Yearly Archives: 2025

Why Do Big Firms Stay on Top?

Mara Faccio is the Tom and Patty Hefner Chair in Finance and Professor of Management, and John J. McConnell is the Burton D. Morgan Distinguished Chair of Private Enterprise in Finance, Emeritus, at the Daniels School of Business, Purdue University. This post is based on their article forthcoming in the Journal of Finance.

A fundamental premise of economic theory, dating back to Joseph Schumpeter, is that, over a sufficiently long period of time, old firms are displaced by new ones. As one saying that Schumpeter cites goes: “three generations from overalls to overalls.” In this process, known as the Schumpeterian process of “creative destruction,” new innovation is incessantly created by new firms that replace old innovators, including the most successful ones. This process is widely recognized as a driving force behind long-term economic growth. While extensive research has elucidated the importance of innovation and firm entry in fostering growth, less scrutiny has been devoted to the corresponding replacement of incumbents.  Do large, established firms truly get replaced over time, or do they maintain their dominance despite the theoretical benefits of replacement?

In a recent manuscript titled “Impediments to the Schumpeterian process in the replacement of large firms”, forthcoming in the Journal of Finance, we investigate why, across many countries and over extensive periods of time, including a century-long horizon, the largest firms often retain their dominant positions, thereby defying the expected turnover that Schumpeter envisioned. Earlier empirical investigations link the lack of replacement to lower economic growth. Such evidence gives rise to an important question: if the replacement of incumbents is so beneficial, why is it so infrequent?

Our study investigates several explanations. Schumpeter himself suggests that large incumbent firms remain large by continuously reinventing themselves, leveraging their financial strength to innovate. Alternative views are articulated in the work of early 20th-century thinkers Louis Brandeis and Lincoln Steffens. Brandeis condemns “money trusts” formed through interlocking directorates (specifically, the networks of intertwined board memberships with financial institutions) that stifle competition and enable incumbents to suppress rivals. Steffens highlights the systematic capture of political institutions by big business, which manipulates regulation to serve private interests rather than the public good. These views suggest that political entrenchment, rather than superior market performance, underpins the persistence of dominant firms.

Our findings strongly support this latter explanation: political connections, defined as instances in which one of a large firm’s top officers, directors, or blockholders is a member of parliament or is a government minister, materially enhance large firms’ ability to maintain their dominant status. Firms embedded within political networks exhibit significantly higher probabilities of remaining among their countries’ largest firms even over extended periods of time. Crucially, our analyses refute the notion that politically connected firms are able to maintain their dominant market position simply because they outperform their competitors. Various performance metrics reveal that politically connected firms, if anything, underperform their peers instead. Especially, large politically connected firms remain among the very largest firms because of greater protective political influence. This is especially the case in countries characterized by regulatory barriers consisting of tariffs, quotas, and restrictions on cross-border capital flows, which insulate large domestic incumbents from competition. In more open economies, where such barriers are not present, political connections lose their protective power, and the forces of competitive displacement lead to the demise of old large firms.

Summarizing, while innovation remains a crucial engine of growth, our research cautions that entrenched political power combined with protectionist policies can impede the natural Schumpeterian process of replacement of large firms, dampening economic growth. READ MORE »

Asset Managers and Fossil Fuel Exclusion Screens

Patricia Volhard is a Partner, John Young is a Counsel, and Alfie Scott is an Associate at Debevoise & Plimpton LLP. This post is based on a Debevoise memorandum by Ms. Volhard, Mr. Young, Mr. Scott, and Ulysses Smith.

Key Takeaways:

  • Many asset managers exclude categories of investments from their portfolios, with a number of developments prompting asset managers to scrutinise their exclusion lists. As a result, some asset managers have adopted more flexible approaches, focussed on detailed due diligence for potential investments in certain industries in place of formal exclusions.
  • We discuss in this InDepth asset managers’ options when designing fossil fuel exclusion screens, including risk, diligence and engagement-based approaches, rather than blanket bans. Asset managers’ approaches are also informed by voluntary frameworks and environmental concerns.

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How Are Shareholder Meetings Changing and What Does It Mean for Corporate Governance

Tiziana Londero is a Policy Analyst, and Daniel Blume is the Head of the Corporate Governance Unit in the OECD’s Directorate for Financial and Enterprise Affairs. This post is based on their OECD memorandum.

A new OECD report on shareholder meetings and corporate governance sheds light on recent evolutions in shareholder meetings in 50 economies, with case studies on the Netherlands, Singapore, South Africa, Türkiye and the United Kingdom. 

In a context of changing shareholder expectations and digital transformation, evolutions in shareholder meetings have important implications for corporate governance and shareholder engagement. While large institutional investors often engage year-round, for many investors, Annual General Meetings (AGMs) are the most important venue to influence corporate behaviour, including on executive remuneration, sustainability policies and corporate ethics.

The report identifies areas where regulatory frameworks for AGMs may need strengthening to fully protect shareholder rights, in line with the G20/OECD Principles of Corporate Governance.

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Public Companies Faced Added Disclosure Scrutiny During This Proxy Season

Bryan Keighery and Patrick Rehfield are Partners, and Alexandra Good is an Associate at Morgan Lewis & Bockius LLP. This post is based on their Morgan Lewis memorandum.

As the 2025 proxy season ends, public companies have had to navigate a more nuanced and demanding disclosure environment. New disclosure requirements, such as Item 402(x) of Regulation S-K, and increased scrutiny of—and changing views on—diversity, equity, and inclusion (DEI) presented new disclosure challenges in 2025. At the same time, executive compensation strategies faced increasing pressure to balance incentive alignment with transparency and governance accountability.

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Ongoing Legal Battle Over California’s Climate-Related Disclosure Laws

Jon Solorzano is a Partner, James Dawson is a Counsel, and Josh Rutenberg is an Associate at Vinson & Elkins LLP. This post is based on a Vinson & Elkins memorandum by Mr. Solorzano, Mr. Dawson, Mr. Rutenberg, Kelly Rondinelli, and Evan Rodgers.

Editor’s Note: On August 20, 2025, Plaintiffs filed an appeal to the U.S. Court of Appeals for the Ninth Circuit from the order denying their motion for a preliminary injunction.

On August 13, 2025, the U.S. District Court for the Central District of California denied a motion for preliminary injunction to enjoin California Senate Bills 253 and 261. For background information on SBs 253 and 261, see our previous insight.

The Chamber of Commerce and five co-Plaintiffs sought a preliminary injunction to halt California’s landmark climate reporting laws on three separate grounds: (i) the laws violate the First Amendment, (ii) the Constitution and federal law preempt SB 253 and SB 261 and (iii) the two laws violate the dormant Commerce Clause of the U.S. Constitution. As we discussed here, in February 2025 the district court granted a motion to dismiss in part filed by CARB with respect to the latter two claims. Plaintiffs then filed a motion for a Preliminary Injunction on First Amendment grounds. Specifically, Plaintiffs alleged that the laws are not tailored to the interests of investors because they are not limited to companies seeking investments; absent a preliminary injunction, Plaintiffs claim they will suffer irreparable harm as they will be compelled to speak on the “controversial issue” of climate change.

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Delaware Court Dismisses Claims Against Directors for Failing to Investigate Past Misconduct

Heather Benzmiller Sultanian is a Partner 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.

In a recent dismissal of all claims in Borsody v. Gibson, the Delaware Court of Chancery grappled with an unusual set of circumstances involving a former director who believed he had been wrongfully removed from a board and prevented from exercising his stock options. Having missed the window for asserting claims against the two officers who allegedly engaged in the wrongful scheme, he instead targeted two new directors who did not join the Board until after the scheme had already been completed.

Plaintiff Mark Borsody co-founded and chaired the Board of a medical device company, Nervive, Inc. The complaint alleged that, in late 2019, Borsody was denied contractually-owed stock options (which had been granted through a Stock Option Agreement) and ousted from the Board after he began to question the interim CEO’s dealings with potential investors. Shortly thereafter, in October 2019, two new directors were appointed to the Board, one of whom had previously served as CEO of Nervive and allegedly felt “personal animus” toward Borsody. The following month, Borsody attempted to exercise his stock options, but Nervive refused to recognize the exercise — despite advice from Nervive’s counsel that Borsody’s claims to the stock options were legitimate.

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Shareholder Proposal Developments During The 2025 Proxy Season

Elizabeth A. IsingRonald O. Mueller, and Geoffrey Walter are Partners at Gibson Dunn. This post was prepared for the Forum by Ms. Ising, Mr. Mueller, Mr. Walter, Natalie Abshez, Meghan Sherley, and Sherri Starr.

This post provides an overview of shareholder proposals submitted to public companies during the 2025 proxy season, including statistics and notable decisions from the staff (the “Staff”) of the Securities and Exchange Commission (the “SEC”) on no-action requests. As discussed below, based on the results of the 2025 proxy season, there are several key takeaways to consider for the coming year:

  • Shareholder proposal submissions fell for the first time since 2020.
  • The number of proposals decreased across all categories (social, governance, environmental, civic engagement and executive compensation).
  • No-action request volumes continued to rise and outcomes continued to revert to pre-2022 norms, with the number of no-action requests increasing significantly and success rates holding steady with 2024.
  • Anti-ESG proposals continued to proliferate in 2025, but shareholder support remained low.
  • Data from the 2025 season suggests that the Staff’s responses to arguments challenging politicized proposals (those proposals that express either critical or supportive views on ESG, DEI and other topics) were driven by the specific terms of the proposals and not by political perspectives.
  • New Staff guidance marked a more traditional application of Rule 14a-8, but the results of the 2025 season indicate that Staff Legal Bulletin 14M (“SLB 14M”) did not provide companies with a blank check to exclude proposals under the economic relevance, ordinary business or micromanagement exceptions.

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Overlapping Directors as a Competition Problem

Mark A. Lemley is the William H. Neukom Professor of Law at Stanford Law School, and Rory Van Loo is a Professor of Law at Boston University School of Law. This post is based on a recent paper by Professor Lemley, Professor Van Loo, and Lane Miles.

Antitrust law prohibits competing corporations from sharing board members—called “interlocking directorates”—and has for more than a century. Violating it is one of the few things antitrust declares illegal per se, with no opportunity to explain or justify the interlock. Yet our new empirical evidence suggests that the rule is routinely broken. Using proprietary data, we contribute a comprehensive assessment of interlocks in both public and private firms, finding over two thousand instances of individuals sitting on the boards of two companies that are direct competitors. Among companies where we know at least five directors, 8.1 percent (2,309) had an individual interlock.

But the same individual sitting on two competing boards, despite being the focus of the interlock literature and most of the case law, isn’t the only problem. We also demonstrate the prevalence across public and private companies of a related problem—two different individuals sitting on competitors’ boards while simultaneously working at the same private equity, venture capital, or other firm that also invests in the competitors on whose boards the director sits. These investment funds can thereby influence boards through a hidden mechanism—installing two of their employees on competitors’ boards. Such investor-level interlocks are even more common than individual interlocks, reaching 2,927 different companies and 9.9 percent of the companies with at least five board members in our data set. Yet their prevalence was until now unknown.

Combined, individual and investor-level interlocks reach 13.4 percent of all companies—including 30.1 percent of life-sciences companies and 18.9 percent of all IT and software companies. Moreover, in 56.8 percent of the investor-level interlocks the investor invested in both of them. Consequently, the two board members share an institutional identity that creates strong financial incentives for the competing companies to collude and the organizational touchpoints and close relationships to make it happen.

Our data on fund employment also enables us to shed light on the identity of the individual interlocking directors. About 65 percent of those we identified hold leadership positions in private-equity, venture-capital, and other investment funds that invest in the very companies on whose boards these directors sit. The interlocking directors are often partners of investment firms, which means they receive a share of the fund’s investment profits, giving them additional personal financial incentives to promote anticompetitive conduct. READ MORE »

Weekly Roundup: August 22-28, 2025


More from:

This roundup contains a collection of the posts published on the Forum during the week of August 22-28, 2025

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


Wildest Campaigns 2025


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




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


Chancery Decision Doubles Down on Due Diligence


2025 Proxy Season in Review


Are CEO Pay Plans Too Samey?


The “Big Three” Shift Approach to Stewardship


Why Corporate Directors Must Keep Their Company’s Long-Term Mission in Focus


How Boards Can Prepare for Increasing Nation-State Cyber Threats


How Boards Can Prepare for Increasing Nation-State Cyber Threats

Mike Driscoll is a Senior Managing Director, and Sara Sendek is a Managing Director at FTI Consulting. This post is based on their FTI Consulting memorandum.

Rising geopolitical tensions are likely to lead to an increase in cyber threats from nation-states. Boards have a great responsibility to ensure resilience beyond compliance.

As a growing number of governments around the world pull away from globalization, diplomatic and economic ties risk weakening. This could lead to nation-states feeling emboldened to carry out cyber attacks with less concern for damaging relationships that are already deteriorating and, in turn, could pose widespread risks for organizations.

A new report from FTI Consulting, Corporate Board Member and Diligent Institute found that while 79 percent of board members whose companies have international exposure beyond the United States view geopolitical risks as a threat to their business strategy, less than ten percent are prioritizing the management of geopolitical risks.

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