AI in Focus in 2025: Boards and Shareholders Set Their Sights on AI

Subodh Mishra is Global Head of Communications at ISS STOXX. This post is based on an ISS-Corporate memorandum by Danielle Rizak, Associate, Compensation & Governance Advisory, & Alyce Lomax, Associate Vice President, Compensation & Governance Advisory, at ISS-Corporate.

KEY TAKEAWAYS

  • In 2024, public companies and shareholders increased their focus on artificial intelligence (AI), in terms of both board level oversight and shareholder proposals.
  • The percentage of companies providing some disclosure of board oversight increased by more than 84% year over year and more than 150% since 2022. The increases were seen across all industries.
  • Shareholder proposals related to AI more than quadrupled compared with 2023, mostly focused on calls for reports providing greater analysis and disclosure of impacts
  • Scrutiny of AI is expected to intensify further in 2025, due to increasing urgency around issues including the balance between transparency, responsibility, and return on investment.

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Are There Too Few Publicly Listed Firms in the US?

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 a recent paper by Professor Stulz, Professor Craig Doidge, Professor George Andrew Karolyi, and Kris Shen.

The number of publicly listed firms in the US peaked in 1996 at more than 8,000 firms. Doidge, Karolyi, and Stulz (2017, DKS) find that the number of listed firms in 2012 was about half of what it was in 1996. Using an econometric model that relates a country’s listings to various country characteristics, they conclude that US has a listing gap – that is, it has fewer listings than expected. That 2017 study concludes the US has too few publicly listed firms.

In our new paper, “Are there too few publicly listed firms in the US?”, we extend the analysis of DKS to 2023 and examine the evolution of the listing gap since 2012. This research makes it possible to assess whether the listing gap was a temporary phenomenon. We find that the listing gap increased by 32% from 2012 to 2023, so that at the end of 2023 the US listing gap is greater than ever. Though the listing gap keeps getting wider, it is doing so at a slower pace than it did in the first ten years after the listing peak.

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Navigating the 2025 Proxy Season: Six Key Developments to Watch

Scott A. Barshay, Chelsea N. Darnell, and Carmen X. Lu are Partners at Paul, Weiss, Rifkind, Wharton & Garrison LLP. This post is based on a Paul Weiss memorandum by Mr. Barshay, Ms. Darnell, Ms. Lu, James E. Langston, Frances F. Mi, and Steven J. Williams.

A flurry of changes has created an unusually tumultuous proxy season for many companies. Key among these changes are recent guidance from the U.S. Securities and Exchange Commission (“SEC”) on 13G reporting eligibility, executive orders targeting diversity, equity and inclusion (“DEI”) initiatives at companies, a change in leadership within ISS’s special situations team which oversees the proxy advisor’s recommendations in contested situations, and changes to the SEC’s guidance on Rule 14a-8 shareholder proposals.

We highlight below six key developments to watch this proxy season and their potential impact on companies.

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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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