The New Board Imperative: Governing What’s Next

Posted by Martha Carter, Diane McIntyre, and Sean Quinn, Teneo, on
Monday, October 26, 2026
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Martha Carter is the Vice Chairman & Head of Governance Advisory, Diane McIntyre is the CEO, and Sean Quinn is a Senior Managing Director at Teneo. This post is based on a Teneo memorandum by Ms. Carter, Ms. Mclntyre, Mr. Quinn, Louise Angel, David Scott, and Amanda Grant, all at Teneo.

Executive Summary

Today’s board directors are being asked to govern a broader and more dynamic set of issues, yet the core mandate is familiar. Set strategy, steward the business, choose leaders and oversee risk. AI, cyber threats, geopolitical and trade uncertainty and expanding regulation are increasing the complexity of those responsibilities and raising the premium on judgment.

Across 42 interviews with board directors in the U.S., UK and Canada, a consistent description emerged of the markets their companies are navigating. Faster, more interconnected, less patient. A corresponding analysis of board composition data over 15 years for the U.S. S&P 500, UK FTSE 100 and Canadian TSX 60 companies revealed how boards have been evolving and adapting to new pressures.

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Chancery Awards Buyer Damages for Founder’s Overly Aggressive Efforts to Achieve Earnout

Posted by Gail Weinstein, Philip Richter, and Steve Epstein, Fried, Frank, Harris, on
Monday, October 26, 2026
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Gail Weinstein is a Senior Counsel, Philip Richter is a Partner and Co-Head of the M&A and Private Equity Practice, and Steven Epstein is the Managing Partner at Fried, Frank, Harris, Shriver & Jacobson LLP. This post is based on a Fried Frank memorandum by Ms. Weinstein, Mr. Richter, Mr. Epstein, Randi Lally, Stephen B. Amdur, and Matthew V. Soran, and is part of the Delaware law series; links to other posts in the series are available here.

In In re Saama Technologies Litigation (Sept. 26, 2026), the Delaware Court of Chancery held that a private equity firm affiliate (the “Buyer”), which acquired a controlling stake in Saama Technologies (the “Company”), does not owe the Company and its founder-CEO (the “Founder”) a $67.5 million earnout payment. The decision is notable for the court’s further finding that the Founder—who had continued as CEO of the Company during the earnout period—breached his fiduciary duty of loyalty to the Company by taking overly aggressive actions in seeking to achieve the revenues-based earnout targets. The court ordered that the Founder pay damages of $7.3 million for the harms his actions caused the Company.

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Global Proxy Season 2026: High Support, Sharper Scrutiny and the Rise of Targeted Stewardship

Posted by Thomas Bolger, Jack Grogan-Fenn, and Alex Whitebrook, Minerva Analytics, on
Sunday, October 25, 2026
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Thomas Bolger is an Analytics’ Senior Stewardship Analyst Editor, Jack Grogan-Fenn is an Editor, and Alex Whitebrook is an ESG Communications Manager at Minerva Analytics. This post is based on their Minerva Analytics memorandum.

The 2026 proxy season revealed a widening gap between shareholder sentiment and shareholder influence. Drawing on 1,415 meetings across Europe, the UK and the US, the analysis shows that investors concentrated opposition on boards, pay and shareholder rights, while meeting formats, approval thresholds and voting standards increasingly determined whether that opposition produced meaningful accountability. [1]

This article highlights five key findings from Minerva Analytics’ 2026 Global Proxy Season briefing and examines what they reveal about the peak proxy season. It also considers the regulatory changes that affected the 2026 season and are likely to shape proxy seasons from 2027 onwards.

“One of the defining themes of the 2026 proxy season was that investor influence increasingly depended not just on shareholder sentiment, but on the mechanisms through which that sentiment was expressed,” said Thomas Bolger, Minerva Analytics’ Senior Stewardship Analyst. “Meeting formats, proposal access rules, voting standards and approval thresholds all played an important role in determining whether shareholder concerns translated into meaningful accountability outcomes.”

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Bank CEO Pay on the S&P 500: How One-Time Awards Impact Compensation and Benchmarking

Posted by Hannah Fasbender, Glass, Lewis & Co., on
Saturday, October 24, 2026
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Hannah Fasbender is a Director of Research at Glass, Lewis & Co. This post is based on her Glass Lewis memorandum.

Key Takeaways

  • A stark divergence between average and median pay growth for S&P 500 bank CEOs indicates that the sector-wide average was pulled upward by a limited number of unusually large pay packages.
  • One-time awards were a significant factor, with the aggregate value for grants across the sector rising from a little over $100 million in FY 2023 to above $430 million in FY 2025, representing an approximate 311% increase.
  • The total was highly concentrated, with just five of the twelve banks that granted one-time awards in FY 2025 accounting for nearly 87% (approximately $379 million) of the aggregate recorded value across the sector.
  • Several banks cited their peers in explaining the awards. Once an exceptional award enters the peer data, it can become support for the next exceptional award, even where the underlying retention threat is not clearly evidenced.

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SEC’s Shareholder Activism Role After The ’26 Proxy Season

Posted by Kai Liekefett, Derek Zaba, and Eric Goodwin, Sidley Austin LLP, on
Friday, October 23, 2026
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Kai H.E. Liekefett and Derek Zaba are Partners and Eric S. Goodwin is a Senior Managing Associate at Sidley Austin LLP. This post is based on their Sidley memorandum.

In remarks on July 9, U.S. Securities and Exchange Commission Chairman Paul Atkins argued that the staff’s decision not to issue substantive responses to most exclusions of Securities Exchange Act Rule 14a-8 proposals served as a “proof of concept” for the SEC’s role in shareholder proposals.[1] In his view, giving market participants more responsibility for applying the proxy rules and resolving disputes about them did not result in chaos, but instead led to more productive engagement between companies and their shareholders.

The SEC has since gone even further, releasing proposed rules on Sept. 16 to entirely rescind Rule 14a-8.

These developments are expected to have little impact on traditional hedge fund activism, which has historically avoided shareholder proposals in favor of director election contests. Nonetheless, Atkins’ July 9 claim that refraining from “calling balls and strikes” on shareholder proposals allows the market to self correct provides a useful backdrop for reviewing shareholder activism in the most recent proxy season.

Proxy contests have long proceeded under a framework in which the SEC has a limited role focused on establishing disclosure rules, while companies and activists distribute their own materials to make their competing cases for shareholders to decide whether change is warranted. While few activism campaigns proceed to formal proxy solicitations, the federal proxy framework shapes the parties’ leverage and conduct long before any proxy filings are made.

This season’s combination of elevated campaign activity, limited formal escalation and measured voting outcomes under the universal proxy card rules illustrates how that framework functions in practice and why a targeted SEC role remains important.

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Weekly Roundup: October 16-22, 2026

Posted by the Harvard Law School Forum on Corporate Governance, on
Friday, October 23, 2026

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This roundup contains a collection of the posts published on the Forum during the week of October 16-22, 2026

Cruising Altitude: Growth-Focused Governance Reform May Propel Japanese Equities to New Heights

Posted by Kei Okamura, Neuberger Berman, on Friday, October 16, 2026
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FTC Challenges Interlock Tied to Beretta-Ruger Minority Investment

Posted by Megan Browdie, Julia Brinton, and Sharon Connaughton, Cooley LLP, on Saturday, October 17, 2026
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2026 Proxy Season Review: Compensation-Related Matters

Posted by Heather L. Coleman, Jeannette E. Bander and Amanda K. Toy, Sullivan & Cromwell LLP, on Sunday, October 18, 2026
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SEC Staff Expands No-Action Relief for Retail Voting Programs

Posted by Thomas Fraser, Michael Littenberg and Craig Marcus, Ropes & Gray LLP, on Monday, October 19, 2026
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How Chairs Drive Board Performance

Posted by Rusty O’Kelley and Laura Mantoura, Russell Reynolds Associates, on Monday, October 19, 2026
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Court of Chancery Reinforces Section 144’s Protections–and the Need for Faithful Implementation

Posted by Kevin Schwartz, Steven Winter, and Theo. Mirvis, Wachtell Lipton Rosen & Katz, on Tuesday, October 20, 2026
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Laying the Groundwork for Bank M&A

Posted by Edward D. Herlihy, Richard K. Kim, and Brandon C. Price, Wachtell, Lipton, Rosen & Katz, on Tuesday, October 20, 2026
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NYSE Arca and Nasdaq to Launch Extended Trading: What Companies Should Consider

Posted by Marc S. Gerber and Caroline S. Kim, Skadden, Arps, Slate, Meagher & Flom LLP, on Wednesday, October 21, 2026
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2026 M&A Integration Survey

Posted by Michael Pokorski, Rupinder Gill, and Kevin Desai, PricewaterhouseCoopers LLP, on Wednesday, October 21, 2026
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SEC Proposes Amendments Addressing Retailization; Modernizing Regulated Funds and Performance-Based Compensation

Posted by Brian Hirshberg, Adam Kanter, and Leslie Cruz, Mayer Brown LLP, on Thursday, October 22, 2026
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Anticompetitive Corporate Governance

Posted by Danielle A. Chaim (Bar-Ilan University), on Thursday, October 22, 2026
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2026 Q3 Audit Committee Update

Posted by Pat Niemann and Jennifer Lee, EY, on Thursday, October 22, 2026
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2026 Q3 Audit Committee Update

Posted by Pat Niemann and Jennifer Lee, EY, on
Thursday, October 22, 2026
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Pat Niemann is the Audit Committee Forum Leader and Jennifer Lee is a Managing Director at EY. This post is based on their EY memorandum.

Executive summary

Five areas audit committees should watch next

As audit committees prepare for the quarter ahead, they should consider the following themes as they set agendas. Additional context is provided below.

  • Risk oversight must be more connected and forward looking. Geopolitical disruption, tariff uncertainty, AI, cyber risk, market volatility and regulatory change are converging across operations, supply chains, technology environments and capital allocation decisions. Audit committees should challenge whether management is assessing these risks collectively (and their interdependencies) and with sufficient visibility into second and third order impacts.
  • Resilience should be tested, not assumed. Companies may be accustomed to disruption, but the current environment requires more rigorous scenario planning, stress testing, liquidity discipline and third party dependency mapping. Audit committees should understand the triggers, thresholds and contingency actions management would use if conditions deteriorated.
  • AI governance is entering a more disciplined phase. As AI moves from experimentation to scaled deployment, boards are focusing on cost, return, accountability and control. Audit committees should ask whether management has clear decision rights, reliable cost and value measures, appropriate data and model controls, and cyber defenses that can keep pace with AI enabled threats.
  • Financial reporting implications need early attention. Tariffs, supply chain changes, inflation, interest rates, impairment indicators, liquidity pressures, tax developments, cyber incidents and AI enabled processes may affect judgments, estimates, disclosures and internal controls. Audit committees should confirm that disclosure controls and ICFR remain responsive to the current risk environment.
  • Regulatory change may create both relief and new oversight demands. FASB, SEC and PCAOB developments could affect disclosure requirements, enforcement expectations and audit quality discussions. Audit committees should monitor rulemaking progress and outcomes, being mindful to consider potential implications for investor communications, audit planning and governance practices.

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Anticompetitive Corporate Governance

Posted by Danielle A. Chaim (Bar-Ilan University), on
Thursday, October 22, 2026
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Danielle Chaim is an Assistant Professor at Bar-Ilan University. This post is based on her recent article, forthcoming in the Cornell Law Review.

Corporate law and antitrust law are generally understood to occupy distinct domains within the legal landscape. Corporate law primarily looks inward, governing how authority is allocated within the firm. Antitrust primarily looks outward, policing rivalry among firms in the marketplace. That division rests on a plausible premise: Governance arrangements may shape how a corporation is run, but they do not ordinarily affect competition in the marketplace itself.

That premise is becoming increasingly difficult to sustain. A small number of institutional investors now hold substantial positions across the public equity market, including in competing companies, and wield significant influence through voting, engagement, and market-wide stewardship policies. Their views of governance best practices often converge—a convergence reinforced by investor coalitions, trade associations, and proxy advisers.

In a new paper, I argue that these developments have transformed corporate governance into a potential instrument of competitive harm. What appears to be an internal governance choice at a single company can have market-wide effects when the same powerful investors promote similar arrangements across thousands of firms. The paper develops a two-level account of anticompetitive corporate governance. The first concerns competition among portfolio companies in product and labor markets. The second concerns competition among institutional investors themselves in capital markets.

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SEC Proposes Amendments Addressing Retailization; Modernizing Regulated Funds and Performance-Based Compensation

Posted by Brian Hirshberg, Adam Kanter, and Leslie Cruz, Mayer Brown LLP, on
Thursday, October 22, 2026
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Brian D. Hirshberg and Adam D. Kanter are Partners and Leslie Cruz is a Counsel at Mayer Brown LLP. This post is based on a Mayer Brown memorandum by Mr. Hirshberg, Mr. Kanter, Ms. Cruz, and Anna T. Pinedo.

On September 30, 2026, the Securities and Exchange Commission (the “SEC”) issued two proposing releases containing amendments that would materially affect how business development companies that have elected to be regulated under the Investment Company Act of 1940 (the “1940 Act,” and “BDCs,” respectively), interval funds and other registered funds are structured, as well as their compensation and distribution models.

The proposals would modernize the interval fund framework, permit certain registered closed-end funds (“CEFs”) and BDCs (collectively referred to herein as “regulated CEFs”) to offer multiple share classes without individual exemptive relief and amend Rule 205-3 under the Investment Advisers Act of 1940 (the “Advisers Act”) to expand the circumstances in which SEC-registered investment advisers may receive performance-based compensation, both from regulated funds (through a new “fund board channel”) and from accredited investors and funds whose investors are all accredited investors (through a new “accredited investor channel”).[1]

Taken together, the proposals would facilitate retail access to private markets by providing greater flexibility for funds and their investment advisers.  For sponsors of BDCs and other private asset CEFs, the proposals will have significant practical implications for portfolio construction, liquidity management and adviser compensation.  The proposals also would narrow the commercial gap between interval funds and tender offer funds, and may be of interest to lenders and other counterparties to regulated funds.

We discuss the most significant proposed changes in this Legal Update.

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2026 M&A Integration Survey

Posted by Michael Pokorski, Rupinder Gill, and Kevin Desai, PricewaterhouseCoopers LLP, on
Wednesday, October 21, 2026
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Michael Pokorski is a Deals Principal, Rupinder Gill is a Deals Partner, and Kevin Desai is a Deals Leader at PricewaterhouseCoopers LLP. This post is based on a PwC memorandum by Mr. Pokorski, Mr. Gill, Mr. Desai, and Derek Townsend.

Key takeaways:

  • Only about one in three acquirers fully achieve their deal thesis objectives. The value gap is a decision gap: the gap opens when the acquirer fails to translate the thesis into the specific choices that determine how the combined company operates.
  • Successful acquirers were more likely to define thesis-relevant operating-model elements before close across every deal theme. The sharpest gap appears in revenue-acceleration transactions, where 71% of successful acquirers defined the relevant elements pre-close, compared with 44% of limited-success acquirers.
  • Assign an owner, timeline, and funding to every value initiative before integration begins—successful acquirers do this at nearly twice the rate of limited-success acquirers (59% vs. 28%).
  • Build a finance-validated system to separate realized value from forecasts—only 27% of limited-success acquirers are very confident their reported synergies are real and auditable, compared with 62% of successful acquirers.
  • Conduct leadership and talent diligence before signing, not after close—despite seven in ten acquirers historically naming talent a top deal objective, only 16% actually assess leadership and talent pre-sign.

THE THESIS. The value gap in M&A opens when leaders leave the operating implications of the deal thesis unresolved. Successful acquirers identify the few decisions that matter most, make them early, and connect them to accountable value initiatives and proof.

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