Monthly Archives: October 2025

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

Haruyuki Yamashita is the Head of Policy Engagement at the Tokyo Stock Exchange New York Office.

Introduction

The Tokyo Stock Exchange (TSE) has advanced governance reforms through Japan’s Corporate Governance Code and related initiatives, with the aim of supporting sustainable growth and enhancing corporate value over the mid- to long-term. In April 2022, TSE restructured its market segments to provide an attractive cash equity market that underpins the sustainable growth and corporate value creation of listed companies, while gaining strong support from a diverse base of domestic and international investors.

Among the new market segments, the Prime Market has been positioned as one “centered on constructive dialogue with global investors.” Correspondingly, the revised Corporate Governance Code introduced specific requirements applicable only to Prime Market companies, most notably the raising of the minimum threshold for independent outside directors to one-third of the board and the strengthening of English disclosures which has been a longstanding request, particularly from overseas investors. These measures go beyond the traditional “defensive” role of governance, such as preventing corporate scandals, and place equal emphasis on “proactive” governance, which enhances companies’ capacity to generate earnings. The latter has gained particular importance as Japan seeks to shift from a deflationary, cost reduction-oriented economy toward a growth economy driven by wage increases and investment, where companies are expected to take appropriate risk in pursuit of sustainable growth and corporate value enhancement.

Against this backdrop, in March 2023 TSE launched a new initiative requesting that listed companies implement “management that is conscious of the cost of capital and stock price” (hereafter, the “TSE Initiative”). The TSE Initiative seeks to encourage management to strengthen capital efficiency and pursue strategies that enhance mid- to long-term corporate value by improving profitability, raising valuation metrics, and earning investor confidence. The TSE Initiative has attracted significant attention both domestically and abroad, serving as a reference point for other exchanges in Asia.

This article will revisit the rationale behind the TSE Initiative, review its progress to date, and provide an assessment of its current status.

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

Sam Eastwood is a Partner, James Ford is an Associate, and Elinam Amegadzie is a Trainee Solicitor at Mayer Brown LLP. This post is based on their Mayer Brown memorandum.

Sustainability has undergone a profound transformation over the past two decades.  What began as a moral movement—rooted in reputation management and risk mitigation—has increasingly become a strategic business imperative.  The latest annual report published by the UN Global Compact and Accenture [1] underlines how the business case for sustainability leadership to be at the core of a company’s strategy is stronger than ever.  The report highlights the acceleration and complexity of global sustainability regulations, draws on the insights of nearly 2,000 CEOs across 128 countries, and outlines some of the compliance challenges presented by regulatory fragmentation.

Among other things, the report finds that 86% of CEOs are reporting steps to integrate sustainability into their business and that 88% believe the business case for sustainability is stronger than it was five years ago.  Yet, only half feel comfortable communicating their progress publicly, reflecting a tension derived from external stakeholder scrutiny, the politicisation of ESG issues, and recent pushback against the EU’s sustainability legislative agenda. Notwithstanding these obstacles, 99% of CEOs intend to maintain or expand their commitments going forwards.  Indeed, the report sets out five critical themes for CEOs and businesses to consider implementing to drive forward the next era of sustainability leadership.

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The Board’s Role in CEO and Director Compensation

Kyle Eastman is a Partner, and Grace Tan is a Senior Analyst at Compensation Advisory Partners. This post is based on their CAP memorandum.

Executive and non-employee director compensation are two of the most visible and scrutinized responsibilities of the board. Yet, even among the largest companies, governance practices diverge on two fundamental questions: Who approves CEO pay – the compensation committee or the full board – and who oversees director pay – the compensation committee or the nominating/governance committee?

To better understand prevailing practices, CAP examined governance disclosures among the 110 largest companies in the S&P 500 (the ten largest by market capitalization in each GICS sector). Our findings confirm that board practice is far from uniform. This article presents CAP’s findings and explores the trade-offs between the various approaches.

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Chastain: Pushing the Boundaries of Insider Trading

Yelena Kotlarsky, Andrew Michaelson, and Joe Zales are Partners at King & Spalding LLP. This post is based on their King & Spalding memorandum.

Introduction

Insider trading cases may have become harder to prosecute. On July 31, 2025, the Second Circuit released its opinion in United States v. Chastain, an insider trading case in which the defendant had been convicted by a jury for misappropriating confidential information belonging to his employer and using that information to trade for personal gain. That sounds like garden variety insider trading, except here, there was a twist. Whereas most criminal insider trading cases are charged as securities fraud, here the defendant was tried and convicted under the wire fraud statute. The Second Circuit reversed the conviction, and in so doing substantially narrowed the extent to which the wire fraud statute protects against an employee’s misuse of a company’s confidential information. Specifically, the Second Circuit found that the wire fraud statute’s prohibition against misappropriating an employer’s “property” extends only to information that has commercial value to the employer. Information that is of value to an employee for trading purposes—but that lacks commercial value to the employer—is fair game.

While the criminal wire fraud and securities fraud statutes are distinct, they share a common nucleus in their definition of ‘property’. The Second Circuit’s decision could thus have wide-ranging impact upon prosecutions concerning securities fraud, too. The impact could grow further when considering the possible impacts upon civil actions under Rule 10b-5. This client alert discusses the Chastain decision and its potential impact on defending insider trading in securities and commodities cases.

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Holding Power: S&P 500 Snapshot

Andrew Lash and Shashwat Singh are Consultants at FW Cook. This post is based on their FW Cook memorandum.

Background

We reviewed broad-market data using S&P 500 executives to support preliminary assessments of executive Holding Power (aka retention glue). Despite a cooldown in the broader labor force, Compensation Committees are well served to understand the depth of their retention hooks on key executives, for whom the talent market remains fluid.

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

Ran Ben-Tzur and Amanda Rose are Partners, and Wendy Grasso is Counsel at Fenwick & West LLP. This post is based on their Fenwick memorandum.

What You Need To Know

  • The federal government shutdown will lead to a significant reduction in government activity, including at the U.S. Securities and Exchange Commission (SEC).
  • Companies should evaluate how the shutdown might affect their business operations and financial performance (especially if the shutdown is prolonged) and maintain transparent communication with stakeholders.
  • Senior management, boards, and investor relations teams should ensure they are aligned on messaging and operational responses.

The U.S. federal government officially shut down on October 1, 2025, as lawmakers failed to reach an agreement on federal spending. Many government workers will be on furlough for so long as the shutdown continues, which will lead to a significant reduction in government activity. Here’s what public companies should know:

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Withhold Campaigns: Communications Considerations for Companies

Charlie Koons is a Partner, and Greg Roumeliotis is a Director at Brunswick Group LLP. This post is based on their Brunswick memorandum.

More activist investors are seeking to challenge boards by asking shareholders to vote against the election of one or more directors, without the activists putting forward their own slate of candidates. These board challenges, referred to as withhold campaigns, can be carried out at a fraction of the cost of traditional proxy contests and are often a precursor to submitting a rival slate in the following proxy season. There were 33 withhold campaigns in the 12 months to June 30, 2025, up from 23 campaigns in the corresponding period a year prior, according to Diligent.

While the playbook for companies facing board challenges through rival slates is well established, communications approaches for companies facing withhold campaigns from activist investors diverge widely. All companies facing withhold campaigns seek close private engagement with their shareholders and proxy advisory firms, yet their public communications tactics span the gamut, from refraining from even acknowledging the challenge to their directors to a full-throttle defense and attacks against the activist as one would see in a proxy contest with competing slates of director nominees.

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Weekly Roundup: October 10-16, 2025


More from:

This roundup contains a collection of the posts published on the Forum during the week of October 10-16, 2025

Shareholder Engagement Under the New 13G Regime: Key Takeaways From Recent Panel


Keynote Address by Chair Atkins on Revitalizing Public Company Appeal


CARB Publishes Preliminary List of Companies Potentially Subject to SB 253 and SB 261



Applying A Retail Voting Program in Practice


Annual Incentive Plan Design and Trends


Occasional Activists and the Evolving Landscape of Shareholder Activism in 2025


AI Risk Disclosures in the S&P 500: Reputation, Cybersecurity, and Regulation


Atkins on Challenges to Non-Binding Shareholder Proposals & DE/TX Law


Shareholder Activism: Ten Trends for 2026


Shareholder Activism: Ten Trends for 2026

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.

Shareholder activism is at record levels and is no longer limited to the “proxy season.” Dozens of U.S. activist situations are underway for 2026 annual meetings, well before the windows for nominations open at most targeted companies. Activists are preparing for the fall conference circuit at which they will debut many of their 2026 campaigns, already working behind the scenes at companies by contacting their management, directors, investors, employees, sell-side analysts, and other key constituencies. Here are ten trends to expect for the year ahead.

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Atkins on Challenges to Non-Binding Shareholder Proposals & DE/TX Law

Elizabeth A. Ising, Thomas J. Kim, and Ronald O. Mueller are Partners at Gibson, Dunn & Crutcher LLP. This post is based on a Gibson Dunn memorandum by Ms. Ising, Mr. Kim, Mr. Mueller, and Brian J. Lane, and is part of the Delaware law series; links to other posts in the series are available here.

In a significant dinner speech on October 9, at the John L. Weinberg Center for Corporate Governance, SEC Chairman Atkins signaled the SEC’s willingness to take a step that could significantly alter the landscape for shareholder proposals submitted under Exchange Act Rule 14a-8, by allowing companies (at least, Delaware companies) to exclude precatory/non-binding shareholder proposals. In practice, the vast majority of Rule 14a-8 shareholder proposals are precatory.  The speech is available here: SEC.gov | Keynote Address at the John L. Weinberg Center for Corporate Governance’s 25th Anniversary Gala

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