Rebuttal to “Delaware Law Permits Companies to Adopt Mandatory Arbitration Clauses”
Mohsen Manesh argues that Delaware General Corporation Law §115(c) bars mandatory arbitration clauses for federal securities claims in corporate charters and bylaws. He cites the statute’s legislative synopsis, its parallel structure with §115(a), and the unanimous interpretation by the Delaware corporate bar and courts, including the Salzberg decision. While Freshfields lawyers claim the Federal Arbitration Act could preempt the bar, Manesh contends that the FAA presupposes consent, which a state‑crafted charter cannot waive. Market data since the SEC’s 2025 policy shift show no Delaware‑incorporated public company adopting such clauses, with only non‑Delaware firms like Zion Oil & Gas and the planned SpaceX provision testing investor tolerance.
Delaware Supreme Court Affirms Dismissal of Premature Challenges to Advance Notice Bylaws
The Delaware Supreme Court affirmed the dismissal of two stockholder suits challenging advance‑notice bylaws adopted by The AES Corporation and Owens Corning, finding the claims premature and unripe. The Court reiterated that such bylaws undergo a two‑step test—legal authorization followed by...
Current Developments in Takeover Law and Practice
M&A activity surged in 2025, with U.S. deal volume topping $2.3 trillion—a 58% year‑over‑year jump—and global volume rising 42%. Megadeals worth $10 billion or more hit a record 68 transactions, highlighted by Union Pacific’s $85 billion merger with Norfolk Southern and Paramount Skydance’s $110 billion...
Top IPO, Weak Governance
SpaceX is preparing what could become the largest IPO ever, targeting up to $75 billion in proceeds and a valuation exceeding $2 trillion. The company will issue one‑vote Class A shares to the public while retaining ten‑vote Class B shares for Elon Musk and...
Court Order Signals New Era for Shareholder Proposals Under Rule 14a-8
A U.S. District Court ordered BJ’s Wholesale Club to include a shareholder proposal demanding a deforestation‑risk assessment of its private‑label brands, marking the first injunction compelling inclusion under Rule 14a‑8. The decision rejects the company’s reliance on the “ordinary business” exclusion...
SEC’s Recent Public Company Settlement Provides Guidance for Corporate Resolutions Under the Current Administration
On April 20, 2026, the SEC settled an enforcement action against Key Tronic Corp. and two senior executives for violations of books‑and‑records and internal‑control provisions. The company agreed to cease the conduct but faced no civil monetary penalty, while the...
Recent Developments Affecting US Public Companies and Boards
Boards of U.S. public companies are expanding oversight to include capital‑strategy, AI governance, cybersecurity, and shareholder‑proposal processes. The financing landscape now features private credit, insurance capital, and hybrid instruments, prompting continuous board monitoring of capital structure. Recent court rulings expose...
CEO/Chair Leadership: When and Why Boards Combine or Separate the Roles
In 2025, 42% of S&P 500 companies still have the CEO serving as board chair, down from 47% in 2020, while only 4.6% of CEO successions combined the two roles. Most large‑cap firms (79% of S&P 500, 71% of Russell 3000) disclose policies...
Not New: A Response to Claims About “New Control” In Control and Its Discontents
J. Travis Laster’s response dismantles the claim that recent Delaware decisions—Match, Sears Hometown, and Tornetta—constitute a novel break from precedent. He demonstrates that the entire‑fairness doctrine has long applied to a range of controlling‑stockholder conflicts, not just freeze‑outs, and that fiduciary duties...
Delaware Law Permits Companies to Adopt Mandatory Arbitration Clauses for Federal Securities Claims
Freshfields’ memorandum argues that Delaware’s General Corporation Law does not forbid mandatory arbitration clauses for federal securities claims, contrary to prevailing commentary. The SEC’s September 2025 decision removed restrictions on such clauses, promising lower defense costs and fewer class‑action pressures....
Delaware Law Permits Companies to Adopt Mandatory Arbitration Clauses for Federal Securities Claims
In September 2025 the SEC removed limits on mandatory arbitration clauses for federal securities claims, opening the door for companies to shift shareholder disputes out of court. Freshfields argues that Delaware law does not bar such clauses; the newly amended DGCL...
Control Issues: Delaware Holds Parties to Their Bargain in Recent Governance Decisions
Delaware courts reaffirm their contractarian approach in three recent Chancery rulings, emphasizing that parties must adhere to the explicit control mechanisms they draft. In Ropko et al. v. McNeill, Jr., a unilateral removal consent was invalidated because the voting agreement...
AI Corporate Governance and Ben & Jerry’s Risk
Harvard Law scholars Jesse Fried and Idan Reiter argue that AI firms such as OpenAI and Anthropic embed a structural conflict by installing self‑appointed mission guardians who can override profit‑seeking investors. They label the failure of Unilever’s Ben & Jerry’s guardian experiment...
Remarks by Chairman Atkins on the Role of Economic Analysis in Financial Market Regulation
Chairman Paul Atkins announced a strategic shift at the SEC toward rigorous economic analysis in enforcement, moving away from a focus on the sheer number of actions. He highlighted the appointment of Enforcement Director David Woodcock to lead a more...
Remarks by Chairman Atkins on AI Innovation, Capital Markets, and Regulatory Flexibility
Chairman Paul Atkins urged the SEC to adopt a flexible, innovation‑friendly stance toward artificial intelligence and on‑chain financial markets. He highlighted the agency’s past success with the Reg ATS framework and recent blockchain guidance as models for future rulemaking. Atkins...