Sky Blog
Environmental, social, and governance (ESG) considerations have moved from the periphery of corporate governance into the heart of fiduciary decision-making. What began as a largely voluntary framework for assessing non-financial risks has become a central point of legal, political, and …
What should fiduciary duty require when new technology allows corporate directors to see risk more clearly? Though corporate law has long assumed that directors must make decisions under conditions of uncertainty, artificial intelligence and emerging quantum-computing tools may change what …
On March 30, 2026, the U.S. Department of Labor (the DOL) published its heavily anticipated proposed rule entitled “Fiduciary Duties in Selecting Designated Investment Alternatives” (the Proposed Rule).[1] Over the years, sponsors of private funds and other investment vehicles …
Over the past two decades in Delaware, two schools of thought coexisted regarding non-majority control. One school took a formal approach that (i) focused on control over the board of directors, (ii) discounted sources of influence other than stock ownership, …
In August 2024, Delaware enacted what are widely considered the most significant and controversial amendments to the state’s corporate statute in at least a generation. Principally, those amendments exalt freedom of contract over what was, in the words of the …
In a recent article, I analyze the function of shareholder ratification in corporate governance and argue that understanding this function is critical to both refining shareholder-based cleansing mechanisms and appreciating their inherent limitations. Although I focus on Corwin cleansing in …
My colleague Eric Talley at Columbia Law School has proposed an ingenious modification of SB 21 – scheduled for a vote today in the Delaware legislature – that highlights the contractarian traditions of Delaware law and builds off the experience …
Loyalty has been much in the news lately. Vice President Kamala Harris recently suggested that Republican vice-presidential candidate J.D. Vance would be “loyal only to Trump, not to our country.”[1] Online retailer Etsy just announced its first-ever loyalty program …
In the wake of a judicial decision invalidating Tesla CEO Elon Musk’s stock-option package, Tesla’s shareholders have voted overwhelmingly to ratify Musk’s pay. Rather than respect investors’ judgment, however, the lawyers who brought the case claimed that the shareholder vote …
On November 3, 2023, the U.S. Department of Labor (the “DOL”) published a proposed regulation (the “Proposed Rule”) expanding the definition of “investment advice” for purposes of determining which parties are subject to fiduciary status under …
In the latest development in a long-running regulatory saga, the U.S. Department of Labor (DOL) on October 31, again proposed major changes (the Proposal) to the fiduciary rules applicable to the offering of financial products to most individual retirement accounts …
The importance of environmental, social, and corporate governance (ESG) is on the rise, with legislators, regulators, and non-governmental actors around the world creating laws and standards on ESG. Though most of the action has occurred in Europe, ESG is gaining …
It is a common refrain, mostly on the political right, that considering environmental, social, and governance (“ESG”) factors when investing is probably illegal.[1] The basis for this argument derives from the fiduciary duty of loyalty and its corollary, the …
Corporate law – and fiduciary law in general – has struggled with how to handle loyalty duties that are harmful to society. For example, a director’s act of loyalty to shareholders that harms the environment, or a director’s effort to …
The recent pushback by conservative legal groups against equality and diversity on corporate boards has accelerated to new levels in the past few months. The latest example is a challenge to Nasdaq’s board diversity rule, which was approved in August …
Almost 30 years after the American Law Institute published the Principles of Corporate Governance, it has launched an effort covering similar ground, this time promising a Restatement of the Law of Corporate Governance.
The difference between the Principles…
Let’s be clear about this: The Twitter board was under no legal compulsion to accept Elon Musk’s offer for the company and, from a corporate governance structural point of view, was in an unassailable position until the 2024 shareholders meeting. …
In a new article, I answer in the affirmative the question posed in the title of this post. In the United States, we should replace our current regime of muddled and confused insider trading law with a sweeping prohibition …
In Wei v. Zoox, Inc., the Delaware Court of Chancery found that an appraisal petition had been filed for the sole purpose of gathering discovery to be used in drafting a fiduciary duty complaint challenging a merger where the …
In one of the first opinions addressing fiduciary duty claims in the context of a transaction involving a special purpose acquisition company (“SPAC”), the Delaware Court of Chancery determined that the SPAC shareholders’ right to redeem can be undermined by …