Monthly Archives: October 2025

When (and When Not) to Form a Special Committee in Activist Defense and M&A

Melissa Sawyer, Lawrence S. Elbaum, and Jacob M. Croke are Partners at Sullivan & Cromwell LLP. This post is based on a Sullivan & Cromwell memorandum by Ms. Sawyer, Mr. Elbaum, Mr. Croke, Emma Ouellet Lizotte, H. Rodgin Cohen, and Marc Treviño.

Summary

Establishing a special committee is a common corporate governance practice in the context of transactions involving insiders, controlling stockholders or other related persons (so called “conflict transactions”). Special committees are designed to create a record of independent decision-making. That said, in other circumstances, special committees are not generally necessary or advisable and may be counterproductive. In most cases, a well-advised board can respond effectively to an unsolicited proposal or address an activist threat without a special committee. This memo addresses key points boards should bear in mind when considering whether to form a special committee and offers practical guidance and potential alternatives.

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Court Upholds Privilege in Internal Investigations

Nola Heller, Iliana Ongun, and Matthew Laroche are Partners at Milbank LLP. This post is based on a Milbank memorandum by Ms. Heller, Ms. Ongun, Mr. Laroche, and Arman Ramnath.

On October 3, 2025, the United States Court of Appeals for the Sixth Circuit upheld the application of the attorney-client privilege and work product doctrine to internal investigations. The Sixth Circuit’s decision to grant a writ of mandamus In re: FirstEnergy Corp., No. 24-3654 (6th Cir. Oct. 3, 2025) reversed the district court’s order compelling production of documents related to internal investigations commenced by FirstEnergy Corporation.

The case arose from two internal investigations FirstEnergy undertook after federal charges were brought against a (now-former) Ohio elected official that implicated FirstEnergy as part of a bribery scheme, along with a subsequent class action lawsuit against FirstEnergy by its stockholders. As part of the class action lawsuit, stockholders sought complete access to the “fruits of” the investigations, including those FirstEnergy withheld on attorney-client privilege and work-product protection grounds.

The district court ordered the production of “all previously withheld documents related to” both investigations. In response, FirstEnergy filed a petition for a writ of mandamus to overturn the order. The Sixth Circuit reversed the district court decision, concluding that the documents were protected.

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EU Parliament Rejects Rollback in Sustainability Reporting

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.

Earlier this week, the European Parliament narrowly rejected an “omnibus” directive, which included proposals intended to reduce sustainability reporting obligations for companies operating in the European Union (EU).  The “omnibus” directive was introduced in February 2025 and, if approved, would have exempted 80% of companies that were originally set to be covered by the scope of the Corporate Sustainability Reporting Directive (CSRD), mandating the publication of regular reports regarding companies’ ESG risks in accordance with European Sustainability Reporting Standards.  The rejected directive would also simplify and reduce the scope of several other key regulations, including the Corporate Sustainability Due Diligence Directive (CSDDD) and the Taxonomy Regulation.

This development reveals a tension in the priorities of the European Parliament and several EU countries, who have expressed interest in decreasing the regulatory burden on EU companies to make them more competitive and more attractive to foreign investment.  In addition, the U.S. Department of Energy Secretary and Qatar’s Minister of State for Energy Affairs, who represent the world’s two largest exporters of liquid natural gas, sent a joint letter to the Heads of State of EU countries, claiming that the CSDDD poses a significant threat to the future growth and competitiveness of the EU’s industrial economy and calling for a repeal or revision of key CSDDD provisions.

The “omnibus” directive will be sent back to the negotiation stage in Parliament, allowing for potential amendments, and is expected to be presented for a second vote in November.  It remains to be seen where European sustainability reporting requirements will ultimately settle, as political parties in the EU continue to disagree over the appropriate level of regulation.  But, it is worth underscoring that the failure of the directive to pass reflects the reality that there is a consensus in the EU, as in other regions of the capitalist world, that climate change is a material economic issue; the debate is about the extent to which companies having a substantial footprint in the EU will have to report on climate risks and impact, the time frame for the implementation of the reporting requirements, the effect this may have on suppliers to companies that have to report, and the depth and breadth of the proposed disclosure requirements.  This consensus is shared by major institutional investors who continue to focus on the climate risks faced by companies in which they invest.  These issues thus require monitoring as any changes in the regulations will affect not only European companies, but also U.S. companies with subsidiaries and operations in Europe.  Because climate change and its accompanying economic effects will remain material business risks for all major companies, especially those with substantial international operations, boards and management teams should carefully consider how to navigate these risks and disclose their practices to the market.

Activism in 2025 and Beyond: Universal Proxy, Litigation Leverage and a New Playbook for Preparedness

Bill Roegge, Jamie Leigh, and Sean W. Brownridge are Partners at Cooley LLP. This post is based on a Cooley memorandum by Mr. Roegge, Ms. Leigh, Mr. Brownridge, and Polina Demina.

Activism didn’t pause in 2025 – it evolved.

Campaign counts are up, tactics have multiplied, and boards are settling faster and earlier. As Goldman Sachs’ Neil Rudisill put it on Cooley’s Market Talks panel, “We’re on track for probably the third largest year ever in terms of activism,” with US campaign levels up roughly 11% year-over-year through late summer and Q1/Q3-heavy “velocity” as funds recalibrated around tariff-driven volatility. Just as notably, the center of gravity continues to shift toward operational and M&A demands, with activists reenergized by stronger equity markets, an improving regulatory landscape for dealmaking and buoyant sponsor appetite.

Below are the trends that matter most for boards and management teams heading into 2026 – and the clear-day steps to get ready.

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Weekly Roundup: October 17-23, 2025


More from:

This roundup contains a collection of the posts published on the Forum during the week of October 17-23, 2025

Withhold Campaigns: Communications Considerations for Companies


U.S. Government Shutdown: What Public Companies Should Know


Holding Power: S&P 500 Snapshot


Chastain: Pushing the Boundaries of Insider Trading


The Board’s Role in CEO and Director Compensation


The Next Era of Sustainability Leadership: CEO Survey Shows the Business Case is Now


Tokyo Stock Exchange Initiative on Cost of Capital and Stock Price Conscious Management


Red Herring: Shareholder Proposals and Director Elections



How Board and C-Suite Collaboration Can Build Organizational Resilience


2025 Annual Corporate Directors Survey: Driving a Culture of Accountability in the Boardroom


When Should Boards Fight


When Should Boards Fight

John Johnston is Counsel at Vinson & Elkins LLP, and Christine O’Brien is a Senior Advisor at Edelman Smithfield. This post was prepared for the Forum by Mr. Johnston, Ms. O’Brien, Francisco Morales Barrón, and Lex Suvanto.

In the headlines today, it is common to see announcements about activist campaigns or activists taking equity positions in public companies. Nonetheless, full-scale proxy fights have become relatively rare. Most public company boards opt to settle with activists, seeking to avoid costly, time-intensive and uncertain contests that distract directors and management from running their business. Settlements are widely viewed as a way to preserve value, reduce disruption and maintain greater control over outcomes.

As advisors, we always advocate that companies engage in constructive dialogue with shareholders. However, settlements are not always in the best interest of the company and its broader shareholder base. Some activist demands pose risks that no responsible board can accept, making a full-fledged proxy fight necessary to protect the company from unacceptable terms and potential value destruction. Boards and management teams must understand the various dynamics at play, the pros and cons of settling and when it may be advisable to resist settling and commence a fight. In the following paragraphs, we weigh the benefits of settlement versus prosecuting a proxy fight and highlight certain settlement terms and tactics that should be opposed.

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2025 Annual Corporate Directors Survey: Driving a Culture of Accountability in the Boardroom

Ray Garcia is a Partner, Paul DeNicola is a Principal, and Catie Hall is a Director at PricewaterhouseCoopers LLP. This post is based on a PwC memorandum by Mr. Garcia, Mr. DeNicola, Ms. Hall, and Ariel Smilowitz.

Introduction

The role of a corporate director has never been more challenging — or more critical. 2025 has continued to usher in a wave of disruptive forces, ranging from an uncertain regulatory environment and geopolitical instability to artificial intelligence (AI) transformation. The complexity of board responsibilities is only expanding under the weight of these external pressures, demanding a deeper commitment and more active participation from directors to provide effective oversight.

As this complexity has grown, so has a sense of dissatisfaction among directors about the boardroom experience. For the first time, PwC’s Annual Corporate Directors Survey reveals that more than half of directors believe at least one fellow board member should be replaced. What is fueling this perception of underperformance? Is it a lack of commitment or specialized expertise? Or is it symptomatic of deeper cultural barriers that limit open, candid dialogue in the boardroom?

Our survey of over 600 public company directors suggests that simply relying on current practices or maintaining the status quo is no longer sufficient. Just as executives and employees have continually reinvented themselves to stay relevant, board members must adapt and evolve for the success of their companies.

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How Board and C-Suite Collaboration Can Build Organizational Resilience

Anna Marks is the Global Chair, Prof. Dr. Arno Probst is the Global Boardroom Program Leader, and Benjamin Finzi is the Global CEO Program Leader at Deloitte LLP. This post is based on a Deloitte memorandum by Ms. Marks, Prof. Dr. Probst, Mr. Finzi, and Karen Edelman.

From economic volatility to technological advancement: Tracking the shift in board and C-suite priorities

Building resilience today can require organizations to respond to near-term opportunities, challenges, and risk-related priorities while also maintaining focus on longer-term goals and growth opportunities. When it comes to risks, however, the survey shows that boards and C-suite respondents are juggling multiple priorities simultaneously.

The survey asked respondents to identify their top immediate (2025) and longer-term priorities (2026 and beyond). What is interesting is the shift in priorities depending on the time horizon being considered.

In the short term, through 2025, survey respondents say they’re focused most on geopolitical and economic volatility (55%), security and cybersecurity (50%), and rapid technological advancements and digital disruption (42%). And although human capital ranks fourth, at 41%, it’s a top near-term concern for a sizable number of respondents as well (figure 1).

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The Call of Conscience and the Current Moment: A Reflection Honoring William T. Allen and John L. Weinberg

Leo E. Strine, Jr. is the Michael L. Wachter Distinguished Fellow in Law and Policy at the University of Pennsylvania Carey Law School and a Senior Fellow at the Harvard Program on Corporate Governance. This post is based on his recent keynote lecture and is part of the Delaware law series; links to other posts in the series are available here.

Abstract

This keynote lecture honors the intellectual contributions of John L. Weinberg and William T. Allen on the occasion of the 25th anniversary of the Weinberg Center for Corporate Governance at the University of Delaware. The lecture surfaces common themes in the extensive writings of Chancellor and Professor Allen on corporate governance, and in the singular lengthy writing of John Weinberg, his senior thesis focusing on the critical role of boards of directors in governing public companies. Both considered it critical to educate corporate leaders about their duties, and the relationship those duties had to not just the best interests of the corporation and its stockholders, but to society itself. Both also stressed the need for high integrity corporate leadership, characterized by a commitment to speak with candor and act with independence when that was necessary to do what was right. Both believed deeply in the nation’s commitment to the rule of law and freedom, and believed that principled corporate leadership was vital to ensuring that our society as a whole benefited from a market economy. The lecture addresses these themes and finishes by relating them to the current moment during which fundamental principles Weinberg and Allen accepted as essential to our society are under serious challenge, and the ethical and moral questions this moment poses to leaders of not just business corporations, but of all key institutions in our society.

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Red Herring: Shareholder Proposals and Director Elections

Allison Wyderka is the Director of Proxy Services, and Wickham Egan is the Director of Business Development and Operations at Egan-Jones Ratings Company. This post is based on their Egan-Jones memorandum.

Key Takeaway

Shareholder proposals that seek to promote ESG measures tend to gain significant attention. However, director elections tend to have a much greater impact on corporations. Thus, activist shareholders tend to focus on what matters and so should the public at large.

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