Withhold Campaigns: Communications Considerations for Companies

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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Weekly Roundup: October 10-16, 2025


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This roundup contains a collection of the posts published on the Forum during the week of October 10-16, 2025

Shareholder Engagement Under the New 13G Regime: Key Takeaways From Recent Panel


Keynote Address by Chair Atkins on Revitalizing Public Company Appeal


CARB Publishes Preliminary List of Companies Potentially Subject to SB 253 and SB 261



Applying A Retail Voting Program in Practice


Annual Incentive Plan Design and Trends


Occasional Activists and the Evolving Landscape of Shareholder Activism in 2025


AI Risk Disclosures in the S&P 500: Reputation, Cybersecurity, and Regulation


Atkins on Challenges to Non-Binding Shareholder Proposals & DE/TX Law


Shareholder Activism: Ten Trends for 2026


Shareholder Activism: Ten Trends for 2026

David A. Katz and Elina Tetelbaum are Partners, and Loren Braswell is Counsel at Wachtell, Lipton, Rosen & Katz. This post is based on their Wachtell Lipton memorandum.

Shareholder activism is at record levels and is no longer limited to the “proxy season.” Dozens of U.S. activist situations are underway for 2026 annual meetings, well before the windows for nominations open at most targeted companies. Activists are preparing for the fall conference circuit at which they will debut many of their 2026 campaigns, already working behind the scenes at companies by contacting their management, directors, investors, employees, sell-side analysts, and other key constituencies. Here are ten trends to expect for the year ahead.

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Atkins on Challenges to Non-Binding Shareholder Proposals & DE/TX Law

Elizabeth A. Ising, Thomas J. Kim, and Ronald O. Mueller are Partners at Gibson, Dunn & Crutcher LLP. This post is based on a Gibson Dunn memorandum by Ms. Ising, Mr. Kim, Mr. Mueller, and Brian J. Lane, and is part of the Delaware law series; links to other posts in the series are available here.

In a significant dinner speech on October 9, at the John L. Weinberg Center for Corporate Governance, SEC Chairman Atkins signaled the SEC’s willingness to take a step that could significantly alter the landscape for shareholder proposals submitted under Exchange Act Rule 14a-8, by allowing companies (at least, Delaware companies) to exclude precatory/non-binding shareholder proposals. In practice, the vast majority of Rule 14a-8 shareholder proposals are precatory.  The speech is available here: SEC.gov | Keynote Address at the John L. Weinberg Center for Corporate Governance’s 25th Anniversary Gala

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AI Risk Disclosures in the S&P 500: Reputation, Cybersecurity, and Regulation

Matteo Tonello is the Head of Benchmarking and Analytics at The Conference Board, Inc. This post is based on a Conference Board/ESGAUGE report by Andrew Jones, Principal Researcher, Governance and Sustainability Center, The Conference Board.

This report analyzes how the largest US public companies disclose artificial intelligence (AI) risks in their 2023–2025 annual filings, providing insight into the issues shaping board agendas, investor expectations, and regulatory oversight in the years ahead.

Trusted Insights for What’s Ahead®

  • AI has rapidly become a mainstream enterprise risk, with 72% of S&P 500 companies disclosing at least one material AI risk in 2025, up from just 12% in 2023.
  • AI risk disclosure has surged in financials, health care, industrials, IT, and consumer discretionary—frontline adopters facing regulatory scrutiny over data and fairness, operational risks from automation, and reputational exposure in consumer markets.
  • Reputational risk is the top AI concern in the S&P 500, making strong governance and proactive oversight essential as companies warn that bias, misinformation, privacy lapses, or failed implementations can quickly erode trust and investor confidence.
  • Cybersecurity is a central concern as AI expands attack surfaces and enables more sophisticated threats, influencing boards to expect AI-specific controls, testing, and vendor oversight.
  • Legal and regulatory risk is a growing theme in disclosures as firms face fragmented global AI rules, rising compliance demands, and evolving litigation exposure, all of which require directors to anticipate regulatory divergence and integrate legal, operational, and reputational oversight into AI governance.

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Occasional Activists and the Evolving Landscape of Shareholder Activism in 2025

Spencer D. Klein is a Partner, and Tyler Miller and Lulu Sun are Associates at Morrison & Foerster LLP.

Shareholder activism by investors who are not dedicated activist funds and do not regularly use activist tactics — such as institutional investors and individuals, including company insiders, or other first-time activists — continues to be an important theme in 2025 proxy contests. While 2024 proved to be a peak year for occasional activism and activist campaigns in general, the landscape of shareholder activism is still evolving in 2025 despite a slight decline in overall activity.

Despite persistent macroeconomic and geopolitical uncertainty, global activism activity has remained robust in 2025. In 2024, there were 243 activist campaigns launched, marking the highest total since 2018’s record of 249 activist campaigns. [1] According to Barclays, there were 129 global campaigns in the first half of 2025, which is down from the record pace set in H1 2024 (147 campaigns), but still in line with the nine-year average (120 campaigns). [2] The number of board seats won by activists also increased, with 86 seats secured in H1 2025, a 16% year-over-year increase. [3] Most of these board seats continue to be won through settlements rather than proxy contests, [4] reflecting the continuing proclivities of both activists and boards toward negotiating outcomes that avoid the costs and uncertainties of a public fight.

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Annual Incentive Plan Design and Trends

Andrew Gordon is a Senior Director of Research Services at Equilar, Inc. This post is based on his Equilar memorandum.

Annual incentive plans serve a valuable function as an interim measurement of progress towards longer-term goals. Unlike performance share awards, which have a more rigid construction due to complex equity accounting rules and higher levels of shareholder scrutiny, annual bonus plans offer a greater flexibility in plan design, consideration of individual performance, and use of discretion. This report summarizes the current state of annual incentive design and trends in the Equilar 500, the 500 largest U.S. public companies by revenue.

Within its IPAC tool, Equilar features a Payouts and Weightings module that captures granular incentive plan data related to plan features, metrics and payout curves for performance-based awards granted to the CEO. For this analysis, we compared 2024 (defined as fiscal years ending between May 31, 2024 to April 30, 2025) against 2023 (defined as fiscal years ending between May 31, 2023 to April 30, 2024) for 432 Equilar 500 companies with both years of data. We further removed fully discretionary plans, leaving 404 formulaic plans for 2024 and 403 for 2023, which serve as the basis for the remainder of this report. Discretionary plans generally have no material plan features or structured metric measurement and instead rely upon a holistic measurement of performance, as determined by the board of directors.

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Applying A Retail Voting Program in Practice

J.T. Ho and Helena K. Grannis are Partners at Cleary Gottlieb Steen & Hamilton LLP, and Kyle Pinder is a Partner at Morris, Nichols, Arsht & Tunnell LLP. This post is based on their Cleary Gottlieb and Morris Nichols memorandum.

On September 15, 2025, the Office of Mergers and Acquisitions of the SEC’s Division of Corporation Finance permitted a novel approach to increase retail shareholder voting when it granted a no action letter request from Exxon Mobil Corporation.

Specifically, the SEC was asked to consider whether a proposed retail voting program was  compliant with Rules 14a-4(d)(2) and 14a-4(d)(3) (the “No-Action Letter”). In the No-Action Letter, ExxonMobil sought confirmation that the SEC would not recommend enforcement action if it implemented a retail voting program allowing retail shareholders to provide standing instructions for their shares to be voted automatically in line with the board of director’s recommendations at each shareholder meeting.

Notably, the No-Action Letter stated that of the nearly 40% of the company’s outstanding shares that were held by retail shareholders, only one quarter of those shares (or approximately 10% of the outstanding shares) were voted at its last annual meeting.  The company also advised the SEC that it had “long received feedback” from retail shareholders that they would be amenable to standing voting instructions to vote as the board recommends. Consistent with this, the No-Action Letter stated that, of the retail shareholders who voted at meetings over the last five years, approximately 90% supported all of the board’s recommendations.

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2025 U.S. Governance Post-Season Review: Evolving Priorities in a Shifting Landscape

Subodh Mishra is the Global Head of Communications at ISS STOXX. This post is based on an ISS-Corporate memorandum by Anna Desis, Alyce Lomax, and Amanda Mayberry, Compensation & Governance Advisors with ISS-Corporate.

Key Takeaways

  • Political, legal, and regulatory changes contributed to an altered landscape for governance, DEI and sustainability issues;
  • “Traditional” skills appeared to be on-trend for directors;
  • Directors with significant outside board commitments have declined while investor support for overboarded directors improved;
  • Investors may be reassessing lengthy tenure; vote outcomes suggest more leniency on this topic;
  • Shareholder proposal volume significantly declined, with a quarter submitted ultimately omitted from proxy ballots; governance proposals dominated the season.

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CARB Publishes Preliminary List of Companies Potentially Subject to SB 253 and SB 261

Stacey Mitchell and Kenneth Markowitz are Partners, and Andrew Oelz is a Senior Counsel at Akin Gump Strauss Hauer & Feld LLP. This post is based on an Akin Gump memorandum by Ms. Mitchell, Mr. Markowitz, Mr. Oelz, Brecken Petty, and Charles Edward Smith.

The California Air Resources Board (CARB) took a significant step forward recently in implementing the state’s climate disclosure laws: SB 253 (the Climate Corporate Data Accountability Act) and SB 261 (the Climate-Related Financial Risk Disclosure law), in each case as amended by SB 219. On September 24, CARB released its preliminary list of entities that staff believe may be subject to one or both statutes. The list is available in full on CARB’s website here.

According to a statement announcing the publication of the list, it was created by cross-referencing the California Secretary of State’s business registry against revenue data published by Dun & Bradstreet, as well as applying the conceptual scoping definitions discussed during CARB’s most recent public workshop. Based on this analysis, CARB staff estimate that roughly 2,600 companies will be subject to SB 253, which applies to entities with more than $1 billion in annual global revenues, and approximately 4,100 companies will be subject to SB 261, which applies at the $500 million threshold. Unsurprisingly, the preliminary roster features some of the nation’s largest companies, spanning the technology, retail, energy, financial services and manufacturing sectors. The expansive list of entities potentially subject to reporting under the statutes underscores the broad reach of the new statutes, which are designed to capture companies doing business in California regardless of where they are headquartered.

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