Testimony in House Subcommittee Hearing: “The Proxy Advisor Duopoly’s Anticompetitive Conduct”

Nell Minow is the Vice Chair of ValueEdge Advisors.

I am very grateful for the opportunity to share my thoughts on proxy advisory firms and antitrust concerns. I welcome your questions and will submit supplemental materials as necessary following this session.

My connection to this field is that when I left the Justice Department’s Antitrust Division during the Reagan administration as a special assistant to now-Judge Douglas Ginsburg, I was the fourth person hired and the first General Counsel at Institutional Shareholder Services (ISS). I left as President of ISS in 1990 and remained on its board of directors until 1992. While I have remained in the field of corporate governance ever since, always on behalf of shareholders, I have no connection to any company providing proxy advisory services, and am appearing today on my own behalf, and not representing or being paid by anyone. Neither I, my partners, or my clients are in any way financially benefitted by the matters covered in this hearing, except as they affect the options available for purchase by institutional investors to evaluate investment risk and the overall robustness of our capital markets.

Before I went to DOJ, ISS founder Bob Monks and I met working on President Reagan’s Regulatory Relief initiative, he in then-Vice President Bush’s office and I at the Office of Management and Budget. It may help you understand my perspective if I explain that my education at the University of Chicago Law School, those two positions in government, and my career in the private sector as a founder or co-founder of five companies, three of which have been sold, reflects my commitment to free markets as the foundation for a healthy economy. That means limiting federal government interference most of the time to matters of public health and safety, the social safety net, and resolving conflicts of interest and collective choice problems.

READ MORE »

Weekly Roundup: June 26-July 2, 2025


More from:

This roundup contains a collection of the posts published on the Forum during the week of June 26-July 2, 2025

Remarks by Commissioner Crenshaw at the Executive Compensation Roundtable


Remarks by Chair Atkins at the Executive Compensation Roundtable


Remarks by Commissioner Uyeda at the Executive Compensation Roundtable


Protecting GP Discretion in Valuing Incentive Units: Lessons from Walker v. FRP


Tribute to Bob Monks


An Ode to Robert Monks


Bob Monks: A Life in Corporate Governance


Delaware Supreme Court Reaffirms Protection of Arm’s-Length Bargaining



Tariffs, Targets and Transparency


The Board Observer: Considerations and Limitations


No Exit


How to Overcome Barriers to Sustainable Value Creation


Reincorporation Considerations for Late-Stage Private and Pre-IPO Companies


CEO Survey


CEO Survey

Benjamin Finzi and Brett Weinberg are Managing Directors, and Elizabeth Molacek is a Manager at Deloitte LLP. This post is based on a Deloitte memorandum by Mr. Finzi, Mr. Weinberg, Ms. Molacek, Vincent Firth, and Betsy Mann.

Survey methodology

111 CEOs representing more than 21 industries participated in this Fortune/Deloitte CEO Survey. 80% of respondents are from organizations based in the United States, and the remainder are from organizations based outside of the United States.

It is important to note that the survey was conducted from April 1 to April 11, immediately following the announcement of reciprocal tariffs on April 2. The results may be influenced by the heightened uncertainty due to the tariff announcements, stock market fluctuations, and bond market volatility.

The survey consisted of 8 questions that explored outlook, the economy, and artificial intelligence. The following pages present key findings.

Surveyed CEOs include Fortune 500 CEOs, Global 500 CEOs, and select public and private CEOs in the global Fortune community.

READ MORE »

Reincorporation Considerations for Late-Stage Private and Pre-IPO Companies

Courtney Tygesson is a Partner, Kealan Santistevan is an Associate, and Lisa Cossi is a Resource Attorney at Cooley LLP. This post is based on their Cooley memorandum.

Introduction

Companies thinking about, preparing for or going through the initial public offering (IPO) process have many things to do and many decisions to make (to put it mildly!). A relatively recent addition to this list of considerations for Delaware-incorporated companies is whether to reincorporate in a different state, with Nevada and Texas emerging as the front-runners.

Such moves – referred to in the industry as “DExit” – appear to be a response to recent Delaware court decisions that business leaders consider arbitrary and/or stifling to business interests, as well as a perception of Delaware as an increasingly litigious environment. We discuss this new landscape below, analyzing how we got here and what to consider now, to help Delaware-incorporated companies understand what may be at play if they’re thinking of packing up and hitting the road.

READ MORE »

How to Overcome Barriers to Sustainable Value Creation

Hans Reus is a Consultant at Russell Reynolds Associates. This post is based on his Russell Reynolds memorandum.

The business world stands at a critical inflection point. As tariff uncertainty and geopolitical tensions continue, the planet’s health declines and social inequalities widen, corporate action on sustainability has never been more urgent. Why? Because perpetual growth simply is not possible on a finite planet, and because sustainability offers huge business opportunities. READ MORE »

No Exit

Brian Broughman is a Professor at Vanderbilt Law School. Matthew Wansley and Sam Weinstein are Professors at Cardozo School of Law. This post is based on their paper.

The six most valuable companies in the world were once venture-backed startups. Alphabet, Amazon, Apple, Meta, Microsoft, and Nvidia, started out as small, private companies. They raised money from venture capitalists (VCs) to fuel their growth. They developed new technologies—search engines, online marketplaces, personal computers, social networks, operating systems, and graphics processing units. And then they did what most fast-growing private companies used to do—they went public.

Venture-backed startups used to have predictable lifecycles. A startup would raise a new round of capital every twelve to twenty-four months. After several rounds, the startup’s founders and employees would want to convert their shares to cash, and its VCs would need to deliver returns to their limited partners (LPs). The startup would exit the private market, so its shareholders could exit their investments. For some startups, the exit was an initial public offering (IPO). For others, the exit was an acquisition by a larger company.

The predictability of the startup lifecycle made the private-public divide coherent. When a startup grew enough to have a significant impact on society, it would usually become a public company or be sold to one.

Around the turn of the century, though, the startup lifecycle began to change, and the private-public divide began to blur. The number of IPOs fell precipitously. The share of startups exiting by acquisition rose. Many startups stayed private even as they grew into large companies. Some became “unicorns”—private companies valued over $1 billion. READ MORE »

The Board Observer: Considerations and Limitations

Michelle Gasaway and Jeremy Winter are Partners at Skadden, Arps, Slate, Meagher & Flom LLP. This post is based on their Skadden memorandum.

Overview

Appointing a board observer has long been a tool in an investor’s arsenal. Board observers can represent the interests of the appointing investor by monitoring and participating in the activities and decisions of the company’s board of directors. They can observe meetings of the board, ask questions of the other directors and weigh up on key deliberations. By observing the inner workings of a company’s board of directors and indirectly influencing board decisions, a board observer can help to monitor-and protect the value of-the appointing entry’s investment.

Board observers are distinguishable from board directors in terms of voting power, fiduciary liability, and the source of their rights and obligations. While board observers can indirectly influence a board’s decisions by asking parties questions and providing constructive feedback ask board meetings. only members of a company’s board of directors have the right to formally vote on matters submitted for approval by the company’s board of directors. While members of a board of directors generally have fiduciary duties to the corporation on whose board they serve (including, in the case of a corporations organized in Delaware, the fiduciary duties of care and loyalty, including the subsidiary duties of good faith, oversight, and disclosure). board observers do not owe fiduciary duties to the corporations whose boards they observe and to other stakeholders in such corporations. Rather, the rights and duties of board observers are defined by contract between the corporation and the appointing investor.

READ MORE »

Tariffs, Targets and Transparency

Alexa Kierzkowski and Metin Aksoy are Managing Directors at FW Cook. This post is based on their FW Cook memorandum.

ACCOUNTING FOR UNKNOWNS is always the most challenging aspect of executive compensation design—and that exercise is shaping up to be particularly tricky this year. In addition to ongoing external forces like geopolitical tension and inflationary pressure, boards now also face uncertainty around tariffs as they address goal-setting and incentive pay practices.

“How tariff actions will actually unfold and what impact those actions will have on businesses and industries are still unknown,” says Alexa Kierzkowski, a managing director at FW Cook. “And the challenge of ensuring that payouts align with actual performance is that much more difficult when boards are dealing with the prospect of an exogenous item that is out of everyone’s control.”

Timing will also factor heavily in how compensation committees anticipating an impact on operational performance can approach addressing tariff uncertainty in their compensation plan design. Companies grappling with the challenge fall into two camps—those that have yet to finalize their plan terms for the year and those that have already established goals and incentive pay terms, which includes most companies with a December 31 fiscal year end.

PRE-PLAN DESIGN OPTIONS

Some companies still in the design phase of annual incentive pay planning when tariff actions were initially announced opted to postpone goal-setting. “In some cases, companies set first-half goals and delayed goal-setting for the second half of the bonus plan due to the uncertainty related to tariffs,” says Kierzkowski, who adds that as hope of the picture clarifying dwindles, compensation committees seeking to proactively account for external disruptions in their incentive pay programs can consider four approaches: READ MORE »

Remarks by Jill Fisch Before the Investor Advisory Committee of the U.S. Securities and Exchange Commission

Jill E. Fisch is the Saul A. Fox Distinguished Professor of Business Law at the University of Pennsylvania Law School. This post is based on her remarks before the SEC’s Investor Advisory Committee.

Thank you for the opportunity to participate in the committee’s discussion about engaging with beneficial owners. I come to today’s discussion in two capacities. As an academic, I have researched and written extensively about mutual funds, shareholder voting and the distinctive challenges to effective retail investor participation in corporate governance. As a retail investor, I can speak from personal experience as to those challenges.

I am a chaired professor at the University of Pennsylvania Carey Law School where I have been teaching and writing about securities regulation and corporate governance since 2009. Prior to that I taught at Fordham Law School for almost 20 years. I previously practiced law at a Wall Street firm and the US Department of Justice.

Statistically we know that retail investor participation in corporate governance is extremely limited. Retail investors own almost 1/3 of publicly traded equity, yet only about 29% of retail shares are voted, compared to around 90% of shares held by institutional investors. So retail investors often own enough stock to make a difference, and the question is why don’t they participate more?

Several factors limit retail participation in corporate governance. One is information. Unlike institutional investors, retail investors generally do not have access to efficient sources of information about shareholder votes such as the reports and recommendations of proxy advisors. Although proxy statements contain extensive information, they are so long and detailed that, as a practical matter, most investors ignore them completely. Tesla’s 2024 proxy statement, while concededly an outlier, was 443 pages including appendices. Media reports provide information on certain high-profile votes like proxy contests and mergers, but that information is often the product of journalistic choices and need not include information investors might want to know.

A second constraint is time. Voting is a cumbersome process. For retail investors, it generally requires logging into their brokerage account and then logging into a separate platform such as proxy vote to vote their shares. Multiple accounts may not be integrated and may require multiple logins. Then the investor must populate each individual voting decision separately. This process must be repeated each time there is new voting period for an issuer – so it isn’t like an investor can go through this once each proxy season. There is no mechanism to prepopulate according to an investors’ general voting policies, a procedure of providing advance or standing voting instructions that institutional investors have access to and that I have recommended be extended to retail investors.[1] READ MORE »

Delaware Supreme Court Reaffirms Protection of Arm’s-Length Bargaining

Arthur R. BookoutJoseph O. Larkin and Edward B. Micheletti are Partners 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.

On June 17, 2025, the Delaware Supreme Court reversed a post-trial finding of aiding and abetting liability against a third-party arm’s-length buyer. In doing so, the court built upon another recent decision and reaffirmed its commitment to protecting arm’s-length bargaining by requiring “actual knowledge” of wrongful conduct and substantial active assistance of such conduct to prove liability against an independent third-party buyer.

Background

In 2016, Columbia Pipeline Group, Inc. was acquired by Canadian energy company TC Energy Corp. (formerly TransCanada) for approximately $10 billion. The transaction resulted in significant change-in-control payments to Columbia’s top executives, who were also leading the sale negotiations.

After the deal closed, Columbia’s stockholders sued, alleging that Columbia’s executives and board of directors had breached their fiduciary duties by prioritizing their own interests — specifically, their lucrative retirement packages — over maximizing value for stockholders. The stockholders also claimed that TC Energy, as the buyer, had aided and abetted these breaches.

The Columbia executives settled before trial for $79 million, while TC Energy went to trial. READ MORE »

Page 1 of 1238
1 2 3 4 5 6 7 8 9 10 11 1,238