Monthly Archives: November 2025

Deciphering Rule 14a-8 and Chair Atkins’ Recent Remarks

Alessandra Murata and Michael Bergmann are Partners at Cooley LLP. This post is based on their Cooley memorandum.

If you follow legal news, you’ve no doubt seen the many alerts, blogs and articles with splashy headlines about Rule 14a-8 of the Securities Exchange Act of 1934. Although corporate governance counsel will generally take the lead in evaluating shareholder proposals (including the company’s proper response), individuals involved in executive compensation-related matters should understand the implications of what’s unfolding around Rule 14a-8, as there may be collateral consequences for executive compensation matters, including the potential that executive compensation-related proposals could become more prevalent.

What is Rule 14a-8, and what’s happened?

Directors and executive compensation practitioners should be aware of a recent securities law development regarding proxy statement proposals that has captured the attention of – and indeed excited – corporate governance experts. As explained in this October 10 Cooley alert, recent comments from Securities and Exchange Commission (SEC) Chairman Paul Atkins suggest that, pursuant to Rule 14a-8(i)(1) under the Securities Exchange Act of 1934, “precatory” (think nonbinding) shareholder proposals may be disregarded by companies in a potentially broad ranging set of circumstances. READ MORE »

2025 Executive Perquisites Report

Tyler Janney is a Consultant at FW Cook. This post is based on his FW Cook report.

EXECUTIVE SUMMARY

FW Cook’s inaugural 2025 Executive Perquisites Report analyzes the prevalence and value of perquisites (or “perks”) at S&P 100 companies from 2021 to 2024, focusing on Chief Executive Officers (CEOs) and average other Named Executive Officers (NEOs).

Personal use of corporate aircraft is the most prevalent CEO executive perk followed by security services, which includes personal security, residential security, and cyber-related security services. Personal use of aircraft and security perquisites are provided to more than half of S&P 100 CEOs and have increased in prevalence over the past four years: personal use of aircraft has increased from 70% of S&P 100 companies in 2021 to 76% in 2024, and security has increased from 38% in 2021 to 59% in 2024. FW Cook expects the prevalence of security perks to continue to increase in 2025 and 2026 given the recent tragic events of the assassination of the UnitedHealth Group Executive and the shooting at the Blackstone and NFL corporate offices. These events have prompted companies to re-evaluate personal security benefits, including personal security guards, home security systems, private car and driver, secured parking, and private aviation.

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SB 21’s § 144 and Controlling Stockholders: Back to the Future?

Theodore N. Mirvis is Of Counsel at Wachtell, Lipton, Rosen & Katz and an Adjunct Professor of Law at New York University School of Law, Tel Aviv University-Law, and the University of Virginia School of Law. This post is his response to Professor Kahan and Rock’s What Newly Amended DGCL §144 Says (and Does Not Say) About Controlling Stockholder Transactions, and is part of the Delaware law series; links to other posts in the series are available here.

Delaware’s SB 21 has been in place for several months.  By most accounts, no part of the sky has fallen.  SB 21’s correction of the Supreme Court’s Match decision―by restoring what many considered the Delaware tradition of business judgment rule respect for controlling stockholder transactions approved by either informed independent directors or unaffiliated stockholders, via the eloquent creation of safe harbors in amended DGCL § 144―has caused no discernible havoc.

But just when one might have thought it was safe to go outside again, a thoughtful and thought-provoking piece of academic scholarship has seriously questioned whether the text of the statutory amendment is true to its promise.  In “What Newly Amended DGCL § 144 Says (and Does Not Say) about Controlling Stockholder Transactions” published here, Professors Marcel Kahan and Edward Rock mount an impressive argument that the new statute actually “does not reflect either its proponents’ dreams nor its opponents’ nightmares.”  The claim advanced is that the “actual language” of the new § 144 “Safe Harbor Provision” does not inter Match but “instead draws a distinction between statutory controllers and common law controllers and leaves Delaware’s law on the latter untouched.”  Match lives? READ MORE »

Mapping Corporate Climate Commitments: Aligning Business Action with Global Climate Goals

Subodh Mishra is the Global Head of Communications at ISS STOXX. This post is based on an ISS-Corporate memorandum by Kosmas Papadopoulos, Head of Sustainability Advisory for the Americas & Dennis Tung, Sustainability Advisor, with ISS-Corporate.

Corporate climate ambition is rising—but how aligned are targets with global goals? Discover regional and sector trends in GHG reduction commitments ahead of COP30.

The third round of Nationally Determined Contributions (NDCs) – the central mechanism through which countries commit to climate action under the Paris Agreement – was originally due in February 2025, covering targets for 2035. Due to low submission rates, the deadline was informally extended to September 24, 2025, giving countries additional time to develop robust, high-quality plans ahead of COP30, which will take place in Belém, Brazil in November 2025. According to Climate Action Tracker, only 40 countries had submitted their NDCs as of September 23, representing 24.5% of global emissions and 16.6% of the global population. While the overall outlook on global commitments remains cautious, efforts to establish ambitious targets continue beyond the formal deadline.

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Data and Insights on Corporate Governance Developments and Important Trends in Proxy Voting

Michael Tae is Group President, Chuck Callan is Senior Vice President, and Mike Donowitz is Vice President at Broadridge Financial Solutions. This post is based on their Broadridge memorandum.

Highlights from the 2025 proxy season

We provide data on ownership and voting by retail and institutional segments of investors, across the major proposal types, showing the trends over a 5-year timeline.

The data is unique because it is based on a “see-through” into voting on an account-by-account basis for most shareholders and investors. (Ownership and reporting for these segments is in the aggregate.) The data is based on Broadridge’s processing of shares held beneficially in street name at the custodian banks and broker dealers for whom we provide communications and voting services, and on our coding of proposal types.

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Ready for the Deal: Transaction Readiness in Turbulent Times

Kira Ciccarelli is a Senior Research & Programs Manager at Diligent Institute, Rich Mullen is a Partner at Wilson Sonsini Goodrich & Rosati, and Ranga Bodla is a Vice President at NetSuite. This post is based on a report by Ms. Ciccarelli, Mr. Mullen, Mr. Bodla, and Dottie Schindlinger, conducted in partnership with Diligent Institute, NetSuite, Wilson Sonsini, the CFO Alliance, and the CFO Leadership Council.

Benchmarking transaction readiness

After intense speculation in the third quarter of 2024, many industry watchers predicted 2025 would usher in a wave of successful IPOs—finally reviving the public markets after a prolonged quiet period. Yet, as economic headwinds intensified and U.S. fiscal policy shifted unexpectedly, companies began to rethink even their most foundational transaction plans. Analysts, anticipating the typical pattern of M&A activity surging when the IPO market stalls, were met instead with a stalling deal environment—prompting a deeper question: are organizations truly “transaction ready?”

If companies ultimately choose not to proceed with IPOs or acquisitions due to wider economic or policy trends, does that signal robust maturity and readiness, or merely short-term adaptability? What qualifies as genuine preparedness for transformative transactions, and what are the structures, processes, and personnel that must be firmly in place before leaders can say with confidence that their organizations are ready to act?

This report—the result of a targeted survey and research collaboration between Diligent Institute, Wilson Sonsini, NetSuite, the CFO Alliance, and the CFO Leadership Council—seeks to uncover the defining elements that make an organization transaction-ready. As market volatility and uncertainty become the norm rather than the exception, our core objective is to distill what it takes for companies to have sufficiently mature governance and controls; to be equipped for complexity, agility, and accountability in every aspect of the deal-making process.

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2025 U.S. Board Index

George Anderson, Rebecca Thornton, and Julie Daum are Consultants at Spencer Stuart. This post is based on their 2025 U.S. Spencer Stuart Board Index.

In a complex business environment, board composition continues to evolve, with boards now showing a greater preference for directors who have seasoned experience. For the past 40 years, our firm has studied the composition, governance practices and refreshment trends of boards across the S&P 500. The long-running nature of our research gives us a unique perspective on how boards have evolved from compliance-focused bodies to strategically engaged stewards guiding long-term value.

Yet amid rising complexity and uncertainty, boards are racing to keep pace. Another 2025 Spencer Stuart study found that only 22% of CEOs report receiving effective board support to navigate today’s challenges. Similarly, only 43% of CEOs said that their board directors have specific subject-matter expertise aligned with the company’s most pressing issues, compared with 63% of directors.

In this environment, boards are recalibrating their composition, prioritizing directors with experience — seasoned leaders able to serve as strategic partners to management. And this year’s incoming class reflects this shift; as a whole, they are older, most likely to be retired and to have served on a public board previously, and more likely to have a background as a CEO or financial executive.

Here are the highlights from our annual analysis of the latest S&P 500 proxy statements, examining board composition, governance practices and director compensation trends.

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Mapping the Managerial Talent Market Through Peer Networks

Ray Rui Gao is an Assistant Professor of Accounting at the Marshall School of Business, University of Southern California, and Yifei Lu is an Assistant Professor of Accountancy at the Gies College of Business, University of Illinois Urbana-Champaign. This post is based on their article forthcoming in the Journal of Accounting Research.

Every year, public companies list a set of “peer” firms in their proxy statements to benchmark top executive pay. These compensation peer group disclosures might seem routine, but they contain rich information about who competes for top executive talent. In our forthcoming study (Journal of Accounting Research, in press), we tap into this data in a novel way by using network analysis of peer group disclosures to map the managerial labor market. Our study generates novel managerial labor market classifications and competition measures, offering novel insights beyond traditional product industry-based measures. In a sense, it is the managerial labor market analog to the network-based product market classifications by Hoberg and Phillips (2010, 2016).

From Product Industry Peers to Compensation Peer Network

Traditionally, researchers assumed that a company’s competitors for executive talent were mostly those in the same product industry or of similar size. However, this can be misleading. Many firms recruit executives from outside their product industry: think of a retail company hiring a tech executive to develop the e-commerce business (e.g., Nike hired John Donahoe from ServiceNow as CEO in 2019). We argue that we can better capture these complex relationships by looking at the network of disclosed peers across all firms. In practice, most large companies disclose a peer group of around 15–20 firms for pay benchmarking (over 97% of S&P 500 firms do so). Because boards consider multiple factors, such as industry, size, and specific talent needs, when selecting these peers, each disclosure embeds rich information about a firm’s talent competitors. For example, Delta Air Lines in its proxy statements in 2019 mentioned that “our peer group is composed of three major U.S. airlines and eighteen other companies in the hotel/leisure, transportation/distribution/machinery/aerospace/ defense, and retail industries,” and that “in order to retain and attract the talent we need, Delta must compete with these types of companies”. Still, any one company’s list is limited in scope. By aggregating all peer relationships across firms, we let the market itself reveal a broader set of potential talent competitors, including those a firm might not have identified on its own. We then construct a network “map” of companies connected by peer relationships. If Company A lists Company B as a peer, we draw a link between A and B. Collectively, these links form a web that shows which firms see each other as comparable in the market for managerial talent.

This network-based approach reflects competition in multiple dimensions, not just industry, but also size, geography, specialized skill sets, and so on. It’s a dynamic view that can evolve as companies update their peer groups annually. Each firm’s position in the network indicates its labor market neighborhood: companies closely linked in the network likely compete for the same pool of executives. This is a big shift from static product industry classifications. For example, an innovative media company might appear in the peer networks of tech firms if both are hunting for executives with digital content expertise, even if traditional product industry classifications wouldn’t pair them. By analyzing the overall peer network, our study essentially lets “the crowd” of boards reveal how they perceive the landscape of executive talent competition. READ MORE »

Director Data Requests – The Line Between Oversight and Management

Melissa SawyerLawrence S. Elbaum, and Jacob M. Croke are Partners at Sullivan & Cromwell LLP. This post is based on their Sullivan & Cromwell memorandum.

Summary

The “expertization” of directors as relates to specialized domains, including, among others, cybersecurity, data privacy, ESG and regulatory compliance, as well as recent case law potentially expanding the risk of directors’ personal liability for failing to oversee corporate risk, have coalesced to blur the lines between directors’ oversight function and management’s executive role. Directors may feel that they need to dig into granular numbers, alternative analyses and third-party data sources to test management’s assumptions and assess management’s justification of its decision-making and strategy. Management may question whether the directors are wading so deeply into day-to-day operational matters that it interferes with the ability to provide independent oversight, while directors may fear that not doing so could be used to call into question their willingness to provide effective challenge. When does a director’s questioning turn into management? The balance between oversight and management is shaped by established governance principles.

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2025 Top 250 Annual Incentive Plan Report

Warren Suh and Ezra Womark are Consultants, and Rachel Gibbons is a Principal at FW Cook. This post is based on their FW Cook memorandum.

EXECUTIVE SUMMARY

FW Cook’s 2025 Annual Incentive Plan Report provides a comprehensive review of the annual incentive plans of the top 250 largest companies in the S&P 500 by market capitalization. Annual incentive plans are critical tools used to align executive compensation with a company’s short-term goals and support talent attraction, motivation and retention objectives. This report examines trends in financial and non-financial metrics, goal-setting practices, and actual payouts, comparing findings over 3-year and 6-year periods, which coincide with our 2022 and 2019 Annual Incentive Plan Reports. Environmental, Social, and Governance (ESG) trends are analyzed based on findings from the last 3 years, corresponding with FW Cook’s 2025 and 2024 Annual Incentive Plan Reports and FW Cook’s 2023 Use of Environmental, Social, and Governance Measures in Incentive Plans Report.

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