A new large-scale survey released just last week by the John L. Weinberg Center for Corporate Governance at the University of Delaware offers important insights into the shareholder proposal process under SEC Rule 14a-8 from various different perspectives.  The survey comes at an important time, when shareholder rights and the proxy proposal process are being reexamined.  Once a relatively technical feature of U.S. corporate governance, the shareholder proposal system has become a focal point of debate over corporate purpose, regulatory authority, and the respective roles of shareholders, boards, companies, and regulators. Against that backdrop, the Weinberg Center’s survey provides a descriptive—not prescriptive—account of how the process functions in practice.

The Weinberg Center study draws on responses from 519 participants, including shareholders, public-company representatives, directors, and professional advisers.  The survey focuses on where participant experiences converge, where they diverge, and why disagreements persist.  Several themes stand out.  First, respondents describe the purpose of the shareholder proposal process in markedly different terms, reflecting sharp role-based differences in expectations. Second, despite deep divisions over environmental and social proposals, there is broad agreement across respondent groups on governance-focused proposals and on core principles such as materiality, relevance, feasibility, and limits on micromanagement. Third, dissatisfaction with recent policy shifts as administrations have changed is widespread.

The report has drawn attention from leading scholars and practitioners across the corporate governance landscape.

James D. Cox of Duke University described the study as “a masterful job of presenting the survey results,” praising its neutral tone and even-handed treatment of competing perspectives. In his view, the findings provide “one more significant bit of evidence that Rule 14a-8—devoid of safe harbors—remains in need of attention.”

Andrew Jones of The Conference Board highlighted the report’s empirical rigor and its careful mapping of role-based perception gaps, calling it “a very strong, rigorous, and balanced empirical contribution to a key debate in U.S. corporate governance.”

Elizabeth Pollman of the University of Pennsylvania Carey Law School emphasized that the big picture emerging from the data is “a system in need of calibration and increased stability, but not a massive overhaul”—a conclusion she viewed as consistent with the rule’s long history.

Former Delaware Chief Justice Leo E. Strine, Jr. likewise underscored the value of the survey in facilitating a more informed policy discussion, noting that legitimate disagreements over the scope and utility of Rule 14a-8 have existed for decades, and that the report helps organize those debates in a more systematic and constructive way.

Paul F. Washington, President and CEO of the Society for Corporate Governance, pointed to the survey’s identification of areas of common ground as a potential guidepost for regulators and market participants seeking a regime in which the benefits of shareholder proposals clearly outweigh the costs.

For practitioners, the report suggests that beneath the noise, there is more agreement on fundamentals than is often assumed.  The full report, Shareholder Proposal Survey: Report and Analysis of Results, is available on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6045474.

Since mid-2024, the reincorporation of certain high-profile companies, both public and private, has received a great deal of media attention.  Companies, including, among others, Roblox, Dropbox, The Trade Desk, Simon Property Group, Coinbase, Tesla, and Trump Media & Technology Group have opted to move their jurisdictions of incorporation.  The majority of these companies moved to Nevada or Texas, both of which are sometimes viewed as being more “company friendly” than Delaware.  Indeed, in July 2025, Andreesen Horowitz (or “a16z”), a Silicon Valley-based venture capital firm, blogged about its decision to reincorporate in a post titled “We’re Leaving Delaware, And We Think You Should Consider Leaving Too.”  In the post, the firm detailed many of the reasons for the reincorporation of its primary business, AH Capital Management, from Delaware to Nevada, including an increasing lack of judicial certainty in Delaware and strong corporate statutes in Nevada designed to protect companies, their officers and directors.

Continue reading this Legal Update.

With each passing day, the 2026 proxy season gets more interesting (and not in a positive way for proxy advisory firms).  On December 8, 2025, the Trump administration issued an executive order (the “Executive Order”) addressing the influence that proxy advisors “wield” to promote “radical politically-motivated agendas” (read more here).  The Executive Order instructed the Securities and Exchange Commission to evaluate its rules and guidance related to proxy advisors, and to consider requiring increased transparency on advisors’ recommendations, methodology, and conflicts of interest, among other things.

Subsequently, on January 8, Brian Daly, Director of the SEC’s Division of Investment Management, addressed proxy voting.  Starting from the premise our markets are currently “in a place where retail and institutional investors are directly and indirectly supporting a system where an oligopoly of proxy advisors exercise influence over voting decisions for a large portion of the investment management industry,” which “contributes to the de facto imposition of external political and social ideologies on U.S.-listed public companies through the proxy voting process,” Mr. Daly argued that investment advisors and fund managers should be free to determine both when and how to vote.  In his view, fiduciaries should be free to determine that proxy voting is not required by their investment program.  Those that do vote should be empowered to use their judgment in doing so, as long as they have appropriate authority, especially when a vote reflects the fiduciary’s personal views on a social or political matter. 

Mr. Daly questioned whether, if an investment adviser routinely follows a proxy advisor’s standard recommendations without independent consideration and analysis, the advisor has really satisfied its fiduciary responsibilities to a client.  This inquiry aims right at the heart of proxy advisors’ roles in the voting process; a negative answer would seem to imply that advisors should potentially not be involved in voting recommendations.

Mr. Daly also addressed AI, generally supporting its use in reviewing and assessing proxy statements and generating voting recommendations.  However, he cautioned that “with great power comes great responsibility,” stressing the need for training and human involvement.

Also this week, as reported in The Wall Street Journal on January 7, JPMorgan Chase (“JPMorgan”) plans to use an AI-powered platform called “Proxy IQ” to assist with voting recommendations this year in lieu of relying on proxy advisory firms.  The Journal noted that, according to a JPMorgan memo, “the bank will use the platform to manage the votes and the AI also will analyze data from more than 3,000 annual company meetings and provide recommendations to the portfolio managers, replacing the typical roles of proxy advisers.”  All told, between the Executive Order, Mr. Daly’s remarks, and the ongoing court battle over Texas’s Senate Bill 2337, which, if it survives litigation, will impose new regulations on proxy advisory firms (read more here), 2026 poses many challenges for proxy advisory firms.

Read Mr. Daly’s remarks here and The Wall Street Journal article here.

Guest post by The Society for Corporate Governance

Geopolitical events can quickly disrupt operations, supply chains, and market access, posing significant risks to business continuity and growth. By actively monitoring and understanding these risks, boards can help guide management in developing robust risk mitigation strategies, adapting to regulatory changes, and seizing opportunities that arise from global shifts. Effective oversight can help position an organization to address emerging challenges, safeguard their strategic direction, and capitalize on emerging opportunities in an increasingly volatile environment more proactively.

This Board Practices Quarterly, published by Deloitte and the Society for Corporate Governance, is based on a recent survey of members of the Society for Corporate Governance, representing public and private companies. The survey covered, among other topics, the primary geopolitical risks companies are focused on, management responsibility, how the risks are included on board agendas, board oversight structure, and ways in which companies are mitigating and/or managing these risks.

Read more: Board Practices Quarterly (Board oversight of geopolitical risk)

On November 17, 2025, the Divisions of Corporation Finance and Investment Management (together, the “Divisions”) of the U.S. Securities and Exchange Commission (the “SEC”) published a statement (the “Statement”) regarding their respective reviews of requests to exclude shareholder proposals from annual proxy statements under Rule 14a-8 of the Securities Exchange Act of 1934, as amended, during the 2026 proxy season (read more here).  Specifically, the Divisions stated that they would not respond to or express substantive views on requests to exclude shareholder proposals other than requests under Rule 14a-8(i)(1).  In addition, the Statement provides that, if a company wishes to receive a response from the Divisions for any proposal that it intends to exclude pursuant to a basis other than Rule 14a-8(i)(1), the company or its counsel must include “an unqualified representation that the company has a reasonable basis to exclude the proposal based on the provisions of Rule 14a-8, prior published guidance, and/or judicial decisions.”  As detailed below, we are already seeing the impact on no action requests of this guidance, which is dramatically different from that in effect in the prior proxy season.

  • To date, approximately 54 no action request letters from this proxy season are posted on the SEC’s website.  This includes 17 requests dated between August 17-November 13, 2025, prior to publication of the Statement, that did not request or receive a response from the Divisions, and eight requests dated prior to November 17 that were subsequently withdrawn.  None of the letters includes a request to exclude a shareholder proposal under Rule 14a-8(i)(1).
  • Following the Statement’s publication, five companies that had previously submitted no action requests amended these requests to include the “reasonable basis to exclude” language required to receive a response from the Divisions.
  • All but one of the no action requests submitted after the Statement was published include the “reasonable basis to exclude” language.
  • There are approximately 25 no action requests currently posted on the SEC’s website that include the “reasonable basis to exclude” language.[1]  Seventeen (approx. 70%) of these letters include a variation on the following language, mirroring that suggested in the Statement: “the Company represents without qualification that it has a reasonable basis to exclude the Proposal based on the provisions of Rule 14a-8, prior published guidance and/or judicial decisions.” 
  • The remaining eight letters generally reference the specific prong of Rule 14a-8 on which the company is relying to exclude, for example, “the Company believes it has a reasonable basis to exclude the Proposal pursuant to Rule 14a-8(i)(10).”
  • The average incoming letter length prior to the Statement’s publication was about 11 pages; the average incoming letter length after publication was approximately six pages.  This change likely reflects that incoming letters include less detailed legal and procedural analysis under the new regime, perhaps due to the fact that the Divisions will not express substantive views in response to any such analysis.

Proxy season is just beginning.  We will continue to monitor these issues, as well as other questions that have arisen in response to the Statement, as the season continues—stay tuned for updates on what remains an interesting time for companies, proponents and their counsel.

[1] This includes a few letters that were initially submitted prior to November 17 and later amended to include the “reasonable basis to exclude” language.

Update: The National Defense Authorization Act for Fiscal Year 2026 was signed into law on December 18, 2025.  As a result, the new Section 16(a) reporting requirement for directors and officers of foreign private issuers will take effect on March 18, 2026.  The SEC is still required to enact final rules implementing the amendments.  Issuers and their counsel should prepare to comply with the reporting requirements on March 18, but should stay tuned for SEC guidance, proposed rules and potential exemptive relief.

For those that haven’t had a chance to read the new National Defense Authorization Act for Fiscal Year 2026 that was passed by the US House of Representatives on December 10, 2025, the $900 billion spending package includes more than the typical items you would expect to see in the annual defense spending bill.  The bill is now on its way to the Senate.

Starting on page 2,718 of the bill, there is a section entitled the “Holding Foreign Insiders Accountable Act.”  Under this section, the bill proposes amendments to the disclosure requirements under Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).  More specifically, the amendment would add directors or officers of foreign private issuers (“FPIs”) to the list of persons subject to the Section 16(a) disclosure requirements.  It also adds a provision giving the Securities and Exchange Commission (“SEC”) authority to exempt any persons, securities or transactions where a foreign jurisdiction’s laws impose substantially similar requirements, which will be particularly relevant for dual‑listed FPIs.

The bill directs that, not later than 90 days after enactment, the SEC must issue final rules to carry out these amendments.  In practical terms, the earliest these reporting obligations could become effective is Q2 2026, though SEC rulemaking will likely push the effective date to later in 2026.  The SEC’s implementation and any related guidance could also address whether certain home‑country regimes warrant exemptions and whether the Form 20‑F will pick up any new timeliness disclosure requirements around late filings.  The SEC must also, within one year of the bill’s enactment, conduct a study regarding “the transparency and cooperation” of broker-dealers and registered investment advisers controlled by, or organized in, the People’s Republic of China and submit such study to Congress.

Prior to these amendments, FPIs (and directors and officers of FPIs) have been exempt from the reporting requirements under Section 16 of the Exchange Act.  As a reminder, in summary, Section 16(a) requires directors, officers and 10% or greater shareholders of public companies to publicly disclose their direct and indirect ownership of, and transactions in, the company’s equity securities to the SEC using Forms 3, 4, and 5.  The bill does not amend the short swing profit rules under Section 16(b) (which requires disgorgement of profits from buying and selling within six months) or the restrictions in Section 16(c) that prohibit directors, officers and 10% or greater shareholders from engaging in short-sale transactions, so for the time being, insiders of FPIs will remain exempt from Sections 16(b) and 16(c).  See the proposed amendments marked against current Section 16(a).

On December 11, 2025, the President signed an Executive Order titled “Protecting American Investors from Foreign-Owned and Politically-Motivated Proxy Advisors” (the “EO”).  The EO focuses on the influence of proxy advisory firms, specifically Institutional Shareholder Services (“ISS”) and Glass, Lewis & Co. (“Glass Lewis”).  According to the EO, ISS and Glass Lewis control over 90% of the proxy advisory market.

Among its directives, the EO instructs the Securities and Exchange Commission (the “SEC”) Chair to review all rules, regulations, guidance, bulletins, and memoranda relating to proxy advisors.  The EO further instructs the SEC Chair to consider revising or rescinding any such materials that are inconsistent with the purposes of the order.  The EO particularly targets policies and guidance that implicate diversity, equity, and inclusion (“DEI”) and environmental, social, and governance (“ESG”).  In addition, the EO directs the SEC Chair to consider revising or rescinding rules, regulations, guidance, bulletins, and memoranda relating to shareholder proposals, including Rule 14a‑8.  Further, the EO directs the SEC Chair to:

  • Enforce antifraud provisions of the federal securities laws with respect to material misstatements or omissions contained in proxy advisors’ proxy voting recommendations.
  • Assess whether proxy advisors whose activities fall within the scope of the Investment Advisers Act of 1940, as amended, and the rules promulgated thereunder, should be required to register as investment advisers.
  • Consider requiring proxy advisors to provide increased transparency regarding their recommendations, methodologies, and conflicts of interest, especially with respect to DEI and ESG factors.
  • Analyze whether, and under what circumstances, a proxy advisor may serve as a vehicle for investment advisers to coordinate and augment their voting decisions with respect to a company’s securities and, through such coordination, form a “group” for purposes of Sections 13(d)(3) and 13(g)(3) of the Securities Exchange Act of 1934, as amended.
  • Direct SEC staff to examine whether the practice of registered investment advisers engaging proxy advisors and following their recommendations regarding non-pecuniary factors in investing—including, as appropriate, DEI and ESG factors—is inconsistent with advisers’ fiduciary duties..

The EO also directs the Chair of the Federal Trade Commission (“FTC”), in consultation with the Attorney General, to review ongoing state antitrust investigations into proxy advisors and determine whether there is a probable link between the conduct that is at issue in those investigations and violations of federal antitrust law.  Further, the EO directs the FTC Chair to determine whether proxy advisors engage in unfair methods of competition or unfair or deceptive acts or practices.  The review focuses in particular on collusion, undisclosed conflicts of interest, misleading information, conduct that impairs informed investor decision making, or other antitrust violations.

Finally, the EO directs the Secretary of Labor to take steps to revise all regulations and guidance regarding the fiduciary status of individuals who manage, or advise those who manage ERISA (Employee Retirement Income Security Act of 1974) plans, including handling proxy voting and corporate engagement, and to consider whether paid proxy advisors meeting certain criteria should be treated as ERISA investment advice fiduciaries.

The EO underscores the Trump Administration’s continued scrutiny of the role proxy advisory firms play in shaping shareholder voting and engagement at public companies.

Webinar | January 13, 2025
8:00 a.m. – 9:00 a.m. EST
Register here.

During this session, Mayer Brown panelists will discuss US SEC disclosure priorities and other recent developments for foreign private issuers (FPIs) that should be priorities as they draft their annual reports. Topics will include:

  • Financial reporting issues, including non-GAAP/non-IFRS disclosures
  • Policy shifts under the current administration, including shareholder engagement, climate, and areas of likely SEC focus in 2026
  • Considerations related to risk factor disclosures, including tariffs, inflation, and geopolitical conflicts
  • Artificial Intelligence and cybersecurity disclosure trends
  • Cybersecurity and climate change disclosure trends
  • China-related matters, including the HFCAA

In November 2025, ISS Governance (“ISS”) announced its global Benchmark Proxy Voting Guidelines for shareholder meetings with dates on or after February 1, 2026.  Consistent with prior years, the 2026 updates were derived from extensive outreach to institutional investors, companies and other affiliated organizations.  According to ISS, its proxy voting guidelines “are guided by the four tenets of ISS’ Global Voting Principles on accountability, stewardship, independence and transparency” and consider input from stakeholders on topics such as “corporate governance standards and practices, shareholder rights, board elections, executive compensation, shareholder proposals, board governance and risk management.”  Significant changes to U.S. policy recommendations in 2026 include the following:

Policy AreaPolicy Change/Update
Problematic Capital Structures – Unequal Voting RightsGenerally vote withhold or against directors individually, committee members, or the entire board for companies with multi-class capital structure with unequal voting rights; i.e., unequal voting rights are problematic regardless of whether superior voting shares are classified as “common” or “preferred.”
Exceptions are expanded to include:
– Convertible preferred shares that vote on an “as-converted” basis
– Situations where enhanced voting rights are limited in duration and applicability, such as to overcome low voting turnout and ensure approval of a specific non-controversial agenda item and “mirrored voting” applies
Vote against proposals to create a new class of preferred stock with voting rights superior to the common stock, subject to certain exceptions.
Long-Term Alignment in Pay-for-Performance EvaluationISS’s pay-for-performance analysis will assess pay for performance alignment over a longer-term time horizons, as follows:
– The degree of alignment between a company’s annualized “total shareholder return” rank and the CEO’s annualized total pay rank within a peer group, and the rankings of CEO total pay and company financial performance within a peer group, will be measured over a five-year period; and
– the multiple of the CEO’s total pay relative to peer group median will be measured over one- and three-year periods.
By way of background, ISS peer groups are generally comprised of 14-24 companies that are selected using factors such as market cap, revenue, assets, Global Industry Classification Standard (“GISC”) industry group, and the company’s selected peers’ GICS industry group.
Time-Based Equity Awards with Long-Term Time HorizonUpdate to reflect the importance of longer-term time horizons for time-based equity awards; provides a flexible approach in evaluating the equity pay mix in qualitative pay-for performance reviews.
Compensation Committee ResponsivenessStreamlines policy language by cross-references the factors listed under Company Responsiveness (below).
Company ResponsivenessThese updated factors, now also referenced with regard to Compensation Committee responsiveness, create flexibility for companies to demonstrate responsiveness to low say-on-pay support, especially following February 2025 guidance from the U.S. Securities and Exchange Commission on Schedule 13G vs. 13D filing (read more here).
When (i) a previous say-on-pay vote received less than 70% support and (ii) the company subsequently discloses meaningful engagement efforts but also states that it was unable to obtain specific feedback, ISS will assess the company’s actions as well as why the company says that such actions are beneficial for shareholders, including the following new factors:
– Significant corporate activity, such as a recent merger or proxy contest; and
– Any other compensation action or factor considered relevant to assessing responsiveness.
Less than 50% support for a say-on-pay vote warrants the highest degree of responsiveness under the factors noted above.
Vote case-by-case on Compensation Committee members (or, in exceptional cases, the full board) if an advisory vote on executive compensation is implemented on a less frequent basis than the frequency that received the plurality of votes.
High Non-Employee Director PayUpdates previous policy regarding high non-employee director pay practices by allowing for adverse recommendations (i) when a pattern emerges across two or more consecutive or non-consecutive years and (ii) in the first year if pay issues are egregiously problematic, without disclosure of any “compelling rationale or other mitigating factors.”
Compensation is defined expansively to include performance awards, retirement benefits and perquisites.
Enhancements to Equity Plan Scorecard (“EPSC”)By way of background, ISS’s EPSC evaluates equity incentive plan proposals using positive and negative factors.  These factors are grouped under three “pillars”: Plan Cost, Plan Features, and Grant Practices, which are weighted and scored; generally, a total EPSC score determines whether ISS provides a “For” or “Against” recommendation.
The EPSC will now assess whether plans that include nonemployee directors disclose cash-denominated award limits (this was previously informational only and not scored).  In addition, there is a new negative overriding factor for plans that lack sufficient positive features under the “pillars” above, even though the plan overall receives a passing score.
Global Approach: E&S Shareholder ProposalsGlobally, ISS evaluates social and environmental shareholder proposals addressing topics such as consumer and product safety, environment and energy, labor standards and human rights, workplace and board diversity, and political issues.  Now, in addition to existing factors, ISS will consider if a proposal addresses substantive matters that may impact shareholder’ interests, including impacts on shareholders’ rights. 
U.S. Only: E&S Shareholder Proposals    Based on the decline in shareholder support for the types of E&S shareholder proposals discussed below and on the increasing variation of regulations, as well as recent improvements in disclosure, recommendations are updated from a “vote for” to a “case-by-case” approach for proposals regarding:
– Climate change/greenhouse gas emission;
– Diversity/equality of opportunity;
– Human rights; and
– Political contributions (note that the decline in shareholder support for related proposals was not a factor with regard to these proposals).

Read ISS’s Proxy Voting Guidelines Benchmark Policy Changes for 2026: U.S., Brazil Canada, and Americas Regional here.