Monthly Archives: April 2025

2025 Shareholders Meeting Agenda: Proactive Board Oversight Amid Significant Uncertainty and Change

Amy Rojik is a National Managing Principal and Lee Sentnor is a Professional Practice Director at BDO. This post is based on their BDO memorandum.

Board directors once again enter proxy season against a backdrop of significant change. On a broad scale, supply chains and business operations continue to see impact from mounting geopolitical tensions, changing trade, tariff and tax policies, and ongoing price and interest rate pressures globally. Recent legal challenges and pauses herald the beginning of a significant shift in U.S. regulatory guidance on a number of issues, and the introduction of the Department of Government Efficiency (DOGE) raises critical questions about agency authority and access to government funding.

In addition, the anticipation of de-regulation under incoming U.S. Securities and Exchange Commission’s (SEC) leadership, increased stakeholder attention to board oversight of artificial intelligence (AI) and cybersecurity, and shifting expectations around talent management are reshaping the corporate governance landscape. Monitoring changes like these will have directors reviewing current strategies with respect to risk oversight, approaching talent management and executive compensation, and responding to changing guidance and sentiment around issues like DEI, climate change and cryptocurrency.

The 2025 BDO Shareholder Meeting Agenda covers key challenges and opportunities for directors to consider as they prepare both for upcoming shareholder meetings and their broader oversight responsibilities and value creation in the year ahead. The agenda highlights common issues attracting shareholder attention amid increasing calls for greater transparency and accountability. While directors’ focus areas will vary based on the organization’s unique circumstances, boards are reminded to remain rooted in the corporation’s mission and purpose to inform their decisions and communications to shareholders. Similarly, transparency around the governance of strategy and enterprise risk management (ERM) remains a high priority for investors. This includes explanation of the board’s roles and responsibilities as well as the company’s ERM program and process. Blackrock summarized investor sentiment by stating, “We are particularly interested in understanding how risk oversight processes evolve in response to changes in corporate strategy and/or shifts in the business and related risk environment.”

Communication that doesn’t shy away from vulnerability but identifies what a company is doing about it instills confidence in the markets.

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Fair Is Fair: Reforming Fairness Review

Jonathan Macey is Sam Harris Professor of Corporate Law, Corporate Finance and Securities Law at Yale Law School and Professor in the Yale School of Management. This post is based on his recent paper, and is part of the Delaware law series; links to other posts in the series are available here.

Much time and energy is being devoted to determining how corporate decision-making can be structured to avoid fairness review. Comparatively little attention is paid to precisely what it means to subject a contract or transaction to fairness review, or to the purpose that fairness review is supposed to serve.

Here I advance the argument that the purpose of fairness review in corporate law should be to determine whether a proposed transaction or contract is beneficial or harmful to minority or non-controlling shareholders. While this point does (and should) seem obvious, oddly this is not the role currently played by fairness review in Delaware corporate law. Rather, the role currently played by fairness review is to regulate board composition and the procedures employed by boards of directors in making decisions that subsequently become the subject of fairness review by judges.

While it is important to pay attention to board composition and board process, it is far from clear that fairness review is the proper context for doing so because transactions that provide significant benefits for minority and non-controlling shareholders should not be nullified by judges in order to disciple corporations for real or perceived corporate governance failures. The recent, highly unfortunate outcomes in the Delaware Court of Chancery in the legal challenges to Elon Musk’s compensation in the Tornetta v. Musk cases are examples of the problem at hand.  Supposed that one simply assumes, for the sake of argument, that the Musk compensation package being challenged by plaintiffs was approved in a flawed process. Despite any such alleged flaws, the compensation arrangement was overwhelmingly favored and approved by Tesla’s independent (non-Musk affiliated) shareholders. Nullifying this arrangement does not change Tesla’s corporate governance. Nor does it punish the directors and others who were responsible for the supposedly flawed process. As such, nullifying the compensation package on fairness grounds not only makes zero sense; it punishes the ostensible victims, the minority shareholders who wanted the comp package to be respected.

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Chancery Court Clarifies Delaware’s Stance on Sandbagging and Transaction Multiple for Damages

Frank J. Favia Jr. and Jonathan A. Dhanawade are Partners, and Andrew J. Stanger is a Knowledge Counsel, at Mayer Brown LLP. This post is based on their Mayer Brown memorandum, and is part of the Delaware law series; links to other posts in the series are available here.

At A Glance

The Delaware Chancery Court has issued a notable opinion that confirms Delaware’s position as a pro-sandbagging jurisdiction and clarifies when damages may be computed using a transaction multiple. We examine the background and implications of the case in this Legal Update.

The Delaware Chancery Court has issued a notable opinion that confirms Delaware’s position as a pro-sandbagging jurisdiction and clarifies when damages may be computed using a transaction multiple. These are important points for parties to take into account when negotiating and drafting acquisition agreements.

In re Dura Medic Holdings, Inc. Consolidated Litigation [1] involved a private equity firm’s acquisition of a medical equipment supplier through a reverse triangular merger. As explained in more detail below, the buyer sought indemnification from the sellers for breaches of certain representations and warranties in the merger agreement.

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Delaware Revamps Its General Corporation Law — Will It Stop Companies from Leaving?

David Bell, Marie Bafus, and Dean Kristy are Partners at Fenwick & West LLP. This post is based on a Fenwick memorandum by Mr. Bell, Ms. Bafus, Mr. Kristy, and Wendy Grasso, and is part of the Delaware law series; links to other posts in the series are available here.

What You Need To Know

  • Delaware has adopted significant, much anticipated amendments to §§ 144 and 220 of the Delaware General Corporation Law, which are aimed at providing greater clarity and predictability to corporate fiduciaries in light of certain recent controversial decisions from the Delaware Court of Chancery. Those decisions have resulted in a number of high-profile companies reincorporating (or considering reincorporation) into other states and has formation-stage founders questioning the state for initial incorporation.
  • The amendments to § 144 provide safe harbor protections for related-party (interested) transactions with directors, officers, controlling stockholders, and members of a control group, including providing specific processes for approval of such transactions and a path for ratification by stockholders after the fact in some circumstances. They also lower the requirements for approving these acts and transactions.
  • The amendments to § 220 provide more clarity with respect to the scope and requirements for a stockholder inspection of books and records, providing an exclusive list of items that may be requested (narrowing the universe awarded in some § 220 cases), raising the procedural requirements for such demands, and allowing corporations to impose confidentiality restrictions.
  • The amendments, which were first introduced on February 17, 2025, are immediately effective and apply to all prior and future acts and transactions, but do not apply to court proceedings that were pending or completed on or before February 17, 2025, or to stockholder demands to inspect books and records made on or prior to that date.

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Reporting Portfolio Emissions By Asset Managers

Patricia Volhard is a Partner, John Young is a Counsel, and Ulysses Smith is an ESG Senior Advisor at Debevoise & Plimpton LLP. This post is based on a Debevoise memorandum by Ms. Volhard, Mr. Young, Mr. Smith, and Alfie Scott.

Key Takeaways:

  • Asset managers frequently commit to collect and report on the greenhouse gas (“GHG”) emissions generated by their portfolio companies, often referred to as “portfolio” or “financed” emissions. An asset manager’s underlying investors may request this data, or the asset manager may be required to collect this data by law or as part of its membership of a voluntary industry initiative.
  • This In Depth considers the frameworks under which an asset manager commonly collects and reports on its portfolio emissions. In particular, asset managers should familiarize themselves with the methodologies for measuring GHG emissions under the PCAF standard when measuring and reporting on their portfolio emissions.
  • It also considers some of the practical issues that arise and possible solutions. For example, asset managers may choose to adopt a phased-in approach to reporting their portfolio emissions, prioritizing data collection and reporting for particular sectors where data is relatively easy to obtain or where emissions are relatively high.

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Equity Grant Disclosure Insights

Neil McCarthy is Co-Founder and Chief Product Officer, James Palmiter is CEO and Co-Founder, and G. Michael Weiksner is Co-Founder and Chief Technology Officer at DragonGC. This post is based on a DragonGC memorandum by Mr. McCarthy, Mr. Palmiter, Mr. Weiksner, Jennifer Carberry, and Nicholas Sasso.

What’s Inside

This report offers exclusive insights into how early filers are navigating the SEC’s new disclosure mandates for equity grant awards. Our expert analysis highlights emerging trends and best practices, equipping your team with the knowledge to refine your approach this proxy season.

Key Highlights

  • Timing of Equity Grants: Explore how early filers are addressing disclosure requirements related to timing policies, including grant practices around material nonpublic information (MNPI).
  • Clarity and Transparency: See examples of how companies are enhancing disclosure language to align with regulatory expectations while maintaining simplicity.
  • Trends to Watch: Gain a preview of the most common strategies companies are employing to comply with the new rules.

Why This Matters

Early movers in disclosure often set the tone for the broader market. By understanding their approaches, you can benchmark your own practices and make informed decisions as filing deadlines approach.

This report is the first in DragonGC’s exclusive Proxy Season Series, designed to keep you informed with timely updates and actionable insights throughout the season.

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Weekly Roundup: March 28-April 3, 2025


More from:

This roundup contains a collection of the posts published on the Forum during the week of March 28-April 3, 2025

Statement by Commissioner Crenshaw Regarding Climate-Related Disclosures Rule Litigation


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


Understanding and Managing Legal Risk in Corporate DEI


Responding to Stealth Dual-Class Stock


The Lessons of Michael C. Jensen


2025 Proxy Season Preview: A New Paradigm for Investment Stewardship


Delaware Enacts Important Corporate Law Reforms


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


Navigating 11th Hour Guidance on Board DE&I


Navigating the 2025 Proxy Season: Six Key Developments to Watch


Are There Too Few Publicly Listed Firms in the US?


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


How Does Settling With an Activist Impact Shareholder Returns?


Deconstructing the “Anglo-American” Corporate Model


Sustainability Without the SDGs: US Policy Shifts and Corporate ESG


Sustainability Without the SDGs: US Policy Shifts and Corporate ESG

Matteo Tonello is Head of Benchmarking and Analytics at The Conference Board, Inc. This post is based on a Conference Board memorandum by Andrew Jones, Senior Researcher, ESG Center at The Conference Board, Inc. 

In March 2025, the US formally rejected the UN Sustainable Development Goals (SDGs)—a set of 17 global objectives to address economic, social, environmental challenges. The US decision marks a significant departure from previous bipartisan support for multilateral sustainability frameworks. This report examines this policy shift and its potential implications for corporate sustainability efforts and the environment, social & governance (ESG) landscape.

Key Insights

  • The US withdrawal of support for the SDGs reflects a broader shift toward a sovereignty-first, transactional foreign policy, weakening global momentum for multilateral development efforts at a time when SDG progress remains off track.
  • As many US companies align with the SDGs, the impact of the US federal pullback on ESG strategies may be limited. Corporate sustainability efforts are driven more by business strategy, market forces, and stakeholder expectations than by voluntary global frameworks.
  • The US withdrawal from the SDGs may accelerate the fragmentation and politicization of the global sustainability landscape, underscoring the need for companies to anchor their ESG efforts in business value, legal defensibility, and region-specific regulatory realities.

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Deconstructing the “Anglo-American” Corporate Model

Brian Cheffins is the S. J. Berwin Professor of Corporate Law at the University of Cambridge, and Bobby V. Reddy is the Professor of Corporate Law and Governance at the University of Cambridge. This post is based on their recent article forthcoming in the Harvard Business Law Review.

In the mid-1950s, L.C.B. Gower, a pre-eminent U.K. corporate law academic, was a visiting professor at Harvard Law School.  An intriguing by-product was a 1956 Harvard Law Review article where he compared and contrasted numerous aspects of U.S. and U.K. company law.  Similar multi-topic comparisons of these jurisdictions have been largely unknown since.  Instead, combining salient features of American and British corporate governance and corporate law into a single “Anglo-American” model to contrast that model with arrangements elsewhere has been the predominant approach. 

In a recent working paper we deconstruct the Anglo-American corporate model by undertaking the first thorough comparison of U.S. and U.K. corporate law in decades.  We show that there are significant doctrinal corporate law differences between the two jurisdictions, which means referring to an “Anglo-American” model in the corporate context can be misleading.  Still, due to an additional key finding — substantial similarities exist between the U.S. and the U.K. from a practical perspective — the notion of an Anglo-American corporate model cannot be dismissed out-of-hand.  A distinction between what Roscoe Pound referred to in the early 20th century as “law in books” (substantive legal doctrine) and “law in action” (enforcement and compliance) is crucial in this regard. 

In our paper, we focus on arrangements affecting publicly traded companies rather than all corporations.  Also, with the United States, to make our analysis of state corporate law tractable, we only discuss the position in Delaware, the most popular U.S. state for public company incorporations.  Our analysis of U.S. and U.K. corporate law nevertheless remains distinctively multi-faceted.  Topics we discuss include boards, directors’ duties, selection of directors, shareholder “decision” rights, shareholder litigation and corporate takeovers, with some of the key facets that illustrate the distinction between “law in books” and “law in action” when deconstructing the Anglo-American corporate model summarized below.

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How Does Settling With an Activist Impact Shareholder Returns?

Marco Castellani is the Senior Vice President, Patrick Ryan is the Executive Vice President, and Lex Suvanto is the CEO at Edelman Smithfield. This post is based on their Edelman memorandum.

An examination of post-settlement stock price and M&A outcomes, as well as other implications

Agreeing to a settlement ranks among one of the most consequential decisions a board can face. Settlements typically involve the addition of activist-supported directors, who often bring their own priorities into the boardroom. Increasingly, settlement agreements also call for the creation of special board committees with specific mandates, for example, to oversee a strategic review.

Despite the high stakes, settlements between activist investors and the companies they target appear to be occurring at an ever faster pace. This reflects several factors, including an eagerness on the part of boards and management teams to avoid a distracting and costly public fight. The implementation of the Universal Proxy Card, which many perceive as increasing reputational risk for individual directors facing contested votes, may also be a contributing factor. Activists are similarly motivated to reach quick settlements to minimize costs and the risk of alienating shareholders. Importantly, a settlement often allows activists to move from the negotiation table to the decision table (i.e., the boardroom) and exert influence from the inside.

A fundamental question for directors considering a settlement is how the proposed agreement is likely to impact shareholder value. To answer this question, we analyzed 634 settlements entered between U.S.-listed companies and activists from 2010 through the end of 2024. Specifically, we examined stock price performance during the three-year period following the settlement, also taking into consideration whether the company was eventually acquired or remained public.

The results of this analysis offer valuable quantitative insights to help boards more effectively evaluate the potential outcomes of entering into a settlement agreement with an activist.

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