Board diversity disclosure is undergoing a meaningful recalibration. After years of increasing pressure by shareholders and other stakeholders to increase the number of women and underrepresented minorities on boards and provide robust disclosure of board demographic information, the framework is now shifting. Following the U.S. Court of Appeals Fifth Circuit’s December 2024 decision to strike down the rule requiring Nasdaq-listed companies to include board diversity disclosure in their proxy statements, the Trump Administration’s targeting of DEI programs, and the related pullback from the major proxy advisory firms and institutional investors in their stewardship principles and voting guidelines, companies are now re-assessing how they define and describe the diversity of directors serving on their boards in their proxy statements. While companies continue to emphasize that their boards include directors with diverse skills, backgrounds, experiences and viewpoints, proxy statement disclosure increasingly frames diversity in broader terms instead of focusing primarily on protected classes. Continue Reading Reframing Board Diversity Disclosure in 2026 Proxy Statements
Lillian Tsu
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Lawsuits Filed Under SEC’s Revised Rule 14a-8 No-Action Letter Process
Posted in Alert Memo
When the SEC announced changes to the Rule 14a-8 no-action letter process in November 2025, many observers—ourselves included—anticipated that some shareholder proponents might turn to litigation if companies excluded their proposals under the new framework. That anticipated litigation has now arrived. On February 17, 2026, two separate lawsuits were filed challenging company decisions to exclude shareholder proposals from their 2026 proxy materials. A third lawsuit followed just two days later, on February 19, 2026. These cases mark the earliest examples of litigation under this season’s revised Rule 14a-8 no-action letter process.Continue Reading Lawsuits Filed Under SEC’s Revised Rule 14a-8 No-Action Letter Process
Executive Order on “Prioritizing the Warfighter in Defense Contracting” – Key Implications for Defense and Government Contractors
On January 7, 2026, the White House issued an Executive Order (EO) titled “Prioritizing the Warfighter in Defense Contracting,” announcing an effort to “accelerate defense procurement and revitalize the defense industrial base” by preventing “major defense contractors” from “conduct[ing] stock buy-backs or issu[ing] dividends at the expense of accelerated procurement and increased production capacity.”[1] The EO states that going forward there will be limitations on the ability of defense contractors who are “underperforming on their contracts” to pay dividends or buy-back stock, at least until such time as they are “able to produce a superior product, on time and on budget,” pursuant to their existing defense contracts. The Secretary of the U.S. Department of War (the “Secretary”) is empowered to identify underperformers and initiate remediation or enforcement.[2]Continue Reading Executive Order on “Prioritizing the Warfighter in Defense Contracting” – Key Implications for Defense and Government Contractors
SEC Announces Changes to Rule 14a-8 No-Action Letter Process
The SEC’s Division of Corporation Finance just announced that it will largely step back from the shareholder proposal no-action letter process for the current proxy season (October 1, 2025 – September 30, 2026). The Division cited three reasons: resource constraints following the recent government shutdown, a high volume of registration statements competing for staff attention, and the extensive existing body of guidance already available to companies and proponents. The announcement aligns with the deregulatory approach we flagged in September when discussing potential reforms to the shareholder proposal process under the current SEC.Continue Reading SEC Announces Changes to Rule 14a-8 No-Action Letter Process
District Court Holds Missouri’s “Anti-ESG” Rules are Preempted by Federal Law, Violate First Amendment, and are Unconstitutionally Vague[1]
On August 14, 2024, the U.S. District Court for the Western District of Missouri (the “District Court”) issued a decision ordering a permanent injunction against rules promulgated by the Missouri Securities Division, colloquially referred to as Missouri’s “Anti-ESG” Rules, requiring that broker dealers and investment advisers disclose to and obtain written consent from customers if their investment decisions or advice “incorporate[] a social objective or other nonfinancial objective” (the “Rules”). The District Court held the Rules were preempted by both the National Securities Markets Improvement Act of 1996 (“NSMIA”) and the Employment Retirement Income Security Act of 1974 (“ERISA”). The District Court also held the Rules violated the First Amendment’s protection against compelled speech and were unconstitutionally vague. The decision highlights the limits of U.S. state power in policing the social objectives broker dealers and investment advisers incorporate into their practice and, if not overturned on appeal, suggests that broker dealers and investment advisers may face less legislative pushback, at least at the state level, in pursuing environmental, social, and governance (“ESG”) objectives in the future.Continue Reading District Court Holds Missouri’s “Anti-ESG” Rules are Preempted by Federal Law, Violate First Amendment, and are Unconstitutionally Vague[1]
New SEC Disclosure Rules for Cybersecurity Incidents and Governance and Key Takeaways
On July 26, 2023, the U.S. Securities and Exchange Commission (the “SEC” or “Commission”) adopted rules to enhance and standardize disclosure requirements related to cybersecurity incident reporting and cybersecurity risk management, strategy, and governance.Continue Reading New SEC Disclosure Rules for Cybersecurity Incidents and Governance and Key Takeaways