How Board and C-Suite Collaboration Can Build Organizational Resilience

Posted by Anna Marks, Arno Probst, and Benjamin Finzi, Deloitte LLP, on
Wednesday, October 22, 2025
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Anna Marks is the Global Chair, Prof. Dr. Arno Probst is the Global Boardroom Program Leader, and Benjamin Finzi is the Global CEO Program Leader at Deloitte LLP. This post is based on a Deloitte memorandum by Ms. Marks, Prof. Dr. Probst, Mr. Finzi, and Karen Edelman.

From economic volatility to technological advancement: Tracking the shift in board and C-suite priorities

Building resilience today can require organizations to respond to near-term opportunities, challenges, and risk-related priorities while also maintaining focus on longer-term goals and growth opportunities. When it comes to risks, however, the survey shows that boards and C-suite respondents are juggling multiple priorities simultaneously.

The survey asked respondents to identify their top immediate (2025) and longer-term priorities (2026 and beyond). What is interesting is the shift in priorities depending on the time horizon being considered.

In the short term, through 2025, survey respondents say they’re focused most on geopolitical and economic volatility (55%), security and cybersecurity (50%), and rapid technological advancements and digital disruption (42%). And although human capital ranks fourth, at 41%, it’s a top near-term concern for a sizable number of respondents as well (figure 1).

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The Call of Conscience and the Current Moment: A Reflection Honoring William T. Allen and John L. Weinberg

Posted by Leo E. Strine, Jr. (University of Pennsylvania Carey Law School), on
Wednesday, October 22, 2025
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Leo E. Strine, Jr. is the Michael L. Wachter Distinguished Fellow in Law and Policy at the University of Pennsylvania Carey Law School and a Senior Fellow at the Harvard Program on Corporate Governance. This post is based on his recent keynote lecture and is part of the Delaware law series; links to other posts in the series are available here.

Abstract

This keynote lecture honors the intellectual contributions of John L. Weinberg and William T. Allen on the occasion of the 25th anniversary of the Weinberg Center for Corporate Governance at the University of Delaware. The lecture surfaces common themes in the extensive writings of Chancellor and Professor Allen on corporate governance, and in the singular lengthy writing of John Weinberg, his senior thesis focusing on the critical role of boards of directors in governing public companies. Both considered it critical to educate corporate leaders about their duties, and the relationship those duties had to not just the best interests of the corporation and its stockholders, but to society itself. Both also stressed the need for high integrity corporate leadership, characterized by a commitment to speak with candor and act with independence when that was necessary to do what was right. Both believed deeply in the nation’s commitment to the rule of law and freedom, and believed that principled corporate leadership was vital to ensuring that our society as a whole benefited from a market economy. The lecture addresses these themes and finishes by relating them to the current moment during which fundamental principles Weinberg and Allen accepted as essential to our society are under serious challenge, and the ethical and moral questions this moment poses to leaders of not just business corporations, but of all key institutions in our society.

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Red Herring: Shareholder Proposals and Director Elections

Posted by Allison Wyderka and Wickham Egan, Egan-Jones Ratings Company, on
Wednesday, October 22, 2025
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Allison Wyderka is the Director of Proxy Services, and Wickham Egan is the Director of Business Development and Operations at Egan-Jones Ratings Company. This post is based on their Egan-Jones memorandum.

Key Takeaway

Shareholder proposals that seek to promote ESG measures tend to gain significant attention. However, director elections tend to have a much greater impact on corporations. Thus, activist shareholders tend to focus on what matters and so should the public at large.

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Tokyo Stock Exchange Initiative on Cost of Capital and Stock Price Conscious Management

Posted by Haruyuki Yamashita, Tokyo Stock Exchange New York Office, on
Tuesday, October 21, 2025
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Haruyuki Yamashita is the Head of Policy Engagement at the Tokyo Stock Exchange New York Office.

Introduction

The Tokyo Stock Exchange (TSE) has advanced governance reforms through Japan’s Corporate Governance Code and related initiatives, with the aim of supporting sustainable growth and enhancing corporate value over the mid- to long-term. In April 2022, TSE restructured its market segments to provide an attractive cash equity market that underpins the sustainable growth and corporate value creation of listed companies, while gaining strong support from a diverse base of domestic and international investors.

Among the new market segments, the Prime Market has been positioned as one “centered on constructive dialogue with global investors.” Correspondingly, the revised Corporate Governance Code introduced specific requirements applicable only to Prime Market companies, most notably the raising of the minimum threshold for independent outside directors to one-third of the board and the strengthening of English disclosures which has been a longstanding request, particularly from overseas investors. These measures go beyond the traditional “defensive” role of governance, such as preventing corporate scandals, and place equal emphasis on “proactive” governance, which enhances companies’ capacity to generate earnings. The latter has gained particular importance as Japan seeks to shift from a deflationary, cost reduction-oriented economy toward a growth economy driven by wage increases and investment, where companies are expected to take appropriate risk in pursuit of sustainable growth and corporate value enhancement.

Against this backdrop, in March 2023 TSE launched a new initiative requesting that listed companies implement “management that is conscious of the cost of capital and stock price” (hereafter, the “TSE Initiative”). The TSE Initiative seeks to encourage management to strengthen capital efficiency and pursue strategies that enhance mid- to long-term corporate value by improving profitability, raising valuation metrics, and earning investor confidence. The TSE Initiative has attracted significant attention both domestically and abroad, serving as a reference point for other exchanges in Asia.

This article will revisit the rationale behind the TSE Initiative, review its progress to date, and provide an assessment of its current status.

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The Next Era of Sustainability Leadership: CEO Survey Shows the Business Case is Now

Posted by Sam Eastwood, James Ford, and Elinam Amegadzie, Mayer Brown, on
Tuesday, October 21, 2025
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Sam Eastwood is a Partner, James Ford is an Associate, and Elinam Amegadzie is a Trainee Solicitor at Mayer Brown LLP. This post is based on their Mayer Brown memorandum.

Sustainability has undergone a profound transformation over the past two decades.  What began as a moral movement—rooted in reputation management and risk mitigation—has increasingly become a strategic business imperative.  The latest annual report published by the UN Global Compact and Accenture [1] underlines how the business case for sustainability leadership to be at the core of a company’s strategy is stronger than ever.  The report highlights the acceleration and complexity of global sustainability regulations, draws on the insights of nearly 2,000 CEOs across 128 countries, and outlines some of the compliance challenges presented by regulatory fragmentation.

Among other things, the report finds that 86% of CEOs are reporting steps to integrate sustainability into their business and that 88% believe the business case for sustainability is stronger than it was five years ago.  Yet, only half feel comfortable communicating their progress publicly, reflecting a tension derived from external stakeholder scrutiny, the politicisation of ESG issues, and recent pushback against the EU’s sustainability legislative agenda. Notwithstanding these obstacles, 99% of CEOs intend to maintain or expand their commitments going forwards.  Indeed, the report sets out five critical themes for CEOs and businesses to consider implementing to drive forward the next era of sustainability leadership.

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The Board’s Role in CEO and Director Compensation

Posted by Kyle Eastman and Grace Tan, Compensation Advisory Partners, on
Monday, October 20, 2025
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Kyle Eastman is a Partner, and Grace Tan is a Senior Analyst at Compensation Advisory Partners. This post is based on their CAP memorandum.

Executive and non-employee director compensation are two of the most visible and scrutinized responsibilities of the board. Yet, even among the largest companies, governance practices diverge on two fundamental questions: Who approves CEO pay – the compensation committee or the full board – and who oversees director pay – the compensation committee or the nominating/governance committee?

To better understand prevailing practices, CAP examined governance disclosures among the 110 largest companies in the S&P 500 (the ten largest by market capitalization in each GICS sector). Our findings confirm that board practice is far from uniform. This article presents CAP’s findings and explores the trade-offs between the various approaches.

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Chastain: Pushing the Boundaries of Insider Trading

Posted by Yelena Kotlarsky, Andrew Michaelson, and Joe Zales, King & Spalding LLP, on
Monday, October 20, 2025
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Yelena Kotlarsky, Andrew Michaelson, and Joe Zales are Partners at King & Spalding LLP. This post is based on their King & Spalding memorandum.

Introduction

Insider trading cases may have become harder to prosecute. On July 31, 2025, the Second Circuit released its opinion in United States v. Chastain, an insider trading case in which the defendant had been convicted by a jury for misappropriating confidential information belonging to his employer and using that information to trade for personal gain. That sounds like garden variety insider trading, except here, there was a twist. Whereas most criminal insider trading cases are charged as securities fraud, here the defendant was tried and convicted under the wire fraud statute. The Second Circuit reversed the conviction, and in so doing substantially narrowed the extent to which the wire fraud statute protects against an employee’s misuse of a company’s confidential information. Specifically, the Second Circuit found that the wire fraud statute’s prohibition against misappropriating an employer’s “property” extends only to information that has commercial value to the employer. Information that is of value to an employee for trading purposes—but that lacks commercial value to the employer—is fair game.

While the criminal wire fraud and securities fraud statutes are distinct, they share a common nucleus in their definition of ‘property’. The Second Circuit’s decision could thus have wide-ranging impact upon prosecutions concerning securities fraud, too. The impact could grow further when considering the possible impacts upon civil actions under Rule 10b-5. This client alert discusses the Chastain decision and its potential impact on defending insider trading in securities and commodities cases.

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Holding Power: S&P 500 Snapshot

Posted by Andrew Lash and Shashwat Singh, FW Cook, on
Sunday, October 19, 2025
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Andrew Lash and Shashwat Singh are Consultants at FW Cook. This post is based on their FW Cook memorandum.

Background

We reviewed broad-market data using S&P 500 executives to support preliminary assessments of executive Holding Power (aka retention glue). Despite a cooldown in the broader labor force, Compensation Committees are well served to understand the depth of their retention hooks on key executives, for whom the talent market remains fluid.

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U.S. Government Shutdown: What Public Companies Should Know

Posted by Ran Ben-Tzur, Amanda Rose, and Wendy Grasso, Fenwick & West LLP, on
Saturday, October 18, 2025
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Ran Ben-Tzur and Amanda Rose are Partners, and Wendy Grasso is Counsel at Fenwick & West LLP. This post is based on their Fenwick memorandum.

What You Need To Know

  • The federal government shutdown will lead to a significant reduction in government activity, including at the U.S. Securities and Exchange Commission (SEC).
  • Companies should evaluate how the shutdown might affect their business operations and financial performance (especially if the shutdown is prolonged) and maintain transparent communication with stakeholders.
  • Senior management, boards, and investor relations teams should ensure they are aligned on messaging and operational responses.

The U.S. federal government officially shut down on October 1, 2025, as lawmakers failed to reach an agreement on federal spending. Many government workers will be on furlough for so long as the shutdown continues, which will lead to a significant reduction in government activity. Here’s what public companies should know:

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Withhold Campaigns: Communications Considerations for Companies

Posted by Charlie Koons and Greg Roumeliotis, Brunswick Group LLP, on
Friday, October 17, 2025
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Charlie Koons is a Partner, and Greg Roumeliotis is a Director at Brunswick Group LLP. This post is based on their Brunswick memorandum.

More activist investors are seeking to challenge boards by asking shareholders to vote against the election of one or more directors, without the activists putting forward their own slate of candidates. These board challenges, referred to as withhold campaigns, can be carried out at a fraction of the cost of traditional proxy contests and are often a precursor to submitting a rival slate in the following proxy season. There were 33 withhold campaigns in the 12 months to June 30, 2025, up from 23 campaigns in the corresponding period a year prior, according to Diligent.

While the playbook for companies facing board challenges through rival slates is well established, communications approaches for companies facing withhold campaigns from activist investors diverge widely. All companies facing withhold campaigns seek close private engagement with their shareholders and proxy advisory firms, yet their public communications tactics span the gamut, from refraining from even acknowledging the challenge to their directors to a full-throttle defense and attacks against the activist as one would see in a proxy contest with competing slates of director nominees.

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