Yearly Archives: 2026

Chancery Interprets LLC Agreement as Not Eliminating Fiduciary Duties

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, and Erica Jaffe, and is part of the Delaware law series; links to other posts in the series are available here.

In Calumet Capital Partners LLC v. Victory Park Capital Advisors LLC (Jan. 29, 2026), the Delaware Court of Chancery, at the pleading stage of litigation, found it reasonably conceivable that, after Victory Park (the “Investor”) invested in Calumet’s lending business (the “Lender”), the Investor—“with and through” its employee, whom it had appointed to the Lender’s board of managers—engaged in a scheme to undermine the Lender and establish a competing lending business (“Bespoke Capital”). The court interpreted the Lender’s LLC Agreement as not having fully eliminated fiduciary duties for the managers; and found it reasonably inferable from the alleged facts that the Employee, by harming the Lender for the Investor’s benefit, had breached his fiduciary duties to the Lender, aided and abetted by the Investor.

READ MORE »

AI as a Performance Metric: What Companies Are Disclosing Now

Amit Batish is Senior Director of Content & Communications at Equilar, Inc. This post is based on an Equilar memorandum by Mr. Batish and Andrew Gordon.

Over the last few years, the artificial intelligence (AI) boom has swept through corporate America. Across nearly every function and team, AI is being adopted to boost productivity and gain a competitive edge through every available avenue. As a result, employees, particularly executives, are increasingly expected to identify new ways to drive efficiency and improve results through AI-enabled strategies.

As compensation committees evaluate the performance goals used in executive pay programs, AI-focused performance objectives are becoming more common in incentive plan design. In this post, Equilar examines corporate disclosures that highlight how companies are implementing AI into executive compensation programs today.

READ MORE »

Business Concentration around the World: 1900-2020

Yueran Ma is the Carhart Family Professor of Finance at the University of Chicago Booth School of Business, Mengdi Zhang is a PhD student in Finance at Northwestern University, and Kaspar Zimmermann is a Professor of International Macroeconomics and Finance at the University of Hamburg. This post is based on their recent paper.

March 2026 marks the 250th anniversary of The Wealth of Nations. In that foundational text for modern economics, Adam Smith described a decentralized economy of small producers. Over the next two and a half centuries, however, the emergence of large firms began to shatter this blueprint of “atomistic” capitalism. Once upon a time, this shift motivated many observers to discuss and debate the span of control of the visible hand and the “centralization of capitals” (Marx, 1867; Marshall, 1890; Hayek, 1945; Galbraith, 1967; Chandler, 1977; Lucas, 1978). This evolution also inspired influential research on corporate governance (Berle and Means, 1932), which used high production concentration to emphasize that the separation of ownership and control in large corporations is consequential for society.

In the past few years, the rising dominance of large firms has returned to the forefront of economic and legal discourse. Recent discussions have had a particular focus on changes in the United States since around 1980, perhaps due to both greater data availability for this setting and our impression that this period has been rather eventful. An influential finding, based on the widely-used U.S. census dataset with comprehensive coverage over this period, shows that the largest firms account for an increasing share of output in many industries (Autor et al., 2020; Covarrubias, Gutiérrez, and Philippon, 2020). This rise of concentration is often viewed as an unusual development, and many studies have asked whether it results from shifts in technologies, trade, policies, or demographics.

In our new paper, “Business Concentration around the World: 1900–2020,” we assemble a new dataset to examine the rise of large firms through a wide lens, across both time and space. We uncover two sets of facts, which hold broadly over the past century among market-based advanced economies with available data. The foundation for these analyses is official statistics on the firm size distribution with long-run economy-wide coverage, which we have been able to find for ten countries across Asia, Europe, North America, and Oceania, in addition to the United States in our prior work (Kwon, Ma, and Zimmermann, 2024). We focus on market-based economies to study the “organic” evolution of the organization of production (in environments that approximate “Smithian” capitalism), which is not heavily influenced by government interventions. They are also the primary countries where we can find high quality long-run data.

Fact 1: A Century of Rising Concentration in Output and Capital READ MORE »

Delegating Enforceability: A Novel Solution to Corporate Forum Selection Disputes

Noah B. Yavitz is a Partner at Ropes & Gray LLP, and Daniel B. Listwa is an Associate at Wachtell, Lipton, Rosen & Katz. This post was submitted to the Forum and is part of the Delaware law series; links to other posts in the series are available here.

Since their introduction nearly two decades ago,[1] forum selection provisions have become standard in modern corporate governance, with Delaware corporations routinely designating the Court of Chancery as the exclusive forum for “internal affairs” disputes. Yet questions persist about the construction, scope, and enforceability of these provisions—questions that implicate important issues of Delaware corporate law but are often decided by courts outside Delaware.

Consider the recent California Supreme Court decision in EpicentRx, Inc. v. Superior Court, which reversed lower court rulings that had declined to enforce forum selection provisions in a corporation’s charter and bylaws on public policy grounds.[2] While ultimately holding that California’s jury trial policy did not bar enforcement, the court remanded for consideration of whether the provisions were “freely and voluntarily negotiated”—a Delaware law question that California courts must now address.[3]

Similar tensions arise with claims under federal securities laws. Forum selection provisions in charters and bylaws that channel derivative Section 14(a) proxy fraud claims to Chancery have generated particularly acute conflicts—the Ninth Circuit, in Lee v. Fisher, recently upheld such provisions, finding them consistent with both Delaware and federal law, while a divided panel of the Seventh Circuit concluded the opposite in Seafarers Pension Plan v. Bradway.[4]

READ MORE »

Texas Judge Strikes Down Anti-ESG “Boycott” Law

Mollie H. Duckworth and Betty M. Huber are Partners, and Austin J. Pierce is an Associate at Latham & Watkins. This post is based on their Latham & Watkins memorandum.

Key points

  • On February 4, 2026, the US District Court for the Western District of Texas declared SB 13 (2021) unconstitutional under the First and Fourteenth Amendments and enjoined its enforcement, finding the statute facially overbroad and impermissibly vague.
  • The ruling continues a trend of constitutional challenges against laws seeking to promote and/or constrain various ESG considerations.

READ MORE »

Private Equity for All: The Paradoxical Push to Democratize Private Markets

William Clayton is a Professor of Law at J. Reuben Clark Law School, Brigham Young University, and Elisabeth de Fontenay is the Karl W. Leo Professor of Law at Duke University School of Law. This post is based on their recent paper, forthcoming in the Duke Law Journal.

Efforts to open private equity and other private assets to retail investors—including now through 401(k) plans—are often framed as a long-overdue democratization of superior investment opportunities. Indeed, private equity has always been viewed as special, both for its market-beating returns and its success in making companies more profitable, yet it has historically been off-limits to retail investors.

In Private Equity for All: The Paradoxical Push to Democratize Private Markets, we argue that the push to democratize private equity is subject to a glaring paradox. Far from sharing the spoils of private equity with the public, opening private markets to retail investors at scale is likely to erode or eliminate each and every one of the supposed advantages of private equity over public markets—not just for retail investors but across the market. Consequently, whether private equity’s appeal lies in superior investor returns or superior corporate governance, broad retail access is likely to ensure that neither one is achieved.

The debate has become urgent. New products targeting retail investors are continually being launched by private-asset managers and blessed by regulators. And in the summer of 2025, an executive order directed the U.S. Securities and Exchange Commission and U.S. Department of Labor to pave the way for private equity to access a particularly massive pool of retail capital: the $10 trillion 401(k) market. READ MORE »

Vanguard Capital Management: Proxy Voting Policy for U.S. Portfolio Companies

Glenn Booraem is the Head of Investment Stewardship, Vanguard Capital Management at Vanguard. This post is based on a Vanguard piece.

Introduction

This proxy voting policy (the Policy) describes general positions on matters that may be subject to a shareholder vote at U.S.-domiciled companies and is aligned with governance practices believed to support long-term shareholder returns. The Policy has been adopted by the boards (or relevant governing bodies) of funds and portfolios managed by certain Vanguard-affiliated entities including U.S.-domiciled mutual funds and ETFs advised by Vanguard Capital Management, LLC (VCM), as well as the boards of Vanguard Asset Management, Ltd., Vanguard Fiduciary Trust Company, Vanguard Global Advisers, LLC, and Vanguard Investments Australia Ltd in connection with their management of certain equity index funds and portfolios (together with the U.S.-domiciled mutual funds and ETFs advised by VCM, the “Funds”). The adoption of this Policy is anchored in the belief that effective corporate governance practices support long-term investment returns.

It is important to note that proposals—whether submitted by company management or other shareholders—often require a facts-and-circumstances analysis based on an expansive set of factors. While the Policy may recommend a particular voting decision, all proposals are voted case by case as determined in the best interests of each Fund consistent with its investment objective. The Policy is applied over an extended period of time; as such, if a company’s board is not responsive to voting results on certain matters, support may be withheld for those and other matters in the future.

READ MORE »

Weekly Roundup: February 20-26, 2026


More from:

This roundup contains a collection of the posts published on the Forum during the week of February 20-26, 2026

Delaware Supreme Court Affirms D&O Coverage


Succession Planning in Private Equity: A Strategic Imperative for GPs and LPs


Artificial Intelligence in the Boardroom


Recent Developments for Directors




2026 Outlook for Corporate Citizenship and Philanthropy


SEC Adds Flexibility to M&A, Proxy, and Tender Offer Rules with New Interpretations


Remarks by Chair Atkins on Capital Formation and the INVEST Act



Nevada v. Delaware: The New Market for Corporate Law


Remarks by Commissioner Peirce on Private Secondaries in Capital Markets


Remarks by Commissioner Peirce on Private Secondaries in Capital Markets

Hester M. Peirce is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on her recent remarks. The views expressed in this post are those of Commissioner Peirce and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

Good morning, and thank you all for attending today’s meeting. Welcome to the Committee’s new members. I appreciate the work of the Committee and the willingness of experts to share their views as panelists. I also appreciate the work of the Office of the Advocate for Small Business Capital Formation in supporting the Committee’s work.

I commend the Committee for its continued focus on finders and look forward to any recommendations the Committee develops. As I mentioned at the last meeting, current activity in this area is shaped by a muddled web of no-action letters that is out of step with practical realities. Last meeting’s discussion of status quo finder activity underscored that point. The absence of a finder’s framework does not deter bad actors. Good actors may unwittingly act as finders, or, if they are aware of the law’s unduly strict limitations, may observe from the sidelines rather than helping to match investors and companies. I appreciated your in-depth discussion of what sensible finders regulation could look like and your focus on how finders can help companies to raise money in amounts too small for brokers to bother with. You covered a lot of other territory as well, from essential disclosures for finder activity to AI agents. I hope today’s discussion will be equally interesting and constructive as you devise recommendations.

READ MORE »

Nevada v. Delaware: The New Market for Corporate Law

Michal Barzuza is a Professor of Law at the University of Virginia. This post is based on her recent paper.

The Article provides the first comprehensive analysis of Nevada’s statutory amendments, legislative history, and case law. It shows that Nevada corporate law effectively forecloses shareholder litigation eliminating the shareholder rights and management accountability that have long characterized American corporate law. It reveals how plaintiff shareholders face an impossible bind: they must plead intentional wrongdoing to survive dismissal, yet Nevada uniquely bars access to the books and records necessary to meet this burden.

Nevada corporate law has become a central focus in corporate America. Nevada has emerged as Delaware’s principal competitor, second only to Delaware in attracting out-of-state incorporations while dominating reincorporations out of Delaware. Firms cite reduced litigation exposure as a key advantage of incorporating in Nevada. The competitive pressure from Nevada is evident: Delaware amended its law to reduce scrutiny of self-dealing transactions, moving closer to Nevada’s approach, and Texas has incorporated elements of Nevada’s statutory scheme.[1] READ MORE »

Page 45 of 56
1 … 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56