SEC Staff Issues New CFIs On Schedule 13D, Total Return Swaps And Proxy Rules

On July 9, 2026, the Staff of the SEC’s Division of Corporation Finance issued six new Corporation Finance Interpretations (CFIs), including Exchange Act Sections 13(d) and 13(g) and Regulation 13D-G Beneficial Ownership Reporting CFIs 105.08, 105.09, 105.10, 110.09 and 110.10, and Proxy Rules and Schedules 14A/14C CFI 155.02. The new guidance addresses several recurring issues in the shareholder activism context, including the treatment of cash-settled total return swaps, Schedule 13D disclosure obligations for activist investment vehicles, and participant status under the proxy rules.

Exchange Act Sections 13(d) and 13(g) and Regulation 13D-G Beneficial Ownership Reporting CFIs 105.08-105.10 confirm that a standard cash-settled total return swap (TRS), standing alone, does not confer beneficial ownership of the reference securities or shares held by a counterparty for hedging purposes. At the same time, the Staff reiterates that Rule 13d-3(b)’s anti-evasion provision remains available where a TRS or other arrangement is used to create the appearance of purely economic exposure while effectively conferring voting influence or a future right to acquire the underlying shares. A TRS entered into solely for economic exposure, without more, does not constitute a plan or scheme to evade the Section 13(d) or 13(g) reporting requirements.

Exchange Act Sections 13(d) and 13(g) and Regulation 13D-G Beneficial Ownership Reporting CFIs 110.09 and 110.10 address activist fund structures and Schedule 13D disclosure. CFI 110.09 provides that where an entity is formed to raise capital for a specific activism campaign, the identities of investors providing the acquisition financing must be disclosed under Item 3 of Schedule 13D. CFI 110.10 further clarifies that when the reporting person is a partnership or other non-natural person, the disclosure required by Schedule 13D Items 2-6 applies both to the reporting entity itself and to the additional persons identified in Instruction C.

Finally, Proxy Rules and Schedules 14A/14C CFI 155.02 clarifies that investors contributing more than $500 to an entity formed to finance a specific proxy solicitation generally will be considered participants in that solicitation for purposes of Schedule 14A. Together, the new CFIs provide additional guidance on the Staff’s application of the beneficial ownership and proxy rules in the shareholder activism context.