From Boom to Backlash-Guiding Directors

Past Events

February 13, 2025

From Boom to Backlash: Guiding Directors in a Shifting ESG Landscape

Time:  2:00 pm – 5:00 pm
Location:  Clayton Hall, University of Delaware, Newark, DE
In-Person Program
Reception to follow.

This program has been approved for 2.6 Delaware CLE credits and 2.5 Pennsylvania CLE credits

Admission to this event, including the reception, is free, but registration is required.

This interactive gathering marks the fourth annual event addressing director duties amid the waxing and waning of the ESG movement, hosted by the Weinberg Center at the University of Delaware, led by John W. White of Cravath, Swaine & Moore and Lawrence Cunningham of the Weinberg Center. Our panelists, representing a wide cross-section of perspectives, will offer practical advice tailored to corporate directors as well as those who advise them and university students interested in related topics.

Rather than focusing on specific ESG rules or challenges to them, this session will explore how directors can fulfill their duties effectively amid a landscape of shifting expectations and mounting criticism, from ESG backlash to “green hushing.” The group will also delve into the importance of reliable data for ESG and other corporate disclosure, addressing how to ensure that directors and investors receive useful information.

The discussion will revisit key themes such as board oversight and the role of corporate leadership in addressing ESG debates, while offering updated perspectives on the growing pushback against ESG. Other new topics this year include how directors can reconcile ESG issues with their primary responsibilities of overseeing CEOs and shaping corporate strategy, and where the line should be drawn between board oversight and managerial discretion on ESG topics.

An underlying theme: even as debate over ESG continues, directors’ fundamental functions and duties remain stable. Our goals are to empower directors, their advisors, and the next generation of accounting and finance professionals with the insights they need to excel.

From Boom to Backlash Panel, February 13, 2025
Panelist Michael Montelongo, Delaware State Treasurer Colleen Davis, and WCCG Director Lawrence Cunningham

Confirmed Participants

• Donna Anderson (T. Rowe Price)
• Michael Arnold (Cravath, Swaine & Moore)
• Paul Beswick (Ernst & Young)
• Lawrence Cunningham (University of Delaware)
• Mary Francis (Chevron Corporation)
• William Lafferty (Morris Nichols Arsht & Tunnell)
• Michael Montelongo (GRC Advisory Services)
• Polia Nair (CohnReznick)
• Anne Sheehan (PJT Camberview)
• Kent St. Pierre (University of Delaware)
• John White (Cravath, Swaine & Moore)

Student Writing Competition: Cash Prizes

As part of this panel discussion, the Center will host a writing competition for students from the University of Delaware and other universities, including Delaware Law, Delaware State, Drexel, Maryland, Penn, St. Joe’s, Temple, Villanova, and Wilmington University. Students who attend the panel (in full or for the majority) will be invited to submit a short paper (1000 to 2000 words) summarizing the discussion, highlighting major themes, outlining key takeaways, and identifying open questions for debate. Submissions will be due by 5:00 pm ET February 20.  Submissions may be written by single or multiple authors.  The Center’s staff and leadership will review all submissions and choose the three best papers; each paper will be awarded a $500 prize. Tip for students: Take advantage of the reception afterwards to network with experts, build connections, and gain valuable insights to strengthen your paper.

Recommended Reading

1. Lawrence Cunningham, Is There A Way out of the ESG Rock Fight for Boards?, MAYER/BROWN
2. Jerry Theodrorou, The ESG Battles: Off-Again, On-Again, R Street (Jan. 22, 2025)
3. Sanjai Bhagat, An Inconvenient Truth About ESG Investing, Harvard Business Review (March 31, 2022)
4. Bradford Cornell & Aswath Damodaran, Valuing ESG: Doing Good or Sounding Good? (2020)
5. Lawrence Cunningham, The Rise and Stall of ESG, Directors & Boards (Feb. 16, 2024)
6. Alex Edmans, The End of ESG, Financial Management (2023)
7. William M. Lafferty et al, A Brief Introduction to the Fiduciary Duties of Directors Under Delaware Law, Penn State Law Review (2012)
8. Luh Luh Lan & Walter Man, ESG and Directors’ Duties: Defining and Advancing the Interests of the Company, Journal of Corporate Law Studies (2024)
9. Martin Lipton, et al., Risk Management and the Board of Directors (Sept. 30, 2023) (Section VI)
10. Ross S. Clements, The Directors’ Role Amid Debates over Corporate Purpose, Stakeholders and ESG, Mayer | Brown (Mar. 2023)

For any questions, please contact the Weinberg Center at nrich@udel.edu

Admission to this event, including the reception, is free, but registration is required. Register Now!

The M&A Process Demystified: Lessons from the Front Lines

Past Events

November 7, 2024
12:00 pm – 1:30 pm
Webinar – Virtual

This webinar will address common legal issues and questions that parties, including acquirors/targets, directors, counsel, and financial advisors, encounter in mergers & acquisitions, as well as the impact of recent developments in Delaware and other relevant case law. Some of the topics to be covered include, among other things: considerations when selecting legal and financial advisors, when do Revlon duties apply, what does it mean for a seller to select a value maximizing offer, how does a buyer’s stock as consideration complicate matters, what work does a Board need to do in order to obtain fairness opinion, what to do if a potential deal leaks, common issues between the signing and closing of a transaction, changes to standard of practice requires based on recent Delaware decisions. The participants will also address some more thorny legal issues that arise in complex M&A situations, including transactions involving controlling stockholders, and responding to unsolicited offers and under what circumstances can the target just say NO. The participants will focus on board-level and practical considerations and takeaways in these challenging scenarios.

Click HERE to watch the video.

Participants:

• Elina Tetelbaum, Partner, Wachtell, Lipton, Rosen & Katz, Moderator
• Eddie Dixon, former Senior Vice President, Chief Legal Officer and Secretary, National Instruments Corporation
• Nicole Martinet, former General Counsel and Corporate Secretary, PDC Energy, Inc.
• Shawn Liu, Managing Director, BOFA Securities, Inc.
• Andrea Rose, Partner, Joele Frank, Wilkinson Brimmer Katcher
• Lawrence A. Cunningham, Director, John L. Weinberg Center for Corporate Governance, Host

Materials:

1. “Takeover Law and Practice: Current Developments,” Harvard Law School Forum on Corporate Governance, May 3, 2023
2. “Mergers and Acquisitions—2024,” Wachtell, Lipton, Rosen & Katz, January 9, 2024
3. “Takeover Response Checklist,”  Wachtell, Lipton, Rosen & Katz, 2024
4. Panelists’ Bio

Board Minutes in Sixty Minutes

Past Events

Webinar | Board Minutes in Sixty Minutes: Recommended Practices and Insights

October 24, 2024 12:00 pm – 1:00 pm Webinar – Virtual

REGISTRATION IS CLOSED

Please join us for this program that will explore the evolving and challenging issues associated with Board minutes, emphasizing practical advice for boards, management, corporate secretaries, and their advisors. Board minutes are an important part of a corporation’s internal recordkeeping. They have also become important in corporate and securities litigation, with plaintiffs’ counsel using books and records requests in connection with their lawsuits. The panel members will discuss the purposes of board minutes; and recommendations related to board minutes, such as developing processes for documenting, good recordkeeping, timing, risks, recording of board meetings, and how to avoid pitfalls. Also, developments in Delaware cases impacting board minutes will be discussed. Plaintiffs’ and defense counsel on the panel will provide their insights, including their perspective on board minutes, the impact of litigation and the use of book and records requests.

Participants:

• Mary Francis, Corporate Secretary and Chief Governance Officer, Chevron Corporation, Moderator
  
• Joel Fleming, Partner, Equity Litigation Group LLP
• Margaret (Peggy) Foran, Chief Governance Officer, Senior Vice President and Corporate Secretary, Prudential Financial, Inc.
• Blake Rohrbacher, Director, Richards Layton & Finger
• Lawrence A. Cunningham, Director, John L. Weinberg Center for Corporate Governance, Host

This Weinberg Center panel provided attendees with useful insights and practical takeaways.

Click here for the panel video.

Materials:

1. Loren Trent Hightower v. Sharpspring, Inc., C.A. No. 2021-0720-KSJM, Delaware Court of Chancery, August 31, 2022
2. H&N Management Group, Inc. & Aff Cos Frozen Money Purchase Plan v. Robert M. Couch et al., Civil Action No. 12847-VCMR, Delaware Court of Chancery, August 1, 2017
3. ONTARIO PROVINCIAL COUNCIL OF CARPENTERS’ PENSION TRUST FUND, POLICE & FIRE RETIREMENT SYSTEM OF THE CITY OF DETROIT, AND NORFOLK COUNTY RETIREMENT SYSTEM, Derivatively on Behalf of WALMART INC. v. ROBSON WALTON, GREGORY B. PENNER, STEUART WALTON, TIMOTHY P. FLYNN,THOMAS W. HORTON, MARISSA A. MAYER, DOUG MCMILLON, STEVEN S. REINEMUND,PHYLLIS HARRIS, and JAY JORGENSEN, and WALMART INC., C.A. No. 2021-0827-JTL, Delaware Court of Chancery, April 26, 2023
4. “Corporate Minutes: A guide for the Corporate Secretary,” Society for Corporate Governance, October 2022. (With permission from the Society of Corporate Governance)
5. “Why Board Meeting Minutes Really Matter,” BoardPro, September 7, 2022
6. “The Angel’s in the Details:  The Importance of Carefully Draft Board Minutes,” Sonia Nijjar, Jenness Parker, and Lauren Rosenello, Skadden, Arps, Slate, Meagher & Flom LLP, Fall 2022.
7. “Revisiting the Board’s Oversight Role After In re: Boeing Co.,” Akin Gump Strauss Hauer & Feld, Harvard Blog, June 1, 2022
8. “Section 220 Decisions Amplify Stockholders’ Rights to Inspect Books and Records,” Fried, Frank, Harris, Shriver & Jacobson LLP, October 3, 2022
9. Minutes are Worth the Minutes Good Documentation Practices Improve Board Deliberations and Reduce Regulatory and Litigation Risk, Leo E. Strine, Jr.
10. Bios of the Panelists
    

2024 Distinguished Speaker and Special Litigation Committee Panel

Past Events

Lawrence A. Cunningham | 2024 John L. Weinberg Distinguished Speaker

April 11, 2024
1:00 pm – 1:50 pm ET

We are honored to have Lawrence A. Cunningham as the 2024 John L. Weinberg Distinguished Speaker. Mr. Cunningham is Professor Emeritus at George Washington University and Special Counsel at Mayer Brown.

The topic of his talk was “Speaking Out on Hot Button Topics: How Boards Can Steer CEOs and Companies in Choppy Waters.”  Corporate leaders face complex challenges in responding to public debates on contentious topics. They must balance competing pressures to speak or remain silent, while navigating the polarization of today’s discourse and the diverse and powerful interests of various constituents not only among shareholders but employees, consumers, and civil society groups. In this talk, Professor Cunningham suggested that corporate leaders should not follow a fixed or ideological rule on whether to take public positions, but rather a pragmatic approach that evaluates the specific context and circumstances of each situation. The talk used the history and law of corporate governance, as well as practical experience, to illustrate that the best strategy for each board and CEO will vary depending on the unique features of their corporation and its leadership, its shareholder base, its workforce, the markets it serves, and how these factors relate to given public debates.

Click here for the Speaker VIDEO

Should CEOs Speak Out? A Board Framework (pdf), The Corporate Board, July/August 2024

Panel: “Zapata and Special Litigation Committees: Perspectives on What’s Working, What’s Not, and How We Can Improve the Process”

2:00 pm to 3:30 pm ET

This panel was a ninety-minute interactive event. Panelists from a wide cross-section of perspectives discussed Zapata’s two-part test for assessing a Special Litigation Committee’s determination to terminate a derivative action. They explored the composition, purposes, and authority of Special Litigation Committees (SLCs); the initial purposes of Zapata and its evolution over the past 40 years; and whether Zapata is working as intended or needs to be revisited. They discussed practical takeaways for SLCs and lawyers on both sides of the “v” as we work through these issues.

Moderated by Christine M. Mackintosh, Co-Chair of the Chancery Litigation Group at Grant & Eisenhofer, the panel will include:

• The Honorable Joseph R. Slights III, Partner, Wilson Sonsini Goodrich & Rosati and former Vice Chancellor, Delaware Court of Chancery
• Elena C. Norman, Partner, Young Conaway Stargatt & Taylor
• Mark D. Richardson, Partner, Labaton Keller Sucharow
• David F.E. Tejtel, Principal, Friedman Oster & Tejtel

Click here for the Panel VIDEO

A Proposal For Improving Trust In The Special Litigation Committee Process,“ Harvard Blog, August 9, 2024 [See footnote 14)

MATERIALS

1. Slides
   • Distinguished Speaker
   • Special Litigation Committees
2. Program Agenda
3. Participant Bios

• Across the Board – CEO Comments on Public Policy: An Internal Governance Framework, Lawrence Cunningham, January 2023
• How — and When — Should Companies Engage in the Political Process?, Harvard Business Review, May 2023
• When should CEOs speak out on public issues?, Fortune, May 2021
• CEOs [not] Speaking Out, KPMG,  March 2022
• Companies That Embraced Social Issues Have Second Thoughts,  Wall Street Journal, June 2023
• Companies Quiet Diversity and Sustainability Talk Amid Culture War Boycotts, Wall Street Journal, June 2023
• Importance of Special Litigation Committees in Maintaining Board Control Over Derivative Litigation, Harvard Law School Forum on Corporate Governance Blog, May 24, 2023
• Thoughts of a Jewish-American Plaintiffs’ Lawyer on the Past and Present of Stockholder Litigation, Joel Friedlander, The M&A Journal, Volume 23 Number 4, November/December 2023
• ZAPATA Corporation v. William MALDONADO, Supreme Court of Delaware, Decided May 13, 1981
• Kevin DIEP, derivatively on behalf of EL POLLO LOCO HOLDINGS, INC. v. TRIMARAN POLLO PARTNERS, L.L.C. and EL POLLO LOCO HOLDINGS, Inc., Supreme Court of Delaware, No. 313, 2021, Decided June 28, 2022
• IN RE BAKER HUGHES, A GE COMPANY, DERIVATIVE LITIGATION, Court of Chancery of Delaware, Decided: April 17, 2023

CLE and Materials: Approved to 2.2 Delaware CLE credits. Materials and additional information were sent in advance of the program.
For any questions, please contact Louisa Cresson at lcresson@udel.edu.