Cydney Posner on Board of Directors

Delaware SB 21 signed into law

Controversial Delaware SB 21 was signed into law last evening after passage yesterday by the legislature. According to this Statement from the office of Delaware Governor Matt Meyer, the Governor has “signed Senate Bill 21...more

3/27/2025 / Board of Directors , Books & Records , Business Entities , Controlling Stockholders , Corporate Governance , Delaware , New Legislation , Recordkeeping Requirements , Safe Harbors , Shareholders

Will an opt-in mechanism resolve the melee over Delaware’s controversial SB 21?

As widely reported, the Delaware legislature has responded to increasing chatter and speculation about the intentions of some companies—as well as action in some cases—to change their states of incorporation from Delaware to...more

3/26/2025 / Board of Directors , Constitutional Challenges , Corporate Governance , Delaware , Fiduciary Duty , Legislative Agendas , New Legislation , Regulatory Reform , Shareholders

How will AI impact the boardroom?

In this new paper from the Rock Center for Corporate Governance at Stanford, The Artificially Intelligent Boardroom, the authors discuss the potential impact of artificial intelligence on boardroom practices—impact that they...more

3/24/2025 / Artificial Intelligence , Board Meetings , Board of Directors , Corporate Governance , Due Diligence , Fiduciary Duty , Risk Management

Sponsor of SB 21, controversial Delaware bill to amend corporate law, speaks out

In an exclusive interview with Law360, the Delaware legislator who was the primary sponsor of the proposed amendments to the Delaware General Corporation Law that have fueled so much debate recently discusses the thinking...more

2/28/2025 / Board of Directors , Corporate Governance , Delaware General Corporation Law , Fiduciary Duty , Shareholder Litigation , Shareholders

New Delaware bill would offer safe harbor for conflicted transactions—will it convince companies to stay put in Delaware?

As discussed earlier this month, there has been a lot of chatter and speculation recently about companies changing their states of incorporation from Delaware to other states. In an interview with Business Insider, the new...more

2/20/2025 / Board of Directors , Business Entities , Corporate Governance , Delaware General Corporation Law , Mergers , Shareholders

In case there was any doubt, SEC approves Nasdaq proposal to remove Board diversity rules

In August 2021, the SEC approved a Nasdaq proposal for new listing rules regarding board diversity and disclosure. The new listing rules adopted a “comply or explain” mandate for board diversity for most listed companies and...more

1/28/2025 / Board of Directors , Corporate Governance , Disclosure Requirements , Diversity , Nasdaq , Publicly-Traded Companies , Securities and Exchange Commission (SEC) , Securities Regulation

Nasdaq proposes to modify initial listing requirements for liquidity

Nasdaq is proposing a rule change to modify the initial listing requirements related to liquidity. More specifically, Nasdaq is proposing to change Listing Rules 5405 and 5505 to require that a company seeking to list on the...more

12/23/2024 / Board of Directors , Corporate Governance , Listing Standards , Nasdaq , Shareholders

UPDATED—en banc Fifth Circuit puts the kibosh on the Nasdaq board diversity rules

(This post updates my post of December 12 to add further discussion of the decision.) - In August 2021, the SEC approved a Nasdaq proposal for new listing rules regarding board diversity and disclosure, accompanied by a...more

12/17/2024 / Board of Directors , Corporate Governance , Disclosure Requirements , Diversity , Nasdaq , Publicly-Traded Companies , Securities and Exchange Commission (SEC) , Securities Exchange Act

En banc Fifth Circuit puts the kibosh on the Nasdaq board diversity rules

In August 2021, the SEC approved a Nasdaq proposal for new listing rules regarding board diversity and disclosure, accompanied by a proposal to provide free access to a board recruiting service. The new listing rules adopted...more

12/12/2024 / Board of Directors , Corporate Governance , Disclosure Requirements , Diversity , Nasdaq , Publicly-Traded Companies , Securities and Exchange Commission (SEC)

How should the board consider security concerns for executives?

After the alarming murder of an insurance company CEO last week, questions about protection and security for CEOs and other executives are suddenly high on the agenda for boards of directors. A big concern: will there be...more

12/12/2024 / Board of Directors , CEOs , Corporate Governance , Disclosure Requirements , Securities and Exchange Commission (SEC)

PwC’s 2024 Corporate Directors’ Survey—how are boards addressing the current uncertainty?

The title of PwC’s new 2024 Corporate Directors’ Survey, Uncertainty and transformation in the modern boardroom, might clue you in to one of its themes: uncertainty—anxiety?—arising out of the looming election. According...more

10/30/2024 / Board of Directors , Corporate Governance , Diversity , Shareholder Activism , Shareholders

Are responses to failed say-on-pay votes consequential?

Are you ever surprised that more companies don’t fail their say-on-pay votes? Say on pay was adopted by the SEC under a Dodd-Frank mandate signed into law against the backdrop of the 2008 financial crisis. The mandate was...more

10/21/2024 / Board of Directors , Compensation Committee , Corporate Governance , Disclosure Requirements , Dodd-Frank , Say-on-Pay , Securities and Exchange Commission (SEC) , Shareholders

Is there a place for more inside directors on corporate boards?

In this article in the Harvard Business Review, a law professor from the University of Calgary makes “The Case for More Company Insiders on Boards.” From the end of World War II to the 1970s, he observes, the composition of...more

10/9/2024 / Board of Directors , Corporate Governance , Executive Compensation , Publicly-Traded Companies , Shareholders

SEC charges director with proxy violation for failing to disclose personal relationship bearing on independence

Last week, the SEC announced settled charges against James R. Craigie, a former CEO, Chair and board member of Church & Dwight Co. Inc., an NYSE-listed “manufacturer of consumer-packaged goods,” for “violating proxy...more

10/7/2024 / Board of Directors , Corporate Governance , Disclosure Requirements , Investors , Proxy Statements , Securities and Exchange Commission (SEC) , Shareholders

Delaware Supreme Court considers advance notice bylaws

In this recent case, Kellner v. AIM ImmunoTech, the Delaware Supreme Court articulated a two-part framework for judicial consideration of advance notice bylaws in the event of a challenge to their adoption, amendment or...more

8/8/2024 / Board of Directors , Bylaws , Corporate Governance , Delaware General Corporation Law , Shareholders

SEC’s Spring 2024 agenda delays most actions until 2025

As reported by Bloomberglaw.com, during an interview in February on “Balance of Power” on Bloomberg Television, SEC Chair Gary Gensler said that he does not intend to “rush” the SEC’s agenda “to get ahead of possible...more

7/10/2024 / Board of Directors , Corporate Governance , Disclosure Requirements , Diversity , Publicly-Traded Companies , Securities and Exchange Commission (SEC)

Controversial Delaware legislation breezes through Delaware Senate

Controversy notwithstanding, the proposed amendments to the Delaware General Corporation Law in Senate Bill 313 have reportedly “sailed through” the Delaware Senate and are scheduled to move to the Delaware House this week....more

6/17/2024 / Board of Directors , Corporate Governance , Shareholder Litigation , Shareholders , Stockholder Agreements

What does the Nasdaq board diversity data tell us?

As you know, the Nasdaq board diversity disclosure requirements might be in jeopardy at the moment, as we await the decision of the en banc Fifth Circuit following oral argument in Alliance for Fair Board Recruitment and...more

6/14/2024 / Board of Directors , Corporate Governance , Disclosure Requirements , Diversity , Nasdaq

Chancellor McCormick, law professors weigh in on controversy over proposed DGCL amendments

Last month, this PubCo post discussed the recent controversy over proposed amendments to the Delaware General Corporation Law. As noted in the post, the Council of the Corporation Law Section of the Delaware State Bar...more

6/10/2024 / Board of Directors , Corporate Governance , Delaware General Corporation Law , Merger Agreements , Shareholders , Stockholder Agreements

Exxon court challenge to Arjuna shareholder proposal survives dismissal

You may recall that, in January, ExxonMobil filed a lawsuit against Arjuna Capital, LLC and Follow This, the two proponents of a climate-related shareholder proposal submitted to Exxon, seeking a declaratory judgment that it...more

5/29/2024 / Board of Directors , Corporate Governance , Popular , Proxy Season , Proxy Statements , Publicly-Traded Companies , Rule 14a-8 , Securities and Exchange Commission (SEC) , Shareholder Proposals , Shareholders

Dubious en banc Fifth Circuit hears oral argument on Nasdaq board diversity rules

In August 2021, the SEC approved a Nasdaq proposal for new listing rules regarding board diversity and disclosure, accompanied by a proposal to provide free access to a board recruiting service. The new listing rules adopted...more

5/15/2024 / Board of Directors , Corporate Governance , Disclosure Requirements , Diversity , Nasdaq

Are boards overseeing AI?

Is there a hotter topic in the business world than AI? AI offers major opportunities for progress and productivity gains, but substantial risks as well. According to FactSet, 179 companies in the S&P 500 used the term “AI”...more

5/7/2024 / Artificial Intelligence , Board of Directors , Corporate Governance , Enforcement Actions

Strine highlights the importance of the “not-sexy” process of board minutes

In an article in the Fordham Journal of Corporate and Financial Law, “Minutes Are Worth the Minutes: Good Documentation Practices Improve Board Deliberations and Reduce Regulatory and Litigation Risk,” former Chief Justice of...more

4/23/2024 / Board of Directors , Corporate Governance , Corporate Officers , Shareholders

Delaware Supreme Court applies MFW framework to other conflicted transactions

In In re Match Group, Inc. Derivative Litigation, the Delaware Supreme Court answered some important questions about the standard of review applicable to conflicted transactions under Delaware law. The first question relates...more

4/15/2024 / Board of Directors , Business Judgment Rule , Corporate Governance , Derivative Suit , Minority Shareholders , Shareholders

Can director commitments policies help prevent overextended boards?

There is a lot going on at companies, and—you may be surprised to hear—not all of it is new regulation. There are new technologies, such as AI, global political instability and social change, not to mention ESG and...more

3/27/2024 / Board of Directors , Corporate Governance , Glass Lewis , Publicly-Traded Companies , Shareholders

Cydney Posner

Cooley LLP

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