Monthly Archives: May 2026

Weekly Roundup: May 8-14, 2026

Posted by the Harvard Law School Forum on Corporate Governance, on
Friday, May 15, 2026

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This roundup contains a collection of the posts published on the Forum during the week of May 8-14, 2026

Prevalence of CEO Personal Security Perquisites Continues to Rise

Posted by Kyle Eastman and Gray Broaddus, Compensation Advisory Partners, on Friday, May 8, 2026
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Remarks by Chairman Atkins on AI Innovation, Capital Markets, and Regulatory Flexibility

Posted by Paul Atkins, U.S. Securities and Exchange Commission, on Saturday, May 9, 2026
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Remarks by Chairman Atkins on the Role of Economic Analysis in Financial Market Regulation

Posted by Paul Atkins, U.S. Securities and Exchange Commission, on Sunday, May 10, 2026
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Uneasy Handshakes: Observations on Informal Settlements in Shareholder Activism

Posted by Sergi Corbatera, DEF 14 Inc., on Monday, May 11, 2026
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AI Corporate Governance and Ben & Jerry’s Risk

Posted by Jesse Fried (Harvard Law School) and Idan Reiter (Harvard Law School), on Monday, May 11, 2026
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From Principles to Practice: Governing AI in the Corporation

Posted by Matteo Tonello, The Conference Board, Inc., on Monday, May 11, 2026
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Control Issues: Delaware Holds Parties to Their Bargain in Recent Governance Decisions

Posted by Adam Magid, Douglas Mo, and Peter Bariso, Cadwalader, Wickersham & Taft LLP, on Tuesday, May 12, 2026
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Special Equity Awards: Navigating Governance Considerations

Posted by Kenneth Sparling, FW Cook, on Tuesday, May 12, 2026
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Delaware Law Permits Companies to Adopt Mandatory Arbitration Clauses for Federal Securities Claims

Posted by Doru Gavril and Mia Tsui, Freshfields US LLP, on Wednesday, May 13, 2026
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Not New: A Response to Claims About “New Control” in Control and its Discontents

Posted by Hon. J. Travis Laster, Delaware Court of Chancery, on Wednesday, May 13, 2026
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CEO/Chair Leadership: When and Why Boards Combine or Separate the Roles

Posted by Matteo Tonello, The Conference Board, Inc., on Wednesday, May 13, 2026
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Recent Developments Affecting US Public Companies and Boards

Posted by Julia Thompson, Keith Halverstam, and Jenna Cooper, Latham & Watkins LLP, on Thursday, May 14, 2026
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Beyond Deregulation Simplification as Institutional Design

Posted by Maria Lucia Passador (Bocconi University), on Thursday, May 14, 2026
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2026 Comparison of Key Corporate Governance Features in the Cayman Islands, Delaware, Nevada, and Texas

Posted by James Crowe, Council of Institutional Investors, on Thursday, May 14, 2026
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2026 Comparison of Key Corporate Governance Features in the Cayman Islands, Delaware, Nevada, and Texas

Posted by James Crowe, Council of Institutional Investors, on
Thursday, May 14, 2026
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James Crowe is the Research Manager at the Council of Institutional Investors. This post is based on his Council of Institutional Investors Research and Education Fund memorandum.

This resource offers a high-level comparison of jurisdictional approaches among Delaware, Nevada, Texas and the Cayman Islands. The table summarizes critical corporate governance and shareholder rights differences such as director and officer liability, fiduciary duties, and shareholder litigation rights, highlighting how specific features impact corporate oversight and investor protections.

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Beyond Deregulation Simplification as Institutional Design

Posted by Maria Lucia Passador (Bocconi University), on
Thursday, May 14, 2026
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Maria Lucia Passador is an Assistant Professor of Corporate Law and Financial Markets Regulation at the University of Bocconi. This post is based on her recent article, forthcoming in the American Journal of Comparative Law.

Calls for “simplification” have become the anthem of modern financial regulation. Everyone seems to want it: legislators, regulators, firms, investors, policy commentators. The promise is always appealing. Simplify the rules, reduce the burden, make the system easier to navigate. But in finance, as in law more generally, what sounds obvious is often misleading. Simplicity is rarely simple.

My paper begins from a basic observation: in contemporary financial regulation, simplification is too often misunderstood as reduction. That is the conventional picture. We imagine a dense thicket of rules and assume that simplification means cutting some of them away. But that picture does not survive contact with reality. In the real architecture of financial governance, complexity is seldom abolished. It is reorganized, translated, relocated, and made to appear more manageable. The paper’s central claim is therefore straightforward: simplification should be understood not as the opposite of complexity, but as a way of governing complexity. READ MORE »

Recent Developments Affecting US Public Companies and Boards

Posted by Julia Thompson, Keith Halverstam, and Jenna Cooper, Latham & Watkins LLP, on
Thursday, May 14, 2026
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Julia Thompson, Keith Halverstam, and Jenna Cooper are Partners at Latham & Watkins LLP. This post is based on a Latham memorandum by Ms. Thompson, Mr. Halverstam, Ms. Cooper, Charles Ruck, Ryan Maierson, and Joel Trotter.

Capital Strategy Has Become a Core Oversight Responsibility

Capital strategy has emerged as an important issue for boards. The financing landscape has shifted materially in recent years and remains dynamic. Capital has diversified beyond traditional banks to include private credit and insurance capital, and a robust hybrid instrument market now sits between equity and debt, even for investment grade companies. In stressed environments, liability management techniques can provide additional flexibility. These changes affect not only liquidity and cost of capital but also strategic flexibility, M&A readiness, exposure to shareholder activism, and overall enterprise resilience. As a result, boards are overseeing capital structure as an ongoing governance matter rather than engaging only when a financing need becomes imminent. Regular board-level oversight includes ensuring management maintains a continuous, comprehensive view of financing options, regularly evaluates alternatives, and stress tests the durability of the capital structure under a range of scenarios. Latham’s Capital Strategies Practice supports this mandate by bringing an independent, market-wide perspective to capital structure decisions, complementing traditional transaction-focused legal advice.

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CEO/Chair Leadership: When and Why Boards Combine or Separate the Roles

Posted by Matteo Tonello, The Conference Board, Inc., on
Wednesday, May 13, 2026
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Matteo Tonello is the Head of Data Benchmarking and Analytics at The Conference Board, Inc. This post is based on a report developed by The Conference Board in partnership with ESGAUGE, KPMG, Russell Reynolds, and the University of Delaware and authored by Ariane Marchis-Mouren, Senior Researcher, Corporate Governance at The Conference Board.

This report examines CEO/chair leadership structures in the S&P 500 and Russell 3000, focusing on succession events, chair independence, and related policy and rationale disclosures. Leadership structure remains context dependent, and most disclosures preserve board discretion to separate or combine the roles based on circumstances.

Trusted Insights for What’s Ahead®

• Large-cap companies are more likely to have a combined CEO/chair. In 2025, the current CEO served as chair at 42% of S&P 500 companies, compared with 34% in the Russell 3000.

• Incoming CEOs are rarely elected board chair at the time of transition. In 2025, 3 of 65 CEO successions in the S&P 500 (4.6%) and 9 of 353 in the Russell 3000 (2.5%) involved the CEO being named board chair at the same time.

• Most companies disclose a policy that preserves board discretion. In 2025, 79% of S&P 500 companies and 71% of Russell 3000 companies disclosed policies giving the board flexibility to separate or combine the roles depending on circumstances.

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Not New: A Response to Claims About “New Control” in Control and its Discontents

Posted by Hon. J. Travis Laster, Delaware Court of Chancery, on
Wednesday, May 13, 2026
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The Honorable J. Travis Laster is Vice Chancellor at the Delaware Court of Chancery. This post is based on his paper and is part of the Delaware Law Series and the Controlling Shareholder Series; links to other posts in the Delaware Law Series are available here; links to other posts in the Controlling Shareholder Series are available here.

“Amicus Plato, sed magis amica veritas.” In translation, “Plato is my friend, but truth is a greater friend.” That sentiment, attributed to Aristotle, captures my response to Control and its Discontents, an article by Professors Jill E. Fisch and Steven Davidoff Solomon. Both are distinguished scholars whom I respect and whose work I often cite. But productive academic engagement requires dealing forthrightly with precedent, and Discontents does not.

Discontents asserts that three recent Delaware decisions—Match, Sears Hometown, and Tornetta—marked a sea change in Delaware law by taking a novel and theoretically unjustified approach to controlling stockholders. On that premise, Discontents urges a return to what the article characterizes as traditional limits on judicial oversight of controlling stockholders. Discontents argues that Delaware courts historically (1) only applied entire fairness to controlling-stockholder freeze-outs and asset sales, (2) always exempted stockholder-level conduct by controlling stockholders (such as voting and selling) from fiduciary review, and (3) confined findings of non-majority control to stockholders with a near majority of the voting power. READ MORE »

Delaware Law Permits Companies to Adopt Mandatory Arbitration Clauses for Federal Securities Claims

Posted by Doru Gavril and Mia Tsui, Freshfields US LLP, on
Wednesday, May 13, 2026
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Doru Gavril is a Partner and Mia Tsui is an Associate in the Securities Litigation practice at Freshfields US LLP. This post is based on their Freshfields memorandum and is part of the Delaware law series; links to other posts in the series are available here.

Contrary to conventional wisdom, Delaware law does not prohibit mandatory arbitration clauses for securities claims. Opinions to the contrary appear rushed and unmoored from statutory text, as well as ignoring both the long-standing public policy of Delaware and established principles of federalism.

In September 2025, the Securities and Exchange Commission voted to remove restrictions on public companies’ adoption of mandatory arbitration clauses for securities claims. The significance of such clauses cannot be overstated: they can significantly reduce the legal fees of defending securities claims, and, by removing the specter of class actions, allow companies to try these claims on their merits rather than accede to extortionate settlements negotiated in the shadow of jury trial uncertainty. Some observers have hailed mandatory arbitration clauses as the remedy to the persistent abuses perceived to endure in stockholder litigation,[1] and others have decried them as upending a well-honed system of private securities enforcement.[2] Whether good or bad, a normative question we do not address here, both camps agree that mandatory arbitration clauses can be transformative.[3]

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Special Equity Awards: Navigating Governance Considerations

Posted by Kenneth Sparling, FW Cook, on
Tuesday, May 12, 2026
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Kenneth Sparling is a Managing Director at FW Cook. This post is based on his FW Cook memorandum.

In 2023, Fair Isaac Corporation’s board faced a situation many compensation committees encounter: a proven, long-tenured CEO who had become retirement-eligible, an active market for executive talent, and a retention challenge the regular program was not designed to solve on its own. The board’s answer was a $30 million 5-year retention grant outside of the regular program. It was a deliberate decision made for clear business reasons — and it is a recognizable example of why special equity awards remain a legitimate part of the compensation toolkit.

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Control Issues: Delaware Holds Parties to Their Bargain in Recent Governance Decisions

Posted by Adam Magid, Douglas Mo, and Peter Bariso, Cadwalader, Wickersham & Taft LLP, on
Tuesday, May 12, 2026
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Adam Magid and Peter Bariso are Partners and Douglas Mo is an Associate at Cadwalader, Wickersham & Taft LLP. This post is based on their Cadwalader memorandum, and is part of the Delaware Law Series and the Controlling Shareholder Series; links to other posts in the Delaware Law Series are available here; links to other posts in the Controlling Shareholder Series are available here.

Delaware is widely known as a “contractarian” state when it comes to corporate law, upholding freedom of contract principles for sophisticated parties. That bias was on display in three recent post-trial Court of Chancery decisions involving control and governance of closely held Delaware companies:

  • In Ropko et al. v. McNeill, Jr., [1] the Court held that an LLC manager could not turn a voting agreement—requiring the other managers to vote in lockstep—into unrestricted authority to remove them by unilateral written consent.
  • In Fortis Advisors, LLC v. Krafton, Inc., [2] the Court rejected a buyer’s attempt to seize control of the target company by fabricating grounds to terminate its founders for “Cause.”
  • In In re Priority Responsible Funding LLC, [3] the Court declined to permit one of two co-managing members to keep a deadlocked LLC afloat because the operating agreement lacked a tiebreaker mechanism.

Together, these decisions highlight that, when control and governance are in dispute, Delaware courts will enforce not only the rights parties grant—but the constraints and gaps they accept.

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From Principles to Practice: Governing AI in the Corporation

Posted by Matteo Tonello, The Conference Board, Inc., on
Monday, May 11, 2026
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Matteo Tonello is the Head of Data Benchmarking and Analytics at The Conference Board, Inc. This post is based on a report developed by The Conference Board in partnership with ESGAUGE and authored by Andrew Jones, Principal Researcher, Governance & Sustainability Center at The Conference Board.

Drawing on a recent survey of 70 corporate citizenship leaders, this report examines how companies are adjusting citizenship and philanthropy budgets, priorities, partnerships, and capabilities amid an evolving economic, policy, and reputational landscape.

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