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Kate Hudson Just Told Us About a 2-Ingredient Beverage
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Keynote Address by Chair Atkins on Revitalizing Public Company Appeal
Good evening, ladies and gentlemen. Thank you, Larry [Cunningham], for your generous introduction and your kind invitation for me to be here today. It is an honor and pleasure for me to participate in the Weinberg Center’s twenty-fifth anniversary. Larry, I should also like to congratulate you on your recent appointment as director of the Center. I know that you are deeply devoted to the Center’s mission, and I am confident that you will contribute to its work in extraordinary ways, consistent with the excellence that has defined your career.
Tonight marks my third time attending this forum, but my first as SEC Chairman. So, I am sure that you appreciate that the views I express here are in my capacity as Chairman and do not necessarily reflect those of the SEC as an institution or of my fellow Commissioners. With that disclaimer out of the way, it is a pleasure to return to the Weinberg Center—and a special privilege to do so tonight. For a quarter century, the Center has distinguished itself as one of the premier and longest-standing corporate governance institutions in academia. Its insights command the attention of practitioners in boardrooms and courtrooms alike. And tonight, we convene not only to honor the Center’s legacy, but also to build on it.
As a leading venue for informed dialogue, the Weinberg Center commits itself to shaping and influencing corporate governance. In that spirit, I am delighted to discuss one of my top priorities as Chairman, which is to make being a public company an attractive proposition for more firms. Let’s face it: in many quarters and for many reasons, taking a company public is no longer so “cool” as it once was. There are approximately 4,700 exchange-listed companies today, compared to a high point of approximately 7,800 in 2007. My goal is to reverse this trend—to “Make IPOs Great Again” —and it involves three pillars. First, we must simplify and scale the SEC’s disclosure requirements to reduce the costs of preparing SEC filings and, at the same time, make them more comprehensible. Second, we must de-politicize shareholder meetings and return their focus to voting on director elections and significant corporate matters. Finally, we must reform the litigation landscape for securities lawsuits to eliminate frivolous complaints, while maintaining an avenue for shareholders to continue to bring meritorious claims. My remarks this evening will focus on the latter two pillars, each of which also implicates state corporate law.
In the past few proxy seasons, perhaps nothing has epitomized the politicization of shareholder meetings more than shareholder proposals focused on environmental and social issues. These proposals, which reflect views from both sides of the political aisle, generally call for actions that are not binding on the company—referred to as “precatory proposals”—and frequently involve issues not material to the company’s business. When voted on at meetings, they almost always receive even lower support than shareholder proposals do generally. Nonetheless, these proposals consume a significant amount of management’s time and impose costs on the company. However, is a company actually required to include these precatory shareholder proposals in its proxy materials? The answer to this question lies at the intersection of the Commission’s Rule 14a-8 and state corporate law.
While Rule 14a-8 provides a mechanism for a shareholder to include its proposal in the company’s proxy statement, the rule can only be used for proposals that can properly be brought before a shareholder meeting under state law. If a proposal is not permissible under state law—that is, if it is not a “proper subject” for action by shareholders—Rule 14a-8 permits a company to exclude the proposal from its proxy statement. The original 1942 version of Rule 14a-8 embodied this concept, and it lives today in paragraph (i)(1) of the rule.
State law governs whether a proposal is a “proper subject.” So, are precatory proposals a “proper subject” for action by shareholders under Delaware law? The expertise and domain of the Commission and its staff is in the federal securities laws. Accordingly, it is appropriate for the agency to defer to those who practice Delaware law, including many of you in the room this evening, to answer this question. But at least one Delaware practitioner has recently concluded that precatory proposals are not a “proper subject” because Delaware law does not confer to stockholders an inherent right to vote on precatory proposals.
The view that Delaware law does not provide shareholders the right to have their precatory proposals addressed by companies is not a new one. Speaking at an SEC roundtable on proxy rules and state corporate law in 2007, Leo Strine, who was Vice Chancellor [of the Delaware Court of Chancery] at the time and who I understand delivered the keynote address at the Symposium earlier today, said the following about precatory proposals under Delaware law: “In Delaware, [we] vote on real things…We do not have imaginary voting. We do not have therapy for whoever…We do not have what I call ‘pizza on the wall.’ That is precatory proposals.”
But if precatory proposals are not a “proper subject” for shareholder action under Delaware law—and more than two-thirds of S&P 500 companies are incorporated in the state—why have companies not sought to exclude precatory shareholder proposals pursuant to paragraph (i)(1)? At the same 2007 roundtable, the late Marty Dunn, a much-admired lawyer in the SEC’s Division of Corporation Finance, posited exactly this question. In response, then-Chancellor Strine said, “[the SEC] made…up [precatory proposals and Delaware is] fine with it.”
The Commission, through the note to paragraph 14a-8(i)(1), contemplates whether precatory proposals are a “proper subject.” The note reflects a codification of the Commission staff’s views that there is a presumption that precatory proposals are a “proper subject” under state law. However, the notion that Rule 14a-8 gives shareholders the right to present precatory proposals— when state law does not—is supported neither by the text of the note nor its history. In fact, the note expressly states that a company can overcome the presumption. Furthermore, when the Commission amended the note in 1983, the purpose was to “make it clear that whether the nature of the proposal, mandatory or precatory, affects its includability is solely a matter of state law, and to dispel any mistaken impression that the Commission’s application of paragraph (i) is based on the form of the proposal.”
Pulling all of this together, if there is no fundamental right under Delaware law for a company’s shareholders to vote on precatory proposals—and the company has not created that right through its governing documents—then one could make an argument that a precatory shareholder proposal submitted to a Delaware company is excludable under paragraph (i)(1) of Rule 14a-8. If a company makes this argument and seeks the SEC staff’s views, and the company obtains an opinion of counsel that the proposal is not a “proper subject” for shareholder action under Delaware law, this argument should prevail, at least for that company. I have high confidence that the SEC staff will honor this position.
In 2007, Delaware amended its constitution to give the SEC the ability to certify questions to its highest court for declaratory judgements. So far, the Commission has taken advantage of this tremendous opportunity only once—in June of 2008, shortly before I left the SEC as a Commissioner in my prior tour of duty. Interestingly, that certification also involved whether a shareholder proposal was a “proper subject” for shareholder action. The court issued its decision just 20 days after the Commission’s certification. As I stated at the time, I salute the court for its speed in deciding the issue. If the need for the Commission to certify a question to the court arises in the future, I hope that both the agency and the court will continue to benefit from this unique partnership to expeditiously resolve matters of Delaware law that arise in the context of the federal securities laws.
While we are on the topic of the role of states in shareholder proposals, I also want to discuss recent developments in Texas. Last month, the state’s shareholder proposal law went into effect and added a new section to the Texas Business Organizations Code (“TBOC”). If a company opts into this section, then a shareholder must own at least $1 million in market value or three percent of the company’s voting shares, among other requirements, to submit a shareholder proposal. These thresholds are obviously significantly higher than those in Rule 14a-8. Some commenters have raised the issue of whether submission thresholds established by a state are preempted by Rule 14a-8.
Two years ago, Commissioner Mark Uyeda addressed the concept of private ordering for shareholder proposals. I agree with his view that “[R]ule 14a-8’s procedural bases for exclusion…should be viewed as default standards that apply only if companies decline to establish their own standards in their governing documents.” While Commissioner Uyeda’s remarks were focused on standards contained in a company’s governing documents, I see no difference if the standards are contained within a state’s corporate law.
Shortly after the Commission adopted the original version of Rule 14a-8, then-SEC Chairman Ganson Purcell explained that “[t]he right that [the rule is] endeavoring to assure to the stockholders are those rights that he has traditionally had under State law.” If a shareholder does not have a right to submit a proposal under state law—because it fails to satisfy requirements imposed by either state law or the company’s governing documents—then what right is Rule 14a-8 assuring?
So, if a company has opted into the Texas law, or has otherwise properly established conditions in its governing documents, and receives a shareholder proposal from a proponent that does not satisfy the requirements in the Texas law or the governing documents, then the proposal should be excludable under paragraph (i)(1) of Rule 14a-8.
While the interplay between paragraph (i)(1) and state corporate law is interesting, I believe a fundamental reassessment of Rule 14a-8 is in order. To that end, Shareholder Proposal Modernization is on the Commission’s policy agenda, and as part of this modernization effort, I have asked the staff to evaluate whether the Commission’s original rationale for adopting Rule 14a-8 in 1942 still applies today, especially in light of developments in the proxy solicitation process and shareholder communications generally over the last 80 plus years.
Mindful that Section 14 of the Securities Exchange Act of 1934 (the “Exchange Act”), under which Rule 14a-8 is promulgated, is centrally concerned with disclosure, the Commission should re-evaluate the rule’s fundamental premise that shareholders should be able to force companies to solicit for their proposals—to the extent that a shareholder proposal is a proper subject for shareholder action under state law—at little or no expense to the shareholder. In fact, Chairman Purcell faced questions on this fundamental premise in a Congressional hearing over 80 years ago. Thus, it is only prudent for the Commission to review and reassess the original intent behind the rule and the role that it serves our capital markets today. Of course, the Commission must first propose changes, then gather and consider public feedback before adopting any changes. This process does not happen overnight. Until any changes are finalized, I encourage companies, shareholder proponents, and their advisors to consider the points that I have raised this evening.
Turning to my other topic for tonight’s remarks—securities litigation reform and Delaware’s role in it—while class action securities litigation can serve an important path for vindication of rights as well as a deterrence function, meritless, vexatious, or frivolous litigation also has the marginal effect of driving capital away from the U.S. public markets. Press reports, conferences, and academic papers are replete with much commentary on this issue. It is incumbent on legislatures and regulators to ensure that their laws and rules are not being “gamed” or abused to support someone’s business model. Reform may be needed to ensure that the “cost” of being a public company does not involve frivolous lawsuits and exorbitant plaintiffs attorneys’ fees masked as recoveries for shareholders. All companies pay for these costs—even ones that are not subject to lawsuits—through increased D&O insurance premiums. Absent federal legislative changes, states can have significant influence in shaping reform in securities litigation. Reform should not be equated with the elimination of lawsuits, but rather, it can mean providing companies with optionality for how best to resolve disputes with their shareholders.
Unfortunately, recent actions by the Delaware legislature suggest that the state is not only uninterested in reform, but instead, seems to embrace the litigation costs that abusive lawsuits impose on companies franchised in Delaware. As many of you in the room are aware, through Senate Bill 95 (“SB 95”), Delaware recently amended its General Corporation Law (the “Corporation Law”) with respect to a couple of matters related to intra-corporate affairs claims, which include federal securities law claims. First, in permitting forum selection in Delaware for federal securities law claims, SB 95 also prohibited mandatory arbitration with respect to these claims. Second, SB 95 extended the Corporation Law’s prohibition on fee shifting to federal securities law claims.
I am disappointed by these two targets of SB 95. While mandatory arbitration and fee shifting are not without controversy, they also have merits, including, with respect to mandatory arbitration, quicker payments to harmed shareholders and reduced litigation costs—and, with respect to fee shifting, fewer frivolous lawsuits. Companies should have the ability to determine, after weighing the pros and cons, whether one, both, or neither of these provisions is appropriate for their business and shareholder base.
When the Commission articulated its views last month that mandatory arbitration provisions are not inconsistent with the federal securities laws, I explained that the company, and not the Commission, should decide the particular method of resolving disputes with the company’s shareholders. Unfortunately, for public companies that consider mandatory arbitration to be a vital aspect of their dispute resolution strategy, SB 95 has effectively eliminated Delaware as an option for incorporation.
Turning to fee shifting, many of you here this evening are well aware of the history of fee shifting in the Delaware courts and legislature. In 2014, the Delaware Supreme Court held that the fee-shifting bylaw of ATP Tour, a non-stock corporation, was valid. Within a year, more than 50 public companies adopted such bylaws. However, in mid-2015, the Delaware legislature, through Senate Bill 75 (“SB 75”), declined to extend the ATP decision to stock corporations and instead, prohibited fee shifting for internal corporate claims.
Following SB 75, some commentators predicted an exodus of companies reincorporating to another state and the potential demise of Delaware as the leading state for corporate charters. I was one who said at the time that SB 75 could be the proverbial straw that breaks the camel’s back of Delaware’s primacy as the chosen state of franchise. Those predictions have not necessarily materialized over the past decade, but the pressure on and alternatives to Delaware are growing. Moreover, this possibility of a “DExit” sprang back to life earlier this year, with one prominent venture capital firm publicly announcing its reasons for reincorporating in Nevada.
As part of an effort to halt “DExit,” Delaware passed Senate Bill 21 (“SB 21”) in March of this year to amend provisions of the Corporation Law related to controlling stockholder transactions and inspection of books and records. If SB 21 were one step forward by Delaware to modernize its Corporation Law, the prohibition of mandatory arbitration and fee shifting for federal securities law claims in SB 95 were two giant steps backward.
However, I recognize that SB 95 was developed and became law at a time when the Commission had not made its views on mandatory arbitration clear to the public. With the benefit of clarity under the federal securities laws, I hope that the Delaware legislature will revisit the prohibition of both mandatory arbitration and fee shifting with respect to federal securities law claims. Doing so can help Delaware be a leader in the reform of securities litigation.
In closing, the declining number of public companies that I referenced at the outset of my remarks is not inevitable or irreversible. It is a signal that the costs of being a public company, coupled with the politicization of shareholder meetings, and ever-present specter of costly, frivolous litigation, have negatively impacted the vibrancy of our capital markets. Taken together, these forces have eroded American competitiveness; locked retail investors out of many of the most dynamic companies; and pushed entrepreneurs to seek capital elsewhere, either in the private markets or competing jurisdictions.
The chance to reverse these trends is well within your reach—and requires your renewed commitment to the principles that made the U.S. capital markets exceptional. For a quarter century, the Weinberg Center’s scholarship and leadership have exemplified that commitment. The Center has left a profound imprint on corporate governance, and its legacy calls on everyone anew to reflect thoughtfully, but without delay, on how we can update rules and practices to better serve U.S. capital markets, investors, and business.
I commit that the SEC in the coming years will play its part, as well. We must do so to ensure that the American public capital markets remain the envy of the world through growth, vibrancy, innovation, and nimbleness.
The Weinberg Center has my sincere congratulations on attaining twenty-five years of achievement—and my gratitude, once again, for the privilege of celebrating them with you here tonight. It has been my pleasure speaking with you. You have been a very patient and indulgent audience, and I welcome your active involvement in the issues that I have raised for your consideration tonight.
Thank you.
1Based on information provided by Commission staff in the Division of Economic and Risk Analysis.(go back)
2For the past four proxy seasons, environment and social shareholder proposals represented 49% (2025), 60% (2024), 54% (2023), and 52% (2022) of all shareholder proposals voted at shareholder meetings. This data was provided by Proxy Analytics LLC. A proxy season refers to the period from July 1 of the prior year to June 30 of the stated year. Data is for companies included in the Russell 3000 Index.(go back)
3For the past four proxy seasons, environment and social shareholder proposals received, on average, 12.9% (2025), 16.2% (2024), 19.8% (2023), and 28.5% (2022) support. This compares to 23.2% (2025), 22.9% (2024), 23.5% (2023), and 32.4% (2022) support received for all shareholder proposals. This data was provided by Proxy Analytics LLC. A proxy season refers to the period from July 1 of the prior year to June 30 of the stated year. Data is for companies included in the Russell 3000 Index.(go back)
4In 2020, the Commission estimated that a company can incur up to $150,000 to process a shareholder proposal, and this amount does not include any opportunity costs associated with management’s time that could have been spent on value-creating activities for the company. See Procedural Requirements and Resubmission Thresholds under Exchange Act Rule 14a-8, Release No. 34-89964 (Sept. 23, 2020) [85 FR 70240, 70274 and note 295 (Nov. 4, 2020)].(go back)
517 CFR 240.14a-8.(go back)
6Procedural Requirements and Resubmission Thresholds under Exchange Act Rule 14a-8, Release No. 34-89964 (Sept. 23, 2020) [85 FR 70240, 70274 (Nov. 4, 2020)] (“[W]hile Rule 14a-8 provides a federal process for proxy voting and solicitation with respect to a shareholder proposal, matters of corporate organization such as voting rights and whether a proposal is a proper subject for action remain governed by state law.”) and Shareholder Proposals, Release No. 34-56160 (July 27, 2007) (the “2007 Long Proposing Release”) [72 FR 43466, 43467 (Aug. 3, 2007)] (“[T]he Commission has sought to use its authority in a manner that does not conflict with the primary role of the states …. For example, Rule 14a-8, the shareholder proposal rule, explicitly provides that a shareholder proposal is not required to be included in a company’s proxy materials if it ‘is not a proper subject for action by shareholders under the laws of the jurisdiction of the company’s organization.’”).(go back)
72007 Long Proposing Release at 43468 (“Because the proxy process is meant to serve, as nearly as possible, as a replacement for an actual, in-person meeting of shareholders, it should facilitate proposals concerning only those subjects that could properly be brought before a meeting under the corporation’s charter or bylaws and under state law.”).(go back)
8See Release No. 34-3347 (Dec. 18, 1942) [7 FR 10655 (Dec. 22, 1942)].(go back)
917 CFR 240.14a-8(i)(1).(go back)
10Id. See also Adoption of Amendments to Proxy Rules, Release No. 34-4979 (Jan. 6, 1954) (the “1954 Release”) [19 FR 246 (Jan. 14, 1954)]. The 1954 Release amended the predecessor to Rule 14a-8(i)(1) to “make it clear that State law is to be the standard of eligibility of a proposal under the rule.”(go back)
11Kyle Pinder, The Non-Binding Bind: Reframing Precatory Stockholder Proposals under Delaware Law, 15 Mich. Bus. & Entrepreneurial L. Rev. __ (forthcoming), available at https://papers.ssrn.com/sol3/Delivery.cfm/5418534.pdf?abstractid=5418534&mirid=1&type=2.(go back)
12See, e.g., Leo E. Strine Jr., Breaking the Corporate Governance Logjam in Washington: Some Constructive Thoughts on a Responsible Path Forward, 63 Bus. Law. 1079, 1088–1089 (2008) (“Strangely, precisely because state corporation laws do not contemplate non-binding stockholder votes on anything, the SEC has permitted non-binding or “precatory” proposals on virtually everything…As a result, stockholders had, by federal mandate, the option to require a stockholder referendum on a non-binding resolution when state law gives stockholders no right to demand such a show of hands.”) and Mohsen Manesh, The Corporate Contract and Private Ordering of Shareholder Proposals, 50 J. Corp. L. 1, 29 (2024) (“For one, there is nothing in Delaware’s statute or caselaw establishing as ‘settled’ public policy the right of shareholders to make or vote on a proposal at a shareholder meeting.”).(go back)
13Unofficial Transcript: Roundtable Discussions Regarding the Federal Proxy Rules and State Corporation Law (May 7, 2007) (“2007 Roundtable”) at 18, available at https://www.sec.gov/spotlight/proxyprocess/proxy-transcript050707.pdf. However, at the same roundtable, the late Frank Balotti, who I consider as one of the leading experts of Delaware corporate law, said that he believed precatory proposals were authorized by Section 211 of the Delaware General Corporation Law. Id. at 34 (“I think precatory resolutions are authorized by [Section] 211 [of the Delaware General Corporation Law], which says that a stockholder can bring before a meeting anything that is proper for a stockholder to act on. I believe that it is proper for stockholders to ask directors to do whatever, as opposed to telling directors to do whatever.”).(go back)
14Delaware Tells Companies: ‘Let’s Stay Together’, The Informed Board (Spring 2025), Edward B. Micheletti and Jenness E. Parker, available at https://www.skadden.com/insights/publications/2025/05/the-informed-board/delaware-tells-companies.(go back)
152007 Roundtable at 32 (“The question in 14a-8 land that we always deal with when we get shareholder proposals, one of the first basis to exclude it is it is inappropriate under state law. Whenever we get a precatory proposal, nobody ever argues to us that they don’t have authority to raise it under state law, which I find interesting…If in fact Delaware law doesn’t authorize precatory proposals, why do we not get that argument…?”).(go back)
16Id.(go back)
17Note 1 to Rule 14a-8(i)(1) states: “Depending on the subject matter, some proposals are not considered proper under state law if they would be binding on the company if approved by shareholders. In our experience, most proposals that are cast as recommendations or requests that the board of directors take specified action are proper under state law. Accordingly, we will assume that a proposal drafted as a recommendation or suggestion is proper unless the company demonstrates otherwise.”(go back)
18Amendments to Rules on Shareholder Proposals, Release No. 34-39093 (Sept. 18, 1997) [62 FR 50682, 50685 (Sept. 26, 1997)] (“We would revise the note to [paragraph (i)(1)] to reflect the Division [of Corporation Finance]’s current practice of assuming that a proposal drafted as a recommendation or request is proper unless the company demonstrates otherwise.”).(go back)
1917 CFR 24.14a-8(i)(1) note (“[W]e will assume that a proposal drafted as a recommendation or suggestion is proper unless the company demonstrates otherwise.”) (emphasis added).(go back)
20While the Commission amended the text of the note to its current form in 1998, the purpose of the amendment appears to have been to reflect the Division of Corporation Finance’s then practice of “assuming that a proposal drafted as a recommendation or request is proper unless the company demonstrates otherwise,” rather than no longer looking to state law to determine whether it is a “proper subject” based on the mandatory or precatory nature of the proposal. See supra note 18.(go back)
21Amendments to Rule 14a-8 Under the Securities Exchange Act of 1934 Relating to Proposals by Security Holders, Release No. 34-20091 (Aug. 16, 1983) [48 FR 38218, 38220 (Aug. 23, 1983)].(go back)
22A company is not required to obtain the staff’s views to exclude a proposal. These views are non-binding, and only a court can adjudicate whether a company can exclude a shareholder proposal submitted under Rule 14a-8 from its proxy statement. See Statement of Informal Procedures for The Rendering of Staff Advice With Respect to Shareholder Proposals, Release No. 34-12599 (July 7, 1976) [41 FR 29989 (July 20, 1976)]. If a company seeks the staff’s views to exclude a proposal, the company bears the burden of persuading the staff. 17 CFR 240.14a-8(g).(go back)
2317 CFR 240.14a-8(j)(2)(iii).(go back)
24DE Const. art. IV, § 11(8).(go back)
25CA, Inc. v. AFSCME Employees Pension Plan, 953 A.2d 227 (Del. 2008).(go back)
26Id. at 231.(go back)
27Id. at 229 (the court issued its opinion on July 17, 2008, following the Commission’s June 27, 2008 certification).(go back)
28See Paul S. Atkins, Shareholder Rights, the 2008 Proxy Season, and the Impact of Shareholder Activism (July 22, 2008) (“July 22, 2008 Speech”), available at https://www.sec.gov/news/speech/2008/spch072208psa.htm.(go back)
29Texas Senate Bill 1057, available at https://legiscan.com/TX/text/SB1057/2025.(go back)
30TX Bus. Orgs. § 21.373(e).(go back)
31See 17 CFR 240.14a-8(b)(1)(i).(go back)
32See, e.g., A New Era of Corporate Law in Texas, Latham & Watkins LLP (Sept. 23, 2025), available at https://www.lw.com/en/insights/a-new-era-of-corporate-law-in-texas and New Texas Law Applicable to “Nationally Listed Corporations” Sets Forth Heightened Requirements for Shareholder Proposals, Jackson Walker (Sept. 8, 2025), available at https://www.jw.com/news/insights-texas-law-shareholder-proposals/.(go back)
33Mark T. Uyeda, Remarks at the Society for Corporate Governance 2023 National Conference (June 21, 2023), available at https://www.sec.gov/newsroom/speeches-statements/uyeda-remarks-society-corporate-governance-conference-062123.(go back)
34Id. In a footnote to his remarks, Commissioner Uyeda addressed the 1947 decision by the Court of Appeals for the Third Circuit in SEC v. Transamerica Corporation et al., which could be interpreted as prohibiting a company from establishing its own standards for submitting shareholder proposal. Id. at note 55. I agree with Commissioner Uyeda’s views on this matter. For further discussion of Transamerica, see, e.g., Pinder, supra note 11, at 13-14.(go back)
35Hearings Before the Committee on Interstate and Foreign Commerce on H.R. 1493, H.R. 1821 and H.R. 2019, 78th Cong. 172 (1943) (“1943 Hearings”), at 172.(go back)
36Securities and Exchange Commission Agency Rule List – Spring 2025, available at https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST¤tPub=true&agencyCode=&showStage=active&agencyCd=3235.(go back)
37See e.g., Strine, supra note 12, at 1095 (“If investors seeking to change corporate governance really care about their proposals, why can’t they pay all of their own solicitation costs? Especially now that it is becoming both cheaper and easier to run an effective proxy contest because of the increase in institutional holdings and the ease of sending information electronically?”).(go back)
38Business Roundtable v. S.E.C., 905 F.2d 406 (D.C. Cir. 1990) (observing that “it is not seriously disputed that Congress’s central concern [when enacting the Exchange Act] was with disclosure” when holding that the Commission exceeded its statutory authority under the Exchange Act in adopting the one share, one vote rule barring exchanges and Nasdaq from listing common shares with unequal voting rights) and J.I. Case Co. v. Borak, 377 U.S. 426 (1964) (stating that “the purpose of Section 14(a) is to prevent management or others from obtaining authorization for corporate action by means of deceptive or inadequate disclosure in proxy solicitation.”).(go back)
39See 1943 Hearings at 163-165 (Congressman Boren raised concerns on shareholder proposals being misused by a few shareholder proponents using them as a platform to pursue their own propaganda), at 170-171 (Congressman Hall questioned why the management should be responsible for including proposals that it disagreed with), and at 175 (Congressman Reece criticized how the rule went beyond furnishing information).(go back)
40In my last formal speech to an outside group as a Commissioner in 2008, I raised some of the same issues regarding Rule 14a-8 and state corporate law as I do in these remarks. See July 22, 2008 Speech.(go back)
41See, e.g., Mohsen Manesh and Joseph A. Grundfest, The Corporate Contract and Shareholder Arbitration, 98 N.Y.U. L. Rev. 1106, 1110 (2023), available at: https://www.nyulawreview.org/wp-content/uploads/2023/10/98-NYU-L-Rev-1106.pdf.(go back)
42See Hal S. Scott & Leslie N. Silverman, Stockholder Adoption of Mandatory Individual Arbitration for Stockholder Disputes, 36 Harv. J. L. & Pub. Pol’y 1187, 1190 (2013), available at https://journals.law.harvard.edu/jlpp/wp-content/uploads/sites/90/2013/05/36_3_1187_Scott_Silverman.pdf.(go back)
43See, generally, Neil M. Gorsuch and Paul B. Matey, Settlements in Securities Fraud Class Actions: Improving Investor Protection, Andrews Class Action Litigation Reporter (Aug. 22, 2005).(go back)
44S.B. 95, 153rd Gen. Assemb. (Del. 2025), available at https://legis.delaware.gov/BillDetail/142081.(go back)
458 DEL. CODE ANN. Tit. 8, Section 115(c) (2025) (effective Aug. 1, 2025).(go back)
468 DEL. CODE ANN. Tit. 8, Section 102(f) & 109(b) (2025) (effective Aug. 1, 2025).(go back)
47See, generally, David H. Webber, Shareholder Litigation Without Class Actions, 57 Ariz. L. Rev. 201 (2015), available at https://scholarship.law.bu.edu/cgi/viewcontent.cgi?article=1035&context=faculty_scholarship, and Jens Dammann, Fee-Shifting Bylaws: An Empirical Analysis, The Journal of Law and Economics 65:1 (2022), available at: https://www.journals.uchicago.edu/doi/full/10.1086/718163.(go back)
48See, e.g., Scott, supra note 42 at 1209-1212 and Paul Weitzel, The End of Shareholder Litigation? Allowing Shareholders to Customize Enforcement Through Arbitration Provisions in Charters and Bylaws, 2013 BYU L. Rev. 65, 83 (2013), available at https://digitalcommons.law.byu.edu/lawreview/vol2013/iss1/2/.(go back)
49See, e.g., Jonathan T. Molot, Fee Shifting and the Free Market, 66 Vanderbilt Law Review 1807 (2013), available at https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1322&context=vlr.(go back)
50Acceleration of Effectiveness of Registration Statements of Issuers with Certain Mandatory, Release No. 33-11389 (Sept. 17, 2025) [90 FR 45125 (Sept. 19, 2025)].(go back)
51Paul S. Atkins, Open Meeting Statement on Policy Statement Concerning Mandatory Arbitration and Amendments to Rule 431 of the Commission’s Rules of Practice (Sept. 17, 2025), available at https://www.sec.gov/newsroom/speeches-statements/atkins-091725-open-meeting-statement-policy-statement-concerning-mandatory-arbitration-amendments-rule-431.(go back)
52ATP Tour, Inc. v. Deutscher Tennis Bund, 91 A.3d 554 (Del. 2014).(go back)
53See Lee Rudy, Investors Opposing Fee-Shifting Bylaws (May 1, 2015), available at https://www.ktmc.com/news/investors-opposing-fee-shifting-bylaws.(go back)
54S.B. 75, 148th Gen. Assemb. (Del. 2015), available at https://legis.delaware.gov/BillDetail?LegislationId=24380.(go back)
55Synopsis, Senate Bill No. 75, available at https://legis.delaware.gov/BillDetail/24380.(go back)
56Stephen Bainbridge, Fee-Shifting: Delaware’s Self-Inflicted Wound, 40 Delaware Journal of Corporate Law 851, note 126 and accompanying text (2016), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2624750.(go back)
57Paul Atkins, CA Has Hollywood, TX Has Oil, Delaware Corporation, RealClearMarkets (June 11, 2015), available at https://www.realclearmarkets.com/articles/2015/06/11/ca_has_hollywood_tx_has_oil_delaware_corporations.html.(go back)
58In 2024 and 2015, 67% and 66%, respectively, of Fortune 500 companies were incorporated in Delaware and 81% and 86%, respectively, of IPO issuers were incorporated in Delaware. See Delaware Division of Corporations: 2024 Annual Report, available at https://corpfiles.delaware.gov/Annual-Reports/Division-of-Corporations-2024-Annual-Report.pdf, and Delaware Division of Corporations: 2015 Annual Report, available at https://corpfiles.delaware.gov/Corporations_2015%20Annual%20Report.pdf.(go back)
59Jai Ramaswamy, Andy Hill, and Kevin McKinley, We’re Leaving Delaware, And We Think You Should Consider Leaving Too (July 9, 2025), available at https://a16z.com/were-leaving-delaware-and-we-think-you-should-consider-leaving-too/.(go back)
60Andrew D. Santana and Kacey Fonner, Stopping ‘Dexit’: Delaware Makes Significant Changes to Its General Corporation Law, Fox Rothschild (March 31, 2025), available at https://www.foxrothschild.com/publications/stopping-dexit-delaware-makes-significant-changes-to-its-general-corporation-law.(go back)
61S.B. 21, 153rd Gen. Assemb. (Del. 2025), available at https://legis.delaware.gov/BillDetail/141857.(go back)
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A Great Year for US Stocks? Not Compared to Rest of the World
An S&P 500 chart displayed during the Alliance Laundry Holdings Inc. initial public offering (IPO) on the floor of the New York Stock Exchange (NYSE) in New York, US, on Thursday, Oct. 9, 2025. Alliance Laundry Holdings Inc. and its private equity owner raised $826.3 million in an initial public offering, pricing the shares at $22 each, the top of a marketed range. (Bloomberg) — Check a ranking of the best-performing equity indexes this year and the US doesn’t crack the Top 10. You won’t find it in the Top 25, either. Double that, and the S&P 500 is still absent.
The tally needs to unfurl all the way to 66 before the world’s most valuable equity index shows up — leaving it way behind Greece’s Athex and even Israel’s TA-35. It’s one of the worst relative performances since the global financial crisis for the US benchmark.
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The underperformance is even more surprising given the S&P 500’s rally to countless records in 2025. But it’s still trailing most developed market benchmarks like Germany’s DAX and Japan’s Nikkei 225, and lags behind gauges in South Korea, Spain and Ghana, when measured in dollars.
That last qualifier is critical, though not determinant. The US currency has fallen this year, helping to boost returns on foreign bourses in dollar terms. That’s certainly the thrust behind gains of at least 39% in Colombia and Morocco.
But even in local-currency rankings, the S&P 500 comes in just 57th, hardly befitting of a measure home to the six most valuable companies in the world, along with the likes of Coca-Cola Co., McDonald’s Corp. and Walt Disney Co.
The underperformance, market participants say, owes just as much to a broader shift in the mindset among foreign investors, who have started targeting domestic champions as President Donald Trump wages a global trade war. Tensions ramped up on Friday after the president renewed threats of tariffs on China. Even in the US, they’re being more selective, with a focus on big tech rather than broad-based indexes.
Added to that is a growing sense of concern about political and fiscal stability in the world’s largest economy. Trump’s tax and spending bill is projected to blow out the deficit. The government has been shut down since the start of October, the president is increasingly threatening the central bank’s independence and public investment decisions have become less policy-based.
Together, the moves have shaken confidence in America, weakened the dollar and helped stoke a torrid rally in gold. While long-term Treasury yields haven’t exploded in any similar fashion, they’ve been elevated relative to recent years.
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Accurate Wavefront Reconstruction With Optical Vortex Sensors Enables Stable Phase Tracking In Incoming Beams
Measuring the shape of light waves, known as wavefront sensing, is crucial in many optical applications, and researchers continually seek more accurate and robust methods. Magdalena Łukowicz, Aleksandra K. Korzeniewska, and Kamil Kalinowski,…
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India beat Great Britain 3-2 in opener
The junior Indian hockey team opened its Sultan of Johor Cup 2025 campaign with a 3-2 win over Great Britain at the Taman Daya Hockey Stadium in Johor Bahru, Malaysia, on Saturday.
Captain Rohit (45+’, 52′) and Ravneet Singh (23′) were the…
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Mystery of jet streams on gas giants explained with unified model
Researchers from the Netherlands Research School of Astronomy have created a new model that, they believe, explains the extreme jet streams seen on large planets like Jupiter and Saturn.
All four of the giant planets (Jupiter, Saturn,…
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