Category Archives: Boards of Directors

Shareholder Activism: Ten Trends for 2026

by David Katz, Elina Tetelbaum, and Loren Braswell

From left to right: David Katz, Elina Tetelbaum, and Loren Braswell (photos courtesy of Wachtell, Lipton, Rosen & Katz)

Shareholder activism is at record levels and is no longer limited to the “proxy season.” Dozens of U.S. activist situations are underway for 2026 annual meetings, well before the windows for nominations open at most targeted companies. Activists are preparing for the fall conference circuit at which they will debut many of their 2026 campaigns, already working behind the scenes at companies by contacting their management, directors, investors, employees, sell-side analysts, and other key constituencies. Here are ten trends to expect for the year ahead.

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Future-Proofing Private Equity and Venture Capital: Leveraging AI for Strategic Advantage and Higher Returns

by Sabrina Hannam, Ibe Imo, Shana Sharan, and Ash Buonasera

Left to right: Sabrina Hannam, Ibe Imo, Shana Sharan and Ash Buonasera (photos courtesy of Boardswell)

In the high-stakes world of private equity, venture capital, and technology, a silent revolution is underway, transforming the very essence of how firms operate and compete. It’s a story not of human titans clashing in boardrooms, but of a new collaborator—Artificial Intelligence (AI)—that is rewriting the rules of engagement for human capital management. Once a tool for streamlining simple tasks, AI has evolved into a “digital colleague,” capable of autonomous decision-making and strategic support that extends far beyond the traditional confines of talent acquisition. This shift is challenging long-held practices and heralding an era where success is no longer solely defined by human intuition but by a symbiotic relationship between bold leadership and intelligent machines. Continue reading →

What Could Go Wrong? Crisis Communications Preparedness for Board Directors

by Cari Robinson and Amelia Fogg

Left to right: Cari Robinson and Amelia Fogg (photos courtesy of the authors)

It is essential for board directors to understand and test whether their companies are prepared to handle unexpected and critical situations. In most cases, it falls to management to run point during a crisis, but boards are responsible for overseeing the company’s response, monitoring the situation, providing guidance and support, and making key decisions throughout the crisis. In addition to ensuring response plans are in place, directors must also understand how vital effective communication is for navigating and recovering from a crisis, as a company’s response to a crisis (or lack thereof) often defines reputational impact more than the issue itself. Clear, credible, and timely communication helps control the narrative, demonstrates accountability, and builds trust. However, saying the wrong thing in a crisis can erode trust, inflame the situation and subject the board and the company to unnecessary risk and liability.

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Board Priorities in a Geopolitical Landscape: Risk, Compliance, and Supply Chain Resilience

This post comes from a webinar with Bets Lillo, Edward Knight, Will A. Clarke, and Jana del-Cerro delivered on May 22, 2025. They offered a clear-eyed view of how boards and executive management must adapt to effectively lead amid a world where national security, economic policy, and supply chain resilience are deeply intertwined. Five key takeaways from their discussion are outlined below, alongside practical implications for boardroom oversight and planning.

From left to right: Bets Lillo, Edward Knight, Will A. Clarke, and Jana del-Cerro (photos courtesy of authors).

As the impact of global interdependencies becomes increasingly complex, boards and executive management are guiding and governing their companies in an unpredictable environment. That was the central theme of the recent May 2025 webinar, Geopolitical Issues Impacting Global Supply Chains and National Security, hosted by the Nasdaq Center for Board Excellence and the Program on Corporate Compliance and Enforcement at NYU School of Law.

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Delaware Enacts Sweeping Changes to Treatment of Conflicted Transactions

by Morgan A. Davis, Susan Reagan Gittes, Gordon Moodie, Maeve O’Connor, Zachary H. Saltzman, Shannon Rose Selden, Erik J. Andrén, and David J. Hotelling

From left to right: Morgan A. Davis, Susan Reagan Gittes, Gordon Moodie, Maeve O’Connor, Zachary H. Saltzman, Shannon Rose Selden, Erik J. Andrén, David J. Hotelling (photos courtesy of Debevoise & Plimpton)

Against the backdrop of several high-profile corporate departures from Delaware and chatter about possible future departures, on March 25, 2025, Delaware Governor Matt Meyer signed into law S.B. 21, which amends the Delaware General Corporation Law to provide greater clarity as to the treatment of transactions involving conflicted directors or controlling stockholders and to constrain the scope of materials available pursuant to stockholder books-and-records demands. The Office of the Governor touted the bill as “aimed at ensuring the state remains the premier home for U.S. and global businesses.”

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When Does Caremark Have Teeth?

by Jennifer Arlen

Photo courtesy of the author

Directors’ liability for corporate trauma stemming from their failure to carry out their duties to oversee and terminate corporate misconduct is a vital tool in the effort to deter corporate crime. Delaware’s Caremark doctrine imposes such duties and liability on directors but this liability is only effective when two conditions are met: First, the corporate trauma must result from a legal violation, as opposed to a business risk. Second, the legal violation must constitute a “mission critical legal risk” (MCLR), as only then are directors subject to sufficiently specific and binding oversight duties to induce them to exert greater oversight over both compliance and suspected MCLR misconduct.[1]

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Thoughts for Boards: Key Issues in Corporate Governance for 2025

by Martin Lipton, Steven A. Rosenblum, Karessa L. Cain, Elina Tetelbaum, and Hannah Clark

Left to right: Martin Lipton, Steven A. Rosenblum, Karessa L. Cain, Elina Tetelbaum, and Hannah Clark (photos courtesy of Wachtell, Lipton, Rosen & Katz)

As we look ahead to the challenges and opportunities facing boards of directors in this new year, it is illuminating to reflect on how much has changed in corporate governance. Over the last five decades, we have been on the front lines with our clients as the evolution of corporate governance has been propelled by multiple crises and systemic shocks—including the Enron and WorldCom scandals and ensuing Sarbanes-Oxley legislation, which prompted incremental layers of disclosure and regulations, followed by the financial crisis and subsequent Dodd-Frank reforms, and most recently the Covid pandemic, which intensified the spotlight on ESG and stakeholder governance. In the private ordering arena, ISS and shareholder activists were remarkably successful in changing the status quo for once-common governance features like staggered board structures, and we saw the shelving of poison pills—a defense we originated and subsequently defended in Moran, Airgas and other cases. These trends have, in turn, increased the prevalence and omnipresent threat of proxy fights. And as the corporate governance debates have continued to evolve, we have seen institutional investors become increasingly active participants, with detailed and often diverging policies setting forth their priorities, preferences and perspectives on issues ranging from climate disclosures to DEI to over-boarded directors. The compounding effect is that boards today are expected to navigate a corporate governance landscape that has become much more complex and nuanced, with an expanding set of expectations for their oversight role and responsibilities.

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AI Judgment Rule(s)

by Katja Langenbucher

Photo courtesy of author

In an upcoming paper, I explore whether the use of AI to enhance decision-making brings about radical change for legal doctrine or, by contrast, is just another new tool. The essay submits that we must rethink the law’s implicit assumption that (and how) humans make the decisions that corporate law regulates. If there is movement in implicit assumptions about how people make decisions, legal rules need review.

Decision-making is the cornerstone of corporate life and of keen interest to a variety of scholarly disciplines. They range from rational-actor theories over behavioral approaches to neuro-economics and psychology. The law has its own theories on decision-making. Many are normative and specify decision procedures and outcomes. In addition, the law rests on implicit theories of decision-making: A legal rule will look different if, for instance, it assumes either that decision-making follows optimal choice patterns or that heuristics and biases guide human decisions.

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Two New Keynote Speakers Added to PCCE’s 4th Annual Directors’ Academy

Matthew Olsen and Ismail Ramsey

We are honored to announce that Matthew Olsen, the Assistant Attorney General for the National Security Division at the U.S. Department of Justice, and Ismail Ramsey, the U.S. Attorney for the Northern District of California, will be additional keynote speakers at our 4^th Annual Directors’ Academy at NYU School of Law on October 31st and November 1st, 2024. The agenda and registration portal are available here.

Olsen, who leads the DOJ’s mission to combat terrorism, espionage, cyber crime, and other threats to the national security, and Ramsey, who, as U.S. Attorney for Northern California, is colloquially known as the “Sheriff of Silicon Valley,” overseeing investigations and cases concerning the leading technology companies in the world, will participate in a keynote and fireside chat titled New and Persistent Cyber Threats Overlooked by Boards and Management: Lessons for Boards. The session, which will take place on October 31st, will focus on providing board directors and senior management with the information they need to identify and manage the most critical cyber and national security-related threats to their firms, include the theft of intellectual property. It will be followed immediately by an expert panel to discuss board governance and oversight of cybersecurity. Both sessions will be moderated by Joseph Facciponti, PCCE’s Executive Director and former cybercrime prosecutor at the U.S. Attorney’s Office for the Southern District of New York.

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Registration Open for PCCE’s 4th Annual Directors’ Academy

NYU Campus

We are pleased to announce that registration is open for our 4^th Annual Directors’ Academy at NYU School of Law on October 31st and November 1st, 2024. The agenda and registration portal are available here. The program is for directors who currently serve on public and for-profit private company boards, as well as C-Suite legal, risk, ethics, audit, and compliance professionals.[1]

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