Navigating 11th Hour Guidance on Board DE&I

Deb Lifshey is a Managing Director at Pearl Meyer & Partners, LLC. This post is based on her Pearl Meyer memorandum.

Over the past few weeks, the landscape of board diversity, equity, and inclusion (DE&I) has been in a state of flux, driven by evolving expectations from proxy advisors and institutional investors that appear to be driven by the deluge of new Executive Orders, legal challenges to those Executive Orders, and shifting rules from the Department of Justice (DOJ). Here, we focus on proxy advisor and institutional investor policy changes and examine their implications for corporate governance and related disclosures in the immediate proxy season.

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The Real and Financial Effects of Internal Liquidity: Evidence From the Tax Cuts and Jobs Act

James Albertus is an Assistant Professor of Finance at Carnegie Mellon University, Brent Glover is an Associate Professor of Finance at Carnegie Mellon University, and Oliver Levine is an Associate Professor of Finance at the Wisconsin School of Business. This post is based on their recent article forthcoming in the Journal of Financial Economics.

Prior to 2018, U.S. multinational corporations faced a repatriation tax on foreign profits they chose to send home to their U.S. parent. As a result, many corporations chose to defer this tax and accumulate overseas profits within their foreign subsidiaries, with the hope of a future tax holiday or reform. That day came in late 2017 with the passage of the Tax Cuts and Jobs Act (TCJA), the signature tax bill of the Trump administration. Among other significant provisions, the new law substantially reduced the repatriation tax rate on these accumulated foreign profits. The change gave corporations immediate access to at least $1.7 trillion in previously considered “trapped cash”.

What did corporate executives do with this newfound liquidity? Proponents of the TCJA suggested that this would spur investment and hiring in the U.S. by providing access to cheap capital. Others argued that the reform was simply a tax break to shareholders who would see increased equity payouts.

Using detailed confidential data from the U.S. Bureau of Economic Analysis, we estimate the response in firms’ real business activity and financial decisions to this sizable liquidity shock. In short, we find no evidence that companies responded to the increased access to cheap capital by increasing investment in the U.S. as measured by capital expenditures, wage expense, R&D, and M&A. Instead, executives increased payouts to shareholders. For every dollar freed by the reform, about 30 cents was paid out to shareholders over the next two years, primarily through share repurchases.

However, despite an increase in shareholder payouts, much of the residual freed cash—about 48 cents on the dollar—was simply retained inside the firm, not used for investment nor payouts. No longer restricted by tax penalties, why didn’t these firms pay out more?

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Delaware Enacts Important Corporate Law Reforms

Matthew A. Schwartz and Brian T. Frawley are Partners, and William S.L. Weinberg is an Associate, at Sullivan & Cromwell LLP. This post is based on their Sullivan & Cromwell memorandum.

New Law Provides Statutory Clarity for Directors, Officers, and Stockholders

SUMMARY OF NEW DGCL AMENDMENTS

On March 25, 2025, Delaware Governor Matt Meyer signed into law Substitute 1 to Senate Bill 21 (“SB 21”) after both houses of the General Assembly swiftly passed the bill to stem the tide of announced redomestications to other states. As discussed in our prior memo, these amendments to the Delaware General Corporation Law (“DGCL”) provide certainty to key areas of Delaware corporate law and, depending on judicial interpretation, could help reduce litigation risks for Delaware corporations and their boards of directors. The law took effect upon the Governor’s signature. The new law is substantially similar to the original proposal, with certain minor variations as set forth below.

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2025 Proxy Season Preview: A New Paradigm for Investment Stewardship

Ray Garcia is a Leader, Matt DiGuiseppe is a Managing Director, and Ariel Smilowitz is a Director at the PricewaterhouseCoopers (PwC) Governance Insights Center. This post is based on their PwC memorandum.

The flurry of activity coming out of the Trump Administration is ushering in a new paradigm for investment stewardship of environmental, social and governance (ESG) considerations. Over the course of a few weeks in February 2025, the SEC issued significant new guidance on topics ranging from shareholder proposals to investor engagement and communication. In some ways, this shift in approach raises questions about how business priorities and voting outcomes will be impacted during this year’s proxy season, while in other ways it may provide additional clarity.

As the market responds in real time, we anticipate that investors’ engagement and proxy voting strategies will evolve to address potential legal and regulatory risks. We foresee the return of “quiet diplomacy,” in which investors take less public credit for the impact of their stewardship activities and surreptitiously articulate their positions on governance issues related to specific companies. That said, investors will also seek to understand how boards are overseeing relevant business risks if company policies, practices or disclosures are modified. Here, we outline how these developments may unfold, along with steps boards and management teams can take to successfully navigate through proxy season.

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The Lessons of Michael C. Jensen

René M. Stulz is the Everett D. Reese Chair of Banking and Monetary Economics at the Fisher College of Business at The Ohio State University. This post is based on his recent paper.

From the 1950s to the middle of the 1970s, a few scholars built the foundations for a new field of scholarship, the field of financial economics. Michael C. Jensen, who died last April, is one of these scholars. He has the distinction of having written the most highly cited paper in financial economics. This paper has been hugely influential not only in financial economics, but in other business fields, in economics, and in corporate law. His most important lesson for corporate finance is that the productivity of firms depends directly on corporate finance, so that corporate financial policy is not a side-show but a critical factor in the success of corporations.

In my paper titled “The Lessons of Michael C. Jensen,” I assess how Jensen impacted the field of financial economics and academia more broadly, as well as the world outside academia. Jensen was controversial throughout his career. The New York Times published an article following his death that highlighted both his accomplishments and the controversy that followed him. The article was titled “Michael C. Jensen, 84, who helped reshape modern capitalism, dies.” The title captures his enormous influence, but then the article blames him for the “greed-is-good era.”

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Responding to Stealth Dual-Class Stock

James Crowe is the Research Manager at the Council of Institutional Investors. This post is based on his recent CII memorandum.

In August of last year, we published a post detailing examples of stealth-dual class structures. These structures can deliver substantially similar entrenchment mechanisms to traditional dual-class stock without creating multiple classes of common stock or adopting widely understood anti-takeover devices such as poison pills.

CII has adopted the following amendments to its policies on corporate governance at its Spring 2025 conference.

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Understanding and Managing Legal Risk in Corporate DEI

Matteo Tonello is the Head of Benchmarking and Analytics at The Conference Board, Inc. This post is based on a Conference Board memorandum by Camille A. Olson, Partner, Seyfarth Shaw LLP, and Allan Schweyer, Principal Research, Human Capital Center, The Conference Board.

Rapid legal developments in the US related to diversity, equity & inclusion (DEI) practices, programs, and policies require continuous monitoring to ensure companies have accurate, up-to-date information regarding compliance and evolving regulatory standards. As the legal landscape develops in this area, companies are identifying and evaluating the specifics of their existing programs to determine compliance with state and federal law, as well as overall program effectiveness. While “illegal DEI” remains undefined by the new administration, recent developments have provided some direction useful to the private sector.

This report compliments our February 2025 essay Navigating Legal Risk In Corporate DEI.

Key Insights

  • Companies should harmonize regulatory and legal compliance with their broader inclusive workplace culture objectives. The ability to swiftly adapt to legal changes, proactively manage risk, and engage in transparent communication will be critical to sustaining lawful workplace programs while reaffirming a commitment to equal opportunity, merit, and access.
  • Conduct scenario planning to ensure your leadership team is aware of developments and your communications strategy considers alternative outcomes. Engage with legal counsel and other resources to gain a broader perspective on applicable legal principles and evolving interpretations. Regular attorney–client privileged audits can strengthen organizational resilience against legal scrutiny.
  • Ensure that employees and other key stakeholders understand the organization’s commitment to creating and maintaining a culture of fairness and inclusion. Provide employees with timely updates on any changes to existing workplace policies.

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“Under Pressure”: Walking the Fine Line of Section 13(d) Passive Investor Status

Maia GezScott Levi, and Michelle Rutta are Partners at White & Case LLP. This post is based on a White & Case memorandum by Ms. Gez, Mr. Levi, Ms. Rutta, Erica Hogan, Greg Pryor, and Danielle Herrick.

On February 11, 2025, the staff of the Division of Corporation Finance (“Staff”) of the U.S. Securities and Exchange Commission (“SEC” or the “Commission”) issued new and updated Compliance and Disclosure Interpretations on Regulation 13D-G (“C&DIs”) that address the circumstances under which a shareholder’s engagement with an issuer’s management would cause the shareholder to hold securities with the “purpose or effect of changing or influencing control of the issuer,” and therefore lose eligibility to report on Schedule 13G.[1]

Prior to this latest guidance, investors relied on the previous C&DI Question 103.11, which stated that engagement on particular topics (executive compensation, environmental issues and, in certain circumstances, corporate governance topics[2]) “without more” and without the “purpose or effect of changing or influencing control,” would not result in the loss of Schedule 13G status. This rather general standard, which emphasized the subject matter of the discussions, gave comfort to investors that rigorous discussion with management on these topics would not endanger 13G status, as long as there was no overt effort to influence or change control of the issuer. However, this prior C&DI did not provide guidance on specific actions that would constitute “changing or influencing control of an issuer,” and thereby put 13G status at risk. The new C&DI is aimed at providing such guidance.

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Statement by Commissioner Crenshaw Regarding Climate-Related Disclosures Rule Litigation

Caroline A. Crenshaw is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on her recent remarks. The views expressed in this post are those of Commissioner Crenshaw and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

Today, the SEC purports to walk away from the Climate-Related Disclosures Rule.[1] In building the rule, we journeyed up a mountain. The Commission spent at least four years taking input – we issued requests for information, made a proposal, opened and reopened comment periods when stakeholders asked for more time or the ability to provide more input, reviewed thousands of comment letters, carefully balanced the interest of investors, markets and issuers, and dutifully tailored a final rule in-line with our mission and our statutory authority.[2] It was an arduous process that led to a sound and strong result.

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Weekly Roundup: March 21-27, 2025


More from:

This roundup contains a collection of the posts published on the Forum during the week of March 21-27, 2025

Shareholder Engagement on Compensation Matters: Special Time-Sensitive Complications for the 2025 Proxy Season


How DEI Shareholder Proposals Are Faring in 2025


The Future of Board Diversity Disclosures


Key Legal Considerations in Nonprofit Spinout Transactions


Does Mandatory Risk Disclosure Harm Corporate Innovation?


Navigating DEI Disclosure amid Regulatory Shifts


2024 Year End Activism Review


Signaling Long-Term Information Using Short-Term Forecasts


The Governance of Geopolitical Risk in 2025


SEC Priorities Regarding Cybersecurity Enforcement in the Second Trump Administration


Sanctioning Negligent Bankers


Remarks by Commissioner Crenshaw at the Investment Company Institute’s 2025 Investment Management Conference


2025 Environmental and Social Developments


Scope, Scale, and Concentration: A New Perspective on the 21st-Century Firm


Early Filers: Bonuses Up Amid Flat Financial Performance


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