Category Archives: Directors & Officers

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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New Orders Lifting Bars Signal Shift by SEC

by Joel M. Cohen, Ladan Stewart, and Robert DeNault

Left to right: Joel M. Cohen, Ladan Stewart, and Robert DeNault (photos courtesy of White & Case LLP)

In recent months, the U.S. Securities and Exchange Commission has signaled a shift in its approach to applications to lift administrative bars that restrict participation in the securities industry. This suggests there is presently a window of opportunity for individuals subject to temporary or permanent bars to seek relief from the Commission. Along the same lines, we expect the Commission to be more open to applications for waivers from statutory disqualifications triggered by many SEC orders.

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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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Cyber Experts React to Court Decision in the SEC’s SolarWinds Enforcement Action

Editor’s Note: PCCE has been watching the developments in the SEC’s enforcement action against SolarWinds and its CISO over allegedly misleading disclosures and controls failures related to the compromise of its Orion product by putative Russian hackers. In this post, cybersecurity experts and lawyers discuss the recent decision by U.S. District Judge Paul Engelmayer to dismiss most of the SEC’s claims in the case.

Top left to right: Randal Milch, Judy Titera, James Haldin, and Alan Wilson. Bottom left to right: Matthew Beville, Elizabeth Roper, and Jerome Tomas. (Photos courtesy of authors)

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Understanding the FTC’s Non-Compete Clause Rule and Its Impact on NDAs

by Joshua H. Lerner, Laura E. Schneider, and Andrew Stauber

From left to right: Joshua H. Lerner, Laura E. Schneider, and Andrew Stauber (Photos courtesy of WilmerHale)

As we previously reported, the Federal Trade Commission (FTC) announced on April 23, 2024, its Non-Compete Clause Rule (Final Rule), which aims to ban all new post-employment non-competition restrictions and invalidate most existing ones. The Final Rule already has sparked multiple lawsuits seeking to prevent it from taking effect as scheduled on September 4, 2024. The United States District Court for the Northern District of Texas is expected to make a decision in one such lawsuit by July 3, 2024.

As September 4 approaches, many questions remain regarding the potential impact and scope of the Final Rule. This alert focuses on how the Final Rule might affect confidentiality and non-disclosure agreements (NDAs) that employers use to protect their trade secrets and other confidential information.

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CFTC Year in Review: 23 Takeaways From 2023 and Predictions for 2024

by Matthew B. Kulkin, Elizabeth L. Mitchell, Gretchen Passe Roin, Timothy F. Silva, Tiffany J. Smith, Dino Wu, Matthew Beville, and Joseph M. Toner

Top (left to right): Matthew B. Kulkin, Elizabeth L. Mitchell, Gretchen Passe Roin, and Timothy F. Silva
Bottom (left to right): Tiffany J. Smith, Dino Wu, Matthew Beville, and Joseph M. Toner (photos courtesy of Wilmer Cutler Pickering Hale and Dorr LLP)

At an industry event in early 2023, Commodity Futures Trading Commission (CFTC or the Commission) Chairman Rostin Behnam set out a comprehensive agenda.[1] When Chairman Behnam detailed the CFTC’s 2023 work plan, the CFTC was building on its first year with a full slate of Commissioners, new Division Directors, and senior leadership. As we look back on the recently completed calendar year and turn our attention to the rapidly approaching 2024 presidential and congressional elections, the CFTC seems poised for another year packed with a flurry of regulatory, policy, and enforcement activity. This article lays out 23 of our key takeaways from the past year and offers insights on what might take place in the coming months.

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