Book Launch| Register here.
November 10, 2026 | 6:00 p.m. – 8:00 p.m. ET
The Whitby Hotel, 18 W 56th, New York

Join us to celebrate the publication of Boardroom Legacy: The Weinbergs of Goldman Sachs and the Evolution of Corporate Governance, featuring John L. Weinberg’s recently discovered 1948 Princeton thesis and commentary on the enduring importance of judgment, stewardship, accountability, and trust that helped define the Weinbergs’ leadership at Goldman Sachs.

Bestselling author William Cohan will lead a discussion on corporate governance and many of the themes in the book with editor Lawrence Cunningham (Weinberg Center for Corporate Governance) and contributing authors Simon Lorne (Millennium Management) and David (Bert) Westbrook (SUNY Buffalo Law School), followed by a reception.

In a somewhat surprising development, on October 7, 2026, the Securities and Exchange Commission’s Division of Enforcement (the “Division”), in consultation with the Division of Corporation Finance, published an investigation report (the “Report”) pursuant to Section 21(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), detailing its investigations into certain members of Climate Action 100+ (“CA100”), “an investor-led organization that uses shareholder proxy voting to exert influence on public companies with respect to their climate policies.” Specifically, the Division investigated whether such CA100 members formed a “group” pursuant Sections 13(d)(3) and 13(g)(3) of the Exchange Act, which would have resulted in them losing their ability to report beneficial ownership on Schedule 13G, instead requiring them to report on Schedule 13D, which is longer and more complex, with more frequent amendments. 

Among other things, the Report argues that formation of a group may be implied through coordinated investor action, including through intermediaries, and investors must “proactively ensure policies aimed at avoiding group formation are adequately enforced.” based on the activities disclosed in the Report, but instead issued the Report to make sure that asset managers and investors that are considering joining organizations like CA100 “take appropriate steps to ensure compliance with the Exchange Act.”

Factual Background

The members of CA100, which is supported by the Ceres investor network, include investors and asset managers.  The group promotes members’ engaging with companies to pursue certain climate-related goals, such as strengthening climate‑related financial disclosures, through “coordinated engagement and proxy‑voting signals.”  This includes “flagging” certain proposals as aligned with group goals, as well as designating investors to submit shareholder proposals, and, in some cases, sponsor proxy campaigns for dissident directors.  In addition, the Report contends that, on occasion, certain parties affiliated with CA100 used negative publicity about climate-related commitments, as well as direct phone calls and meetings, to attempt to influence other members’ voting decisions. The activities discussed in the Report arose in connection with an activist investor-led campaign to elect a slate of dissident directors at ExxonMobil Corporation (“ExxonMobil”) in 2021.

What Does This Mean?

In the Report, the Division addressed two separate questions:

  1. When might coordinated conduct by investors result in the formation of a “group”? 
    1. Based on the Report, “coordinated conduct [between investors and/or through an intermediary] can function, in practice, as an ‘agreement, arrangement, understanding, or concerted action’ toward a common purpose in the holding ̶ ̶ and by extension, the voting ̶ ̶ of an issuer’s securities,” potentially triggering the formation of a group and requirement to file a Schedule 13D.  Further, “coordination of voting at any issuer’s annual meeting through an intermediary, along with additional evidence, such as the intermediary’s promotion of negative media coverage for a shareholder who joined the intermediary and whose votes do not align, may serve as indicia that a group had formed.”  This is true even where members publicly recognize the regulatory ramifications of agreeing to buy, sell, hold, or vote shares together, and simultaneously publicize their intent to make independent voting decisions so as to clarify that they are not a group and so not subject to such regulatory requirements
    2. Where an intermediary coordinates its members’ voting decisions on specific proposals, including by “flagging” important votes and influencing members to support its views through negative publicity and/or other forms of pressure, such “efforts can operate as indirect channels through which the members act with a common purpose in the holding of securities.”
    3. Clear and specific efforts, either public or internally, to delineate independence from group voting decisions, such as “[a] disclaimer by a member of the organization regarding its potential participation in a “group” would not prevent the formation of a group if, despite such a disclaimer, the evidence shows the existence of an explicit or implicit agreement among the organization’s members.”  This differs from incidental or coincidental conduct from parties that share interests but are not in any way coordinating efforts.
    4. If investors provide funding to an intermediary, this arrangement with the intermediary may be deemed a scheme to evade disclosure under Exchange Act Rule 13d-3(b) “if the investors entered into the arrangement with the intent to create a false appearance regarding their coordinated activities and efforts to influence control of a specific issuer. Under those circumstances, any shares held by the intermediary may be attributed to the contributing investors (or vice versa).”
    5. Where investors pay dues or contribute other unrestricted funds to an organization, and these funds can be used for a proxy solicitation, such investors may unwittingly become participants in the solicitation for purposes of Schedule 14A. This, in turn, may trigger a disclosure obligation under Item 4 of Schedule 14A, which requires disclosure of any “participant” in a solicitation, regardless of whether the financial support is transferred directly to an intermediary or to the intermediary through others. As discussed in the Report, shareholders have a right to know and understand who is trying to impact their proxy voting decisions, whether directly or indirectly. 

Continue reading.

On October 8, 2026, the Securities and Exchange Commission’s Division of Corporation Finance (the “Division”) published two new Corporation Finance Interpretations, or CFIs, addressing retail voting programs.  Retail voting has been a popular topic for the Division lately, including two recent no-action letters pursuant to which the Division agreed not to recommend enforcement action related to certain Exchange Act rules as applied to retail investor voting programs, thereby expanding the ability of issuers to establish similar programs (read more here).  The new CFIs are located under Proxy Rules and Schedules 14A/14C:

QuestionGuidance
189.01A registrant implements a retail voting program pursuant to which shareholders can only provide standing voting instructions that the registrant vote their shares in accordance with the recommendations of the registrant’s board of directors on proposals presented for a vote at shareholder meetings. The federal proxy rules do not require the registrant to offer more than one type of standing voting instructions, including but not limited to an option to vote against the board’s recommendation on a proposal.
189.02A registrant’s retail voting program can offer shareholders an option to submit standing voting instructions that require votes to be cast in accordance with voting recommendations issued by a third party; however, registrant should consider, for purposes of Exchange Act Rule 14a-9, whether shareholders will: receive the third-party voting recommendation on at no cost; and have sufficient opportunity after receiving the recommendation to override the vote to be cast pursuant to the standing voting instruction. For example, the third party may provide its voting recommendation to the registrant or directly to shareholders, at no cost, and with sufficient time so the vote to be cast on a proposal pursuant to the instruction is disclosed in the registrant’s proxy statement, or with sufficient time for shareholders to override the instruction by voting on the registrant’s proxy card, as applicable.

Find the new CFIs here.

Conference | October 12-13, 2026
Register and learn more here.

We are pleased to participate in The Corporate Counsel’s 2026 Proxy Disclosure and 23rd Annual Executive Compensation Conferences.

With the ambitious rulemaking agenda the SEC has outlined and fundamental changes to proxy season dynamics already underway, what happens this year could impact the public company experience for years to come. Join us to participate in discussions that could shape final rules and to get practical tips on how to adapt to and benefit from changing requirements.

Mayer Brown partner Jennifer Zepralka will speak on two panels: “SRCs, EGCs & FPIs: What’s Next?” and “The SEC All-Stars: Executive Pay Nuggets.”

On October 7, 2026, the Securities and Exchange Commission (the “SEC”) posted notice of Nasdaq’s proposed rule change (File No. SR-NASDAQ-2026-082) to amend Nasdaq Listing Rule 5505 to require a minimum $4 price in all instances for initial listings on the Nasdaq Capital Market.  Currently, Nasdaq allows companies to list on the Nasdaq Capital Market at a price between $2 and $4 if they meet additional requirements that place the security within an exclusion from the definition of “penny stock” under Rule 3a51-1(g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act’).  This path, called the “Alternative Price Requirement” and found in Listing Rule 5505(a)(1)(B), allows:

  • a minimum closing price of $3 per share for companies that meet the Equity or Net Income Standards under Nasdaq Listing Rules 5505(b)(1) or (b)(3); or
  • a minimum closing price of $2 per share for companies that meet the Market Value of Listed Securities Standard under Nasdaq Listing Rule 5505(b)(2).

In both cases, the company must also show one of the following:  (i) net tangible assets above $2 million, if it has operated continuously for at least three years; (ii) net tangible assets above $5 million, if it has operated for less than three years; or (iii) average revenue of at least $6 million over the last three years.

Nasdaq first adopted the Alternative Price Requirement to compete with NYSE American, which, at the time, was the only other exchange allowed to list companies priced below $4.  NYSE American has since changed its own rule to remove sub-$4 listings, a change the SEC approved in March 2026.  Under Nasdaq’s proposal, Rule 5505(a)(1)(B) will be deleted and every company listing under the Initial Listing Standards will need a minimum stock price of $4, which is consistent with the initial listing requirements of other national securities exchanges.

Effect on Companies Using the Alternative Price Requirement

Companies that originally listed under the Alternative Price Requirement will stay listed. Therefore, Nasdaq is retaining Nasdaq Listing Rule IM-5505-2, which requires Nasdaq to publish on its website a list of any such company that:

  • no longer meets the net tangible assets or revenue test under the Alternative Price Requirement, and
  • does not qualify for any other exclusion from penny stock status under Rule 3a51-1 under the Exchange Act.

Nasdaq will keep this list on its website for as long as any company that could be subject to the condition remains listed.  A company stops being treated as having listed under the Alternative Price Requirement once it has (i) closed at $4 or more for at least five consecutive business days and (ii) at the same time met all other initial listing criteria.

Timing and Transition

The rule change became effective upon filing and Nasdaq intends to make it operative 30 days after the September 30, 2026 filing date, which is about October 30, 2026.  Nasdaq says this period will let companies that have already taken substantial steps to list under the current rules finish the process.  Within 60 days of the filing, the SEC may temporarily suspend the rule change if it finds that doing so is necessary or appropriate in the public interest, to protect investors, or otherwise to further the purposes of the Exchange Act.  If it suspends the rule, the SEC must start proceedings to decide whether to approve or disapprove it.

How To Comment

Interested persons may send comments to the SEC by either of these methods:  online, through the SEC’s internet comment form; or by email to rule-comments@sec.gov, with file number SR-NASDAQ-2026-082 in the subject line.  Comments are due 21 days after the notice is published in the Federal Register.

The Office of Mergers and Acquisitions in Securities and Exchange Commission’s (the “Commission”) Division of Corporation Finance recently published two no-action letters agreeing not to recommend enforcement action related to certain Exchange Act rules as applied to retail investor voting programs.  These letters build on a no-action letter issued in fall 2025 to The Exxon Mobil Corporation (the “Exxon Letter”), which permitted retail investors to provide standing voting instructions to vote in accordance with management’s recommendations on proposals in Exxon’s annual proxy statement, either on all such proposals or those other than contested director elections and certain other transactions.  These letters expand the ability of issuers to establish similar voting programs, and are consistent with the Commission’s current focus on proxy solicitation and voting issues.

In the first of these letters, published September 28th, the Staff addressed a proposed Voting Instruction Program (the “VIP”) to be operated by The Goldman Sachs Group, Inc. (“Goldman Sachs”).  Under the VIP, retail investors will be able to opt in and out of the program, override standing instructions, will continue to timely receive a definitive proxy statement, and will receive at least annual reminders of their enrollment in the program and their voting instructions, among other investor protection features.  The proposed VIP would also include features directed at current and former Goldman Sachs partners and employees, who collectively hold a large amount of Goldman Sachs’ outstanding shares. 

The second letter, issued to Tesla, Inc. (“Tesla”) September 29th, describes similar issuer voluntary retail voting programs (“IVRVPs”), although it requested and received slightly more expansive relief from relevant Exchange Act rules.  Notably, the Staff’s response letter acknowledges that other issuers operating an IVRVP in the manner described in the Tesla letter may also rely on the letter, which may encourage more companies to adopt similar programs.

The incoming letter from Tesla stresses the importance of retail investor participation, as well as the current low rates of retail investor voting (“[a]ccording to data collected by Broadridge Financial Solutions, retail investors voted only 28% of the shares they owned during the 2025 proxy season, while 76.6% of shares held by institutional investors were voted”) and the challenges to voting public company shares.  In its letter, Goldman Sachs characterized Exxon’s VIP as “an important advancement for retail investors, allowing them the choice to opt in to Exxon’s VIP and achieve greater efficiency in exercising their voting rights without a reduction in the protections afforded by the Exchange Act proxy rules.”  Tesla also highlighted the efficiencies these program can create for issuers, noting that such programs can “meaningfully reduce”  the cost of retail investor participation.

Activist shareholders criticized the Exxon Letter, stressing the fact that, instead of focusing on investor choice, these standing vote programs mandate that shareholders vote with management on some or all shareholder proposals, and, in practice, require that investors make a voting decision before they receive a proxy statement.  It is likely that similar concerns will be raised about the two new letters, magnified by the Commission’s proposed rescission of Rule 14a-8 (read more here) and changes to Rule 14a-4, which would facilitate the use of discretionary voting by issuers. 

On September 15, 2026, Glass Lewis announced that it was soliciting public comment on four research perspectives that will underpin its new research model that will be introduced in September 2027.  As previously announced in October 2025, starting in 2027, Glass Lewis will begin offering more bespoke voting advice that will offer multiple perspectives so that clients can select research aligned with their own corporate governance philosophy.  The move marks a significant evolution in how the firm delivers governance research to institutional investors and carries important implications for public company boards and governance professionals.

Under the new model, Glass Lewis clients will be able to choose one or more of the following four research perspectives:

  1. Business Fundamentals:  This research perspective will take a flexible view of governance standards for when boards and management teams have demonstrated a strong record of generating shareholder returns.‍
  2. ‍Foundational Governance:  This research perspective will treat core governance standards as essential to safeguard long-term shareholder value.‍
  3. ‍Global Stewardship:  This research perspective will integrate core governance standards with rigorous oversight of financially material sustainability risks to protect long-term shareholder value.‍
  4. ‍Sustainability Focused:  This research perspective will pair core governance standards with rigorous oversight of sustainability risks that are or could become financially material over extended time horizons and across portfolios, recognizing that asset owners have a fiduciary interest in the stability and integrity of the markets in which they invest.

Importantly, Glass Lewis will continue to offer its current Benchmark Voting Policy Guidelines and Proxy Paper research reports for the upcoming 2027 proxy season, which will be published in early October 2026.  Changes to those existing guidelines will be limited to significant regulatory and corporate governance developments from 2026.

Comment Period

Glass Lewis has made a consultation paper, a survey questionnaire, and a companion paper comparing the perspectives at the proposal category level available on its website. The comment period closes October 16, 2026.

Key Takeaways

This shift has several practical implications for boards and governance teams:

  1. Engagement strategies may need to evolve.  With investors selecting different research perspectives, a company could receive varying vote recommendations depending on which research perspective an investor’s advisor applies.  Companies should consider how their governance practices and disclosures perform under each of the four perspectives.  Once Glass Lewis publishes its market-specific guidelines across the four perspectives, governance teams should assess which perspectives their key shareholders are likely to adopt and tailor their proxy disclosures and engagement accordingly.
  2. Participate in the comment period.  Glass Lewis has explicitly invited corporate stakeholders to weigh in.  Issuers should take advantage of this opportunity to shape the final guidelines, particularly with respect to how the perspectives evaluate board composition, compensation, and sustainability oversight.
  3. The 2027 proxy season is a bridge year.  Because Glass Lewis will continue to apply its existing benchmark policy for the upcoming 2027 season, companies have a window to prepare for the full transition.  Use this time to evaluate your governance and disclosure practices against the new perspectives.

We will continue to monitor developments as Glass Lewis releases additional details. Companies with questions about how these changes may affect their upcoming proxy season should reach out to our Public Companies & Corporate Governance team.

On September 16, 2026, the Securities and Exchange Commission (the “SEC”) proposed amendments to modernize the proxy solicitation rules (Release Nos. 33-11439; 34-106385; File No. S7-2026-33) under Regulation 14A of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which govern how companies and others solicit proxies to vote at shareholder meetings. Many of these rules have not been updated in decades. The proposed amendments aim to reduce companies’ compliance burdens by reflecting technological advances and developments in shareholder communication methods since the rules were adopted or last amended, without sacrificing investor protections.

At the same time, the SEC issued its much anticipated proposal to rescind the shareholder proposal rule under Rule 14a-8 and amend Rule 14a-4(c) (read more here).

Continue reading this Legal Update.

In an awaited but not surprising proposing release, on September 16, 2026, the Securities and Exchange Commission (the “SEC” or the “Commission”) proposed rescinding Rule 14a-8 under the Securities Exchange Act of 1934, as amended, which governs the processes under which a shareholder may include a proposal in a public company’s proxy materials. The SEC also proposed to amend Rule 14a-4(c) to expand the circumstances under which a company may exercise, with respect to proxies it receives, discretionary voting authority on proposals that will be presented at a shareholder meeting but not included in the company’s proxy materials. This proposal marks a significant change in the Commission’s view of the federal government’s role in interactions between companies and their shareholders.

Continue reading this Legal Update.

On September 16, 2026, the Securities and Exchange Commission (the “Commission”) proposed two sets of amendments to the federal proxy rules under Regulation 14A of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The first proposal would rescind Exchange Act Rule 14a-8, the shareholder proposal rule, and amend Exchange Act Rule 14a-4(c) to broaden the circumstances in which issuers may exercise discretionary proxy voting authority. The second proposal would modernize several proxy solicitation rules to account for technological developments and reduce compliance burdens for issuers and large shareholders.

Rule 14a-8 addresses when issuers must include shareholder proposals in the proxy materials for their annual or special shareholder meetings. The proposing release discusses the scope of the Commission’s authority under Section 14(a) of the Exchange Act and explains the Commission’s view that the rule should be rescinded because it exceeds its statutory authority, as it places the Commission in the position of making judgments about the application of state law that are best left to other actors and has had the unintended consequence of inhibiting the development of state law and private ordering. If rescinded, determinations about the role of shareholder proposals would be left to state law and issuer governing documents (if permitted by state law).

Alongside the proposed rescission, the Commission proposed amendments to Rule 14a-4(c), which prohibits issuers from voting proxies on shareholder proposals submitted outside of Rule 14a-8 that will be presented at a shareholder meeting but are not included in an issuer’s proxy materials. The Commission stated that an unintended consequence of this prohibition is that issuers may feel compelled to include proposals submitted outside of Rule 14a-8 on their proxy cards, even though neither the federal proxy rules nor existing state law requires their inclusion, to avoid the prohibitions on discretionary voting mandated by Rule 14a-4(c). The proposed amendments would provide issuers with greater flexibility to seek and obtain discretionary voting authority regarding such shareholder proposals, the submission of which may become more frequent if Rule 14a-8 is rescinded. At the same time, the proposed amendments would provide shareholders with the ability to elect to prevent an issuer from exercising such authority with respect to their individual shares.

In a separate proposing release, the Commission proposed a series of modernization amendments to the proxy solicitation rules, many of which have not been revisited in decades since their respective adoptions or last amendments. The modernization proposal would, among other amendments:

  • eliminate the requirement to deliver annual reports to security holders (“ARS”) for issuers that have a Form 10-K already on file for their most recent fiscal year, given the overlap of the disclosure requirements of the ARS and Form 10-K, and the ease of accessing an issuer’s Form 10-K on EDGAR;
  • eliminate the requirement that issuers send proxy statements at least twenty (20) business days before a shareholder meeting when information is incorporated by reference, recognizing that the filings incorporated by reference are now more easily accessible to investors via EDGAR;
  • rescind Rule 14a-6(g), which requires large shareholders to submit a Notice of Exempt Solicitation on EDGAR for certain written exempt solicitations, to eliminate both mandatory and voluntary Notices of Exempt Solicitations. The voluntary filing of such Notices had become increasingly prevalent, a development the Commission Staff attempted to curtail with the publication of Proxy Rules and Schedules 14A/14C Corporation Finance Interpretation (“CFI”) 126.06 (read about it here). Today’s proposed change is intended to build on the CFI, reducing investor confusion caused by the substantial number of voluntary filings not contemplated by the rule, and reducing compliance burdens for large shareholders that are currently required to submit such Notices;
  • shorten the minimum broker search period from twenty (20) business days to five (5) business days to reflect the more efficient coordination among intermediaries brought about by the internet age (foreshadowed in recent new Proxy Rules and Schedules 14A/14C CFI 133.02, here); and
  • revise the cover pages of Schedule 14A and Schedule 14C to require contact information for a representative who can respond to questions regarding the filing.

Together, these proposals represent a significant shift in the Commission’s approach to the proxy solicitation framework. The public comment periods for each will remain open for 60 days following publication. The full text of the proposed rules can be found here for the Commission’s proposed Rescission of Rule 14a-8’s Federal Regulation of Shareholder Proposals and Amendments to Rule 14a-4 and here for the Commission’s proposed Proxy Solicitation Modernization.