Monthly Archives: May 2025

Is ESG a Sideshow? ESG Perceptions, Investment, and Firms’ Financing Decisions

Roman Kräussl is Professor of Finance at Bayes Business School, Joshua Rauh is the Ormond Family Professor of Finance at Stanford’s Graduate School of Business, and Denitsa Stefanova is an Associate Professor of Finance at the University of Luxembourg. This post is based on their recent paper.

As investor interest in ESG (environmental, social, and governance) skyrocketed in the mid 2010s, ESG ratings became an important area of focus. A strong rating could mean greater inclusion in ESG focused funds (Hartzmark and Sussman, 2019), which in turn increases investor interest in owning a company’s stock due to its ESG properties. While ESG sometimes aligns with value creation, often it does not. In principle this suggests that firms attracting substantial interest from investors for reasons unrelated to the valuation of expected cash flows could issue equity more cheaply. What would we expect firms that received strong ESG ratings to do with this opportunity – and what did they in fact do?

Considerable research has shown that in many situations, firms respond to equity prices that might be overvalued relative to their fundamental value by issuing equity and investing the proceeds in capital (Baker, Stein, and Wurgler, 2003; Baker, 2009). However, the financial theory of frictionless markets (Modigliani and Miller, 1958) would say that a firm should only increase its investment in capital assets if it receives a positive NPV opportunity based on the opportunity cost of capital, a purely financial consideration related to the risk and return properties of the investment itself. An ability to raise money (whether via debt or equity) under favorable circumstances does not mean the firm should overpay for an asset (see Brealey and Myers, 1991; Brealey, Myers, and Allen, 2007).

READ MORE »

Navigating the Post-SB 21 World of Conflict Transactions

Ethan Klingsberg and Meredith Kotler are Partners, and Victor Ma is an Associate at Freshfields Bruckhaus Deringer LLP. This post is based on their Freshfields memorandum and is part of the Delaware Law series; links to other posts in the series are available here.

Delaware’s entire fairness doctrine – response to which in part drove the SB 21 amendments to Delaware corporate law enacted on March 25, 2025 – is not dead. Thus, it is especially helpful that a new Delaware Court of Chancery opinion reminds us that conflict transactions that fail to meet safe harbors and are therefore subject to entire fairness scrutiny nonetheless have a pathway to dismissal on the pleadings.

This is an important reminder because:

  • the new SB 21 statutory safe harbors from entire fairness review include several requirements with which plaintiffs will be on the look-out for non-compliance;
  • there are costs (both monetary and from an execution perspective) to complying with some of these safe harbor criteria to which parties to conflict transactions are, from time to time, going to elect not to undertake; and
  • the availability of dismissal on the pleadings of entire fairness cases holds out the potential to substantially reduce litigation costs.

READ MORE »

2025 U.S. Proxy Season: Midseason Review Finds Sharp Drop in Shareholder Resolutions on Ballot

Subodh Mishra is Global Head of Communications at ISS STOXX. This post is based on an ISS-Corporate memorandum by Jun Frank, Managing Director, Global Head of Compensation & Governance Advisory at ISS-Corporate.

As May 22 is the peak of the U.S. proxy season, with 137 Russell 3000 companies expected to hold annual meetings today, ISS-Corporate has examined early trends in shareholder proposals and executive compensation. The shareholder proposal landscape has drastically changed this proxy season – notably, the total number of proposals submitted and voted on has decreased drastically while the number of proposals omitted has risen. Governance proposals remain common, although their focus has shifted. While fewer environmental and social proposals have made the ballot, those related to greenhouse gas (GHG) emissions remain popular. This analysis reviews Russell 3000 companies with annual meetings between January 1 through June 30 for each year since 2021. 

Key Takeaways

  • Total shareholder proposal submissions have dropped while the number of omitted proposals has increased sharply.
  • Governance-related resolutions remain the most common type on the ballot.
  • Despite a significant decline in environmental proposals being voted on, resolutions related to GHG emissions, generally requesting enhanced disclosure, remain common.
  • Median CEO pay is at an all-time high for both S&P 500 and Russell 3000 companies.
  • Say-on-Pay support levels have declined slightly. While overall support remains strong, there are signs of trouble ahead.

READ MORE »

From Code to Compensation: The HighStakes Race for AI Talent

Ryan Colucci is a Principal at Compensation Advisory Partners. This post is based on his CAP memorandum.

As artificial intelligence continues to reshape industries and redefine how companies operate, organizations are under increasing pressure to build leadership and governance structures that can keep pace. In response, a growing number of S&P 500 companies are elevating AI to the executive level through formal leadership roles, while others are embedding oversight responsibilities into existing C-suite functions and board committees. This evolving landscape reflects not only the strategic importance of AI but also the complexity of managing its opportunities and risks across the enterprise.

At the same time, these developments are raising important questions about compensation, from how to attract specialized AI talent to how companies recognize new responsibilities taken on by existing leaders and directors. In the sections that follow, we examine how companies are structuring AI leadership and oversight today, and what this means for executive and board compensation in the years ahead.

READ MORE »

Stewardship in AQTION: How the World’s Largest Investors Handle Their Assets

Ali Saribas is a Partner at AQTION. This post is based on his AQTION study.

AQTION, leveraging its proprietary database powered by SquareWell Partners, published its second review on how the world’s largest 65 investors (hereafter referred to as the “Top 65”) are evaluating governance and sustainability issues and stewarding their portfolios. Together these investors (including some of the largest Assets Managers, Sovereign Wealth Funds, and Pension Funds) have nearly USD 91 trillion in Assets Under Management (AUM). See a summary post of the findings from last year’s study.

In this year’s analysis of the Top 65, the composition of the universe remains almost identical with the previous year, with only one change: Voya Investment Management (Asset Manager, US) replacing Baillie Gifford (Asset Manager, UK). To maintain comparability, the study retained the same factors used in the previous year’s assessment, while also incorporating new factors designed to capture investor sentiment on emerging topics of interest, such as artificial intelligence.

Notably, this year’s analysis looked athow these influential investors voted on high-profile situations. This includes, for example, the 2024 board contest at Walt Disney and the controversial approval of Elon Musk’s multi-billion dollar pay package at Tesla. These real-world examples offer valuable context to understand how the Top 65 investors are exercising their influence on critical corporate governance matters.

The full report is available here. Below, we highlight some of the key takeaways from AQTION’s review of the stewardship activities of the Top 65 investors, with selected points explored in greater depth.

READ MORE »

Delaware Tells Companies: ‘Let’s Stay Together’

Edward B. Micheletti and Jenness E. Parker are Partners at Skadden, Arps, Slate, Meagher & Flom LLP. This post is based on their Skadden memorandum, and is part of the Delaware law series; links to other posts in the series are available here.

Key Points

  • While there have been some vocal critics of Delaware corporations law, few major companies have reincorporated in other states, and Delaware incorporation continues to offer substantial benefits to companies and stockholders.
  • Recent amendments to Delaware’s corporations law create safe harbors for companies, controlling stockholders, directors and officers involved in transactions where there are possible conflicts of interest if they follow newly clarified procedural steps.
  • The statutory changes provide greater clarity and certainty and should help reduce litigation over transactions.

READ MORE »

Weekly Roundup: May 16-22, 2025


More from:

This roundup contains a collection of the posts published on the Forum during the week of May 16-22, 2025

Delaware Supreme Court Decision Suggests Drafting Points for Indemnification Notice Provisions –Thompson v. Sonova


Remarks of Commissioner Mark T. Uyeda At the 12th Annual Conference on Financial Market Regulation


Statement by Chair Atkins on the Upcoming Executive Compensation Roundtable


Chancery Court Dismisses Claims Relating to Sale of Company against Private Equity Majority Owner


Remarks by Chair Atkins at the 12th Annual Conference on Financial Market Regulation


Compensation Arrangement Considerations in Light of 2025 Tariffs


Remarks by Commissioner Crenshaw Before SEC Speaks


Remarks by Chair Atkins Before SEC Speaks


Texas Corporate Law Changes Challenge Delaware’s Dominance


Climate Boards: Do Natural Disaster Experiences Make Directors More Prosocial?


Board Leadership in an Era of Upheaval


Evolution of AI Washing Enforcement: DOJ Enters the Picture


The Role of Taxes in the Rise of ETFs


Why Do ISS Recommendations “Against” Say on Pay Spike in June?


Why Do ISS Recommendations “Against” Say on Pay Spike in June?

Ben Burney is a Principal at Exequity, LLP. This post is based on his Exequity memorandum.

Key Takeaways

  • The rate of ISS recommendations “Against” say-on-pay proposals peaks in June.
  • The causes of spikes in “Against” recommendations for June meetings are unclear.
  • The findings give rise to questions as to why the “June Phenomenon” occurs.

Introduction

Proxy season is underway for most US-based publicly traded companies, with April, May, and June representing the busiest months of the year for annual meetings. This is also ISS’s busy season, over which it publishes thousands of reports. For boards of directors, ISS recommendations are of keen interest, and many appreciate being apprised of broader trends in voting results of key peers and in the general market.

Most compensation committees (and compensation consultants) also pay close attention to the rate of “Against” recommendations issued by ISS on the Advisory Vote on Executive Compensation, better known as say on pay (SOP). The impact of ISS’s recommendations is significant: An “Against” recommendation on SOP routinely lowers shareholder votes in favor by 20% to 30%.

ISS “Against” recommendations for Russell 3000 companies fell in 2024 versus the prior several years to ~11%, below the ~12% long-term average going back to the inception of SOP votes and corresponding ISS recommendations in 2011. As of April 30, 2025, the ISS “Against” rate is low: ~7%.

The low rate of ISS “Against” recommendations could give some sense of relief to boards with meetings in May and June, but history shows us that the mid-proxy season results may be deceiving.

In fact, as much as there is a seasonality to proxy filings and annual meetings, there seems to be seasonality to ISS recommendations. Exequity analyzed SOP voting results and ISS “Against” recommendations month by month from 2011 to 2024. [1] The data indicates that companies with annual meetings in June are more likely to receive adverse recommendations from ISS than those holding meetings in other months.

READ MORE »

The Role of Taxes in the Rise of ETFs

Rabih Moussawi is a Professor of Finance at Villanova University, Ke Shen is an Assistant Professor of Finance at Lehigh University, and Raisa Velthuis is an Associate Professor of Finance at Villanova University. This post is based on their recent paper

The growing popularity of Exchange-Traded Funds (ETFs) among long-term investors is, to a large extent, driven by their fee and tax efficiencies. Leveraging their unique security design, ETFs achieve their tax efficiency through the in-kind redemption process and the use of heartbeat trades, by offloading low-basis stocks without triggering a taxable event, pursuant to the exemption provided by Section 852(b)(6) of the U.S. Internal Revenue Code. The ETF tax efficiency is particularly appealing to high-net-worth individuals and other tax-sensitive investors. Our paper provides novel evidence underscoring the importance of the in-kind redemption exemption in realizing ETFs’ superior tax efficiency and pinpoints the resulting tax-driven investor migration from mutual funds to ETFs by focusing on the behavior of investment advisers that manage the assets of high-net-worth individuals.

ETFs are hardwired to take advantage of Section 852(b)(6), which exempts the distribution of capital gains when the appreciated shares are handed “in kind” to redeeming investors. Therefore, ETFs are inherently tax efficient because redemptions are generally made “in kind” with authorized participants, thereby avoiding capital gains distributions and their tax consequences for taxable investors. In contrast, mutual funds, absent the layer of authorized participants, typically engage in “cash” transactions to meet investor redemptions. Because in-kind redemptions are much costlier for mutual fund investors and are only possible for redemption transactions above $250,000, mutual funds have historically made little use of the in-kind redemption exemption.

READ MORE »

Evolution of AI Washing Enforcement: DOJ Enters the Picture

Joel M. Cohen is a Partner, and Gabriella Margaux Pérez Klein and Robert DeNault are Associates, at White & Case LLP. This post is based on their White & Case memorandum.

On April 9, the US Department of Justice and Securities and Exchange Commission announced parallel cases against the founder and former CEO of an artificial intelligence startup for allegedly misleading investors about his former company’s product capabilities. The cases are the latest salvo in regulatory focus on AI companies and their public statements about the products they offer.

Background

Last week, the DOJ charged the founder and former CEO of an AI startup with securities fraud and wire fraud for allegedly making false and misleading statements about the company’s use of proprietary artificial intelligence and its operational capabilities. [1] This new AI prosecution follows our previous predictions that regulators are becoming increasingly consequential in circumstances where they believe companies make public statements to investors or customers about AI products. As attorneys at the DOJ and the SEC sharpen their understanding of AI, it is becoming clearer where lines can be drawn in developing cases in connection with statements about AI products.

This outcome is also notable because it seeks a meaningfully harsher result in a case that bears many similar facts to another recent investigation into public statements concerning an AI-based product, where only the SEC acted and on more modest terms. Just four months earlier, the SEC settled a matter alleging similar conduct and similar facts on the basis of negligent fraud, with no fines or financial penalties. [2] Four months later, both the DOJ and the SEC are pursuing criminal and civil fraud charges against the founder and former CEO of a company for allegedly similar conduct. These differences reflect the emerging confidence of DOJ to pursue criminal cases involving AI.

READ MORE »

Page 2 of 6
1 2 3 4 5 6