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.
Continue reading this Legal Update.
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 Reference | Guidance |
| Securities Act Forms CFIs | |
| Form S-3: Revised Question 115.02 | The 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 126.13 | Duplicative guidance no longer needed. |
| Exchange Act Forms CFIs | |
| Form 10-Q: Withdrawn Question 105.09 | Dated guidance; no longer relevant. |
| Form 20-F: Withdrawn Question 110.01 | Dated guidance; no longer relevant. |
| Form 20-F: Revised Question 110.06 | Revised 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 105.01 | Paragraphs (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 105.02 | Instruction 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 105.03 | For 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 110.02 | Dated guidance; no longer relevant. |
| Regulation S-K CFIs | |
| Item 301: Withdrawn Question 108.01 | Dated guidance; no longer relevant. |
| Items 308 and 308T: Revised Question 115.02 | See “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.
Continue reading this Legal Update.
On October 15, the Staff of the Securities and Exchange Commission’s Division of Corporation Finance published several new Corporation Finance Interpretations, or CFIs, most of which relate to the use of Form S-8, the short-form registration statement used to register the offer and sale of securities issued pursuant to employee benefit and compensation plans under the Securities Act of 1933. The Staff also revised several existing CFIs on the same topic. In particular, new Securities Act Rules CFI 126.47 reflects an interesting interpretive position in terms of the Staff view of offers and sales of compensatory awards with vesting conditions, such as restricted stock awards, and the timing of these.
| CFI Reference | Guidance |
| Securities Act Rules CFIs | |
| Rule 457: New Question 240.19 | An issuer can rely on Securities Act Rule 457(o) to calculate the registration fee for an offering under a defined contribution plan. |
| Rule 701: New Question 271.28 | Before becoming an Exchange Act reporting company, an issuer relied on an exemption from Securities Act registration to grant compensatory awards, including restricted stock, stock options and restricted stock units. Once the issuer becomes an Exchange Act reporting company, it can register the shares to be issued upon vesting of these previously-granted restricted stock awards and the securities underlying the outstanding stock options and restricted stock units on Form S-8. |
| Rule 701: New Question 271.29 | An issuer acquires an entity and assumes compensatory awards previously granted by the acquired entity. The acquiror can rely on Rule 701 with regard to those awards held by persons whose employment or other service relationship with the acquired entity terminated prior to the acquisition as long as (i) the compensatory awards are assumed by the acquiror in the transaction and (ii) the acquiror is eligible to use Rule 701. |
| Securities Act Forms CFIs | |
| Form S-8: Revised Question 126.14 | Company A acquires Company B and assumes outstanding Company B compensatory awards held by current and former employees of Company B. Company A can use Form S-8 to register Company A shares associated with the compensatory awards held by former employees of Company B that are assumed by Company A. This is a reversal of previous Staff guidance, which held that where Company A assumes outstanding Company B options held by former employees of Company B, and these options become exercisable for Company A shares, such Company A shares could not be registered on Form S-8 (see General Instruction A.1(a)(3) to Form S-8). |
| Form S-8: Revised Question 126.19 | A company’s 401(k) plan provides for an automatic company contribution, employee contributions, and a company “matching” contribution, each up to a certain threshold. The investment options for the 401(k) plan include the employer’s securities such that Securities Act registration is required. The company would not have to pay a fee for the automatic contribution since it is made without regard to employee contributions, but would have to pay a fee with respect to the employee contributions and the matching contributions to the extent these are invested in employer’s securities. Registration is required for an indeterminate amount of plan interests that are securities of the plan; however, no separate fee is required with respect to plan interests (Rule 416(c) and Rule 457(h)(2)). |
| Form S-8: New Question 126.46 | An issuer registered on Form S-8 the offer and sale of securities underlying compensatory awards with vesting conditions, such as RSUs, and paid the filing fees. The RSUs never vested and were forfeited, and the underlying securities became available for reissuance. The issuer can apply the filing fees associated with the securities underlying the forfeited RSUs to future registrations of offers and sales of securities underlying RSUs, including those that became available for reissuance under the plan, on Form S-8. |
| Form S-8: New Question 126.47 | An Exchange Act reporting company granted awards of restricted stock and RSUs that vest based on specified conditions at a subsequent date; such awards settle in shares of the company’s common stock. The company can register the offer and sale of the common stock issued upon settlement on Form S-8 by the date of vesting instead of the grant date as long as the company was also eligible to use Form S-8 on the grant date. |
| Exchange Act Rules CFIs | |
| Form 4: New Question 135.05 | Form 4 must be filed by the end of the second business day following the date of the transaction being reported, calculated beginning with the date in the time zone where the transaction was executed. For example, a transaction is completed on foreign exchange on August 25, 2026 at 9 a.m. local time (when it is August 24, 2026 in U.S. Eastern time), so the Form 4 must be filed by 10 p.m. U.S. Eastern time on August 27, 2026. |
The new CFIs can be found here.
Webinar | October 26, 2026
11:00 a.m. – 11:30 a.m. EDT | 3:00 p.m. – 3:30 p.m. GMT | 4:00 p.m. – 4:30 p.m. CET
Register here.
The US regulatory landscape for structured products continues to evolve, bringing new opportunities, considerations, and challenges for market participants. Join SRP and Mayer Brown for a discussion on the SEC Staff’s expanded abbreviated disclosure framework for equity-linked structured notes, its practical implications for issuers, and its potential impact on the broader structured products market.
Speakers will cover:
On October 9, 2026, the Commodity Futures Trading Commission (“CFTC”) took two coordinated actions addressing the scope of its jurisdiction over event contracts. First, it issued an interim final rule (the “Interim Final Rule”) codifying its longstanding position that gambling products, including wagers placed on sportsbook and casino games, are excluded from the “swap” definition. Second, it published a notice of proposed rulemaking (the “NPR”) that would further define “swap” to expressly include event contracts, including those based on sports-, politics-, cultural-, and weather-related events.
The Interim Final Rule adds a new paragraph (7) titled “Casino-style gambling products” to the “swap” definition in Section 1.3 of the Commodity Exchange Act (the “CEA”). The exclusion has two components:
The Interim Final Rule expressly identifies sports wagers, casino games, and other licensed games of chance (such as bingo, pool wagering, lotteries, and raffles) as excluded. In distinguishing these products from event contracts, the CFTC emphasizes that gambling products are unilateral, priced by “the house,” not cleared, and historically subject to state regulation, whereas event contracts trade at market-set prices on a central orderbook and are centrally cleared. The CFTC also notes that the exclusion is non-exclusive and that a product failing the tests is not necessarily a swap.
The NPR would add a new paragraph (2)(i)(G) to the “swap” definition in Section 1.3 of the CEA covering “[e]vent contracts, including those based on sports-, politics-, cultural, and weather-related events.” The CFTC grounds the NPR in several independent bases. It views event contracts as “commonly known to the trade as a swap,” pointing to the thousands of event contracts that DCMs have self-certified to the Commission. It also views these as satisfying the prong covering events or contingencies “associated with a potential financial, economic, or commercial consequence,” stressing that the word “potential” is broad, and notes that many event contracts are structured as binary options on excluded commodities. Separately, the CFTC asserts that its express statutory authority to “further define” the term “swap” supplies an independent legal basis for this determination. The NPR would not reach casino-style gambling products, and the CFTC notes that it retains authority under Section 5c(c)(5)(C) of the CEA, which authorizes the CFTC to prohibit event contracts involving “gaming” that are “contrary to the public interest.”
Taken together, the Interim Final Rule and the NPR represent a coordinated effort to distinguish state-regulated gambling from federally regulated event contracts and to remove the argument that treating event contracts as swaps would federalize every sportsbook wager. The releases are the latest in a series of CFTC actions affecting the prediction markets, including the June 2026 proposed rulemaking discussed in our prior post. Read the CFTC’s press releases for the Interim Final Rule here and the Proposal here.
