Category Archives: Corporate Governance

The Trust Paradox: How Aggressive Whistleblower Enforcement Risks Undermining Compliance Culture

Sharon Oded (photo courtesy of the author)

In the evolving landscape of corporate regulation, whistleblower frameworks have emerged as indispensable instruments for surfacing misconduct that might otherwise remain obscured. From financial fraud to sanctions violations, whistleblower disclosures have catalyzed some of the most significant enforcement actions of the past decade. Yet, as enforcement agencies increasingly adopt aggressive, incentive-driven approaches, a critical inflection point has been reached: Are we inadvertently undermining the very cultures of integrity we seek to cultivate?

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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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A Reflection on the OECD’s Report (Part I): Companies’ Assessments of Anti-Corruption Compliance

by Veronica Root Martinez and Liz Carrasco

Left to right: Veronica Root Martinez and Liz Carrasco (photos courtesy of authors)

As anti-corruption compliance programs have become standard within corporations, an increasing number of companies are shifting their focus to the effectiveness of these programs. The Organisation for Economic Cooperation and Development (OECD) report Companies’ Assessments of Anti-Corruption Compliance[1] provides a detailed look at this shift within the private sector. Drawing on survey data and examples from a range of companies, the report highlights a growing recognition that compliance cannot be isolated from a company’s culture, leadership, or structure. In short, the question is not merely whether a compliance program exists, but whether it is effective.

The report includes anonymized company case studies to illustrate various approaches and insights. This blog post explores three key aspects of the report: (1) why companies assess the effectiveness of their anti-corruption compliance programs; (2) what methodologies they use to do so; (3) the tools companies leverage to monitor progress over time.

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Retheorizing Compliance: Moving from Defense to Offense in Uncertain Times

by Todd Haugh and Suneal Bedi

Left to right: Todd Haugh and Suneal Bedi (photos courtesy of the authors)

The Trump administration—Trump 2.0, as some are calling it—is moving at unprecedented speeds to remake how government regulates business. In the administration’s first 100 days alone budgets and personnel have been downsized at the IRS, EPA, CFPB, and FTC, among other agencies. Enforcement of the FCPA has been paused, more than a dozen inspector generals have been removed from their posts, and the newly confirmed Attorney General and FBI Director are expected to work in tandem to drastically refocus civil and criminal enforcement.

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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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The Tide Continues to Turn on the ESG Regulatory Front

by Steven A. Rosenblum, Adam O. Emmerich, David A. Katz, Andrew J. Nussbaum, Karessa L. Cain, John L. Robinson, Elina Tetelbaum and Allison Rabkin Golden

Top left to right: Steven A. Rosenblum, Adam O. Emmerich, David A. Katz and Andrew J. Nussbaum. Bottom left to right: Karessa L. Cain, John L. Robinson, Elina Tetelbaum and Allison Rabkin Golden (Photos courtesy of Wachtell, Lipton, Rosen & Katz).

Recently, there’s been a series of developments where regulators, major index funds, and proxy advisors took steps to diminish the role of environmental, social and governance (ESG) initiatives at public companies.

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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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For AI Innovators Seeking to Mitigate the Risks of Regulatory Uncertainty, It Pays to Remember the Fundamentals

by Charles V. Senatore

Photo courtesy of the author

For many years, regulatory uncertainty in the United States has been part of the landscape for innovators, particularly with the rise of emerging technologies such as cryptocurrencies, blockchain, and artificial intelligence. It can, unfortunately, thwart the progress of responsible innovation and place our innovators at a competitive disadvantage.

We recently have seen a dramatic example of regulatory uncertainty in the artificial intelligence space.

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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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Key Considerations for Updating 2024 Annual Report Risk Factors

by Maia Gez, Scott Levi, Michelle Rutta, Melinda Anderson, and Danielle Herrick

Left to Right: Maia Gez, Scott Levi, Michelle Rutta, Melinda Anderson, and Danielle Herrick. (Photos courtesy of White & Case LLP)

With the 2025 annual reporting season upon us, public companies should consider potential updates to their risk factors for their Form 10-Ks and 20-Fs in light of recent economic, political, technological, and regulatory developments.[1]

As a starting point, this alert features (i) a list of key developments that US public companies should consider as they update risk factors in Part I and (ii) critical drafting considerations in Part II. Each company will, of course, need to assess its own material risks and tailor its risk factor disclosure to its particular circumstances.

As further described below, calendar year-end companies should review and update their risk factors by assessing the material risks that impact their businesses. Well-drafted risk factors play a crucial role in defending public companies against allegations of fraud under the US federal securities laws, and companies should therefore take the time to update their risk factor disclosure and tailor risks to their own facts and circumstances.

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