Monthly Archives: February 2026

2025 Activism Retrospective

Jamie Leigh, Sean W. Brownridge, and Bill Roegge are Partners at Cooley LLP. This post is based on a Cooley memorandum by Ms. Leigh, Mr. Brownridge, Mr. Roegge, Kevin Cooper, Lucas Wherry, and Simon Trisk.

Activists enjoyed a banner year in 2025. From proxy contest wins at blue-chip companies to a partnership with Taylor Swift’s fiancé, engaged shareholders once again demonstrated their capabilities, creativity and readiness. As we discussed in the fall, this year’s activism menu also included the rise of “withhold” campaigns, notable Delaware litigations regarding advance notice bylaws and the continued prominence of investors “swarming” targeted issuers.

This article complements our earlier market update by completing our 2025 activism retrospective and ensuring that boards and management teams have the information necessary to assess the activism playing field in 2026.

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2016 vs 2026: Lessons from a Decade of Corporate Climate Action

Meghan Sheehan is a Partner and Ella Woolhouse is a Senior Associate at Kekst CNC. This post is based on their Kekst memorandum.

A decade ago, the landscape of corporate sustainability was almost unrecognisable. AI was still more Spielberg than strategy, and ‘net zero’ had yet to enter the corporate lexicon. Two years after the Paris Agreement, businesses were beginning to translate pledges into early strategies, not yet racing towards a lower-carbon future.

Ten years on, that landscape has been tested, reshaped, and in some cases, hardened into realism. In hindsight, 2016 looks less like a moment of achievement and more like a genuine tipping point – the start of something far more complex than many expected.

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Preparing for the 2026 Annual Reporting and Proxy Season

Doreen Lilienfeld, Erika Kent, and Melisa Brower are Partners at A&O Shearman. This post is based on an A&O Shearman memorandum by Ms. Lilienfeld, Ms. Kent, Ms. Brower, John Cannon, Richard Alsop, and Hugo Casella.

ESG, DEI AND HUMAN CAPITAL DISCLOSURES

The prevalence of public company human capital practices and disclosures ebbs and flows. Over the last two years, DEI-related metrics in incentive plans and references in annual reports and proxy statements receded amid legal headwinds, shifting policies and recalibrated investor voting guidelines.

As the next reporting season approaches, companies should ensure that disclosures reflect any updates to DEI policies and align with current practices, reconcile policies with evolving regulatory and legal guidance, and calibrate to increasingly divergent stakeholder expectations. Nasdaq-listed issuers should consider removing the prescriptive board-diversity table, which is no longer required after the Fifth Circuit’s December 2024 ruling. Risk factors in the 2026 annual report should be updated to match current commitments and oversight practices, and companies that revised or omitted DEI metrics in 2025 annual compensation plans should ensure disclosures in their annual report and proxy statement reflect those amendments. Companies should also monitor further developments in proxy advisory firm and institutional investor voting guidelines on DEI matters.

Bottom line: ensure practices, governance documents, and public disclosures are consistent and responsive to investor regulatory and other stakeholder expectations which may not be straightforward to do because of conflicting perspectives. For more information about 2025 trends in the use of DEI metrics in incentive plans and DEI references in human capital and proxy disclosures, see our article, Evolving Trends in Human Capital Practices and Disclosures, published in A&O Shearman’s 23rd Annual Corporate Governance & Executive Compensation Survey.

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US Proxy-Voting Trends: 2025 in Review

Lindsey Stewart is the Director of Investment Stewardship Research at Morningstar, Inc. This post is based on his Morningstar report.

Key Observations

  • We analyzed proxy-voting records of 50 of the largest US managers of equity and allocation funds for companies in the Morningstar US Large-Mid Cap Index over the 2023, 2024, and 2025 proxy years. We also assessed votes by eight European asset managers and 601 US sustainable funds.
  • There was a slight increase in shareholder support for management resolutions: Average support rose to 95.6% in 2025, from 95.0% in 2024 and 95.1% in 2023.
  • Average support for shareholder resolutions on governance remained steady at around 30%.
  • Meanwhile, average support for environmental and social, or E&S, shareholder resolutions fell from 18.8% in the 2023 proxy year to 11.6% in 2025.
  • Votes by the top 10 US managers of equity and allocation fund assets were more supportive of management compared with the other 40 US firms.
  • The top 10 comprises the Big Three index managers— BlackRock, State Street, and Vanguard—alongside Capital Group, Dimensional, Fidelity (including funds subadvised by Geode), Invesco, J.P. Morgan, Schwab, and T. Rowe Price.
  • These firms showed above-market-average support for management resolutions and below-marketaverage support for shareholder resolutions every year. The reverse is true for the next 40 US firms.
  • Voting decisions by US sustainable funds showed much lower support for management resolutions and much higher support for E&S shareholder resolutions compared with the US firms overall.
  • European firms dissented from the management view more often than any of the US peer groups, reflecting a transatlantic gap in voting patterns.

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The Art of Indemnifying Attorneys’ Fees for M&A Disputes

Frank Favia and Jonathan Dhanawade are Partners, and Andrew Stanger is Knowledge Counsel at Mayer Brown. This post is based on their Mayer Brown memorandum, and is part of the Delaware law series; links to other posts in the series are available here.

Buyers in M&A transactions often assume that they will be able to recover reasonable attorneys’ fees in connection with a successful indemnification claim if the purchase agreement generally includes attorneys’ fees in the definition of indemnifiable losses. However, buyers may be surprised to learn that Delaware law presumes that attorneys’ fees incurred by a buyer in pursuing an indemnification claim against a seller (often referred to as a “first-party” claim) are not recoverable unless the purchase agreement includes a “clear and unequivocal articulation” of the parties’ intent to require fee shifting.

This Legal Update examines two recent Delaware opinions that illustrate this legal principle. It also discusses drafting nuances for parties that wish to include attorneys’ fees for first-party claims among indemnifiable losses.

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A Proxy Odyssey: What Will 2030 U.S. Proxy Season Look Like?

Sean Quinn and Matt Filosa are Senior Managing Directors, and Sydney Carlock is a Managing Director at Teneo. This post is based on a Teneo memorandum by Mr. Quinn, Mr. Filosa, Ms. Carlock, Martha Carter, and Diana Lee.

The Current Landscape

For decades, corporate governance operated on relatively stable ground, even amid backlash against proxy advisors and the proxy voting system itself. The Securities and Exchange Commission (SEC) controlled ballot access, research and recommendations from proxy advisors like ISS and Glass Lewis influenced voting outcomes, voting power was concentrated among a handful of large asset managers expected to vote every share, and engagement was a straightforward exchange between investors and issuers.

That stability has recently unraveled with unprecedented speed and intensity. In 2025, a wave of regulatory actions, driven in part by political backlash against ESG, began to significantly reshape the corporate governance landscape. As companies prepare for the 2026 proxy season, investor engagement has grown less candid, proxy advisory firms face existential pressure from regulators and AIdriven competitors, and the shareholder proposal process has been fundamentally, if temporarily, altered. In short order, proxy seasons have become much harder for companies to manage and predict, and that trend is likely to continue.

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CEO and C-Suite ESG Priorities for 2026

Matteo Tonello is the Head of Benchmarking and Analytics at The Conference Board, Inc. This post is based on a report developed by The Conference Board and co-authored by Andrew Jones, Principal Researcher, US Governance & Sustainability Center and Brian Campbell, Center Leader, US Governance & Sustainability Center at The Conference Board.

Drawing on The Conference Board® C-Suite Outlook 2026 global survey of business leaders, this report analyzes how CEOs and CSuite executives in Europe, North America, and globally are recalibrating environmental, social & governance (ESG) priorities for 2026 amid heightened disruption, uncertainty, and execution risk.

Trusted Insights for What’s Ahead®

  • CEOs globally ranked AI as the leading societal or technological shift expected to negatively impact their business in 2026—ahead of political polarization and shifting consumer behaviors—as leaders grapple with scaling new technologies amid regulatory volatility and societal disruption.
  • CEOs globally ranked political uncertainty and public policy shifts as key external governance factors expected to impact business in 2026, with many planning for sustained policy volatility, institutional fragility, and rising AI governance and regulatory complexity.
  • CEOs’ environmental priorities diverged sharply by region, with a significant share of North America’s leaders deprioritizing sustainability issues altogether while others emphasized resource efficiency and advancing clean technology tied to competitiveness.
  • Social priorities in 2026 were anchored strongly in workforce resilience, with CEOs prioritizing education, economic opportunity, and mental health as top enablers of growth and execution.
  • Governance priorities for 2026 reflected an emphasis on performance alongside compliance, with CEOs and C-Suite executives elevating strategy execution and revenue growth while continuing to address established governance areas such as enterprise risk management and succession planning.

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Weekly Roundup: February 6-12, 2026


More from:

This roundup contains a collection of the posts published on the Forum during the week of February 6-12, 2026

Shareholder Engagement: Is the Power of Proxy Advisors and Institutional Investors Shifting?


Shareholder Engagement in Flux: Recent Developments and Practical Implications


2026 Corporate Governance Trends to Watch



Financial Crises: New Insights



Drafting Guidance from Delaware Supreme Court on Earnouts, Efforts Obligations, and Fraud


Climate Disclosure and the Transformation of Gatekeeping


Board of Director Compensation Practices in the Russell 3000 and S&P 500


Delaware Case Applying Indemnification Materiality Scrape Creates Risks for the Unwary


Board Governance in 2026


Corporate Governance, Trust and the ‘Crisis of Insularity’


Limited Risk Disclosure Updates Despite Political and Economic Volatility


Limited Risk Disclosure Updates Despite Political and Economic Volatility

Dean Kingsley is a Principal at Deloitte & Touche LLP, and Kristen Jaconi is a Professor of the Practice in Accounting and Executive Director of the Peter Arkley Institute for Risk Management at the USC Marshall School of Business. This post is based on their recent Deloitte report.

The pace of change in the external risk environment has been unrelenting over the past 12 months, as US companies have faced an unprecedented and highly dynamic set of external drivers impacting their businesses. These drivers have included significant political and regulatory shifts, a complex business environment combining low economic optimism and high interest rates with fairly stable economic growth and labor markets, ongoing and mutating global conflicts and other geopolitical challenges, and substantial disruptions in the global trade environment.

Deloitte and the USC Marshall School of Business Peter Arkley Institute for Risk Management (USC Marshall Peter Arkley Institute for Risk Management) have completed our fifth year of analysis of annual risk factor disclosures of Standard & Poor’s (S&P) 500 companies. Although the Securities and Exchange Commission (SEC) sought to reduce the volume of risk factor disclosures in its 2020 risk reporting reforms, companies have provided lengthier risk factor disclosures this past reporting season reflecting this complex and dynamic environment.

This year, we also conducted a review of the first quarterly reports filed after April 2, 2025 to understand whether companies chose to update their risk factors to reflect any material changes since the filings of their annual reports, an update required by SEC regulations. In fact, over 75% of companies did not update their risk factor disclosures. However, 94 companies did, either restating their risk factors in their entirety or disclosing one to seven stand-alone risk factors. As expected, many of these updated risk factors related to evolving trade policies, government funding and/or contracting, and corporate sustainability reporting.

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Corporate Governance, Trust and the ‘Crisis of Insularity’

Michael Peregrine is a retired attorney and a Fellow of the American College of Governance Counsel.

 

An important new survey encourages corporate boards to address rising signs of insularity within elements of its consumer base and society at large. In this context, “insularity” is described as a reluctance to trust anyone or anything “different from me.” It is thus a condition that can have an enormous influence on business, and institutional strategy and performance – especially in the context of today’s highly polarized public discourse.

That’s the main message from the 2026 edition of the Edelman Trust Barometer (“Barometer”) (2026 Edelman Trust Barometer Global Report), a widely respected global measurement of social trust in institutions. And it is a particularly important message for corporate governance and its duty to preserve external and internal trust in the company, and its vision and values.

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