Erik Gerding

The U.S. Securities and Exchange Commission announced Monday that it will not review most of the requests it gets from publicly traded companies hoping to exclude shareholder proposals from corporate ballots this proxy season, saying that it will not object to the exclusions due to time and resource constraints. The SEC's Division of Corporation Finance put out a statement outlining a new policy for shareholder proposal exclusions for the current proxy season. Publicly traded companies often ask the division for a letter stating that the company won't face an enforcement action for excluding certain proposals, but the agency said it won't review those requests this year and will instead just allow companies to exclude proposals based on the company's representation that the proposal is improper. "Due to current resource and timing considerations following the lengthy government shutdown and the large volume of registration statements and other filings requiring prompt staff attention ... the division has determined to not respond to no-action requests for, and express no views on, companies' intended reliance on any basis for exclusion of shareholder proposals," the statement read. The only exclusion letters it plans to review and respond to are those requesting to exclude proposals that could violate state law, because the agency said that there isn't currently much guidance on that type of exclusion. In making the decision to review exclusions based on state law, the division pointed to a speech that SEC Chair Paul Atkins gave in Delaware last month. In that speech, Atkins seemed to encourage companies to seek the SEC's staff views on whether Delaware law prohibits shareholders from forcing votes on nonbinding issues. Delaware is where the majority of the nation's Fortune 500 companies are incorporated. Atkins argued that it is possible that there is no right for shareholders to force a vote on such proposals under that state's laws. "If a company makes this argument and seeks the SEC staff's views, and the company obtains an opinion of counsel that the proposal is not a 'proper subject' for shareholder action under Delaware law, this argument should prevail, at least for that company," he said. Erik Gerding of Freshfields LLP, the former director of the SEC's Division of Corporation Finance, told Law360 in an email Monday that Delaware's courts may take a different position than that expressed by Atkins. Shareholders may challenge the position in court, he said. "If [the courts] do agree [with Atkins], another question is whether this theory applies to all nonbinding shareholder proposals or only ones dealing with 'environmental' or 'social' matters," Gerding said. Under the Biden administration, the SEC allowed shareholder proposals on hot-button topics like climate change and abortion to proceed to a vote over the objection of business groups and conservative activists. The SEC's sole Democratic commissioner, Caroline Crenshaw, issued a statement Monday slamming the new policy as "an act of hostility toward shareholders." She took particular issue with the letters of no objection that the division said it will grant to companies that self-represent that they have a reasonable basis to exclude a proposal. The statement "cloaks itself in neutrality by expressing that the division will not weigh in on any company's exclusion of shareholder proposals, but then it hands companies a hall pass to do whatever they want," Crenshaw said. "It effectively creates unqualified permission for companies to silence investor voices (with 'no objection' from the commission)."

Nov 17

3 min

Thirty-four Freshfields partners have been selected to Lawdragon’s 500 Leading Dealmakers in America guide for 2026. The guide recognizes the M&A, corporate, securities, finance, private equity, tax, corporate governance and ESG leaders and other transactional lawyers handling the biggest deals. The partners recognized are: Andrea Merediz Basham – Corporate/M&A Elizabeth K. Bieber – Shareholder Engagement and Activism Defense Oliver J. Board – Corporate/M&A Ian N. Bushner – Private Capital Calise Cheng – Capital Markets Timothy J. Clark – Private Funds & Secondaries Chris DeCresce – Capital Markets Sebastian L. Fain – Corporate/M&A John A. Fisher – Corporate/M&A Erik Gerding – Capital Markets Adam H. Golden – M&A (Life Sciences) Matthew Goulding – Private Capital Alison M. Hashmall – Financial Services Regulatory Jenny Hochenberg – Corporate/M&A Paul Humphreys – Corporate/M&A Vinita Kailasanath – M&A (Life Sciences) Menachem Kaplan – IP and Tech Transactions Ethan Klingsberg – Corporate/M&A Denny Kwon – Corporate/M&A Kyle Lakin – Finance Michael Levitt – Capital Markets Allison Liff – Leveraged Finance Aly Love – Corporate/M&A Pamela L. Marcogliese – Capital Markets and Corporate Governance Jerome Ranawake – Finance Brian Rance – Finance Neal J. Reenan – Private Capital Damian Ridealgh – Private Credit and Capital Solutions Kristen Olvera Riemenschneider – M&A (Life Sciences) David Sewell – Financial Services Regulatory Sarah K. Solum – Capital Markets Phillip Stoup – Capital Markets Zheng 'Jonathan' Zhou – Corporate/M& Damien Zoubek – Corporate/M&A

Oct 20

1 min

Global law firm Freshfields announced today that former Oregon Attorney General Ellen Rosenblum has joined the firm as a senior counsel to lead its State Attorneys General (State AG) practice. Ellen was the first woman to be elected state attorney general in Oregon history. Over her 12+ years in office she led and participated in hundreds of successful state and national policy initiatives, investigations and lawsuits. These ran the gamut from consumer protection, fraud, privacy, financial regulation, antitrust, civil rights and environmental protection to public records and criminal justice reform. In addition to record-breaking financial settlements, Ellen's efforts helped shape policies and best practices to safeguard the public. During her final year in office, she served as the President of the National Association of Attorneys General, the leading nonpartisan national forum for state AGs and their staff. In 2024, she received the organization’s highest honor, Attorney General of the Year. “We are thrilled to welcome Ellen to lead our State AG practice,” said U.S. Managing Partner Sarah Solum. “Ellen’s firsthand knowledge of state AG enforcement priorities and strategies, combined with our team’s deep civil litigation experience and diverse government service, will allow Freshfields to be a one-stop-shop for matters involving conduct of interest to state AGs, including matters involving parallel civil litigation and regulatory attention.” Freshfields State AG team focuses on advising clients facing investigations and regulatory scrutiny by state AGs. The cross-practice team includes former high-ranking officials from various federal agencies including U.S. Department of Justice (DOJ), Department of Defense (DOD), Federal Trade Commission (FTC), Securities and Exchange Commission (SEC) and Consumer Financial Protection Bureau (CFPB), among others, as well as the U.S. Senate and House of Representatives and the White House. Co-Head of U.S. Litigation and Co-Lead of Global Strategic Risk Management Beth George noted, “Over the past few years, clients have seen an increase in activity from America’s 56 Attorneys General offices ranging from privacy and consumer protection to antitrust concerns. Ellen’s deep knowledge of the issues and extensive bipartisan connections to the state AG community immediately strengthens our existing practice, and I’m thrilled to have her join us to lead our team.” Prior to her 12-year tenure as Oregon AG, Ellen served as an associate and partner in private practice, as an Assistant United States Attorney (federal prosecutor), and as a judge on the Oregon Court of Appeals and on the Multnomah County District and Circuit Courts. She also has a long history of involvement with the American Bar Association, where she served as Secretary of the Association, Chair of the Section of State, Local and Tribal Government Law, and currently is a delegate-at-large to its House of Delegates. Ellen is a member of the American Law Institute, a past president of the Owen M. Panner American Inn of Court, and a past chair of the Fellows of the American Bar Foundation. Rosenblum added, “I am excited to become a part of this talented Freshfields team, whose proven track record counseling clients facing investigations and regulatory scrutiny by state AGs is outstanding. As a former AG, I know from experience how valuable quality legal representation is to successfully resolving complex state regulatory matters in a fair and timely manner. With the diverse backgrounds of our Freshfields State AG team, we are well-positioned to serve all of our clients who have matters of importance to state AGs and the public they serve.” Rosenblum is the most recent high-ranking former government official and first on the state side to join the firm. Previous key federal government additions in recent years include former FTC Commissioner Christine Wilson, former acting General Counsel of DOD Beth George, former SEC Associate Director of Enforcement Melissa Hodgman, former SEC Director of Corporate Finance Erik Gerding, former DOJ Antitrust Deputy Assistant Attorney General Manish Kumar and Associate Deputy Attorney General Austin Evers.

Jan 29

3 min

As the federal government shutdown lingers, the U.S. Securities and Exchange Commission has updated its guidance to advise companies on how they can still move forward with initial public offerings. The guidance released on Thursday indicates that businesses seeking to make their public debuts can leave pricing information on their registration statements blank and later update documents with a final IPO price. To complete IPOs during periods of shutdown, companies typically file their registration statements without something called a "delaying amendment," a legal provision blocking a statement's automatic effectiveness after 20 days and allowing companies to update the estimated price range of the offering after responding to SEC comments and review. With about 90% of SEC staff furloughed during the shutdown and no one to review registration statements, companies can remove this amendment and simply wait for their registration statement to become automatically effective after 20 days without any SEC intervention. But doing so comes with many risks, such as setting a fixed offering price and hoping it's still favorable after 20 days, or facing an enforcement action later in time when SEC staff return to work and are able to review and comment on registration statements. Because of all the risks, a prolonged government shutdown has the potential to essentially "freeze" the IPO market. Lawyers say Thursday's updated guidance from the SEC's Division of Corporation Finance gives companies a little more leeway on their journey to go public with slightly less risk. "With the latest SEC guidance from the Division of Corporation Finance, companies seeking to go public by removing the delaying amendment can utilize a price range instead of a fixed price, as you would normally do in a traditional IPO," Ryan Adams, an SEC and public company advisory partner at Morrison Foerster LLP, said after the guidance was released. "This provides significant and unprecedented flexibility for companies filing registration statements during the government shutdown." The new guidance provides that, while companies still have to remove the delaying amendment from their registration statement if they are seeking to go public during the shutdown, they can also omit the "pricing and price-dependent" information on those registration statements. In a memo put out by Ropes & Gray LLP, the BigLaw firm explained that to take this route, a company will either need to amend a pending filing to remove the delaying amendment or file a new registration statement without the amendment. Companies will still need to consider the anti-fraud provisions of federal securities laws and think about how to address any unresolved SEC comments if staff review of their registration statement is substantially complete. "The SEC signaled it is looking to facilitate IPOs and registration statements going effective without staff action during the government shutdown. This could allow more companies to price and close public offerings during the shutdown," Freshfields LLP partners Erik Gerding, Melissa Hodgman and Michael Levitt said in a Thursday blog post regarding the updated guidance. "Some issuers in advanced stages of SEC review may consider this welcome news, as some may see their windows to go effective before year-end narrowing, particularly if their second-quarter financials are about to go stale," they added. The SEC also released guidance on company options for whenever the government reopens. If a business removed the delaying amendment or filed a new registration statement without the amendment, the commission said it will consider requests to accelerate the effective dates of those registration statements if they are updated to include a delaying amendment before the end of the 20-day period. Since the shutdown began on Oct. 1, only a few companies have gone public. Commercial laundry equipment maker Alliance Laundry Holdings began trading publicly on Thursday after raising $826.3 million in an upsized initial public offering, with its registration statement approved the night before the shutdown began. Post-secondary education services provider Phoenix Education Partners also on Thursday raised $136 million in its IPO after offering 4.3 million shares for $32 each. A few special purpose acquisition companies have also priced offerings, but SPAC IPO prices don't typically fluctuate and are often fixed at $10 per share.

Oct 10

3 min

The U.S. Securities and Exchange Commission announced Monday that it will not review most of the requests it gets from publicly traded companies hoping to exclude shareholder proposals from corporate ballots this proxy season, saying that it will not object to the exclusions due to time and resource constraints. The SEC's Division of Corporation Finance put out a statement outlining a new policy for shareholder proposal exclusions for the current proxy season. Publicly traded companies often ask the division for a letter stating that the company won't face an enforcement action for excluding certain proposals, but the agency said it won't review those requests this year and will instead just allow companies to exclude proposals based on the company's representation that the proposal is improper. "Due to current resource and timing considerations following the lengthy government shutdown and the large volume of registration statements and other filings requiring prompt staff attention ... the division has determined to not respond to no-action requests for, and express no views on, companies' intended reliance on any basis for exclusion of shareholder proposals," the statement read. The only exclusion letters it plans to review and respond to are those requesting to exclude proposals that could violate state law, because the agency said that there isn't currently much guidance on that type of exclusion. In making the decision to review exclusions based on state law, the division pointed to a speech that SEC Chair Paul Atkins gave in Delaware last month. In that speech, Atkins seemed to encourage companies to seek the SEC's staff views on whether Delaware law prohibits shareholders from forcing votes on nonbinding issues. Delaware is where the majority of the nation's Fortune 500 companies are incorporated. Atkins argued that it is possible that there is no right for shareholders to force a vote on such proposals under that state's laws. "If a company makes this argument and seeks the SEC staff's views, and the company obtains an opinion of counsel that the proposal is not a 'proper subject' for shareholder action under Delaware law, this argument should prevail, at least for that company," he said. Erik Gerding of Freshfields LLP, the former director of the SEC's Division of Corporation Finance, told Law360 in an email Monday that Delaware's courts may take a different position than that expressed by Atkins. Shareholders may challenge the position in court, he said. "If [the courts] do agree [with Atkins], another question is whether this theory applies to all nonbinding shareholder proposals or only ones dealing with 'environmental' or 'social' matters," Gerding said. Under the Biden administration, the SEC allowed shareholder proposals on hot-button topics like climate change and abortion to proceed to a vote over the objection of business groups and conservative activists. The SEC's sole Democratic commissioner, Caroline Crenshaw, issued a statement Monday slamming the new policy as "an act of hostility toward shareholders." She took particular issue with the letters of no objection that the division said it will grant to companies that self-represent that they have a reasonable basis to exclude a proposal. The statement "cloaks itself in neutrality by expressing that the division will not weigh in on any company's exclusion of shareholder proposals, but then it hands companies a hall pass to do whatever they want," Crenshaw said. "It effectively creates unqualified permission for companies to silence investor voices (with 'no objection' from the commission)."

Nov 17

3 min