The Securities and Exchange Commission (“SEC”) and Commodity Futures Trading Commission (“CFTC”) will hold a joint public event on Tuesday, January 27, 2026, at the CFTC Headquarters in Washington, D.C., to discuss harmonization of the regulatory approach taken by the agencies and U.S. leadership in the crypto era. The event is open to the public and will be webcast live on the SEC’s website. The program is expected to include remarks from both Chair Atkins and Selig and a moderated fireside chat.

This joint session is framed as part of broader efforts to align oversight of crypto markets and foster innovation “on American soil,” and may offer signals on areas of SEC-CFTC coordination relevant to trading venues, custody, and intermediaries.

The event will be streamed live on the SEC’s website. See the full agenda for additional information.

Webinar | February 5, 2026
9:00 a.m. – 9:30 p.m. EDT
Register here.

Insurance companies were active issuers of senior notes in 2025. In addition, insurance companies, including a number of first-time issuers, turned to P-CAPs transactions. P-CAPs offer flexibility for their issuers, which may be useful in addressing acquisition opportunities or in addressing volatile markets. Funding agreement backed note issuance reached record levels, raising some questions whether these elevated volumes are sustainable. European insurance issuance reached record highs with RT1 and T2 issuance leading, will demand for these instruments continue?

January 29, 2026
Mayer Brown LLP, 14th Floor, 1221 Avenue of the Americas, New York, NY 10020
Register here.

This event will feature partner-led sessions on the issues demanding your attention NOW (CLE eligible) and strategic conversations about what’s NEXT, including a fireside chat with Richard Clarida (Former Vice Chairman, Federal Reserve Board of Governors) and networking reception.

AGENDA
What’s happening NOW & how to navigate the way

9:00am – 9:30am | Networking Breakfast and Registration

9:30am – 10:20am | Crosshairs and Challenges: Integrity Issues and Enforcement Outlook

  • Speakers: Christa Bieker, Ger O’Donnell, Jeffrey Taft, Steven Kaplan (moderator)

10:30am – 11:20pm | Liquidity from the Living Room: Unlocking Home Equity

  • Speakers: Holly Bunting, Haukur Gudmundsson, Darius Horton, Brian Kuhl, Susannah Schmid (moderator)

11:30am – 12:20pm | Capital in Motion: Balance Sheets Powering Structured Finance

  • Speakers: Michael Gaffney, Jan Stewart, Sagi Tamir, Angela Ulum, Stuart Litwin (moderator) 

12:30pm – 1:30pm | Lunch and Networking  

1:30pm – 3:30pm | Space available for attendees to work

Where it’s going NEXT & how to think ahead

3:30pm – 4:00pm | Registration and Coffee

4:00pm – 4:15pm | Welcome and Introductions

4:15pm – 5:00 pm | Market Forecast 2026: Deals, Data, and Disruption

  • Speakers: Julie Gillespie, Mitchell Holzrichter, Anna Pinedo, Eric Reilly, Eleni Watts (McKinsey & Company), Paul Jorissen (moderator)

5:15pm – 6:00pm | White House to Wall Street: Macroeconomic Impacts of Trump’s Policies

  • Speakers: Andrew Olmem, Richard Clarida (Former Vice Chairman, Federal Reserve Board of Governors)

6:00pm – 7:30pm | Networking Reception

View full agenda and register here.

For additional information, please contact nownext@mayerbrown.com

On January 7, 2026, the Securities and Exchange Commission (“SEC”) proposed amendments to the rules that define which registered investment companies, investment advisers,[1] and business development companies[2] qualify as “small entities” for purposes of the Regulatory Flexibility Act (RFA).  These amendments would significantly increase the asset-based thresholds last updated in 1998 and introduce a mechanism for periodic inflation adjustments.  The proposal would also make corresponding amendments to Form ADV and the rule governing continuing hardship exemptions for investment advisers.  The SEC press release, dated January 7, 2026, is available here, and the SEC Fact Sheet is available here.

Why the SEC is proposing these changes

The RFA requires agencies to assess whether rules will have a “significant economic impact on a substantial number of small entities” and to consider alternatives that minimize burdens on such entities.  Unless the SEC certifies that the rulemaking will not have such an impact, the SEC is required to conduct a regulatory flexibility analysis both during the proposal and final stages of adopting a rule.

The SEC’s small entity definitions for funds and advisers were set in 1982 and last updated in 1998.  Since, industry net assets and assets under management have grown substantially, sharply reducing the number of firms that qualify as “small” under existing thresholds.  The SEC stated that updating the thresholds will better tailor RFA analyses to entities that face disproportionate compliance challenges due to size.

For investment companies, the proposal cited growth from approximately $296.7 billion in net assets across 857 funds in 1982 to $41.6 trillion across 13,630 funds as of December 2024. As a result, the share of funds deemed “small entities” fell from roughly 62.4% (1982) to 0.6% (2024), underscoring the need to recalibrate the standard.  Similarly for investment advisers, the growth in assets under management has significantly reduced the number of advisers that are deemed “small entities,” from approximately 17,000, or 75% of the approximately 22,500 total registered investment advisers prior to the 1998 amendments to only 451 or 3% of the 15,909 total registered investment advisers in 2025.

What would change for investment companies

The proposal would amend rule 0-10 under the 1940 Act to increase the net asset threshold from $50 million to $10 billion, measured on an aggregated basis across a “family of investment companies” (as reported in Item B.5 of Form N‑CEN) rather than the current “group of related investment companies” construct.  While the definitions of these terms share common elements, there are key differences between them that could produce different outcomes for funds.  The SEC chose $10 billion to approximate the 80th percentile of fund families by aggregate average total net assets, which would capture about 80% of fund families, accounting for 22.9% of individual funds and 2.13% of total net assets as “small entities.”[3]

What would change for investment advisers

The proposal would amend rule 0‑7 under the Investment Advisers Act of 1940 (the “Advisers Act”) to raise the regulatory assets under management (RAUM) threshold from $25 million to $1 billion for identifying an investment adviser as a “small entity.”  The proposal would also make conforming changes to the control relationship test, so an investment adviser is not “small” if it is in a control relationship with another adviser that has $1 billion or more in assets under management or with any non‑natural person with $5 million or more in total assets.

According to Form ADV reporting, only 451 of 15,909 SEC‑registered investment advisers (about 3%) qualified as “small entities” in 2025 under the current rules.[4]  The proposed $1 billion RAUM threshold would increase the proportion of investment advisers captured, with the SEC estimating about 15,850 of 21,650 SEC-registered investment advisers and exempt reporting advisers (roughly 75%) fall below the proposed threshold, though this would still represent under 3% of total industry RAUM due to concentration among the largest advisers.

Notably, the proposed changes do not impact investment adviser registration thresholds.

Continue reading this blog post.

[1] This term includes, for example, both SEC-registered investment advisers as well as exempt reporting advisers.

[2] The release clarifies that, unless otherwise specified, the term “investment companies” or “funds” refers collectively to registered investment companies and business development companies but not entities excluded from the definition of investment company under the Investment Company Act of 1940 (the “1940 Act”), such as private funds. 

[3] The SEC noted that because these percentage calculations were based on Form N-CEN data, certain investment companies were excluded from the calculations.

[4] The SEC noted that because the current threshold was aligned with the minimum threshold for adviser registration, RFA analyses in its rulemakings have not considered the substantial majority of advisers that are subject to registration under the Advisers Act and the full application of the rules thereunder.

On January 13, 2026, Securities and Exchange Commission Chair Atkins released a statement relating to a comprehensive review of Regulation S-K.  In the Chair’s statement, he notes that he has asked the Staff of the Division of Corporation Finance to “engage in a comprehensive review of Regulation S-K.”  The Chair notes that the first step of this review was the process that was undertaken in connection with soliciting comments on the executive compensation disclosure requirements, which comments the Staff is currently reviewing.

The SEC has undertaken prior reviews of Regulation S-K, in each instance with a view to modernizing the disclosure requirements.  The FAST Act required a report on the modernization and simplification of Regulation S-K.  The SEC then published a concept release on business and financial disclosure required by Regulation S-K.  Following the concept release and a public comment period, there were various amendments of Regulation S-K that eliminated a number of outdated requirements.  Chair Atkin’s statement encourages comments on how the SEC “can amend Regulation S-K, with the goal of revising the requirements to focus on eliciting disclosure of material information and avoid compelling the disclosure of immaterial information.”  Public comments are requested by April 13, 2026.  Read Chair Atkin’s full statement.

IPOs and Small Public Companies

As we noted in our prior post, the Office of the Advocate for Small Business Capital Formation recently issued its Staff Report for fiscal year 2025, which provides information on the Office’s activities.  We discussed the Report’s findings with respect to reliance on exempt offerings as well as pooled funds.  In this post, we focus on the Report’s analysis with respect to initial public offerings and small public companies.  The Report provides important data that shows how our capital markets have changed in the last decade.  It also raises many questions relating to whether IPOs can be made great again specifically for small companies or even for mid-cap companies.

The Report notes that the number of IPOs remains low compared to historic levels, though it is trending upward.  The IPO statistics include IPOs by pooled funds, such as closed end funds, unit investment trusts, and business development companies.  Taking this into account, there were 246 IPOs completed in 2024 and 180 in the first half of 2025 (these IPO statistics will be different from other reported IPO statistics, which usually exclude pooled vehicles).  Excluding pooled vehicles, SPACs (yes, they’ve returned) account for the most significant amount of IPO proceeds followed by technology, real estate, manufacturing and healthcare companies. 

Source: SEC OASB Staff Report

The statistics provide further confirmation of all of the reported trends of companies remaining private longer and the IPO market being hospitable largely only to more seasoned, sophisticated and well-capitalized companies.  In 2024, IPOs by small companies represented 44% of all IPOs but only 3% of capital raised in IPOs.  It was only IPOs by larger companies that witnessed an increase in 2024 and in the first half of 2025.  In 2024, the median age of an IPO issuer increased—to 14 years!  That’s an awfully long time from startup to IPO.  The Report notes that from 2014 to 2024, the number of companies remaining private eight years or more after receiving their first venture capital round has quadrupled and 45% of unicorns received their first VC funding round nine or more years ago.  The private secondary market is increasing in size and importance to accommodate this—the Report estimates that at June 30, 2025 the U.S. secondary market was about $61 billion.  Secondaries now account for about 32% of VC exit value, so VCs are often exiting through secondaries not through IPOs as companies remain private longer.  Since 2000, VC-backed companies accounted for 51% of all IPOs and 66% of technology IPOs.  Founder-led IPOs were more common in high-growth sectors (services, software and life sciences) and less frequent in more traditional sectors.  Of the companies that went public in 2017 through 2021 with founder CEOs, 75% remained founder-led in 2025.

This year’s Report contends that improved access to capital is an important motive for companies to go public.  For larger companies, we disagree.  Maybe this is the case for smaller companies and life sciences companies.  The Report notes that companies that go public are likelier to have higher sales and higher capital expenditures and assets though less profitability.  The Report notes that, post-IPO “on average,” public companies credit spreads dropped by almost 25%, borrowing costs declined and the pool of lenders has expanded.

The number of exchange-listed companies continues to decline from 6,258 in 2000 to 3,518 at June 30, 2025.  The most significant percentage decline has been in small exchange-listed companies, from 3,958 in 2000 to 1,186 at June 30, 2025.  The Report cites a number of factors that have contributed to the decline including an increase in mergers, noting that between 1996 and 2020, there were approximately 4,000 mergers between public companies.  In addition, the Report cites the low number of IPOs and the delisting of smaller companies as contributing to the decline.  The Report does not cite costs or regulation.  The Report does note the significant costs borne by small public companies in connection with Sarbanes-Oxley Act compliance—noting that while large companies incur higher overall costs, small public companies experience a proportionally higher cost burden.  The Report quantifies the audit fees associated with the transition from non-accelerated filer status to accelerated filer status to demonstrate when these costs are particularly severe.  Perhaps if the SEC reexamines filer status and “on ramps” this might mitigate the impact of these costs.

Source: SEC OASB Staff Report

The Report finds that the industries that have the most small public companies are in the healthcare sector.  We should want life sciences and biotech companies to be able to access capital and to do so efficiently.  The second most numerous:  technology companies.  The public market has fundamentally changed.  Listed companies are larger—the aggregate market capitalization of listed companies increased 197% from 1996 to 2023.  As we have often noted in this blog, institutional investors have moved away from the small and mid-cap market.  The Report notes that many small public companies receive little or no analyst coverage.  Companies included in the S&P 500 Index have an average of 20 analysts covering their stocks, while Russell Microcap Index constituent companies have an average of three analysts providing coverage.  Generally, research analyst coverage is closely correlated to liquidity and impacts a company’s ability to raise capital in follow-on public offerings.  Certainly, a lot of data in the Report that might inform recommendations relating to making not just going public but also remaining public as a small or midcap company attractive.

The Office of the Advocate for Small Business Capital Formation recently issued its Staff Report for fiscal year 2025, which provides information on the Office’s activities.  As do prior reports, this Report provides a perspective and data on capital formation related to small and emerging businesses and exempt offerings; data related to mature and later-stage businesses; and data related to initial public offerings and small public companies.  Small public companies include U.S. public companies with a public float less than or equal to $250 million (calculated based on the methodology specified in the Report).  The Report describes the continuing challenges faced by small businesses in accessing capital, whether to meet operating expenses, expand their businesses, pursue new opportunities, or access credit.  The Report notes that 13% of the U.S. population qualifies as an accredited investor.  These individuals qualify principally on the basis of household net worth (10%), household net income (3%), personal income (3%), and specialized expertise (2%).  Accredited investors remain fundamental to private capital.

Companies (not pooled funds) continue to rely on exempt offerings in order to raise capital.  Information on exempt offerings as well as other offerings is provided for the period from July 1, 2024 to June 30, 2025.  During this period, companies raised $378 billion in Rule 506(b) private placements; $24 billion in Rule 506(c) offerings; $1.2 billion in Regulation A offerings; $300 million in Rule 504 offerings; $235 million in Reg CF offerings; and $1 trillion in other exempt offerings (this includes Rule 144A and Regulation S offerings).  As we always note, these numbers are understated since, following the adoption of the bad actor provisions in 2013, many investment banks encourage companies to rely on Section 4(a)(2) for private placements in which they act as placement agents.  Over the same time period, companies raised $47 billion in IPOs and $1.4 trillion in other registered offerings.

Source: SEC OASB Staff Report

U.S. public companies raised $1.5 trillion (64% of capital raised) from investors and U.S. private companies raised $840 billion (36% of capital raised) from investors during the applicable period.  The Report examines how companies in different industries raise capital.  Not surprisingly, companies in the banking and financial services sector overwhelmingly rely on registered offerings.  Technology companies and energy companies largely rely on registered offerings.  By contrast, companies in the real estate sector rely heavily on private capital for funding.  According to the Report, over the past three years, operating companies raising capital under Regulation D were most often in their first few years of operations.  While this is no doubt accurate, it seems a bit misleading.  Larger companies usually retain a financial intermediary—an investment bank—to assist with capital raising efforts and small public companies almost invariably do so.  Banks prefer to rely on Section 4(a)(2) instead of Regulation D Rule 506(b) for various reasons.  So, the statement may leave readers with a misimpression regarding the use of exempt offerings.

The Report notes that at the end of 2024, there was $126 trillion invested in pooled investment vehicles, distributed as follows:  $40 trillion in assets in registered funds; $31 trillion in assets in private funds; and $55 trillion in assets invested in separately managed accounts.  Over the same period referenced above, pooled funds raised $1.9 trillion in Rule 506(b) private placements; $169 billion in other exempt offerings (this includes Rule 144A and Regulation S offerings); and $100 billion in Rule 506(c) offerings.  Now, the Report notes that while pooled funds accounted for most of the amounts (in proceeds) raised under Regulation D, pooled funds accounted for a little less than half of the number of offerings.  Pooled vehicles raised $11 billion in IPOs and $11 billion in other registered offerings.  The Report notes that a total of $10.3 trillion flowed into funds, or $478 billion of net cash, during the period.  These numbers are interesting given the increased focus on private assets and the SEC’s focus on retail access to private assets through registered funds.  Interestingly, the Report notes that the vast majority of capital raised in Regulation D offerings by pooled funds is raised by 3(c)(7) funds—these are limited to qualified purchasers, so they are not available to retail investors.

Asset management vehicles, especially those regulated under the Investment Company Act of 1940 (the 1940 Act), are frequently painted with a broad brush and described as having the same or virtually indistinguishable characteristics.  For a long while, many fund vehicles, like interval funds and tender offer funds, were not popular, barely attracting any attention from mainstream asset managers.  Open-end funds, especially mutual funds, and subsequently exchange traded funds, accounted for the majority of U.S. assets under management.  Now, with the coalescence of increased interest in alternative assets, including private credit, and the desire to provide retail investors access to private markets through registered securities, these, as well as other fund alternatives, have become increasingly relevant.  This makes it important to gain a better understanding of various permanent capital alternatives, which might be said to exist on a spectrum or continuum, with each having distinct features.  Once these sometimes fine distinctions are highlighted it becomes possible to structure or match the fund type to the asset mix, the sponsor’s desired compensation arrangements, the distribution channel and target audience.  

Access our publication Understanding the Spectrum of Permanent Capital Vehicles, which provides an overview of each of the principal permanent capital vehicles and concludes with a discussion of the regulatory reforms that are impacting this sector, as well as shares a perspective on additional regulatory changes that may be on the horizon. A PDF for download is available here.

Conference | February 4-6, 2026

Mayer Brown is pleased to partner with the Fintech Center at the University of Utah for the Fintech Xchange conference on February 4-6, 2026. Our Partner Matt will speak on the panel “Systemic impact of the GENIUS Act.” 

Launched in 2023, the Fintech Center at the University of Utah unites education and industry to accelerate financial innovation and strengthen the fintech ecosystem. We are working with the Center on important initiatives, including advancing Utah bank charters for fintech companies.

With our Salt Lake City office we are hosting a series of events that week, which is Utah Tech Week, promoting the tech community in Utah. Stay tuned for the full schedule.

In December 2025, the Financial Industry Regulatory Authority, Inc. (“FINRA”) published its 2026 Annual Regulatory Oversight Report (the “Report”).  The Report includes a focused discussion of private placements, highlighting areas that continue to draw attention from FINRA’s Member Supervision, Market Oversight and Enforcement teams.

FINRA reiterates that recommendations of private placements to retail investors trigger Regulation Best Interest (“Reg BI”), while recommendations to non-retail customers are subject to FINRA Rule 2111 (Suitability).  The Report notes that firms have incorrectly characterized their communications to customers as not involving a recommendation, or claimed that the issuer is making the recommendation, despite evidence that the firms’ communications were individually tailored to customers and operated as a “call to action.”  The Report also notes that firms have failed to discharge their Reg BI obligations by not adequately identifying, disclosing and, where appropriate, mitigating conflicts of interest associated with recommendations of private placements.

FINRA emphasizes that recommendations of privately offered securities should be based on a reasonable investigation of the issuer and the offering, including the issuer’s management, business prospects, assets, claims being made and intended use of proceeds, as detailed in FINRA Regulatory Notice 23-08 (see our Legal Update for additional information).  Consistent with last year’s report, FINRA identifies deficiencies relating to firms’ due diligence practices, including overreliance on prior issuer relationships, failure to identify or address red flags and failure to evidence a firm’s due diligence efforts.

Additionally, FINRA highlights risks associated with private placement offerings of “pre-IPO funds,” as to which FINRA notes certain firms have failed to verify access to the pre-IPO shares or understand the costs associated with acquiring the pre-IPO shares.

FINRA also reminds firms of their obligation under FINRA Rules 5122 (Private Placements of Securities Issued by Members) and 5123 (Private Placements of Securities) to timely file with FINRA offering materials for the private placements they offer or sell, including retail communications, unless a filing exemption is available.  FINRA cautions firms against purporting to rely on a filing exemption under FINRA Rule 5123(b) that is not applicable to the offering (e.g., the exemption for sales to certain institutional accredited investors, which generally is not applicable for sales to individual accredited investors).

Finally, FINRA highlights several effective practices, including tailoring due diligence checklists to the structure and risk profile of each offering, conducting “bad actor” diligence at both the issuer and placement agent levels, implementing independent reviews to verify key issuer claims and assess red flags and monitoring offerings for material changes, including changes in the issuer’s intended use of proceeds.

Access the full text of the Report and, for a full discussion and analysis of the Report, read our Legal Update.