The following is part of our annual publication Selected Issues for Boards of Directors in 2025. Explore all topics or download the PDF.

2024 was a remarkable year in Delaware. For the first time in as long as anyone can remember, people began to seriously question whether Delaware would retain its dominance as the go-to jurisdiction for incorporating companies. There was an uproar following several decisions by the Delaware Court of Chancery that seemed to shake the market’s confidence in Delaware law’s venerable predictability. One such decision invalidated shareholder agreement provisions that had long been commonplace and another found that a board had not validly approved a merger agreement because, as is typical, the board had not received a draft in final form. At the same time, a certain well-known CEO’s $50 billion compensation package was struck down, leading him to publicly declare “Never incorporate your company in the state of Delaware.”

Continue Reading Delaware’s Rocky Year–What Lies Ahead?

The long and winding road of the Corporate Transparency Act (CTA) litigation (as discussed in our most recent CTA client alert) has taken another turn, and this time companies are driving blind. On New Year’s Eve, the U.S. Department of Justice (DOJ) asked the U.S. Supreme Court to lift the injunction imposed by a Texas court and let the law go into effect while the legal contest over the constitutionality of the law is pending. Yesterday, the U.S. Supreme Court resoundingly agreed with the DOJ. In an 8-1 ruling, the nation’s highest Court lifted the stay on enforcement of the statute. One might assume that the Supreme Court ruling ended the injunction issue, but a separate order issued by a different federal judge in Texas blocking enforcement of the statute nationwide remains in place.

Continue Reading U.S. Supreme Court Lifts Initial Injunction Against Enforcement Of Corporate Transparency Act, But A Separate Injunction Continues To Halt Implementation 

The following is part of our annual publication Selected Issues for Boards of Directors in 2025. Explore all topics or download the PDF.

In 2025, boards of directors face a well-established and active global foreign direct investment (FDI) landscape where regulatory review continues to expand and develop. Last year, the Committee on Foreign Investment in the U.S. (CFIUS) issued a final rule enhancing its mitigation and enforcement authority. Non-U.S. FDI review regimes, particularly in Europe, have become more active, with a number of new regimes entering into effect and an increasing number of transactions subject to regulatory scrutiny. The European Commission proposed a new EU-wide FDI Screening Regulation in March 2024, which aims to overhaul the existing EU FDI regime. As concern grows over access to and control over artificial intelligence (AI), semiconductors and other advanced and critical technologies, FDI approvals have become a significant regulatory issue for many cross-border transactions.

Continue Reading FDI Review Regimes Ramp up Globally and Enhance Enforcement; U.S. Outbound Investment Regime Goes into Effect

The following is part of our annual publication Selected Issues for Boards of Directors in 2025. Explore all topics or download the PDF.

The Ill-Fated SEC Climate Rule

On March 6, 2024, the SEC adopted final rules “to enhance and standardize climate-related disclosures for investors,” which included, among other things, requirements to disclose material climate-related risks and related governance policies and practices and mitigation and adaptation activities, targets and goals, Scope 1 and 2 emissions reports and financial statement effects of severe weather events and other natural conditions, including related costs and expenditures (the Climate Rule).

Continue Reading A New Regulatory Environment for Climate and Other ESG Reporting Rules

The following is part of our annual publication Selected Issues for Boards of Directors in 2025. Explore all topics or download the PDF.

Antitrust in 2024 was marked by evolving policy developments, vigorous enforcement, and eye-catching court decisions. In the U.S., an aggressive enforcement approach lead to unpredictability and lengthy merger review process across sectors. In the EU, enforcement of the Digital Markets Act (DMA) intensified scrutiny on digital platforms, while a landmark ruling in the Illumina/GRAIL matter clarified the scope of the EU Commission’s merger jurisdiction. In the UK, the Competition and Markets Authority (CMA) cleared the Vodafone/Three merger with behavioral remedies, signaling a significant departure from its historic practice to require structural remedies. 2025 will see new antitrust leadership on both sides of the Atlantic with an expectation that the U.S. will largely return to a more traditional approach on antitrust under the Trump Administration and that Europe will continue to enforce digital rules and bring cases related to AI with a focus on promoting growth in clean tech and AI sectors.

Continue Reading 2024 Antitrust Update: Navigating the Evolving Landscape

The following is part of our annual publication Selected Issues for Boards of Directors in 2025. Explore all topics or download the PDF.

Predictions for M&A in 2025

The Overall M&A Environment

Many have predicted an M&A boom in 2025 and recent CEO surveys exhibit rising confidence.

Continue Reading Outlook for M&A and Activism in 2025

The following is part of our annual publication Selected Issues for Boards of Directors in 2025. Explore all topics or download the PDF.

In 2024, two federal agencies saw challenges to their regulations restricting non-compete agreements, while several states enhanced restrictions or proposed amendments expanding existing non-compete laws. The scope and impact of these developments are likely to be further clarified as legislation and new case law develops.

Continue Reading Non-Competes: One Step Forward and Two Steps Back

The following is part of our annual publication Selected Issues for Boards of Directors in 2025. Explore all topics or download the PDF.

The Securities and Exchange Commission (SEC) and Department of Justice (DOJ) both had active enforcement years in 2024. The SEC’s aggressive focus on crypto enforcement continued, resulting in the filing and continued litigation of several cases in federal courts nationwide. The DOJ announced a number of policy updates in 2024, including guidance related to voluntary disclosures and corporate enforcement, and remained active in the foreign corruption and national security spaces. Finally, both the SEC and DOJ have increased their focus on AI and new technologies, showing increasing concern about the risks associated with AI, with the DOJ issuing guidance on AI in compliance programs and the SEC bringing cases related to misleading marketing about the use of AI in investment strategies. As noted more fully below, with the incoming Trump Administration, enforcement priorities at both SEC and DOJ are expected to shift. The SEC is expected to have a renewed focus on traditional enforcement areas, such as accounting fraud, misrepresentations in securities offerings and insider trading, with significant reductions in enforcement activity related to crypto, cyber incidents and ESG issues. The DOJ is likely to continue its focus on FCPA and national security (including sanctions and export controls), while devoting increasing resources to immigration and violent crime. Additionally, the benefits of cooperation are likely to increase at both the SEC and DOJ, with the potential for reduced penalties for companies able to effectively demonstrate their cooperation and self-remediation.

Continue Reading An Active Year in Enforcement, with Changes to Come

2025 promises to be another turbulent year for boards of directors. On the heels of a historically unprecedented election, companies are still ramping up compliance with the ambitious agenda of the outgoing administration while simultaneously bracing for the changes promised by the next one. Against that backdrop, colleagues from across Cleary’s offices have zeroed-in on the impact of the issues that boards of directors and senior management of public companies have faced in the past year, as well as on what can be anticipated in the year to come.

Continue Reading Selected Issues for Boards of Directors in 2025

The following is part of our annual publication Selected Issues for Boards of Directors in 2025. Explore all topics or download the PDF.

Deployment of generative AI expanded rapidly across many industries in 2024, leading to broadly increased productivity, return on investment and other benefits. At the same time, AI was also a focus for lawmakers, regulators and courts. There are currently 27 active generative AI litigation cases in the U.S., nearly all of which involve copyright claims. Numerous state legislatures have mulled AI regulation, and Colorado became the first and only state thus far to pass a law creating a broad set of obligations for certain developers and deployers of AI.

Continue Reading Effective Board Oversight as AI Evolves