The following is part of our annual publication Selected Issues for Boards of Directors in 2026. Explore all topics or download the PDF.

On August 7, 2025, the Trump administration issued an executive order titled “Democratizing Access to Alternative Assets for 401(k) Investors” (the Executive Order), marking a step toward facilitating greater inclusion of investment options with exposure to alternative assets in defined contribution plans, including 401(k) plans (collectively 401(k) plans).[1] This development is noteworthy heading into 2026 for boards of directors overseeing companies that sponsor 401(k) plans, as well as those in the asset management industry.

Continue Reading Alternative Assets in 401(k) Plans: What Boards Need to Know in 2026

The following is part of our annual publication Selected Issues for Boards of Directors in 2026. Explore all topics or download the PDF.

Two significant developments during 2025—one in Delaware corporate law and the other in federal securities law—could materially impact shareholder litigation in 2026 and beyond. In March 2025, following a number of controversial Delaware Court of Chancery decisions, the Delaware legislature passed S.B. 21, establishing safe harbors from litigation for certain board decisions and transactions that might otherwise be evaluated under the demanding entire fairness standard of review. Then, in September 2025, the SEC issued guidance permitting for the first time U.S. listed companies to include mandatory arbitration provisions in their bylaws or charter for federal securities law claims. S.B. 21 currently faces a constitutional challenge before the Delaware Supreme Court, and because Delaware law prohibits corporations from requiring investors to arbitrate securities claims, any Delaware corporation adopting mandatory arbitration will likely face legal challenges. While each of these developments have the potential to significantly change the legal landscape for Delaware and listed companies, their full impact remains uncertain and will likely gradually come into focus in 2026.

Continue Reading A Sea Change In Shareholder Litigation, or More Of The Same? What To Expect In 2026

The following is part of our annual publication Selected Issues for Boards of Directors in 2026. Explore all topics or download the PDF.

Proxy advisory firms—principally ISS and Glass Lewis—and large institutional investors, such as Blackrock, Vanguard, State Street and Fidelity, have long played a central role in shaping shareholder voting outcomes at U.S. public companies.

Continue Reading Shareholder Engagement: Is the Power of Proxy Advisors and Institutional Investors Shifting?

The following is part of our annual publication Selected Issues for Boards of Directors in 2026. Explore all topics or download the PDF.

A number of changes to executive compensation disclosure may occur in 2026, reflecting potential Securities and Exchange Commission (SEC) rulemaking previewed during a July 2025 roundtable discussion as well as separate updates to guidance from ISS and Glass Lewis.

Continue Reading Rethinking Compensation Disclosure

The following is part of our annual publication Selected Issues for Boards of Directors in 2026. Explore all topics or download the PDF.

Big changes to disclosure and other governance rulemaking from the SEC, and potentially Congress and the Trump administration, are coming in 2026. These changes will affect how companies disclose information; how they engage with investors, proxy advisors and other stakeholders and how boards and management think about governance. Already on the SEC’s September regulatory agenda is the modernization of shareholder proposal rules and the rationalization of disclosure practices.[1] The SEC has also indicated that it is pursuing and considering President Trump’s suggestion to move from quarterly to semi-annual reporting and has declined to defend the prior administration’s climate-related disclosure rules in the Eighth Circuit, effectively abandoning them.

Continue Reading Navigating Governance in Turbulent Times

The following is part of our annual publication Selected Issues for Boards of Directors in 2026. Explore all topics or download the PDF.

Recent executive orders and agency actions have altered the risk assessment of corporate diversity, equity and inclusion (DEI) programs, creating a complex compliance environment that requires board oversight. In the coming year, boards of directors, particularly of public companies, will find it necessary to focus on a number of key considerations regarding DEI-related risks.

Continue Reading Considerations in Advising Boards of Directors on DEI-Related Risks

The following is part of our annual publication Selected Issues for Boards of Directors in 2026. Explore all topics or download the PDF.

Fiscal year 2025 was a year of extremes in terms of the number of enforcement actions brought by the Securities and Exchange Commission (SEC). During the first quarter of fiscal year 2025 (October through December 2024), the SEC reported a record-breaking number of enforcement actions.[1] However, for the remainder of the fiscal year, the SEC’s enforcement numbers significantly declined. Despite the reduction in enforcement actions seen in the second half of the year, there are early indications that enforcement under the second Trump administration is not disappearing but instead shifting focus. Public companies should expect continued SEC enforcement focused on fraud and harm to investors, and should remain mindful of the SEC Enforcement Division’s emphasis on voluntary report and cooperation.

Continue Reading The Shifting SEC Enforcement Landscape: 2025 Year-in-Review

The following is part of our annual publication Selected Issues for Boards of Directors in 2026. Explore all topics or download the PDF.

The past year brought significant changes to the Department of Justice (DOJ) following the changeover to the new administration in late January. New DOJ leadership shifted priorities toward areas more aligned with the broader goals of the administration, including investigations focused on violent crime, narcotics trafficking and immigration. We summarize key developments in DOJ’s white collar enforcement landscape, including the White Collar Enforcement Plan, important revisions to the Corporate Enforcement and Voluntary Self Disclosure Policy (CEP), the resumption of Foreign Corrupt Practices Act (FCPA) enforcement, heightened focus on trade and customs fraud and the multi-pronged approach to national security prosecutions, and the likely implications for in-house investigations and corporate compliance departments in the coming year.  

Continue Reading Significant Developments to DOJ Enforcement Priorities

The following was originally posted on our Cleary Securities, Disclosure, and Governance Watch blog.

I. Introduction

In November 2025, the Division of Corporate Finance (the “Staff”) of the Securities and Exchange Commission (the “SEC”) announced that it would no longer provide substantive responses to most no-action requests for shareholder proposals during this proxy season. Since this announcement (the “Announcement”), public companies have found themselves in uncharted territory. While companies may request a response from the Staff if they provide an unqualified representation that the company has a reasonable basis to exclude the proposal under Rule 14a-8, the Staff will only issue a no-action response based on that unqualified representation, and not based on any independent analysis of the merits of the arguments presented. Without the added assurance of the SEC’s substantive review, a number of companies have refreshed their strategic approach to no-action letters this proxy season. The exclusion notices[1] that have been submitted since the Announcement provide a glimpse into emerging trends regarding how companies and their legal counsel are interpreting the announcement and navigating this unguided landscape.

Continue Reading The NAL Landscape Post-SEC Announcement

The following is part of our annual publication Selected Issues for Boards of Directors in 2026. Explore all topics or download the PDF.

From an activism perspective, 2025 was a record-breaking year, with more campaigns waged than ever across an increasingly diverse spectrum of public companies. While many themes continued from years prior, various regulatory and structural changes have shifted the landscape for companies and shareholders alike. Shareholder activism has become a feature of the public markets that almost all issuers have to deal with at some point, regardless of their size, reputation, maturity or corporate governance structure.

Continue Reading 2025 Shareholder Activism Trends and What to Expect in 2026