The Informed Board | Insights | Skadden, Arps, Slate, Meagher & Flom LLP

Directors must cope with constantly shifting challenges. To help boards navigate these, Skadden launched The Informed Board, a periodic collection of concise articles that provide broad insights about key issues directors face. In these pieces, we aim to help flag potential problems that may not be fully appreciated, explain trends, share our observations and give directors practical guidance without a lot of legal jargon. These articles are based not just on Skadden’s knowledge of the law, but also on our front-line experience inside boardrooms.

September 2026

It’s Time to Start Preparing for Congressional Investigations
Companies should be preparing now for the possibility of congressional investigations if the Democrats gain control of the House or the Senate. Democratic lawmakers have already indicated some of the companies and relationships they hope to scrutinize.

SEC Forms Beefed Up Enforcement Unit to Focus on Public Companies
The SEC’s creation of a consolidated enforcement unit devoted to public company financial reporting will allow the agency to pursue more complex cases, and will likely result in more investigations. It’s a good time for boards to take a fresh look at their companies’ accounting, reporting and disclosure processes.

The SEC’s ‘Hands-Off’ Policy Alters the Calculus for Excluding Shareholder Proposals
The SEC staff no longer evaluates the reasons companies give for excluding shareholder proposals. That can make it more complicated for a company to decide whether to exclude a proposal from its proxy statement.

Director Interview: Preparing for the Crisis You Inevitably Can’t Anticipate
Crises often arise from a confluence of unpredictable events. But boards can prepare by defining responsibilities and lines of escalation, engaging outside counsel and PR agencies in advance, and by stressing policies protecting critical communications.

A Guide to Coping With Divergent State AI Regulations
In the absence of federal legislation, a growing number of states are enacting laws to regulate the development and use of AI, with widely varying requirements. We suggest ways that companies can approach compliance in this fragmented landscape and prepare for further evolution of AI law.

Activism Update: Fewer Proxy Contests, More AI-Focused Themes
The technology sector accounted for the largest share of U.S. activist campaigns in the first half of 2026, with AI adoption a common theme. New SEC guidance requiring disclosure of investors in SPVs used by activists to run activist campaigns may impact activity in the near term.

Podcast: State AGs Step In Where They Think Feds Aren’t Doing Enough
As federal regulatory agencies have scaled back staff, narrowed enforcement priorities and, in some cases, declined to challenge significant transactions, state attorneys general are stepping in to fill the void with enforcement actions under state consumer protection, antitrust and privacy statutes, often teaming up across party lines. Skadden partners Ann Beth Stebbins, Andrea Griswold and David Wales discuss the areas states are targeting and what it means for companies and deals.

Delaware Court Reaffirms Deference to Directors in Risk Management Cases
A recent ruling emphasizes the high bar stockholders must clear when alleging bad faith by directors.

June 2026

How to Stay Ahead of the Risk That Your Insiders Could Trade on Prediction Markets
To prevent harm to their business by insiders trading on prediction markets, companies may need to review their codes of conduct and other policies covering confidentiality and the misappropriation of information to be sure they extend to employees’ use of nonpublic information to profit on these new markets.

AI Drafting Board Minutes? Hold Up, Wait a Minute. It’s Complicated.
AI tools can help directors prepare for meetings, digest board materials and draft board minutes, but there are risks to directors using the technology, including the possibility that AI-produced content could become discoverable and detrimental in the event of litigation.

Interview: How AI Is Driving M&A … and Changing the Process
AI is reshaping dealmaking, says Drago Rajkovic, Citigroup’s co-head of M&A, channeling vast amounts of capital in new directions and, at the same time, altering the process of buying and selling.

Podcast: Market Conditions Are Ripe for Long-Term Investment — Jefferies Chief Market Strategist
Rising productivity, a growing capital share of GDP, a favorable regulatory environment and strong demographic tailwinds make this an extraordinary time for businesses to deploy capital, says David Zervos, chief market strategist at Jefferies.

February 2026

Will Curbs on Proxy Advisors Make Shareholder Votes Less Predictable?
As the administration challenges the power of proxy advisors and some institutional investors take decision-making in-house, it may be harder to muster support for critical shareholder votes and outcomes could be less predictable.

No Loopholes for AI: Putting Legal Guardrails on Your Company's Use of AI
While there is no comprehensive federal AI law in the U.S., many existing laws govern business uses of AI, particularly in regulated industries. Companies need to take stock of the ways they employ AI and identify areas that may already be regulated.

Interview: Effective Board Evaluations: A Director’s Practical Tips
Forget check-the-box questionnaires. Confidential, in-person director interviews by an outsider about critical board roles and functions yield candid feedback that will spark discussion. But follow-through on the insights that emerge is essential.

Podcast: As AI Evolves, So Must Board Oversight
AI is advancing so quickly that directors need to familiarize themselves with the technology and regularly reevaluate their companies’ use of it to stay on top of its potential and risks.

December 2025

Podcast: Mick Mulvaney Offers Insights on US Government Involvement in the Private Sector
How should we think about the federal government taking equity stakes in companies, encouraging investment in companies that are important to national security and guiding foreign investment in the U.S.? First-term Trump White House chief of staff and OMB director Mick Mulvaney shares his views with Skadden’s Ann Beth Stebbins about the dangers and the opportunities.

Would Your Company Want To Stop Filing Quarterly Reports if No Longer Required?
Semiannual financial reporting could free up resources and allow managements to focus on the long term. But less frequent reporting could complicate buybacks and trading by insiders, and companies could be forced to make more disclosures in between full financial reports. Moreover, markets may demand quarterly reporting.

Could Mandatory Arbitration Spell the End of Securities Class Actions?
The SEC has opened the door for companies to adopt mandatory arbitration clauses for federal securities law claims, but it’s not clear how many companies will walk through it. Some companies may decide they are better off litigating in court rather than before an arbitrator.

Watch Out for the Watchdogs
Watchdog groups with no direct financial stake in a company may write its board directly about critical issues that concern the group such as safety, ethics or compliance. To avoid pitfalls, boards need a process to determine how to respond.

Interview: How Boards Can Use Their Time Together Most Effectively
To get the most out of time together in the boardroom, management and directors need to leverage the time spent outside the boardroom, devoting meetings mainly to discussion, not presentations, says Alarm.com director Simone Wu.

August 2025

Podcast: Board Oversight at a Time of Political and Geopolitical Uncertainty
With the post-WWII economic order eroding, boards need to take an expansive view of geopolitical risk to plan for new threats and opportunities.

Activists Say ‘Yes’ to ‘Vote No’ Campaigns in 2025
Activists increasingly employ “vote no” campaigns — a tactic that avoids the procedural hurdles for a proxy fight and can be launched at any time, without warning.

Opening the Door to the Opportunities in the White House AI Action Plan
The administration’s broad AI initiative could be a boon to businesses across the economy, but companies should be prepared to act quickly as details are revealed.

Bitcoin on the Balance Sheet: What Public Company Boards Need To Know
Before deciding whether a company should hold cryptocurrency, a board should articulate a clear purpose, establish controls, and anticipate required disclosures and investors’ reactions.

Do’s and Don’ts of Using AI: A Director’s Guide
AI can help directors do their jobs, but there are risks: Chatbot interactions could be discoverable and uploading confidential material could cause that information to be disclosed outside the company.

May 2025

Delaware Tells Companies: ‘Let’s Stay Together’
Delaware remains the jurisdiction of choice for major corporations, and recent amendments to state law are expected to curb litigation over transactions and insulate directors, officers and controlling shareholders when they follow newly clarified procedures for transactions where there are potential conflicts.

Making Sure Newly Cautious Shareholders Get the Information They Want
Recently revised SEC interpretative guidance on its ownership reporting rules is altering shareholder engagement, making institutional investors circumspect about raising issues with management. As a consequence, companies need to revise their approach to shareholder engagement.

Director Judy Bruner on Finding the Right Mix of Skills for a Board
Ideally, a board should include a mix of industry veterans and outsiders with fresh perspectives, a variety of functional skills and C-suite experience with governance and investors.

Director Matthew Massengill Shares Firsthand Lessons About Splitting a Company
Creating two new boards and executive teams requires careful thought about each company’s needs, and directors need to maintain their focus on managing the business while shouldering the additional work a spinoff entails.

Podcast: Should Your Board Consider a Move Out of Delaware?
Delaware is widely regarded as having the most business-friendly legal framework in the nation. Yet, a handful of companies have announced plans to reincorporate outside of the state. In our podcast, a Delaware judge and a senior partner in Skadden’s Wilmington, Delaware office describe the state’s unique focus on corporate law, including well-developed case law, a flexible corporate code and responsive executive and legislative branches, and why reincorporation outside of the state may not be the right move for your company.

February 2025

DEI Under Siege: A Guide to the Trump Executive Orders
Three White House executive orders aim to eliminate most DEI programs in the government and private sector, and government departments have each been instructed to identify nine private sector targets for enforcement actions. But the DOJ allowed that “educational, cultural, or historical observances ... that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination” are not prohibited.

Now More Than Ever, Supply Chains Demand the Attention of Multinationals’ Boards
New laws in the EU, U.S. and other major jurisdictions make it more critical than ever for boards to have a handle on the legal vulnerabilities of their companies’ supply chains, both upstream and down.

Trump 2.0 Antitrust Policy Is Likely To Be More Predictable but Not Lax
Regulators are expected to revert to settled legal principles and historical practice, but the agencies are likely to continue scrutinizing Big Tech and might use antitrust law to challenge ESG initiatives.

How Best To Measure Your Board’s Effectiveness: FAQs
Board self-assessments take many forms. Some evaluate individuals as well as the full board or committees, for example. Some employ questionnaires, others interviews or group discussions. But the goal should always be improved functioning.

Podcast: Is an Activist Targeting Your Company?
Ted White of Legion Partners and Skadden partners Ann Beth Stebbins and Elizabeth Gonzalez-Sussman discuss what draws the attention of activist investors to a company, how activists work with other shareholders and how they gauge the response of management when the activist first approaches a company.

Fall 2024

What Companies Can Do To Protect Against Cyberattacks … and the Litigation That Often Follows
Facing an increased risk of cybersecurity breaches and new mandatory disclosures about responsibility for cybersecurity, many companies are revisiting their cyber defenses and asking which board committees are best positioned to oversee them. Documentation of the board’s oversight can help defend against lawsuits in the wake of an attack.

Most AI National Security Regs Likely To Remain in Place Under the Next Administration
Based on national security concerns, the Biden administration has adopted or proposed a number of regulations covering AI, including export and foreign investment restrictions, as well as reporting requirements, often with a focus on China. We expect most of these initiatives will be maintained under the Trump administration.

A Director Discusses How the Roles of Public and Private Company Directors Differ
DocuSign chairman Maggie Wilderotter, who has served on dozens of boards, public and private, discusses how the role of a director changes when a company goes public.

Recommended Reading: ‘Multigenerational Boards’
Research suggests that companies whose directors span a wide range of ages outperform their peers in the same industry.

Podcast: When and How To Replace a Director
Boards need to have a robust refreshment program. Strategies change, directors’ skills become stale and investors are skeptical about the independence of long-tenured directors. Skadden M&A partner Ann Beth Stebbins discusses best practices in board refreshment with her guests, Laurel McCarthy of Spencer Stuart and Elizabeth Gonzalez-Sussman, who heads Skadden’s shareholder engagement and activism practice.

Summer 2024

AI Safety: The Role of the Board in Assessing and Managing AI Risk
To keep ahead of the risks posed by the rapid evolution of AI technology and its applications, boards need to understand the tools and AI’s role at their company, as well as the intense regulatory scrutiny AI now faces across the world.

Are Fintechs Prepared for More Regulatory Scrutiny? Questions Fintech Boards Will Want To Ask
How should fintechs prepare for growing scrutiny of their ties to banks and the possibility that U.S. elections could alter regulatory priorities? Here are some questions fintech boards should be asking.

The Age of the Algorithm: Understanding the Rewards and Risks of Algo Pricing
Regulators and plaintiffs have set their sights on algorithmic pricing, arguing it can allow competitors to fix prices. The law is not yet settled, but there are ways for companies that use these tools to minimize their antitrust risk.

Multinationals Face Challenges as They Prepare To Comply With the EU’s Sustainability Reporting Law
Non-EU multinationals preparing to comply with the EU’s new sustainability disclosure law must undertake complex, time-consuming analyses without knowing yet exactly how the law will be implemented by member states.

Podcast: What Goes On Inside Your Boardroom? Investors Want To Know
Skadden’s Ann Beth Stebbins discusses with PJT Camberview’s Allie Rutherford and Adrienne Monley how a company can best convey to investors what makes its board effective — both the mix of directors’ skills and the way the board functions.

Spring 2024

AI-Enabled Compliance: Keeping Pace With the Feds
The federal government is using AI and data analysis to spot everything from insider trading and earnings manipulation to bid-rigging and imports made with forced labor. Companies need systems to flag potential problems before the feds do.

Mind Your Disclosures: Delaware Courts Are Asking Just When a Stockholder Vote Is ‘Fully Informed’
To benefit from the “cleansing effect” of stockholder vote, a company must make full and accurate disclosures. Where a court finds the disclosures inaccurate or a material fact was omitted, that can deprive directors of certain defenses and expose them to liability.

Best Practices: How a Board Can Enhance Shareholder Value Creation in a Spin-Off
In a spin-off, the parent’s board plays a vital role, determining the structure of the split and the spinco’s governance and management, all while navigating sometimes delicate internal dynamics.

Preparing Now for the SEC’s New Climate Rules
The SEC’s climate disclosure rules are on hold pending court challenges, but companies still need to prepare to comply in case some or all the new rules do ultimately take effect, or similar requirements are imposed by state or foreign laws.

Podcast: When and How Directors Should Engage With Investors
Skadden M&A partner Ann Beth Stebbins and her guest, Rebecca Corbin of Corbin Advisors, explore the critical role that directors play in shareholder engagement. Corbin stresses that a proactive, not merely reactive, approach toward shareholder engagement is essential for success.

Winter 2024

Emerging Expectations: The Board’s Role in Oversight of Cybersecurity Risks
New SEC rules and an enforcement action against a company that was the victim of a cyberattack set out in detail the responsibilities of boards in maintaining cybersecurity. Directors should take an active oversight role in evaluating measures designed to protect against cyberattacks. The rules and the agency’s action are also likely to shape the expectations of investors and customers.

Seven Myths About the US Law Banning Imports Made With Forced Labor
Diligence of global supply chains is now critical as the U.S. vigorously enforces the Uyghur Forced Labor Prevention Act. Customs officials have detained $2.2 billion of imported goods, from textiles and solar panels to industrial goods and electronics. This has scrambled supply chains, prompting companies to re-evaluate their compliance policies and conduct more in-depth diligence of their suppliers.

AI Executive Order: The Ramifications for Business Become Clearer
The full impact on the private sector of a sweeping executive order on artificial intelligence is becoming clearer as government agencies spell out details. Any company developing or using AI is likely to be affected in some way.

A Guide for Directors to Political Law Issues in This Election Year
Corporations that want to help finance the presidential nominating conventions or support transition or inaugural activities need to be mindful of both campaign finance laws and pay-to-play rules. Violations of the latter could result in a company’s being banned for years from competing for government contracts.

Shareholder Activism Continues To Increase and Spread in Europe
Last year brought a surge of new activist campaigns in Europe, including a wave in Germany. Many activists surveyed think French companies will make good targets. Many companies are installing defenses against activists.

Podcast: CEO Succession Planning on a Clear Day
Succession planning for senior management should be an annual process, managed by the board. Our panel discusses best practices, including how to develop multiple and next-level candidates, how to keep internal candidates incentivized, and how appointment of an executive chairman for a fixed span can help a new CEO transition into the role.

Fall 2023

Real World Examples Where Conflicts Tainted a Deal Process, and Other Deals That Were Insulated From Conflicts
There are no hard and fast rules for dealing with conflicted fiduciaries who are involved in a deal, but recent Delaware decisions provide boards with some guidance on ways to protect the integrity of a deal — and situations to avoid.

Balancing Act: Sharing Information From an Internal Investigation Without Waiving Privilege
When auditors or regulators demand information from an internal investigation, a board can face difficult choices. Providing too little may not satisfy the request, but too much could waive legal protections for confidential material.

Key Insights for Dealmakers Confronting Washington’s Aggressive New Approach to Merger Reviews
Despite a losing record in court, the DOJ and FTC show no signs of easing up in their approach to merger reviews. Companies making acquisitions need to adapt to the new reality to get their deals done.

The IRS Is Coming for Partnerships and High Net Wealth Individuals
Armed with billions in new funding, the IRS is using AI and other techniques to flag partnership and cryptocurrency investments and generational transfers where additional tax may be owed.

Podcast: How Will Corporate DEI Policies Be Affected by the Supreme Court Ruling in the University Affirmative Action Cases?
Skadden partners Ann Beth Stebbins, David Schwartz and Lara Flath discuss what the Supreme Court decision in June striking down race-based factors in university admissions programs means for U.S. companies.

Summer 2023

How To Guard Against a Short Attack, and How To Respond if Faced With One
Advanced preparation and a speedy substantive response are the best ways to defeat a short seller’s attack on your company. Boards should think twice before responding with buybacks or dividends, or running to court or regulators.

Ten Key Factors for Boards To Consider When Weighing an Internal Investigation
Before initiating an internal investigation, directors should assess the nature of the charges, their potential impact, any involvement by management, and the potential response of regulators and outside auditors.

What the New Federal Merger Guidelines Mean for Companies Pursuing Deals
Under proposed revisions to the DOJ’s and FTC’s merger guidelines, more deals would be considered presumptively anticompetitive and could be challenged. But it is not clear if courts will accept the agencies’ view of the law.

‘Going Dark’: Navigating the Tricky Path to Delisting and Deregistering
Companies contemplating delisting and deregistering their shares should understand the pros and cons of “going dark.” Some potential downsides may not be obvious.

The EU’s New ESG Disclosure Rules Could Spark Securities Litigation in the US
New EU rules will require many non-EU companies that operate in Europe to disclose detailed information about a wide range of ESG topics. That could open the door to litigation in the U.S.

Podcast: Will the EU’s Focus on Foreign Subsidies Make It More Difficult To Acquire European Businesses?
Skadden partners Giorgio Motta and Ann Beth Stebbins discuss the EU’s new rules requiring companies buying European targets to disclose any non-EU subsidies they or the target have received that might distort the EU internal market.

Spring 2023

Nine Mistakes To Avoid When Transitioning CEOs
Transitioning CEOs, whether voluntary or not, is a complex process that often takes longer than expected. Boards need to plan for contract negotiations and legal disclosures, map out internal and external communications strategies, and consider the impact on other executives. Here are some tips on avoiding common mistakes.

What Is Generative AI and How Does It Work?
Companies using or developing generative AI systems need to understand the legal risks, and boards need to monitor the process and ensure that compliance systems keep pace with the adoption of the new technology.

The FTC’s Plan To Limit Noncompetes Could Pose an Array of Practical Problems
The FTC proposes to ban most noncompete agreements and require companies to rescind existing noncompetes. Some states have also restricted noncompetes. Companies need to prepare for the changes, including the potential implications for M&A.

The Impact of Banking System Turmoil: What’s Next?
The failure of three regional U.S. banks and Credit Suisse is forcing a reassessment of regulations created after the financial crisis, and of deposit insurance. Regulators might be more willing now to approve new mergers.

Podcast - What a New Executive Order and Tighter Controls on Tech Exports Mean for Companies Doing Business in China
With tighter U.S. rules restricting technology exports to China, stepped up enforcement efforts and an executive order expected soon imposing restrictions on certain outbound investments into China, companies should revisit their compliance programs to be sure they satisfy government requirements.

Winter 2023

Putting the Best Spin on Corporate Splits
Boards are likely to receive more calls for separation transactions as investors urge companies to focus their businesses. Spin-offs offer more flexibility than a simple sale, and companies retain more control over the process, terms and timing.

How the New Proxy Rules Will Affect US Companies Facing Activist Campaigns
Universal proxy cards may prompt more activist campaigns, subject individual directors to more scrutiny and put pressure on companies to settle. So far they do not appear to have changed proxy advisory firms’ approach to contested elections.

European Activism: More Attacks, More Engagement, More ESG Coming in 2023
Companies expect to see more activist campaigns in Europe this year. Many have identified weaknesses that could make them vulnerable and are engaging with shareholders. ESG issues figure prominently in many activists’ priorities.

FAQs: What the SEC’s New Insider Trading Rules Mean for Directors
New rules for insiders’ preset trading plans will force directors and others to wait before their first trade, and details of their plans will be made public. Restrictions on multiple plans and single-trade plans were also added.

Multinationals Need To Revisit Their Reporting as New EU Sustainability Disclosure Rules Bite
The EU’s new ESG disclosure requirements will apply extra-territorially. Non-EU businesses with EU operations will soon have to report on their environmental impacts and risks — requirements that could conflict with U.S. and U.K. rules.

A Board Chair Explains How To Make the Most of Self-Evaluations
Self-evaluations of full boards, committees and individual directors can elevate a board’s performance. But leaders have to create a culture of trust within the board for the process to work.

Podcast: How the SEC Is Making it Harder To Exclude Shareholder Proposals and What This Means for ESG This Proxy Season
Ahead of the 2022 proxy season, the SEC shifted its approach to shareholder proposals and permitted companies to exclude far fewer shareholder proposals from annual meeting agendas. Skadden M&A partner Ann Beth Stebbins leads a discussion about the impact the SEC shift had last year, particularly with respect to ESG proposals, and what we can expect this year. She is joined by Dalia Blass, BlackRock’s head of external affairs, Gabrielle Wolf, a director at shareholder advisory firm Innisfree M&A, and Skadden partner Marc Gerber.

Fall 2022

Why Directors and Executives Need To Pay Attention to Sanctions, Money Laundering and Export Rules
As various laws restricting foreign transactions proliferate to support U.S. foreign policy, they are being aggressively enforced, so it is vital for boards to monitor compliance. Directors can face personal liability if they do not.

Demystifying China’s Merger Review Process
Winning Chinese approval for a merger can seem like an opaque and puzzling process to newcomers, in part because Chinese law requires regulators to consider broad economic and policy considerations, not just the impact on competition.

The Angel’s in the Details: The Importance of Carefully Drafted Board Minutes
Drafting board minutes is more than a formality. Carefully prepared minutes that explain the processes a board went through and the reasons for its actions can help prevent more intrusive books and records demands and limit litigation.

This SEC Press Release Is a Compliance Checklist for Corporations
The SEC is stressing higher penalties, requiring independent compliance monitors and including advisers in enforcement actions. Earnings manipulation, 10b5-1 plans and non-GAAP accounting are also coming in for scrutiny.

Summer 2022

Boards and M&A: Playing, and Winning, the Game of Regulatory Risk
As companies pursuing mergers face more aggressive antitrust and foreign investment reviews, directors need to grasp the new regulatory risks and be familiar with the contractual and tactical tools to mitigate those.

Navigating the Uncharted Legal Territory of NFTs
NFTs are no longer just for celebrities, artists and musicians. Companies are now monetizing intellectual property and building customer loyalty with them. Boards vetting NFT strategies need to know the legal uncertainties and risks.

‘Mission Critical’ Issues and ‘Red Flags’: What It Means for a Board To Exercise Oversight
As courts allow more stockholder suits to go forward against directors for failing to diligently oversee the company, boards need to focus on the most critical aspects of their businesses and respond to warnings about serious problems.

Avoiding Potential Pitfalls When Developing Alternative Supply Chains
As companies diversify their supply chains in the wake of the pandemic and Russian sanctions, they need to be vigilant about the risks that new suppliers and new governmental interactions bring, and develop procedures to mitigate them.

Podcast: Should Your Company Take a Stand on Political and Social Issues?
In the latest installment of the Informed Board podcast, Skadden partner Ann Beth Stebbins leads a discussion about political and social issues in the workplace, responding to evolving employee expectations and the increased scrutiny of corporate political contributions. The panel also discusses how political and social issues may affect director elections this proxy season.

Spring 2022

In the Name of the Company: When Stockholders Interfere in the Boardroom
Because stockholders have unique and numerous ways to assert rights belonging to corporations, companies can find themselves defending essentially the same claims in multiple guises and jurisdictions. Here are some ways to manage the proliferation.

Winning the War for Talent: It’s the Board’s Responsibility, Too
With millions of employees resigning and millions of positions unfilled, boards need to monitor corporate culture closely to ensure that their companies have the talent they need to thrive.

Preparing for the Unexpected: Problematic Partners, Forced Exits and Extractions
Recent events have brought home the need for multinationals to have contingency plans to deal with the impact of geopolitical disruptions on operations and personnel. Here are ways directors can help ensure their companies are prepared.

How Antitrust Regulators and the SEC Are Advancing the Wider Biden Agenda
In this inaugural episode of the Informed Board podcast, Skadden partners Maria Raptis and Raquel Fox join our host Ann Beth Stebbins to discuss changing approaches to antitrust and securities regulation in Washington. They talk about new priorities in antitrust enforcement, new disclosure initiatives by the Securities and Exchange Commission, and the obstacles that could hinder regulatory rulemaking.

Two Directors Share Lessons on Building a Highly Functioning Board
DuPont's Alexander Cutler believes that executive sessions before and after formal meetings maximize a board's effectiveness. Boston Scientific's Yoshiaki Fujimori recommends careful allocation of a board's time according to the company's priorities.

Winter 2022

What Exactly Is an Independent Director? (Hint: It’s More Complicated Than You Think)
Director independence means different things for different purposes, and it is situational. When directors’ actions are challenged, courts often consider personal and business ties that might suggest divided loyalties.

2022: What You Need To Know …
This year, we expect to see new disclosure requirements; SEC rule changes affecting directors; activists adopting new tactics; changes to shareholder voting processes; tax and antitrust developments that could alter the way companies execute deals; and revised trade rules that will have an impact on many businesses. Here is a quick guide to topics that may affect your decisions as a director in 2022.

Interview: SEC Changes Would Let You Know More About Your Shareholders
The SEC has proposed to update disclosure requirements for investors that acquire 5% of a company, shortening disclosure deadlines and bringing some derivatives within the rules. As Skadden partner Brian Breheny explains, another change would loosen the definition of investors acting as “a group,” potentially requiring them to disclose their holdings and intent sooner.

Fall 2021

Don’t Let the Feds Beat You at the Data-Mining Game
Corporate compliance systems need to adapt to a world where enforcement agencies are increasingly adept at using sophisticated data analytics to spot violations.

Crisis in the C Suite: A 10-Step Plan
When senior executives are accused of misconduct, directors are thrust into the center of the crisis, with pressure to make quick decisions. Boards need a clear game plan to ensure the allegations are addressed and to minimize legal, regulatory, financial and reputational harm.

Interview: Companies May Soon Gain Better Insight Into Their Shareholder Bases, and Insiders May Face New Restrictions on Scheduled Share Sales
SEC veteran Raquel Fox explains how a bill in Congress would require investment funds to disclose their derivatives positions and what the SEC may do to address perceived abuses by directors and officers of pre-scheduled stock sales plans.

Antitrust Enforcement Takes a Sharp Left Turn
Progressives in the Biden administration are reshaping antitrust policy through key appointments and an executive order that aims to increase competition across the economy, not just in the tech sector. Expect more scrutiny of mergers and employment practices, in particular.

This Isn’t Your Grandparents’ Books and Records Demand
As plaintiffs have switched litigation strategies and Delaware courts have expanded stockholders’ rights to seek company records, boards need to be mindful of the changes and assess the way they communicate and record board decision-making.

Summer 2021

Four Questions on Directors’ Minds as the World Returns to Work
Companies generally will be allowed to require employees to return to the office or other facility and to mandate vaccinations and/or testing. But they will need to observe state and federal laws, apply their rules evenhandedly and be alert to permitted exceptions.

What the Exxon Mobil Shareholder Votes Mean
The election to Exxon’s board of three directors nominated by a climate-focused activist fund and shareholder support for lobbying disclosures highlight the ESG forces companies now face. The outcome may embolden other ESG activist funds.

Is Tax Competition Dead?
The G7’s support for a more uniform global framework for corporate taxation could reduce the ability of countries to use low tax rates to attract businesses. Overall, the plan would likely raise taxes for many multinationals.

Fintech Disruption: It’s Not That Simple
Financial institutions and regulators will have to grapple with the potential disruption that could come from decentralized finance (DeFi) technology and cryptocurrencies.

Interlocking Boards: The Antitrust Risk You May Never Have Heard Of
The Clayton Act’s prohibition against competitors sharing directors or officers could be a tool if antitrust regulators look for new ways to preserve competition. Tech companies could be particularly vulnerable.

Spring 2021

What Am I Getting Myself Into? Five Questions Prospective SPAC Directors Should Ask
Much has been written about SPACs, but what does serving as a director of one entail? We highlight issues prospective board candidates should have on their radar and questions they should ask.

Just Between You and Us
The technical requirements of the attorney-client privilege can trip up clients who aren't careful. Here's a list of common misconceptions and real-world foot faults we've seen.

Shareholder Suits Demand More Progress on Diversity
Your board has women and underrepresented minorities. Yet you may still be targeted by a new wave of shareholder derivative suits pressing companies to take aggressive actions to further promote diversity and inclusion.

The Search for Board Diversity: Practical Tips, Statistics on Progress
Corporate governance thought leaders offer pragmatic suggestions for companies and directors aiming to diversify their boards, C-suites and employee ranks.

Winter 2021

Why Does the Brand of My Phone Affect My Credit Rating?
The predictive power of artificial intelligence and alternative data is often mysterious. And that’s a problem.

A Practical Guide to the Role of Directors in Fighting Ransomware
Ransomware is such a major threat to businesses that directors need to take an active role overseeing cybersecurity programs.

The Brexit Deal Leaves Some Mighty Big Holes
The Brexit agreement covered goods but not financial or other services, creating uncertainty for many businesses.

ESG: Many Demands, Few Clear Rules
Regulators and investors are pressing companies to act on ESG issues, but there are few agreed-upon standards. What is a board to do?

New Tactics and ESG Themes Take Shareholder Activism in New Directions
The dividing lines between activist and private equity firms are blurring, and new types of activists are emerging.

Get Used to the New Normal in US-China Trade Relations
Restrictions are unlikely to loosen under the new administration because there is bipartisan support now for taking a hard line with China.

Audio Interview: How Far Can the SEC Go?
Opponents of mandatory disclosures about climate risk and diversity will argue that they exceed the agency’s authority — a six-minute chat with Robert Stebbins, the SEC's general counsel until January.