From time-to-time a controlling shareholder will want to eliminate the minority shareholders by buying them out in a transaction called a freeze-out merger. When challenged, the Delaware courts have reviewed the transaction under an entire fairness standard of review. Unfortunately, the...

For many years, the default rules of corporate and securities law have provided the board of directors (Board) with exclusive authority to decide whether shareholder proposals on proxy access, the ability of certain privileged shareholders to have their own slate of director nominees included in...

Traditionally, the default rules of corporate and securities law have provided a public company s board of directors with exclusive authority to decide whether shareholder proposals on proxy access are to be included in that company s proxy solicitation materials. However, the Securities and...

The shareholder empowerment movement (movement) has renewed its effort to eliminate, restrict or at the very least discourage the use of dual class share structures in initial public offerings (IPOs). This renewed effort was triggered by the recent Snap Inc. IPO that utilized non-voting stock....

With less than $40 million worth of ExxonMobil common stock in hand, but with $30 million to spend, Engine No. 1 executed a proxy fight that succeeded in getting three of its four nominated directors elected to the board of ExxonMobil. This victory was viewed as a success by environmentalists...

When investment funds track the S&P 500, the index becomes more than just a list of 500 companies. The focus then turns to the financial and regulatory issues that arise from the discretionary decision-making of the Index Committee that governs the S&P 500. The discussion of these issues and...

It is important to recognize and accept that when we talk about Environmental, Social, and Governance (“ESG”) investing under ERISA, it is the fiduciary duties of plan managers to which our discussion is directed. It is not the desires of those who advocate for an increased use of ESG...

Please find attached the slides I presented at the George A. Leet Symposium on Nov. 6, 2020. I am going to be revising my white paper, "The Conflict between Blackrock's Shareholder Activism and ERISA's Fiduciary Duties" based on these slides. This revised version will then be published in the...

Under an Arrowian framework, centralized authority and management provides for optimal decision making in large organizations. However, Kenneth Arrow also recognized that other elements within the organization, beyond the central authority, occasionally may have superior information or...

In March of 2021, Allison Herrin Lee, then Acting Chair of the Securities and Exchange Commission (SEC), requested public input on expanding climate change disclosures. In May, Commissioner Lee argued that the SEC had broad authority to require such disclosures, even if the disclosures are...