News

30 Sep, 2026

FTC Corteva Settlement Highlights Antitrust Risks in Loyalty and Distribution Programs

The FTC and twelve state attorneys general have filed a proposed settlement with Corteva over allegations that its post-patent loyalty program paid distributors to keep lower-cost generics off the shelf — $35 million and ten years of compliance oversight, without any admission of wrongdoing. The order draws a line worth reading closely: it prohibits share-based loyalty programs, those keyed to the proportion of a distributor's purchases, while leaving volume-based programs available except where used to replicate the prohibited structure. It also bars retaliating against customers who decline exclusivity terms or deal with competitors. For companies approaching patent expiry, that is the window in which distributor incentives draw the closest scrutiny — and with Texas and Tennessee joining California and Minnesota here, and the parallel case against Syngenta still pending, this line of enforcement does not appear to depend on federal priorities. What the FTC Alleged The FTC and state plaintiffs alleged that Corteva used post-patent loyalty programs that rewarded distributors for purchasing all or nearly all of their requirements for certain pesticide active ingredients from Corteva. According to the complaint, these arrangements limited generic competitors' access to important distribution channels and contributed to higher prices. Why Distribution Programs Can Raise Antitrust Concerns Loyalty discounts and purchasing incentives are not automatically unlawful. Antitrust concerns can arise, however, when their structure makes it difficult for competitors to reach customers or effectively compete through key distribution channels. What the Corteva Settlement Would Require The proposed order would restrict specified loyalty and share-based arrangements for 10 years. Among other provisions, Corteva would be prohibited from conditioning distributor benefits on purchasing more than 50% of certain pesticide requirements from Corteva and from using programs designed to replicate prohibited purchasing restrictions. What Businesses Can Learn From the Case The case has implications beyond the agricultural industry. Manufacturers and suppliers that use distributors, rebates, volume incentives, preferred purchasing arrangements, or loyalty programs should consider whether those arrangements could restrict competitors' access to customers or create exclusionary effects. Review Incentive Programs Before They Become a Problem Businesses should consider how purchasing thresholds, rebate structures, exclusivity terms, and distributor incentives operate in practice, particularly when the company has a significant position in the relevant market. What to Watch Next The proposed Corteva settlement resolves the claims against Corteva but does not end the broader case. Litigation against Syngenta remains ongoing. The Corteva stipulated order must also be approved and signed by the federal district court before it has the force of law. How SJKP Can Help SJKP can assist businesses with antitrust and competition matters involving distribution agreements, pricing practices, exclusivity arrangements, commercial contracts, and regulatory compliance. Companies using loyalty programs or distributor incentives can work with counsel to evaluate whether their commercial arrangements create potential competition risks.

17 Sep, 2026

SEC Proposes to Eliminate Rule 14a-8: What Public Companies and Shareholders Should Know

The SEC has proposed rescinding Rule 14a-8, the federal rule governing when qualifying shareholder proposals must be included in a company's proxy materials. The same release would amend Rule 14a-4(c) to expand a company's discretionary voting authority over proposals not included in its proxy statement — relevant because proponents may turn to floor proposals if the rule disappears. If adopted, determinations would rest on state corporate law and company governing documents. Many companies have no bylaw provision addressing shareholder proposals, and state law generally permits rather than requires one. Rule 14a-8 remains in effect for the 2026–2027 proxy season, and the comment period runs sixty days from Federal Register publication. What the SEC Is Proposing The SEC is proposing to rescind Rule 14a-8 under the Securities Exchange Act of 1934. The Commission says shareholder proposal requirements should instead be determined primarily through state law and company governing documents. Rule 14a-8 Remains in Effect for Now The SEC has proposed the change, but it has not adopted a final rule. Public companies and shareholders should continue to account for existing Rule 14a-8 requirements while the rulemaking process continues. Why This Could Change the Shareholder Proposal Process Rule 14a-8 currently provides a federal framework for qualifying shareholders to seek inclusion of proposals in company proxy materials. Rescission could make state corporate law, company charters, bylaws, and other governing documents significantly more important in determining how shareholder proposals are handled. The SEC Is Also Proposing Changes to Proxy Solicitation Alongside the Rule 14a-8 proposal, the SEC proposed changes to Rule 14a-4(c) and separately proposed broader proxy solicitation reforms. Those reforms include eliminating the annual report delivery requirement, removing Notices of Exempt Solicitation, changing certain incorporation-by-reference delivery requirements, and reducing the minimum broker search period from 20 business days to five business days. Proxy Procedures Could Look Different Two things are worth doing before the comment period closes.Read your bylaws for any provision addressing shareholder proposals. Most companies have none, because the federal rule made one unnecessary. If Rule 14a-8 goes, that silence becomes the answer. And consider whether to comment. The Commission has asked how companies and shareholders would respond to rescission, and the record being built now is the one a reviewing court would read later. What Public Companies Should Review Start with the bylaws. Most companies have no provision addressing shareholder proposals, because Rule 14a-8 made one unnecessary. State corporate law generally permits such provisions but does not require them — so if the federal rule is rescinded and the bylaws are silent, there is no framework at all. Whether that is the intended position is a board question, and it is better answered before a proposal arrives than after. How SJKP Can Help SJKP can assist public companies, boards, and investors with corporate governance, shareholder matters, securities compliance, and proxy-related issues. Companies evaluating potential changes to Rule 14a-8 can work with counsel to review governing documents, shareholder procedures, and proxy-season strategies as the SEC rulemaking process develops.

09 Sep, 2026

SEC Proposes to Eliminate Investment Adviser Pay-to-Play Rule

The SEC has proposed rescinding Rule 206(4)-5 in its entirety — not only the two-year compensation ban following certain political contributions, but also the restrictions on using placement agents to solicit state and local government investors. Related recordkeeping provisions would go with it. The Commission's position is that a bright-line, strict-liability regime has penalized inadvertent small-dollar contributions without evidence of quid pro quo conduct, and that political contributions belong to election law rather than to securities regulation. This remains a proposal. The rule applies to the November elections, and advisers should continue operating their existing pre-clearance and lookback procedures. Even if adopted, rescission would not end pay-to-play compliance: the Advisers Act antifraud, fiduciary, compliance, and code of ethics obligations remain, as do state and local election laws, public pension plan policies, and — often overlooked — pay-to-play undertakings written into side letters, which survive on their own terms regardless of what the SEC does. What the SEC Is Proposing The SEC is proposing to rescind Rule 206(4)-5 in its entirety. The rule currently restricts an investment adviser from providing compensated advisory services to certain government clients for two years after certain political contributions by the adviser or covered associates. Why the SEC Is Reconsidering the Rule The SEC says its experience administering the rule has revealed implementation challenges and unintended consequences, including situations where advisers broadly restrict employee political contributions to reduce compliance risk. What Could Change for Investment Advisers If the proposal is adopted, advisers would no longer be subject to Rule 206(4)-5's specific two-year compensation restriction or its related SEC recordkeeping requirements. This could significantly change how advisory firms structure policies governing political contributions by employees and covered associates. Pay-to-Play Risk Would Not Disappear Rescinding Rule 206(4)-5 would not eliminate other legal obligations involving improper political contributions or adviser conduct. Investment advisers would remain subject to the Advisers Act's antifraud provisions, fiduciary obligations, compliance requirements, and codes of ethics, while applicable federal, state, and local laws could continue to address pay-to-play conduct. Compliance Policies Would Still Matter Advisers should not treat the proposal as eliminating political-contribution risk. Firms would still need compliance controls designed to address fraud, conflicts of interest, fiduciary obligations, and unlawful quid pro quo arrangements. What Investment Advisers Should Do Now Rule 206(4)-5 remains in place while the proposal is pending. Advisers should continue following their existing compliance requirements and monitor the rulemaking process before changing political-contribution policies or related controls. The SEC's comment period will remain open for 60 days after publication of the proposal in the Federal Register. How SJKP Can Help SJKP can assist investment advisers and financial firms with securities compliance, investment management matters, internal policies, and regulatory developments. Firms reviewing political-contribution policies can work with counsel to evaluate how any final SEC action may affect their compliance programs and continuing obligations.

01 Sep, 2026

SEC and FDA Expand Cooperation: What Life Sciences Companies Need to Know

The FDA now has a formal channel to tell the SEC what a company told the FDA.On August 31, the two agencies signed a three-year Memorandum of Understanding establishing information-sharing protocols across the life sciences sector.Under it, the FDA may share non-public information with the SEC — excluding trade secrets and confidential commercial data — and the SEC may use what it receives in reviewing filings and in enforcement matters. Why it matters. Biotech, pharma, and device companies make statements about trial results, submissions, and review status that move prices. The FDA holds the underlying data. The gap between what a company tells its regulator and what it tells its investors was previously hard for the SEC to see. It is less so now. The practical step is unglamorous: reconcile your disclosure language against your regulatory correspondence before the next release. Timelines, endpoint characterizations, and descriptions of agency feedback are where inconsistencies appear — rarely on purpose. What the SEC-FDA Agreement Changes The new MOU establishes formal procedures for the SEC and FDA to exchange information relevant to their regulatory and enforcement responsibilities. This includes mechanisms for sharing certain non-public information involving FDA-regulated products, companies, and activities. Why This Matters for Public Companies FDA developments can have a significant impact on the market value of life sciences companies. The SEC may use information received from the FDA when reviewing public company filings or investigating whether statements concerning matters such as FDA review, product approvals, or clinical trial results comply with federal securities laws. Life Sciences Companies Could See Closer Disclosure Scrutiny Public companies operating in pharmaceuticals, biotechnology, medical devices, and other FDA-regulated industries should pay particular attention to the agreement. Greater information sharing may make it easier for regulators to compare statements made to investors with information available to the FDA. What Companies Should Review Now Life sciences companies should review their disclosure controls and internal processes for communicating regulatory developments to investors. Legal, compliance, investor relations, and regulatory teams should be aligned on statements involving clinical trials, FDA submissions, regulatory review, and product approvals. Keep Regulatory and Investor Communications Consistent Companies should carefully review whether public filings, earnings materials, investor presentations, and other market communications accurately reflect significant FDA-related developments and the information available internally. What to Watch Next The MOU took effect when it was signed on August 31, 2026 and is scheduled to remain in effect for three years unless modified, extended, or terminated. Companies should monitor whether increased SEC-FDA coordination results in additional filing scrutiny, investigations, or enforcement activity involving FDA-related disclosures. How SJKP Can Help SJKP's corporate and securities attorneys can assist public companies and life sciences businesses with securities compliance, disclosure reviews, corporate governance, and regulatory risk. Companies affected by FDA developments can work with counsel to review investor communications and disclosure procedures and assess how regulatory events may affect their securities-law obligations.

25 Aug, 2026

Proxy Advisors Face New Antitrust Scrutiny—What Companies Need to Know

The Justice Department has withdrawn a 1987 Business Review Letter issued to Institutional Shareholder Services (ISS), signaling increased antitrust scrutiny of the proxy advisory industry. The move does not establish that ISS or other proxy advisors violated antitrust law, but it could affect how public companies, institutional investors, and boards approach proxy voting and corporate governance matters. What Changed On August 5, 2026, the DOJ's Antitrust Division withdrew a Business Review Letter it issued to ISS in 1987. The original letter stated that the Division did not then intend to challenge ISS's proposed proxy advisory activities under the antitrust laws. DOJ now says the letter no longer reflects ISS's current business practices or the Division's view of those practices. Why the DOJ Is Taking Another Look DOJ pointed to changes in ISS's business model, including its expansion into corporate consulting services. It also highlighted market concentration, stating that ISS and Glass Lewis together control more than 90% of the proxy advisory market. Why This Matters for Public Companies Proxy advisors can play an influential role in shareholder voting on director elections, executive compensation, governance proposals, and other corporate matters. Increased government scrutiny could affect how proxy advisors develop recommendations, interact with companies, and operate during future proxy seasons. What Boards Should Consider Now The DOJ's action does not create new compliance requirements for public companies. Boards and legal teams should nevertheless monitor developments involving proxy advisors, document independent governance decisions, and maintain direct communication with significant shareholders rather than relying exclusively on proxy advisory recommendations. Prepare Early for Contested Votes Companies facing significant shareholder proposals, director elections, or other contested matters may benefit from reviewing proxy advisor policies early and communicating directly with institutional investors about the company's position. What to Watch Next The withdrawal itself is not an enforcement action, but it signals that the DOJ is paying closer attention to competition in the proxy advisory industry. Public companies should monitor potential investigations, regulatory developments, litigation, and changes to ISS and Glass Lewis policies as future proxy seasons approach. How SJKP Can Help SJKP's corporate attorneys can assist public companies, boards, and investors with corporate governance, shareholder matters, securities compliance, and proxy-related issues. Companies facing significant shareholder votes or changing regulatory requirements can work with counsel to evaluate governance risks and prepare an appropriate strategy.

25 Aug, 2026

SEC Updates Rule 0-1(a)(7): What Fund Compliance Teams Need to Know

The SEC has adopted technical amendments to Rule 0-1(a)(7), which sets governance standards for regulated funds relying on certain exemptions under the Investment Company Act. The change removes two requirements that were struck down by a federal court nearly two decades ago, bringing the written regulation into line with the law already in effect. What Changed in Rule 0-1(a)(7) The SEC removed language requiring at least 75% of a regulated fund's directors to be disinterested and requiring the board chair to be a disinterested director. Both requirements were vacated by a federal appeals court in 2006, but the outdated language remained in the Code of Federal Regulations. Why the SEC Made the Change Now The amendment is intended to make the regulatory text accurately reflect the court's earlier decision. The SEC emphasized that the update is technical and does not create new substantive compliance obligations. Who This Affects The amendment is primarily relevant to registered investment companies and business development companies that rely on exemptive rules tied to Rule 0-1(a)(7). Fund boards, investment management counsel, and compliance teams should be familiar with the corrected governance standards. What Fund Compliance Teams Should Review Although the amendment does not impose new requirements, compliance teams should review governance manuals, board materials, internal policies, and templates to make sure they do not continue to describe the vacated 75% independence or independent-chair requirements as mandatory. The Majority Independence Standard Remains Rule 0-1(a)(7) continues to require a majority of fund directors to be disinterested directors. Other governance provisions that were not affected by the 2006 court decision also remain in place. When the Amendment Took Effect The technical amendments became effective on August 6, 2026. Because they simply conform the CFR to a court ruling that has been legally effective since July 2006, the SEC did not establish a separate transition or grace period. How SJKP Can Help SJKP's corporate and securities attorneys can assist investment companies, fund managers, and compliance teams with regulatory reviews, fund governance matters, internal policies, and SEC compliance. Organizations reviewing their governance documentation can work with counsel to identify outdated requirements and confirm that current procedures reflect applicable federal securities law.