Enhancing America’s capital markets, or: thumb off the scale!

SEC Commissioner Mark T. Uyeda recently delivered some remarks at the 53rd Annual Securities Regulation Institute:

He noted:

  • The Commission is considering how it can further enhance America’s capital markets—both qualitatively and quantitively. We cannot take for granted that our capital markets will remain the most attractive, the deepest, and the most liquid in the world. Complacency invites decline.
  • We seek to focus our corporate disclosure rulebook squarely on maintaining the quality and reliability of material information. There are a number of areas where we can potentially enhance our public company disclosure framework that will further empower investment choice, price discovery, and investor protection.

Here’s one of those areas:

  • In our efforts to enhance the quality and effectiveness of the SEC rulebook, we should also consider whether it is appropriately tailored and avoids a one-size-fits-all approach. Smaller public companies make significant contributions to the financial markets and the economy more broadly. For context, 50% of all registered equity offerings during the 12-month period ended June 30, 2025 were done by smaller public companies. Some of these investments may provide higher growth opportunities for investors. As such, we should take care to see that our regulations are not disproportionately burdensome on small businesses.
  • One approach is through scaled disclosure for smaller companies. Key concepts such as the “Emerging Growth Company” (“EGC”) and “Smaller Reporting Company” (“SRC”) definitions have important implications for issuers—and can alleviate regulatory burdens while promoting capital formation.
  • Over 40% of companies (42.5%) must comply with the full scope of the Commission’s disclosure requirements. If the Commission were to reduce this number to approximately 20%, the total number of additional companies that would be able to provide scaled disclosure requirements would increase by almost 1,400. From an investor protection standpoint, however, those 20% of the companies still subject to the full scope of our disclosure requirements would represent almost 93.5% of total market public float.
  • Thus, it is important that the threshold definitions for being an EGC or SRC are appropriately calibrated as they will have a direct impact on the scope of applicable regulatory filing obligations. These definitions are not merely academic or administrative—they delineate the corresponding regulatory obligations that a company will face.
  • For instance, SRCs illustrate how investors might expect differing disclosure obligations depending on the size of the company. An established pharmaceutical company with a trillion-dollar market capitalization should not be subject to the same disclosure standards as a biotech company with zero revenues and only one drug candidate in the development pipeline. For the former, there are potentially many Regulation S-K disclosure line items that will provide investors with information material to their investment decisions. For the latter, it is likely that there is primarily one key disclosure that investors are looking to: the milestones and status of the drug’s development.

This all sounds much aligned with Canadian regulatory rhetoric over the years. For example, quite recently, in proposing that a certain population of companies be allowed to move from quarterly to semi-annual reporting, the CSA Chair referred to their “ongoing efforts to support the competitiveness of Canadian capital markets by making financial reporting more efficient and cost-effective for eligible issuers,” and their commitment “to a Canadian regulatory environment that is right-sized for our market and responsive to the changing needs of market participants.” The references to the 40% versus 20% thresholds suggest that the desired outcome may somewhat drive the SEC’s process, but then the delineation of cutoffs and transition points is always arbitrary to some degree.

Other possible areas of streamlining highlighted in the speech include disclosures of insider trading policies, related party transactions and cybersecurity. But of course, it wouldn’t be a present-day SEC speech if Uyeda hadn’t returned to the organization’s primary current obsession:

  • During recent years, regulatory agencies have sought to adopt standards based on non-financial social or environmental considerations. Such approaches were fashionable in many circles. Regulatory agencies, however, should strive to adopt standards that are grounded in the statutory authority granted to those agencies and focused on financial materiality. Regulators should aim to adopt neutral standards that are not tied to specific social or political philosophies and objectives and the Commission should not put its thumb on the scale in furtherance of such goals.
  • This is especially true given that there is considerable skepticism as to whether ESG investment strategies yield superior returns.

If you think that the SEC in the age of Trump (you know, the same one that hurried to drop every open cryptocurrency enforcement case having a Trump connection) is capable of operating with any kind of thumbs-off “neutrality,” then your take on the world certainly differs from mine. All part of the same world, though, in which a tiny percentage of the population, far less than 20%, generates over 93.5% of the social, economic and cultural wreckage…

The opinions expressed are solely those of the author.

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