Yearly Archives: 2025

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

Jon Solorzano, Sebastian Tiller, and Francisco Morales Barron are Partners at Vinson & Elkins LLP. This post is based on their Vinson & Elkins memorandum.

Corporate boards are no stranger to near-term pressures, but these days the pressures are piling as high as they ever have. Geopolitical tensions and supply-chain disruptions; climate change and technological revolutions; tariff uncertainty, cyberthreats, regulatory upheaval, and more. Each creates risks for companies across industries and market capitalizations. And in keeping with directors’ fiduciary duties, they all demand board time, energy, and focus.

Amid these pressures and others, thinking long term — that is, defining a sound strategic vision and executing on it — has become increasingly difficult and, at times, may seem at odds with near-term business demands. Complicating matters further, this dynamic is playing out at a time when thinking long term is increasingly critical for a company’s success, yet may seem out of favor with the current corporate zeitgeist.

Yes, boards need to stay mindful of near-term trends in business, technology, politics, and the like — and consider them in their oversight of the company on behalf of its shareholders. But boards who center corporate agendas entirely on issues facing the company in the here and now risk setting their company up to underperform in the coming years.

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The “Big Three” Shift Approach to Stewardship

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.

Robust shareholder engagement continues to be a critical component of corporate governance, as well as a key element of shareholder activism preparedness. Proactively maintaining a dialogue with the company’s largest shareholders allows the company to establish credibility, lay out its strategy and address concerns before they escalate. A fundamental part of this effort is understanding the company’s unique shareholder base—who the key shareholders are, what their voting policies and priorities look like and how they have historically voted or engaged on specific issues. This information allows companies to anticipate potential concerns and tailor their strategies and communications accordingly. Understanding the company’s specific shareholder base is especially important in the context of activist approaches and potential proxy fights, as voting outcomes can sometimes be determined by razor-thin margins, hinging on the votes of just one or a handful of influential investors.

This critical task has recently become more complex, as the “Big Three” asset managers—BlackRock, Vanguard and State Street—are shifting their approach to stewardship. In particular, each of the “Big Three” is splitting its proxy voting team into two separate groups, each with their own voting decision-makers, voting policies and perspectives.

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Are CEO Pay Plans Too Samey?

Will Arnot is Deputy Newswire Editor at Diligent Market Intelligence (DMI). This post is based on a Diligent memorandum by Mr. Arnot, Josh Black, and Antoinette Giblin.

CEO pay in the S&P 500 has continued to record substantial gains with only a marginal drop-off in investor support, writes Will Arnot.

With the stock market up again in 2024, median CEO compensation in the S&P 500 saw an 8% year-on-year increase while also managing to maintain steady support from investors.

According to DMI Compensation data, the median granted pay for an S&P 500 CEO was $17.2 million in 2024, up from a median of $15.9 million median package awarded for 2023.

This 8.3% increase may have been considered good value considering the S&P 500 delivered an average total shareholder return of 25% in 2024, following a 24% gain in 2023.

Indeed, the average S&P 500 “say on pay” proposal received 89.3% support in the first half of this year, down only marginally on the 89.4% support similar proposals received in the same timeframe last year with experts citing pay plan design practices and regulatory changes as potential factors. Four “say on pay” resolutions failed in the first half of 2025, down from five last year.

Nine S&P 500 companies faced between 40% and 49% opposition to their executive compensation proposals in H1, including Chipotle Mexican Grill and Pfizer while the same period in 2024 saw eight companies face similar levels of opposition.

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2025 Proxy Season in Review

Simone Hicks, Benjamin R. Pedersen, and Paul Rodel are Partners at Debevoise & Plimpton LLP. This post is based on a Debevoise memorandum by Mr. Hicks, Mr. Pedersen, Mr. Rodel, Eric Juergens, Alison Buckley-Serfass, and Amy Pereira.

Key Takeaways:

  • The 2025 proxy season was an eventful one—unfolding against the backdrop of a new federal administration, changes to the regulatory landscape, and evolving investor sentiment on a variety of issues.
  • Based on our experience and data compiled by Diligent, this Debevoise In Depth identifies key takeaways from the 2025 proxy season.

The 2025 proxy season was an eventful one—unfolding against the backdrop of a new federal administration, changes to the regulatory landscape, and evolving investor sentiment on a variety of issues. New guidance from the U.S. Securities and Exchange Commission relating to Schedule 13G eligibility and no-action relief had immediate impacts on shareholder engagement, while revised proxy advisor and institutional shareholder guidelines were cause for many companies to review their DEI initiatives and related disclosures. As in prior years, investors demonstrated willingness to hold directors accountable, through traditional proxy contests as well as through “withhold” campaigns.

 

Based on our experience and data compiled by Diligent, this Debevoise In Depth identifies key takeaways from the 2025 proxy season.

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Chancery Decision Doubles Down on Due Diligence

Gail Weinstein is a Senior Counsel, Philip Richter is a Partner, and Steven Epstein is the Managing Partner at Fried, Frank, Harris, Shriver & Jacobson LLP. This post is based on a Fried Frank memorandum by Ms. Weinstein, Mr. Richter, Mr. Epstein, Steven J. Steinman, Randi Lally, Mark Lucas, and is part of the Delaware law series; links to other posts in the series are available here.

In Edwards v. GigaAcquistions2, LLC (July 25, 2025), the Delaware Court of Chancery dismissed a case, at the pleading stage, in which former members of Cloudbreak Health, LLC, a high-performing health care company, claimed that Cloudbreak was fraudulently induced to join in a de-SPAC combination with a group of financially distressed health care companies (the “Portfolio Companies”). The combined company went bankrupt post-closing. Cloudbreak had received oral assurances and management presentations indicating that the Portfolio Companies were financially sound and positioned for success. A few years after the closing, it came to light that the information about the Portfolio Companies’ financial wellbeing, that had been provided by the Portfolio Companies, their financial advisor and the SPAC sponsor, was false. The court dismissed the plaintiffs’ claims on several grounds—most notably, refusing to toll the statute of limitations for fraud, which had lapsed shortly before the suit was filed.

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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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