Monthly Archives: August 2025

Are Institutional Investor Preferences for Performance-Based Equity Really Diminishing in Favor of Time-Based Shares?

Ira Kay and Lane Ringlee are Managing Partners, and Linda Pappas is a Principal at Pay Governance LLC. This post is based on their Pay Governance memorandum.

Introduction

Recent statements and opinions made by proxy advisors, a Europe-based institutional investor, and some academics and consultants have cast the preference for using performance-based equity incentives into question. The use of these plans, such as performance share units (PSUs), has become nearly universal and is the largest form of compensation delivered to S&P 500 chief executive officers (CEOs). This practice has largely been due to previous proxy advisor requirements, and investor preferences, that PSUs or other performance-vesting equity comprise at least a majority of CEO total equity compensation.

As demonstrated in this Viewpoint, our investor opinion survey conducted this summer shows that the vast majority of shareholders strongly prefer that companies continue the majority usage of PSUs, and it does not indicate much preference for movement to long time-vesting restricted stock units (RSUs). Our survey conducted in partnership with IR Impact of more than 100 large investors revealed:

  • 71% of investors prefer that issuers (publicly-traded companies) continue using PSUs, often in combination with a balance of time-based RSUs, and
  • 86% desire that PSUs comprise at least 50% of total long-term incentive (LTI) value awarded to executives.‍

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CEO Personality Traits and Relationship-specific Investments in Supply Chain Relationships

Ariel Rava is an Assistant Professor of Accounting at Yeshiva University. This post is based on a recent paper by Professor Rava, Nicholas Seybert, Associate Professor at the University of Maryland, Musa Subasi, Associate Professor at the University of Maryland, and Emanuel Zur, Associate Professor at the University of Maryland.

Buyer–supplier relationships often hinge on what economists call relationship-specific investments (RSIs). These are tailored capabilities and assets that create unique value in the partnership but lose much of their usefulness elsewhere. Because such investments are difficult to redeploy, they expose suppliers to risk. Once committed, the customer might exploit the situation, renegotiating terms or capturing more value for themselves. Classic transaction cost economics (TCE) teaches that firms protect against this hazard with contracts, safeguards, or vertical integration. However, these mechanisms treat opportunism as a constant, assuming that all customers are equally risky partners. Our research asks a different question: do observable characteristics of the individuals who lead customer firms systematically alter the supplier’s perceived exposure to opportunism and, in turn, its willingness to invest?

Trust reduces perceived risk and encourages cooperation. Yet most accounts of supply chains still assume “the firm” acts as a uniform actor. In reality, individuals at the top play a pivotal role. Their choices and values set the tone for how contracts are interpreted, how problems are solved, and how conflicts are handled when surprises arise. We argue that the personality of the customer’s CEO offers an observable signal about how the firm will behave under uncertainty. Drawing on psychology’s Big Five framework, which includes openness, conscientiousness, extraversion, agreeableness, and neuroticism, we propose that these traits shape expectations of fairness, adaptability, and stability. For example, openness signals adaptability, agreeableness signals fairness, extraversion fosters communication, conscientiousness conveys reliability, and lower neuroticism reflects steadiness under stress. These cues are especially important when contracts are incomplete and RSIs are vulnerable.

To test this idea, we examine CEO turnovers at customer firms, which serve as natural resets in buyer–supplier relationships. When a new CEO steps in, the understandings forged with the predecessor vanish, and suppliers must reassess their expectations. Using linguistic tools that measure Big Five traits from CEOs’ unscripted speech in earnings calls, we study how suppliers adjust their behavior before and after leadership changes. Specifically, we look at the extent to which suppliers align their R&D spending with their customers’ R&D. A decline in alignment signals reluctance to invest in the relationship, while an increase reflects confidence and willingness to commit. READ MORE »

Delaware Supreme Court Continues to Narrow Aiding and Abetting Liability for Acquirers

Robin E. Wechkin is Counsel at Sidley Austin LLP. This post is based on her Sidley memorandum and is part of the Delaware law series; links to other posts in the series are available here.

Overview and Legal Framework

On June 17, 2025, the Delaware Supreme Court for the second time in six months reversed a post-trial damages award against an acquiring company accused of aiding and abetting breaches of fiduciary duty by target company management. The June 17 decision is In re Columbia Pipeline Group, Inc., Merger Litigation, 2025 WL 1693491 (Del. June 17, 2025). The earlier decision is In re Mindbody, Inc. Stockholder Litigation, 332 A.3d 349 (Del. 2024).

In both cases, stockholder plaintiffs alleged that target company officers looking for an exit elevated their personal financial interest in getting a deal done over their fiduciary duty to extract the best possible sale price for stockholders. In Mindbody, the plaintiffs’ theory was that the acquirer aided and abetted management’s breach of disclosure duties by allowing a misleading proxy statement to be filed. In Columbia Pipeline, the plaintiffs’ theory was broader: Plaintiffs alleged that the acquirer aided and abetted not only disclosure breaches but also sale process breaches throughout the parties’ negotiations. In both cases, the Supreme Court focused on a single element of an aiding and abetting claim — “knowing participation” in the underlying breach. The Court set out detailed and demanding standards for both “knowing” (i.e., scienter), and “participation” (i.e., substantial assistance).

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A Decade Later, the Corwin Doctrine Still Packs a Knockout Punch

Edward B. Micheletti is a Partner, and Nick G. Borelli 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.

The Delaware Supreme Court’s 2015 decision in Corwin v. KKR Financial Holdings LLC [1] reshaped the landscape of merger and acquisition litigation by establishing a powerful defense for Delaware companies. Under the Corwin doctrine, when there is no conflicted controller, and a transaction is approved by a fully informed, uncoerced stockholder vote, an irrebuttable business judgment presumption applies, leaving only claims for waste.

This high bar for stockholder-plaintiffs has made Corwin a cornerstone of Delaware corporate law. The doctrine has been applied in a number of cases in the past year, which demonstrate Corwin’s continuing vitality as a tool to dismiss post-closing fiduciary duty claims.

This article examines several cases — Anaplan, Krevlin v. Ares, Zendesk, and Desktop Metal [2] — which exemplify how Delaware courts have applied Corwin to dismiss matters, and provide insights for practitioners navigating deal-related disputes. Most importantly, these cases demonstrate that, even amidst important statutory changes like newly-amended Section 144 of the Delaware General Corporation Law (which provides safe harbors for conflicted transactions), Corwin remains a potent weapon in the corporate arsenal and complements the new safe harbors with a potential, alternate route for dismissal.

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Wildest Campaigns 2025

Antoinette Giblin is Editorial Manager at Diligent Market Intelligence (DMI). This post is based on a Diligent memorandum by Ms. Giblin and Josh Black.

While hopes for a wave of M&A-driven activism quickly faded in the opening months of 2025, activists instead sailed into uncertain market conditions with a fresh approach and more grit. The new landscape delivered a record number of withhold campaigns, and pushed many activists who had previously avoided going all the way to a vote to do so.

Multiyear campaigns and succession planning continued to be key themes, while a surprising number of companies with staggered boards found themselves being targeted. There was also a new level of unpredictability around proxy fights with the first fall-off in settlements since the introduction of the Universal Proxy Card.

The Diligent Market Intelligence editorial team tracked all the key contests to surface along the way and below shares its top picks for those we deem the wildest of the season.

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Reinforcing Ethics and Oversight in Corporate Governance: Essentials for Public Companies

Amy Schuh and Leland Benton are Partners at Morgan Lewis & Bockius LLP. This post is based on their Morgan Lewis memorandum.

In an environment where public scrutiny is high and enforcement expectations are rising, investing in strong corporate ethics and oversight frameworks has become a strategic necessity for public companies. Effective compliance programs are no longer merely regulatory check-the-box exercises. They are essential tools for managing risk, safeguarding reputation, and meeting the expectations of regulators, investors, and other stakeholders.

In this Insight, we explore core elements of ethical governance for public companies, focusing on compliance programs, oversight and governance, codes of ethics, reporting mechanisms, investigations, and the nuanced landscape of code waivers and disclosures.

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Weekly Roundup: August 15-21, 2025


More from:

This roundup contains a collection of the posts published on the Forum during the week of August 15-21, 2025

Retail Access to Private Markets


Ahead of the Curve: Factoring the Cost of Carbon into Long-Term Decision-Making


Corporate Support for DEI Continues Among Investors and Companies



Common Ownership Around the World


Shareholder Engagement Considerations in Light of Texas v. Blackrock


2025 Proxy Season Review: Rule 14a-8 Shareholder Proposals


Women in Charge: Evidence from Hospitals


Activists Find Winning Strategy in Surprise First Half


Delaware Rulings on M&A Indemnification Provisions Stress the Need for Careful Drafting


DEI in Transition: 2025 Corporate Diversity Disclosure Trends


ISS and Glass Lewis Launch Annual Global Policy Surveys Signaling 2026 Changes


Q2 2025 Gender Diversity Index


Q2 2025 Gender Diversity Index

Joyce Chen is an Associate Editor at Equilar, Inc. This post is based on her Equilar memorandum.

Gender diversity on corporate boards showed signs of stagnation in the second quarter of 2025. The latest Equilar Gender Diversity Index (GDI) sits at 0.60, where 1.0 represents gender parity between men and women across Russell 3000 boards. This marks only a slight change from Q4 2023, when the GDI measured 0.59. Other than a brief increase to 0.61 last quarter, the needle has held steady at 0.60 since Q1 2024.

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ISS and Glass Lewis Launch Annual Global Policy Surveys Signaling 2026 Changes

Lyuba Goltser and Kaitlin Descovich are Partners, and Allie Williams is an Associate at Weil, Gotshal & Manges LLP. This post is based on their Weil memorandum.

Institutional Shareholder Services (ISS) and Glass Lewis have launched their annual policy surveys (available here and here) to help inform potential changes to their voting policies in advance of the 2026 proxy season. The surveys address, among other topics, shareholder rights, shareholder proposals, governance and risk oversight, diversity, and executive and director compensation. Survey questions of interest that are relevant to U.S. companies and investors are summarized below.

ISS survey responses are due by August 22, 2025, at 5 p.m. and Glass Lewis Survey responses are due on September 15, 2025, at 8 p.m. (both times Eastern). More information on the policy development processes of ISS and Glass Lewis are available here and here.

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DEI in Transition: 2025 Corporate Diversity Disclosure Trends

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, ESG Center, and Ariane Marchis-Mouren, Senior Researcher, Governance & Sustainability Center, The Conference Board.

This report draws on recent disclosure data to examine how US public companies are recalibrating public reporting on diversity, equity & inclusion (DEI)—focusing on shifts in language, workforce and board demographic disclosures, board oversight structures, and executive compensation practices.

Trusted Insights for What’s Ahead®

  • Corporate public DEI messaging and communications are undergoing a legal- and risk-driven reframing in 2025, with companies reducing the visibility of DEI language while selectively preserving or embedding related goals in ways that are more cautious, controlled, and defensible.
  • Companies are taking a more cautious approach to workforce demographic disclosures, with a significant proportion narrowing their reporting on women in management and overall workforce diversity while maintaining internal tracking and data collection.
  • So far in 2025, board demographic diversity disclosures have plummeted—particularly on gender and race—driven by legal rulings, softened investor expectations, and rising litigation risk; by contrast, more companies are disclosing formal board committee oversight of DEI, reflecting a shift toward embedding DEI into internal governance to manage risk and enhance legal defensibility.
  • Disclosure of DEI-linked executive pay incentives declined sharply in 2025 amid legal and reputational concerns, although some firms appear to be reframing incentives around broader human capital priorities such as talent development and employee engagement.

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