Monthly Archives: July 2025

Proxy Voting Advice No Longer a Solicitation Under the Exchange Act

Melissa Hodgman, Elizabeth Bieber, and Erik Gerding are Partners at Freshfields Bruckhaus Deringer LLP. This post is based on a Freshfields memorandum by Ms. Hodgman, Ms. Bieber, Mr. Gerding, and David Nicolardi.

Executive Summary

In a pivotal decision issued on July 1, 2025, the U.S. Court of Appeals for the D.C. Circuit ruled that proxy voting advice issued by proxy advisory firms such as Institutional Shareholder Services (ISS) and Glass Lewis does not constitute a “solicitation” under the Securities Exchange Act of 1934 (the Exchange Act). This decision invalidates the U.S. Securities and Exchange Commission’s (the SEC or the Commission) 2020 rule that sought to regulate proxy advisors more stringently and significantly narrows the Commission’s authority in this space. The ruling is a major win for proxy advisory firms (and, presumably, their clients, institutional investors), while presenting a setback for many issuers and industry groups seeking greater transparency and oversight. The decision also signals a potential shift in how the SEC may approach future regulation of proxy advice.

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Insider Trading & Disclosure Updates

Benjamin R. PedersenMatthew E. Kaplan, and Jonathan R. Tuttle are Partners at Debevoise & Plimpton LLP. This post is based on a Debevoise & Plimpton memorandum by Mr. Pedersen, Mr. Kaplan, Mr. Tuttle, Anna Moody, Mark Flinn, and Amy Pereira.

Insider Trading Enforcement and Litigation

Pharmaceutical VP Charged with Insider Trading After Dumping Shares

On March 7, 2025, the U.S. Securities and Exchange Commission (the “SEC”) charged George Demos, former Vice President of Drug Safety and Pharmacovigilance at Acadia Pharmaceuticals Inc. (“Acadia”) with securities fraud.[1] The SEC alleged that Demos traded Acadia securities based on material nonpublic information (“MNPI”) he had learned that made him increasingly confident of an adverse U.S. Food and Drug Administration (“FDA”) decision.[2]

According to the SEC’s complaint, in June 2020 Acadia submitted a supplemental application to the FDA seeking approval to expand the use of Nuplazid, Acadia’s prescription drug for the treatment of hallucinations and delusions caused by Parkinson’s disease, to similar symptoms caused by dementia.[3] Given that the population suffering from dementia-related psychosis is much larger than the population suffering from Parkinson’s-related psychosis, FDA approval to market Nuplazid for dementia-related psychosis would have greatly expanded the drug’s potential market.[4] Demos was one of eight people responsible for planning and developing responses to the FDA’s decision on the supplemental application.[5]

On March 3, 2021, the FDA notified Acadia that the supplemental application would not be successful.[6] The FDA’s response was not shared with Demos; however, according to the SEC, the passing of key deadlines and the postponement or cancellation of meetings relating to the supplemental application meant that Demos knew, or ought to have known, of the FDA’s adverse decision.[7]

On March 8, 2021, Demos exercised nearly all of his vested Acadia stock options and sold his shares in the company.[8] After market close on the same day, Acadia announced the FDA’s adverse decision, and the following day, Acadia’s share price closed down 45%.[9] The SEC alleged that, as a result, Demos avoided losses of approximately $1.3 million.[10]

The SEC charged Demos with violating Section 17(a) of the Securities Act of 1933, as amended (the “Securities Act”) and Section 10(b) of the Exchange Act of 1934, as amended (the “Exchange Act”) and Rule 10b-5 thereunder.[11] Demos reached a settlement with the SEC pursuant to which he was barred from serving as an officer or director of a public company for five years, and will pay a civil penalty, prejudgment interest, and disgorgement as determined by the court.[12] Demos also reached a plea agreement with the U.S. Attorney’s Office for the Southern District of California.[13]

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Insights from the SEC Roundtable on Executive Compensation Disclosure Requirements

Jon Solorzano and Dario Mendoza are Partners at Vinson & Elkins. This post is based on a Vinson & Elkins memorandum by Mr. Solorzano, Mr. Mendoza, Keira Lyn Kuntz, Reagan McGinnis, and Josh Rutenberg.

Executive Summary

On June 26, 2025, the U.S. Securities and Exchange Commission (“SEC”) hosted a roundtable on executive compensation disclosure requirements. As noted in prior Insights, the SEC convened the roundtable to evaluate the effectiveness of current executive compensation disclosure requirements (which were originally enacted in 2006) and discuss how evolving market practices should be reflected in future rulemaking.

A few key themes emerged during the roundtable:

  • Overcomplexity: SEC Chairman Paul Atkins described the current executive compensation disclosure rules as a “Frankenstein patchwork,” and suggested that the rules have become too complex to understand, while leaving investors without a clear picture of a company’s executive compensation programs.
  • Tension: Some issuers and advisors argued that current executive compensation disclosures are overly burdensome and costly, while some investors advocated for more transparency, especially in areas like the life cycle of equity awards, pay-versus-performance, and perquisites.
  • Dodd-Frank Criticism: Certain rules initially prescribed by the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, such as CEO pay ratio, pay-versus-performance, and clawbacks, were criticized for requiring significant resources to achieve compliance, especially for smaller issuers, without necessarily providing investors with useful information.

Statements from Chairman Atkins and other SEC Commissioners at the roundtable reinforced the notion that the SEC will be revisiting the executive compensation disclosure requirements, which may result in revisions to Item 402 of Regulation S-K. Chairman Atkins noted that the SEC would still be soliciting public comments in the weeks following the roundtable as part of the agency’s review in connection with any potential rulemaking proposals. Given that the current executive compensation disclosure requirements were originally enacted in 2006, the ability to submit comments to the SEC on this topic provides a rare opportunity to provide input on future rulemaking.

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Beyond the Appointment: Communicate CEO Transitions for Long-Term Success

Julia Fisher and Patrick Ryan are Executive Vice Presidents at Edelman Smithfield. This post is based on a Edelman Smithfield memorandum by Ms. Fisher, Mr. Ryan, and Lex Suvanto.

The pace of CEO transitions significantly increased in 2024, highlighting how boards are reconsidering their leadership needs to confront persistent uncertainty and lay the groundwork for sustainable, long-term growth. Notably, shareholder activism has emerged as a powerful catalyst for these changes, with S&P 500 CEO resignations linked to activist pressure tripling since 2020.

That momentum has carried into this year: January 2025 recorded one of the highest volumes of CEO exits on record. As geopolitical, economic, and societal forces continue to test executive resilience and adaptability, an elevated rate of turnover is likely to persist through the end of 2025 and into 2026.

Board members seeking to set incoming CEOs up for success should recognize that their responsibilities extend beyond finding the right person for the role. Director oversight of how the transition is communicated—and how stakeholders are engaged—can significantly shape perceptions and influence the new leader’s trajectory.

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Weekly Roundup: July 18-24, 2025


More from:

This roundup contains a collection of the posts published on the Forum during the week of July 18-24, 2025

Shapeshifting DEI Whistleblowers: What to Know and Expect in 2025


Key Takeaways for Asset Managers: SEC Speaks 2025


A Survey of How Public Companies Are Providing Guidance in Light of Tariffs


Supreme Court to Weigh Limits on Fund Litigation Under ICA


Season-end Summary of Shareholder Voting on 14a-8 Proposals


Proxy Season Highlights: Shareholder and Management Proposals


Executive Security Perks: Evolving Trends in a New Era of Risk


An Update to Aiding and Abetting Liability: M&A Buyers (Should Still) Beware


Proxy Season Results Show Strong Support for Corporate Political Disclosure and Accountability


Delaware Courts Nix Unripe Challenges to Advance Notice Bylaws and Uphold Bylaws Adopted ‘on a Clear Day’


Key Developments Facing Compensation Committees for the 2025-2026 Cycle


Key Developments Facing Compensation Committees for the 2025-2026 Cycle

Lane Ringlee is a Managing Partner and Steve DeMaria is a Consultant at Pay Governance LLC. This post is based on their Pay Governance memorandum.

Our firm’s partners and consulting staff have participated in more than 250 board compensation committee meetings in the first half of 2025. Through these engagements and internal firm collaboration, we have identified several key issues gaining prominence in boardroom discussions. These key developments, in no particular order, include:

1. Enhanced Executive Security

2. Potential Impact of Tariffs on Incentive Plans

3. One Big Beautiful Bill Act – Proposed Impact on Executive Pay

4. Navigating Shifting Pressures on ESG and DEI Goals

5. Balancing Pay Decisions in Challenging Sectors

6. Incentive Plan Alternatives Amid Uncertainty

7. Heightened Scrutiny on Goal-Setting Practices

8. Alignment of Incentive Plan Payouts and TSR

9. Long-Term Incentive Vehicle Mix

10. Diverging Say-on-Pay Perspectives: Institutional Investors vs. Proxy Advisors

11. Shareholder Outreach Challenges

12. Talent Retention and Succession Planning


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Delaware Courts Nix Unripe Challenges to Advance Notice Bylaws and Uphold Bylaws Adopted ‘on a Clear Day’

Jenness E. Parker is a Partner, Lauren Rosenello is a Counsel, and Emily M. Marco is an Associate 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.

Advance notice bylaws are commonplace among public companies, with nearly all S&P 500 companies having some form of these requirements. Traditionally, stockholder challenges to these bylaws arose where the investor had a real gripe: having their efforts to nominate a director slate blocked by an incumbent board. More recently, after the Securities and Exchange Commission’s (SEC’s) began requiring a universal proxy, many companies refreshed their advance notice bylaws, leading to a flurry of books and records demands and stockholder challenges.

The Delaware Supreme Court weighted in on one such challenge in Kellner v. AIM ImmunoTech Inc., 320 A.3d 239 (Del. 2024) (Kellner II), holding that “[i]n a challenge to the adoption, amendment, or enforcement of a Delaware corporation’s advance notice bylaws that is ripe for judicial review, the court” will first evaluate the bylaws legal validity, and then look to whether the bylaw was equitably applied. Kellner II, 320 A.3d at 259.

In the year since Kellner II was decided, four advance notice bylaw cases have come before the Delaware Court of Chancery. In two of those cases, the court dismissed the complaints as unripe pursuant to Kellner II’s direction that the threshold question is whether an “genuine and extant controversy” exists — meaning the stockholder has suffered an identified harm, not merely a hypothetical one. In two other cases, the controversy was ripe and, pursuant to Kellner II, the court applied enhanced scrutiny, but ultimately enforced the advance notice bylaws because they were adopted on a “clear day” (i.e., not in response to any threat) and were not inequitable.

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Proxy Season Results Show Strong Support for Corporate Political Disclosure and Accountability

Bruce Freed is the President, Dan Carroll is the Vice President for Programs and Counsel, and Karl Sandstrom is Strategic Advisor at the Center for Political Accountability. This post is based on a CPA memorandum by Mr. Freed, Mr. Carroll, Mr. Sandstorm, and David Pahlic.

In marked contrast to the decline in support for Environmental & Social resolutions, votes for Governance proposals calling on companies to adopt political disclosure and accountability policies surged in the just concluded 2025 proxy season.

That’s the case with the proposals filed by the Center for Political Accountability’s shareholder partners. Companies were asked to adopt board oversight and accountability policies for their political spending using corporate treasury funds (or corporate profits) and disclose these policies as well as any such spending.

Corporate treasury funds are regularly used to make six and seven figure contributions to third party groups – the governors associations, state legislative campaign committees, attorneys general associations, super PACs, trade associations, and “social welfare” organizations also known as “non-profits,” operating under Section 501c(4) of the Internal Revenue Code.  All of these groups can legally accept unlimited contributions from corporations and spend unlimited money promoting candidates for federal and state office.

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An Update to Aiding and Abetting Liability: M&A Buyers (Should Still) Beware

Ethan Klingsberg and Meredith Kotler are Partners, and Victor Ma is a Senior 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.

About two years ago, we wrote a post about a series of high-profile M&A cases in the Delaware Court of Chancery that highlighted the potential liability of third-party acquirors for aiding and abetting breaches of fiduciary duties by the board and executives of target corporations. More recently, the Delaware courts have provided additional guidance on how a third-party acquiror may become liable for aiding and abetting a target-side breach of fiduciary duties. The principles laid out in these new cases will facilitate the defense of aiding and abetting claims. Nonetheless, the risk of aiding and abetting claims against M&A acquirors remains and therefore guidance for mitigating this risk continues to be relevant.

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Executive Security Perks: Evolving Trends in a New Era of Risk

Amit Batish is Sr. Director of Content & Communications, and Joyce Chen is an Associate Editor at Equilar, Inc. This post is based on a Equilar memorandum by Mr. Batish, Ms. Chen, Gabriel Klewin, Heidi Pan, and Courtney Yu.

Executive Summary

As global volatility, political tension, public scrutiny, and physical and digital threats rise, companies across corporate America are increasingly prioritizing the safety of their top executives. Of course, this trend was further exacerbated when Brian Thompson, the former CEO of UnitedHealthcare, was fatally shot in December 2024. While it was once common for only high-profile executives to be regularly accompanied by security, the tragic death of Mr. Thompson, who was without security at the time of the incident, has forced companies to take heightened measures to protect their executives.

Publicly traded companies in the United States are required to disclose spending on executive perquisites that exceed values of $10,000, per rules set forth by the Securities and Exchange Commission (SEC). For years, critics balked at the idea of providing “lavish” perks to corporate executives, arguing they are often excessive and unnecessary. However, the discourse has since shifted following the unfortunate murder of Mr. Thompson and the evolving risk landscape. Today, boards are reassessing their security protocols amid emerging threats across various areas, including digital platforms and social media.

In this publication, Executive Security Perks: Evolving Trends in a New Era of Risk, Equilar provides a comprehensive analysis of how security, aircraft and automotive perquisites have evolved across the Equilar 500—the largest U.S. public companies by revenue. The Chertoff Group and Constellis offer independent commentary on the various threats facing executives today and actionable steps companies could take to develop a comprehensive security strategy.

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