On October 29, 2026, the Staff of the Division of Investment Management (the “Staff”) of the Securities and Exchange Commission (the “SEC”) issued a no-action letter to Goldman Sachs Asset Management, L.P. (“GSAM”) addressing warehouse arrangements entered into in connection with the launch of registered closed-end funds and business development companies (“BDCs”).  The letter confirms that the Staff will not recommend enforcement action to the SEC under Sections 17(d) and 57(a)(4) of, and Rule 17d-1 under the Investment Company Act of 1940, as amended (the “1940 Act”), if GSAM enters into the warehouse arrangement described in the letter.

Under the proposed arrangement, GSAM would identify investment opportunities for G-X Private Markets (the “Fund”) and present these to an unaffiliated (i.e., neither an affiliated person of the Fund (as defined in Section 2(a)(3) of the 1940 Act (a “first-tier affiliate”), nor an affiliated person of an affiliated person of the Fund (a “second-tier affiliate”)) warehouse party that would have discretion to acquire the investments.  The investments would consist of assets that are consistent with the Fund’s investment objective and strategies. In effecting the warehousing arrangement and any acquisition of investments, GSAM would comply with its policies and procedures relating to investment allocation, as applicable.

The warehouse party would hold the investments until the Fund satisfies a minimum offering requirement and the Fund’s board of trustees approves the Fund’s acquisition of the investments.  The Fund would then acquire all of the investments held by the warehouse party under the arrangement. The Fund would enter into only one facility agreement with one warehouse party.

The Staff’s position is subject to numerous and specific conditions designed to address the provisions of Sections 17(d) and 57(a) of the 1940 Act, which are intended to guard against the types of conflicts of interest and overreaching by affiliates, which these sections were intended to prevent.  Those conditions include that the warehouse party must be unaffiliated with the Fund and investments may not be acquired from affiliates of the Fund (i.e., the investments may not be acquired by the warehouse party from a first- or second-tier affiliate of the Fund) or from accounts managed by GSAM affiliates. This condition likely addresses, indirectly, certain arrangements that some funds have entered into, in an effort to season certain portfolio investments, raise initial capital or for other reasons.

The Fund’s board must also approve the facility agreement (and any related costs and expenses to be borne by the Fund, after receiving a copy of the facility agreement). If the Fund’s board has yet to be constituted, under state law, the Fund’s sole initial trustee has the authority to enter into agreements on the Fund’s behalf, which the fully constituted board would ratify once it has been seated.

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On November 2, 2026, the Staff of the Division of Corporation Finance (the “Division”) of the Securities and Exchange Commission (the “SEC”) added new Questions 1.4 through 1.6 to its frequently asked questions (the “FAQs”) on how the federal securities laws apply to certain crypto assets and certain transactions involving crypto assets (read about the original FAQs here). 

By way of background, as set forth in the SEC’s March 17, 2026 interpretive release (the “Interpretive Release”), “a digital commodity is a crypto asset that is intrinsically linked to and derives its value from the programmatic operation of a crypto system that is ‘functional,’ as well as supply and demand dynamics, rather than from the expectation of profits from the essential managerial efforts of others.”  A digital commodity is used to facilitate and incentivize the validation, ordering, and confirmation of transactions on the functional crypto system, and so is necessary for the operation of the functional crypto system.  The functional crypto system does not have a “central party” that oversees participation or distributes rewards to users, meaning that the value of a digital commodity is intrinsically linked to the programmatic functioning of the system. The new FAQs address the concept of a “central party,” which the SEC defined as a “person, entity, or group of persons or entities having operational, economic, or voting control of a crypto system.” 

The new FAQs provide the following key guidance:

Broad-Based Governance Participants as a “Group”

Whether the participants in a functional crypto system’s broad-based governance system are a “group of persons or entities” for purposes of the “central party” definition is a facts and circumstances determination. However, participants generally will not be considered a group if they are not affiliated and do not have an agreement, arrangement, or understanding (whether formal or informal) to act in concert (including through delegation) separate from their participation in the broad-based governance system itself.

The FAQs define a “broad-based governance system” as a transparent, rules-based system that permits and results in a wide and diverse group of a crypto system’s stakeholders of multiple types (e.g., developers, node operators, validators/miners, and/or holders of the crypto system’s native crypto asset) to independently contribute and form consensus or reach binding agreement regarding decisions involving the crypto system.

The same is true where the broad-based governance system is part of an organization, association, or foundation and participation is based on holding the crypto system’s native crypto asset, although the organization, association, or foundation could itself be a central party if it has operational, economic, or voting control over another crypto system. In any event, even participants that are considered a group would need to have operational, economic, or voting control of the functional crypto system to be a central party.

The Staff noted that this view pertains exclusively to the description of digital commodities in Section III of the Interpretive Release and has no relevance to provisions of the Securities Act or the Exchange Act.

Overseeing Participation

A central party oversees participation in a crypto system when it has the authority to control access to the crypto system at any level, whether at the protocol, validator, or user level.  For example, a central party oversees participation when it has unilateral authority to grant or limit access to the crypto system; determine or change the voting processes for software upgrades, protocol changes, or distributions of the native crypto asset; control who can participate in the consensus mechanism to validate transactions; or modify the crypto system’s rules-based code, reverse transactions, or revoke access.  By contrast, a central party generally does not oversee participation where every material aspect of the crypto system’s ongoing operation is executed automatically pursuant to rules-based code without discretion by any person, or where any discretion is exercised solely through a broad-based governance system whose participants are not themselves a central party.

Relationship Between “Functional” and “Decentralized”

The Interpretive Release provides that a digital commodity is necessary to participate in or use certain aspects of an associated functional crypto system, and also separately states that a digital commodity may be native to a crypto system that is decentralized. For purposes of Section III of the Interpretive Release, “functional” and “decentralized” are distinct concepts that address different aspects of a crypto system’s design and operation. A crypto system is “functional” if its native crypto asset can be used on the system in accordance with the system’s programmatic utility, and is “decentralized” if it functions and operates autonomously with no person, entity, or group of persons or entities having operational, economic, or voting control of it. Because a functional crypto system does not have a central party that oversees participation or distributes rewards to users, and a digital commodity may be native to a functional crypto system that is decentralized, a functional crypto system to which a digital commodity is native has characteristics of decentralization, although the degree of decentralization can vary depending on the facts and circumstances.

Access the FAQs: Division of Corporation Finance FAQs on Crypto Assets.

Access the Interpretive Release: Interpretive Release.

At the October 27, 2026 meeting of the Securities and Exchange Commission’s (the “SEC”) Small Business Capital Formation Advisory Committee (the “SBCFA”), Chair Paul S. Atkins and Commissioner Mark T. Uyeda discussed the SEC’s initial public offering (“IPO”) modernization initiative, specifically, easing the gun-jumping prohibitions, as well as re-evaluating Regulation Crowdfunding (“Reg CF”).

Turning to the SBCFA’s agenda, Chair Atkins began by highlighting the SBCFA’s recommendations from its July meeting on three SEC proposals:  optional semiannual reporting, simplification of filer status, and registered offering reform.  He noted these reforms aim to encourage companies to go public and stay public, and that he was now turning to another component of the IPO modernization initiative: removing unnecessary barriers during the IPO process.

In line with this, Chair Atkins discussed the gun-jumping prohibitions, describing these as “among the most restrictive regulations… contained in the Securities Act.”  Noting that the SEC has not revisited its communications rules since 2005, Chair Atkins stated that the SEC will (i) re-evaluate limits on the content of communications and on the persons to whom communications may be made, (ii) consider providing brighter lines as to when communications constitute “offers,” and (iii) consider cure provisions for issuers that violate the communications rules.  As discussed in a prior blog post, Chair Atkins raised similar concerns in his speech at Stanford, at which he solicited public comment on modernizing the IPO process.  In response to that request for comment, the Federal Regulation of Securities Committee of the Business Law Section of the American Bar Association addressed a number of aspects related to the IPO process, including the need to modernize the framework for offering related communications in Annex A of its August 4, 2026, comment letter (the “ABA Comment Letter”).  The ABA Comment Letter emphasized that, given the passage of time and technological changes, the SEC should reconsider the communications safe harbors, particularly those related to gun-jumping.

The ABA Comment Letter also noted that the SEC should reconsider the research safe harbors.  These concerns align with Commissioner Uyeda’s comments on the tension between the strict rules governing company communications with investors before and during an IPO and the lack of research coverage after the IPO.  He called for encouraging thoughtful, high-quality research coverage of smaller companies.

Chair Atkins and Commissioner Uyeda also discussed Reg CF, which the SEC adopted in 2015 to provide an avenue for startups and small businesses to raise modest amounts of capital from the “crowd.”  Chair Atkins noted that, over the past decade, there have been more than 9,800 Reg CF offerings, raising an average of $364,000 per offering.  He stated that he has directed the SEC staff to consider which components of Reg CF can be amended to reduce compliance burdens and to make Reg CF a more attractive route for issuers and investors.  Commissioner Uyeda added that, rather than focusing on raising the Reg CF offering limit, the SBCFA should consider the costly requirements associated with Reg CF and post-offering issues, such as limits on resale.

Both Chair Atkins and Commissioner Uyeda expressed interest in hearing the SBCFA’s views on these topics.  Read Chair Atkins’s speech, Commissioner Uyeda’s speech, and the ABA Comment Letter.

Hybrid | November 3, 2026
Register here.

Practising Law Institute (PLI) will host the 2026 Fintech and Regtech in the Financial Services Industry: Current Issues for Investment Advisers and Broker-Dealers program.

Mayer Brown Partner Steffen Hemmerich will participate in the “Artificial Intelligence and the Regulatory Round-Up — SEC, FINRA and Related Rulemaking” session.

See the event webpage for information on the program and the session.

Pursuant to the general instructions to Form S-3, an issuer must have been subject to the reporting requirements of Section 12 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), for at least the prior 12-month period to meet the eligibility requirements for the form.  However, in a welcome expansion of existing guidance, on October 26, 2026, the Staff of the Division of Corporation Finance of the U.S. Securities and Exchange Commission granted no-action relief and published a related Corporation Finance Interpretation, or CFI, providing that this requirement can be satisfied if an issuer that is “voluntarily reporting” timely filed all Exchange Act reports that it otherwise would have been required to be filed during the past 12 months, but was not subject to Section 12 or 15(d) for some of that period. 

In its letter to the Staff, Sumisho Air Lease Corporation (“Sumisho Air”) explained that its reporting obligation under Section 15(d) of the Exchange Act is expected to be automatically suspended by operation of Section 15(d) (i.e., with no action by the company) on January 1, 2027, and will be restored when Sumisho Air files its annual report on Form 10-K in early 2027.  During this period, the company plans to timely and voluntarily file all reports that it would otherwise have been required to file under Exchange Act Section 15(d), such that there will be no gap in its reporting.  Therefore, Sumisho Air argued that it will continue to satisfy the requirements to use Form S-3, notwithstanding that it may not be subject to the reporting requirements of Section 12 or Section 15(d) of the Exchange Act during that time.  The Staff agreed not to recommend enforcement action against Sumisho Air based on the foregoing. 

As noted in its letter, Sumisho Air plans to (i) continue offering and selling securities registered on an existing shelf registration statement during the period in which it is voluntarily reporting and after it files its next Form 10-K and (ii) file a new Form S-3 in reliance on the Staff’s guidance.  In other words, the relief can be interpreted broadly, enabling companies to both use existing registration statements and file new registration statements.

There is a strong policy rationale for the Staff’s decision, as noted in Sumisho Air’s letter, “a determination of Form S-3 eligibility should turn on ‘whether investors can readily obtain issuer-specific information . . . to make an informed investment decision.’”  Here, investors have such access; “[w]here an issuer has maintained an uninterrupted record of timely Exchange Act reporting, the purpose of General Instruction I.A.3 is satisfied regardless of the legal compulsion underlying any individual filing.”  Further, timely and flexible access to the capital markets is important to many public companies, including Sumisho Air, and this relief will likely increase the attractiveness of the U.S. capital markets.  The relief is also consistent with this summer’s proposing release on registered offering reform, which proposed eliminating the 12-month reporting lookback in determining Form S-3 eligibility, while retaining the requirements that companies be current and timely in their Exchange Act reporting (read more here).

The Staff revised Securities Act Forms CFI 115.15 in a manner consistent with the guidance in the letter.  The CFI states that, in order to be eligible to use Form S-3, an issuer must have been subject to the requirements of Exchange Act Section 12 or 15(d) for a period of at least 12 months.  However, this requirement can be satisfied if an issuer timely filed its Exchange Act reports during the past 12 months, but was not subject to Section 12 or 15(d) for some of that time, and instead reported on a voluntary basis.  Find the no-action letter here and the new CFI here.

On October 15, 2026, the Securities and Exchange Commission (“SEC”) approved amendments to Rule 2210 (Communications with the Public) of the Financial Industry Regulatory Authority, Inc. (“FINRA”), allowing member firms to project performance or provide a targeted return with respect to a security, a securities portfolio, or an asset allocation or other investment strategy in communications with the public, subject to specified conditions (the “Amendments”). Such conditions include (i) adopting and implementing written policies and procedures reasonably designed to ensure the communication is relevant to the likely financial situation and investment objectives of its intended audience, (ii) providing sufficient disclosure regarding the criteria and assumptions underlying the projected performance or targeted return and the risks and limitations of using the projected performance or targeted return in making investment decisions and (iii) maintaining records concerning the source of the projected performance or targeted return.

The Amendments further align the use of projected performance and targeted returns by broker-dealers under FINRA Rule 2210 with the use of hypothetical performance by SEC-registered investment advisers under Rule 206(4)-1 under the Investment Advisers Act of 1940 (the “Marketing Rule”).

However, FINRA did not, at this time, expand the scope of the Amendments to include additional categories of performance information, such as back-tested, model portfolio, related and extracted performance, thereby leaving a gap between FINRA Rule 2210 and the Marketing Rule. Broker-dealers must continue to rely on existing guidance in order to share this type of information with certain sophisticated investors under certain circumstances. Communications that contain both back-tested performance and projected performance and targeted returns must continue to be reviewed for compliance with applicable rules and guidance.

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On October 21, 2026, the Financial Industry Regulatory Authority, Inc. (“FINRA”) published Regulatory Notice 26-19 announcing amendments to FINRA Rule 5110 (Corporate Financing Rule – Underwriting Terms and Arrangements) and Rule 5123 (Private Placements of Securities).  The amendments are part of FINRA’s broader effort to modernize its rules and facilitate capital formation.

The amendments to Rule 5110, effective December 21, 2026, revise how securities treated as underwriting compensation are valued, replacing the existing “bona fide public market” standard with a valuation based on closing market prices on the acquisition date.  The amendments also add exclusions for certain securities acquired in debt-for-equity exchanges and for capital investments in direct participation programs and unlisted REITs, extend existing treatment to certain non-convertible preferred securities and clarify requirements applicable to termination fees and tail fees.

The amendments to Rule 5123, effective October 21, 2026, expand the existing private placement filing exemption to include certain entities owning more than $5 million in investments and qualifying family offices with more than $5 million in assets under management.  These changes reduce filing obligations for offerings sold to sophisticated investors and align the exemptions that are available from FINRA’s filing requirements with the SEC’s expanded definition of “accredited investor.”  We had previously posted regarding these changes.

Separately, the Securities and Exchange Commission (“SEC”) approved FINRA’s proposed rule change to exempt qualifying collective investment trusts (“CITs”) from FINRA Rules 5130 and 5131(b) (see our prior post), which restrict purchases of new issues by restricted persons and prohibit certain allocations commonly referred to as “spinning.”  The exemption is available to qualifying CITs that are not formed or maintained for the specific purpose of permitting restricted persons to invest in new issues.  FINRA will announce the effective date of the CIT exemption in a separate Regulatory Notice.

Together, these changes reflect FINRA’s continuing efforts to simplify its regulatory framework while maintaining investor protections.  Member firms should review their underwriting arrangements, private placement filing procedures and new issue allocation practices to assess the impact of the changes.

Access the FINRA Regulatory Notice.

Access the SEC Order.

On October 20, 2026, the Staff of the Division of Trading and Markets (the “Division”) of the Securities and Exchange Commission (the “SEC”) published frequently asked questions (the “FAQs”) regarding the SEC’s September 17, 2026 order (the “Innovation Exemption Order”).  The Innovation Exemption Order grants temporary, conditional exemptive relief from the definition of “exchange” in Section 3(a)(1) of the Securities Exchange Act of 1934 (the “Exchange Act”) for certain distributed ledger trading venues for tokenized NMS stocks (“TSVs”) and from the definition of “dealer” in Section 3(a)(5) of the Exchange Act for certain liquidity providers (“Covered Firms”).

The FAQs focus on the notice process for prospective TSVs and provide the following key guidance:

Timing of the Public Notice

A TSV must publish a Notice prominently on its publicly available website at least 30 calendar days before commencing operations.  The Notice must be in plain English, be clear, concise, and understandable, and be accurate and complete, addressing all the information identified in Section III of the Innovation Exemption Order as it will apply upon commencement of trading.  Accordingly, in the Staff’s view, a TSV should publish its Notice only after its operations and access standards are established and ready for production, and must amend the Notice thereafter to keep its disclosures current.

Pending Issuer Notice Objection Periods

Because a TSV cannot operate or trade Tokenized NMS Stocks before the end of the 30-calendar day public Notice period, a TSV may list in its public Notice the third-party Tokenized NMS Stocks for which it has provided Issuer Notice and indicate that the objection period is pending.  If the issuer does not deliver a timely Notice of Issuer Objection, the TSV may make the Tokenized NMS Stock available for trading and must amend its public Notice accordingly.  If the issuer does timely object, the TSV must amend its public Notice to reflect the objection and cannot make that Tokenized NMS Stock available for trading.

The FAQs highlighted the list of persons that have already provided written notice to the SEC that they intend to operate pursuant to the TSV Exemption, which will be continually updated.

They also provided a point of contact at the SEC for questions about the Innovation Exemption Order.

The FAQs are another step in a series of actions by the SEC providing regulatory clarity for the digital asset markets, and are a helpful signal that the Division is actively engaging with prospective TSVs and Covered Firms as they prepare to rely on the Innovation Exemption.

Access the FAQs: Division of Trading and Markets FAQs on the Innovation Exemption.

Access the referenced Order: Innovation Exemption Order.

On October 21, 2026, the Staff of the Securities and Exchange Commission’s Division of Corporation Finance published a handful of new Corporation Finance Interpretations, or CFIs, as well as revised and withdrew some previously existing CFIs. The Staff has done a remarkable job recently of updating the CFIs, and the majority of the current updates are “clean-up changes” to remove dated guidance. There are, however, three new CFIs, all relating to Instruction 4 to Item 2.01 of Form 8-K, regarding determining the significance of acquisitions and dispositions of assets.

CFI ReferenceGuidance
Securities Act Forms CFIs
Form S-3: Revised Question 115.02The failure to provide the disclosure required by Item 308(a) of Regulation S-K in a Form 10-K report renders the annual report materially deficient and means that the company is not current and timely in its Exchange Act reporting, and the company cannot file a new Form S-3 or S-8 registration statement or incorporate by reference in Form S-1 or S-11, and shareholders cannot rely on Rule 144. The company also would be required to suspend any sales under effective registration statements on Form S-3 or Form S-8, or any Form S-1 for which the issuer has elected to forward incorporate by reference pursuant to Item 12(b) of Form S-1. If the company amends its Form 10-K to provide management’s report on internal control, regardless of whether such controls are effective, shareholders can again rely on Rule 144 and the company can file new Forms S-8 and resume making sales on effective Forms S-8 or Forms S-1 that use forward incorporation by reference, but cannot file a new Form S-3 because it is no longer timely with its Exchange Act reporting. The substance of this guidance remains unchanged; the CFI was updated to remove dated references and add the ability to incorporate by reference on Form S-1.
Form S-8: Withdrawn Question 126.13Duplicative guidance no longer needed.
Exchange Act Forms CFIs
Form 10-Q: Withdrawn Question 105.09Dated guidance; no longer relevant.
Form 20-F: Withdrawn Question 110.01Dated guidance; no longer relevant.
Form 20-F: Revised Question 110.06Revised to remove reference to Item 3.A of Form 20-F, which was deleted from Form 20-F effective November 19, 2020. The remainder of the guidance remains unchanged.
Exchange Act Forms – Form 8-K CFIs
Item 2.01: New Question 105.01Paragraphs (i), (ii) and (iii) of Instruction 4 to Item 2.01 explain how to determine whether an acquisition or disposition is deemed to involve a significant amount of assets for the purpose of compliance with the Item. Registrants need only apply the applicable paragraph: If the registrant is a business development company and did not acquire or dispose of a business as determined under Rule 11-01(d) of Regulation S-X, apply only paragraph (iii); if the registrant acquired or disposed of a business as determined under Rule 11-01(d), apply only paragraph (ii); and if the registrant is not a business development company and it did not acquire or dispose of a business as determined under Rule 11-01(d), apply only paragraph (i).
Item 2.01: New Question 105.02Instruction 4 provides that the aggregate impact of acquired businesses is not subject to the significance thresholds in paragraph (ii) of the instruction unless they are related businesses (Rule 3-05(a)(3) of Regulation S-X), related real estate operations (Rule 3-14(a)(3) of Regulation S-X), or related funds (Rule 6-11(a)(3) of Regulation S-X). The reference to these rules does not require registrants to include probable acquisitions, only acquisitions that have already been completed when assessing aggregate significance.
Item 2.01: New Question 105.03For acquisitions and dispositions that are not acquisitions or dispositions of businesses as determined under Rule 11-01(d) of Regulation S-X, registrants should use the most recent balance sheet required to be filed at or prior to the date of the acquisition or disposition, which may be an interim balance sheet, to derive “the total assets of the registrant and its consolidated subsidiaries” required for the significance test in Instruction 4.
Item 2.06: Withdrawn Question 110.02Dated guidance; no longer relevant.
Regulation S-K CFIs
Item 301: Withdrawn Question 108.01Dated guidance; no longer relevant.
Items 308 and 308T: Revised Question 115.02See “Form S-3: Revised Question 115.02,” above.

Find the new CFIs here.

On October 9, 2026, the Securities and Exchange Commission proposed amendments to Rule 17a-7 under the Investment Company Act of 1940, as amended, that would expand the types of securities eligible for cross trading between registered investment companies (“registered funds”) and certain affiliated persons. The proposed amendments are a welcome development for the industry, and effectively serve to reverse an unexpected regulatory development from 2020 that significantly narrowed the scope of securities eligible for Rule 17a-7 cross trading. In addition, the proposal would generally modernize the rule’s requirements (which could result in more efficient portfolio management and reduced transaction costs for registered funds and their shareholders) while maintaining appropriate safeguards against conflicts of interest and affiliated-party overreach. More specifically, the proposed amendments would, among other things, permit cross trading in most securities valued using observable market inputs, including securities classified as Level 2 under the fair value hierarchy established under U.S. generally accepted accounting principles; establish alternative pricing methodologies for cross trades; reallocate the responsibilities of cross trading oversight between registered fund chief compliance officers and boards of directors; and require aggregated reporting of cross-trading activity on Forms N-PORT and N-MFP.

The proposal represents a significant change for registered funds, particularly for those that invest in fixed-income securities, as well as for fund complexes that manage multiple registered funds with overlapping investment strategies and trading needs. In this Legal Update, we discuss the proposal and its potential implications in more detail.

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