influencing control of an issuer.

Background. Rules 13d-1(b) and 13d-1(c) permit certain shareholders to report beneficial ownership of voting equity securities on Schedule 13G only if, among other requirements, the securities were not acquired and are not held with the purpose or effect of changing or influencing control of the issuer. The staff’s 2025 guidance identified circumstances that could be viewed as influencing control, including conditioning support for an issuer’s director nominees on the issuer’s adoption of recommended governance or policy changes. It also stated that Schedule 13G is unavailable where a shareholder specifically calls for the sale of the issuer or a significant portion of its assets, a restructuring or the election of director nominees other than the issuer’s nominees.

Issuer-Requested Engagements. New Question 103.13 addresses whether a Schedule 13G filer may participate in a meeting requested by an issuer to discuss the shareholder’s views or voting decisions on matters submitted at a past shareholder meeting or expected to be submitted at an upcoming meeting. The staff explained that the context in which an engagement occurs is highly relevant. An engagement initiated by the issuer, or a shareholder’s response to an issuer’s request to understand why the shareholder voted in a particular manner at a past meeting, is less likely to be viewed as an attempt by the shareholder to influence control. Participating in such a discussion would not, by itself, cause the shareholder to lose Schedule 13G eligibility.

Discussions with Persons Engaged in Proxy Solicitations. New Question 103.14 indicates that a Schedule 13G filer may discuss its views on a particular topic, and how those views could inform its voting decisions, with a person engaged in a proxy solicitation concerning a particular issuer without losing its eligibility to report on Schedule 13G.

Requests for Clarification of Issuer Disclosures. New Question 103.15 states that a Schedule 13G filer may contact an issuer to seek clarification of particular facts or statements in the issuer’s filings, including its proxy soliciting materials, or other public communications without losing its eligibility to report on Schedule 13G.

Practical Implications. The new CFIs, when considered alongside the staff’s 2025 guidance, provide a useful standard by which shareholders can assess whether ordinary-course engagement constitutes a purpose or effect of “changing or influencing control” of an issuer that precludes reporting on Schedule 13G. In particular, the new CFIs draw a practical distinction between exchanging information or explaining voting views, on the one hand, and using an engagement to exert pressure on an issuer to implement particular measures (either directly or through aligning with a proxy solicitation campaign), on the other.

For more information, see The Debrief.

CARB Releases Guidance and Voluntary Intake Platform for 2026 GHG Reporting

On September 1, 2026, CARB released guidance and a voluntary report intake platform for the initial Scope 1 and Scope 2 GHG emissions reports due November 10, 2026 under SB 253. The guidance is limited only to the 2026 reporting cycle; requirements for 2027 and subsequent years are being developed through CARB’s ongoing rulemaking.

First-Year Reporting Flexibility and Enforcement. Reporting entities may submit Scope 1 and Scope 2 emissions for the prior fiscal year based on information they already possessed or were collecting as of December 5, 2024. An entity that was not collecting or planning to collect such information at that time may instead submit a statement to that effect on company letterhead. This is consistent with CARB’s previously announced first-year enforcement approach.

Reporting Formats. For entities submitting GHG emissions data, the guidance identifies several acceptable formats, including an existing annual report, information previously reported to another program or voluntary initiative, or CARB’s voluntary draft reporting template.

Additional Contextual Information. CARB encourages reporting entities to provide contextual details such as methodologies, data sources, emission factors, organizational boundaries and assumptions.

Scope 2 Emission Factors. CARB does not require a particular Scope 2 emission-factor dataset for 2026. Companies may use EPA’s eGRID 2023 data, the eGRID 2024 dataset published by the Cornerstone Sustainability Data Initiative generated from EPA’s publicly available source code, or another credible source. Companies are encouraged to identify the emission factors used and their sources.

Assurance Requirements. CARB will accept 2026 submissions that have not received limited assurance, consistent with its previously announced first-year enforcement approach.

Report Intake Platform and Fees. Reporting entities may use CARB’s voluntary platform to provide contact and invoicing information and submit either an emissions report or a statement of non-reporting. Materials uploaded through the platform will be made public; submissions may alternatively be made by email. All reporting entities will be assessed a fee, with invoices expected on or before December 10, 2026, and payment due within 60 days.

For more information, see The Debrief.

Delaware Court Dismisses Boeing Caremark Claims, Demonstrating the Value of Engaged Board Oversight

On August 13, 2026, the Delaware Court of Chancery dismissed a derivative suit brought against Boeing’s directors and officers following a January 2024 incident in which a Boeing jet’s door plug separated from the hull at 15,000 feet. The court held that the plaintiffs failed to plead that a majority of Boeing’s board faced a substantial likelihood of liability on their Caremark oversight claims. The opinion reinforces the high bar for pleading bad-faith oversight liability and offers a practical roadmap for boards overseeing mission-critical risks.

Background. The case followed the 2018 and 2019 737 MAX crashes, after which earlier Caremark claims survived dismissal because the court found that Boeing’s board had no committee responsible for airplane safety and no regular safety reporting. Subsequent to the crashes, Boeing created an independent Aerospace Safety Committee, committed that at least three directors have aviation, engineering or product safety expertise, tasked the Audit Committee with monitoring legal and regulatory compliance, separated the CEO and Chair roles and made safety a standing item at every board meeting. The record in the new case showed that these structures were in regular use.

The Court’s Analysis. The plaintiffs did not contend that Boeing lacked a reporting system. Rather, the plaintiffs advanced a red-flags theory, namely that the extensive reporting the board received on manufacturing and compliance risks constituted a set of warnings the board consciously ignored and that the board consciously favored production targets over regulatory compliance. The court rejected both theories. In rejecting the first argument, the court explained that a report is a red flag only if it actually reaches the directors, signals illegality or impending corporate trauma clearly enough that the need to act is evident, is consciously ignored and is closely connected to the harm that follows. The court also rejected the plaintiffs’ second argument, stating that the plaintiffs had not alleged that Boeing’s production targets violated the law or that the board’s decision to maintain them despite knowing that the company faced general safety risks is sufficient to overcome Delaware’s good faith presumption.

Practical Implications. The opinion is among the most detailed descriptions a Delaware court has given of adequate oversight of a mission-critical risk. For directors, rather than prescribing a fixed analytical framework, the decision points more generally to clear responsibility for each mission-critical risk, appropriate escalation, tracking remediation and regular review of the assumptions underlying significant business targets. For in-house counsel, a high-quality, contemporaneous record of board deliberations remains important. The 2025 amendments to Section 220 of the DGCL make formal board materials especially important. In Boeing, recording not only the risk reported but also the diagnosis, owner and response helped demonstrate that the oversight system was functioning properly.

This opinion is reassuring to engaged boards. Delaware law does not ask boards to prevent every failure but rather requires directors to identify risks that could truly hurt the company, develop an appropriate oversight structure, engage with the resulting reporting stream and maintain a record of having done so. Boards that follow these principles, even if their companies suffer a bad outcome, can expect strong protection from oversight claims.

For more information, see Debevoise Update.

SEC Rulemaking Agenda

The SEC’s 2026 Regulatory Agenda was posted in July 2026. A summary of pending rule changes is included below, along with the SEC’s announced release date. For more information, see the full regulatory agenda here.