SEC Restores Simultaneous Consideration Policy for Settlement and Waiver
On September 26, 2025, U.S. Securities and Exchange Commission (SEC) Chairman Paul S. Atkins announced that the Commission will reinstate its prior practice of simultaneous consideration of settlement offers and related waiver requests in enforcement actions. This policy change reverses a 2021 decision under prior leadership that had required waiver requests to be reviewed separately, only after a settlement had been finalized.
According to Chairman Atkins, returning to the simultaneous process will allow the Commission to more effectively advance its three-part mission: protecting investors, facilitating capital formation, and maintaining fair, orderly, and efficient markets, by improving procedural efficiency, fairness, and inter-divisional coordination.¹
Background: Waivers and Collateral Consequences
Certain SEC enforcement actions trigger automatic statutory or regulatory disqualifications that carry significant collateral consequences for regulated entities. These disqualifications may result in:
Loss of Well-Known Seasoned Issuer (WKSI) status for registered offerings
Loss of statutory safe harbors for forward-looking statements under the Private Securities Litigation Reform Act of 1995 (PSLRA)
Ineligibility for private offering exemptions under Regulations A, D, and Crowdfunding pursuant to the Securities Act of 1933
Loss of exemptions for securities issued by small business investment companies or business development companies under Regulation E
Disqualification from serving in certain capacities under Section 9(a) of the Investment Company Act of 1940²
Entities facing these consequences may submit waiver requests asking the Commission to exempt them from such disqualifications. Historically, the SEC allowed these waiver requests to be presented concurrently with proposed settlement offers, enabling the Commission to assess both matters together in a coordinated and comprehensive manner.
This practice was formalized under Chairman Jay Clayton in July 2019, when he confirmed that the Commission could consider settlement offers and related waivers simultaneously.³ However, in February 2021, Acting Chair Allison Herren Lee adopted a different approach, requiring separate review of waivers after settlement.⁴ Chairman Atkins’s 2025 announcement restores the earlier, unified process.
Chairman Atkins’s 2025 Statement
In his Statement on Simultaneous Commission Consideration of Settlement Offers and Related Waiver Requests, Chairman Atkins clarified that the change marks a return to the Commission’s historical practice.⁵ In consultation with the Divisions of Enforcement, Corporation Finance, and Investment Management, he concluded that allowing simultaneous consideration best serves the SEC’s mission.
Under the restored procedure, when a settling entity submits a settlement offer with a contemporaneous waiver request, the staff will present both items to the Commission at the same time.⁶ This enables the Commission to evaluate both within the same factual and legal context, taking into account relevant conduct, consequences, and the recommendations of each Division.
Chairman Atkins explained that this process will “enable the Commission to consider both the proposed settlement and waiver request together… to assess whether the proposed resolution of the matter in its entirety achieves the Commission’s three-part mission.”⁷ He emphasized that the approach will enhance efficiency and certainty, conserve Commission resources, and avoid “siloed internal consideration” that can hinder comprehensive resolution.
Procedural Framework
The reinstated process does not obligate the Commission to accept any simultaneous proposal; it retains discretion to consider a settlement and waiver separately.⁸
If the Commission accepts a settlement but declines to approve the associated waiver request:
The staff will promptly notify the settling party.
The party will typically have five business days to confirm whether it wishes to proceed with the accepted settlement.
If the party declines or withdraws, the settlement terms may no longer be available, and the matter could proceed to litigation.⁹
This framework provides procedural clarity while allowing parties to make informed decisions in light of the Commission’s determinations.
Expected Benefits and Continuing Safeguards
Chairman Atkins stated that reinstating the practice “will benefit investors, the capital markets, and the Commission’s processes more broadly.”¹⁰
Expected benefits include:
Greater efficiency and predictability in settlements
Holistic evaluation of enforcement resolutions and related disqualifications
Reduced administrative burden by avoiding duplicative, sequential reviews
At the same time, the rigor of the waiver review process will remain unchanged. The relevant divisions will continue to assess whether a waiver is appropriate under existing standards and consistent with investor protection, market integrity, and the public interest.¹¹
For additional context, Chairman Atkins cited prior authoritative materials addressing the waiver process, including the amicus brief of former Chairman Harvey L. Pitt in *SEC v. Citigroup Global Markets, Inc.*¹² and Chair Mary Jo White’s 2015 statement, “Understanding Disqualifications, Exemptions and Waivers Under the Federal Securities Laws.”¹³
Conclusion
By reinstating the practice of simultaneous consideration of settlement offers and waiver requests, the SEC has returned to a procedurally efficient and coordinated approach that aligns fairness with effective oversight. The policy enhances inter-divisional coordination and ensures that enforcement outcomes are evaluated in light of their full regulatory implications.
The Commission’s ability to review settlements and waiver requests concurrently, while preserving discretion to separate them when appropriate, balances procedural pragmatism with robust oversight. As Chairman Atkins observed, this restoration “will benefit investors, the capital markets, and the Commission’s processes more broadly.”
Footnotes
Statement on Simultaneous Commission Consideration of Settlement Offers and Related Waiver Requests, Chairman Paul S. Atkins, U.S. Securities and Exchange Commission (Sept. 26, 2025).
Id. at n.1.
Statement Regarding Offers of Settlement, Chairman Jay Clayton, U.S. Securities and Exchange Commission (July 3, 2019), available at https://www.sec.gov/newsroom/speeches-statements/clayton-statement-regarding-offers-settlement.
Statement on Contingent Settlement Offers, Acting Chair Allison Herren Lee, U.S. Securities and Exchange Commission (Feb. 11, 2021), available at https://www.sec.gov/newsroom/speeches-statements/lee-statement-contingent-settlement-offers-021121.
Atkins, supra note 1.
Id.
Id.
Id.
Id.
Id.
Id. at n.3.
Brief for Harvey L. Pitt, Amicus Curiae, SEC v. Citigroup Global Markets, Inc., 752 F.3d 285 (2d Cir. 2014).
Chair Mary Jo White, Understanding Disqualifications, Exemptions and Waivers Under the Federal Securities Laws, U.S. Securities and Exchange Commission (Mar. 12, 2015), available at https://www.sec.gov/newsroom/speeches-statements/031215-spch-cmjw.
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