We’ve been blogging up a storm on TheCorporateCounsel.net about some interesting developments that are, without a doubt, going to have big impacts on the 2026 proxy season — including implications for activism and when soliciting proxies for shareholder approval of a transaction. Here’s a quick list and links to other blogs that go into more detail.

– The SEC Division of Corporation Finance’s statement indicating that, except for no-action letters seeking to exclude shareholder proposals under Rule 14a-8(i)(1), it’s out of the Rule 14a-8 no-action letter business for the remainder of 2025 and 2026. As John confidently speculated, this is likely to result in shareholder proponents turning to alternative ways of getting their messages across, which might include “withhold” campaigns targeted at chairs of board committees, conducted as exempt solicitations or even “nominal solicitation” campaigns under universal proxy, and possibly a rise in innovative Rule 14a-8 workarounds, like the “zero slate” campaign first waged by the United Mine Workers in 2024.

– Glass Lewis announcing that it “will move away from singularly-focused research and vote recommendations based on its house policy and shift to providing multiple perspectives that reflect the varied viewpoints of clients,” and ISS now offering two new research services meant to support institutional investor proprietary investment stewardship programs. Karla Bos notes, “Increasing customization will mean decreasing predictability” for companies, making investor analysis and engagement all the more important.

– Vanguard, BlackRock and State Street all splitting their proxy voting teams into two separate groups. Not to mention, the seemingly constant expansion of voting choice programs. As John noted, these changes may influence voting outcomes in situations involving activists.

– ExxonMobil’s no-action relief and rollout of a retail voting program, which gives participating investors the option to give standing instructions on all matters or give standing instructions on all matters except a contested election or M&A transaction, and the possibility that many more public companies will offer a similar program.

Stay tuned! We’re in for an interesting proxy season, to say the least, and we’ll be sharing updates here. But not tomorrow or Friday. Happy Thanksgiving! We’ll be back next Monday.

– Meredith Ervine 

The first merger challenged by the FTC under the Trump Administration closed last week, following a court victory for PE acquiror GTCR. This Wilson Sonsini alert says the case is notable, even aside from being a first.

The case is an important example of parties successfully “litigating the fix” by defending a remedy proposal in litigation. The Trump Administration remains hostile to the practice, despite expressing renewed openness to resolving merger challenges without litigation through structural remedies. However, the agencies have stressed the importance of raising potential remedies early in the process, and in this case the parties did not identify a proposed divestiture until after the FTC filed its complaint. In addition, the parties proposed a partial divestiture of the overlapping business assets already owned by GTCR, while the FTC pressed for a full divestiture. This case underscores the importance of thinking strategically about the entire lifespan of a merger review in deciding whether and how to propose and stand on remedies.

The case involved PE firm GTCR’s second acquisition of a medical device coating manufacturer, and the FTC challenged the second acquisition since the two targets were the first and second largest suppliers in an already concentrated market.

The FTC filed a complaint in federal court in mid-April 2025 for a preliminary injunction to halt the deal until the completion of administrative litigation. According to GTCR’s opposition, they raised a remedy that would partially divest Biocoat’s hydrophilic coating assets in late April, expanded it in May 2025 to include a facility and employee divestiture following rejection of the initial proposal, and continued to develop it through evaluation of bidders and execution of a divestiture agreement with Integer, a contract manufacturing and development firm that had previously tried and failed to develop its own hydrophilic coatings products, thereafter. GTCR contended that the FTC “remained silent on the sufficiency” of the revised proposal and the executed agreement.

In its reply, the FTC contended that the proposed divestiture excluded key assets and personnel that Integer would need to compete, that license-back provisions would hinder Integer’s ability to differentiate, and that Integer’s previous failures to develop its own products made it ill positioned to compete going forward. The court urged the parties to consider settlement, instructing GTCR to review the FTC’s objections and submit proposals to allay them. But the parties were unable to reach accord, and the matter proceeded to a hearing on the FTC’s request for a preliminary injunction.

Earlier this month, the Federal District Court for the Northern District of Illinois denied the FTC’s request for a preliminary injunction because the FTC failed to show that the revised transaction might still substantially lessen competition. The FTC thereafter declined to appeal. The alert says:

The Trump Administration has hoped that its open position towards remedies would help to facilitate effective settlements [and] emphasized that parties should offer remedies as early as possible in the process to allow time to shape a mutually satisfactory settlement package. The policy appears to have had some success . . . However, merging parties have historically found success in “litigating the fix.” . . . [T]his case shows that the carrot offered by agencies may not be enough and that strategically delaying remedy proposals may be advantageous . . .

Because the FTC insisted on a full divestiture and elected not to engage in remedy negotiations beyond rejecting GTCR’s initial proposal, the parties were able to set the anchor point for the court’s evaluation of the post-merger world. The parties bolstered their case by taking the time to identify a divestiture buyer, fully executing an agreement, and developing substantial evidence of the buyer’s ability to compete effectively.

FTC Chairman Andrew Ferguson sees this as a problem for the FTC and its limited resources since “remedies offered after the conclusion of the HSR process incur significant costs for agencies and courts and may create bad incentives for merging parties” and has “promised to evaluate ways to avoid being forced to litigate the fix.”

– Meredith Ervine 

This Hunton article addresses five common coverage issues when “runoff” or “tail” coverage extends a D&O policy to cover claims after a change in ownership. It starts with a reminder about why this is necessary:

Because modern directors and officers (D&O) liability policies are written on a “claims made” basis, coverage is determined based on when the claim for wrongful acts is first made against an insured. If a company does not have a D&O policy in place, it risks being uninsured for claims made during a gap in claims-made coverage. D&O policies also contain “change in control” provisions . . . So, what happens when a company is acquired, merges with another company, or sells its assets such that the selling entity no longer is a going company that maintains a D&O policy? The approach taken in many transactions is securing “runoff” and “tail” coverages.

Turning to the five common coverage issues, here’s one to look out for:

Be Wary of Straddle Claims. A company can seemingly do everything right—place robust D&O coverage, monitor forthcoming changes in control, timely elect tail coverage, and submit a post-transaction claim for coverage alleging pre-transaction wrongdoing ostensibly covered by the tail policy. But then comes a surprise denial. Some of the biggest offenders that can seemingly negate tail coverage altogether are exclusions aimed at so-called “straddle” claims. Straddle claims allege misconduct both before and after the effective date of tail coverage.

Coverage grants in tail policies are tailored to respond only to claims alleging pre-closing wrongful acts. But some insurers go a step further in adding exclusions to policies that bar coverage for any claim based upon, arising out of, directly or indirectly resulting from, or in any way involving a wrongful act allegedly committed on or after the runoff date. These provisions eliminate coverage entirely—even for portions of the claim tied exclusively to pre-runoff wrongdoing—based on the presence of a single post-runoff wrongful act. That can lead to finger-pointing between insurers, especially where a surviving entity purchased a going-forward D&O policy that has a similarly broad exclusion barring coverage for any claim involving any pre-closing wrongful acts.

To avoid this, the alert suggests:

Policyholders should closely scrutinize tail policies to eliminate or narrowly tailor these kinds of exclusions. Clarifying how policies address straddle claims can ensure that they do not fall through uncovered cracks because of conduct timing. Buyers and sellers should have an understanding of the pre-closing and post-closing insurance regimes that will be in place around a transaction in order to avoid any potential denials of straddle claims.

– Meredith Ervine 

Capstone Partners recently published its Middle Market Private Equity Index for the first half of 2025. This excerpt says that there’s something amiss in middle market M&A, as a strange “barbell effect” has taken hold over the past few years:

The PE community has been bleating about the lack of “quality” deals. This apparent scarcity and bifurcation in capital deployment has caused some strange buyer behavior to emerge. High “A” quality companies attract dozens, and in a few cases hundreds, of initial indications from PE firms. Many at “A+” prices. These companies would transact in any market condition. Then there are the wipeouts—distress and bankruptcy situations in which lenders force the issue and equity owners cannot kick the can any further. These deals close at any price because owners have to do something.

But what about the unwashed masses in the middle? Many fundamentally solid businesses, particularly those with a visible if perhaps fixable flaws attract little-to-no interest from the Institutional Capital market. Put this another way: PE investors are content to pay outrageous prices for great businesses, but seemingly unwilling to pay a medium price for a mediocre “B” or “C” grade business.

Capstone says that if the industry wants to break the logjam of sponsor-owned assets, PE funds need to roll up their sleeves and do the hard work of price discovery for these B and C grade businesses.

– John Jenkins

The EC recently announced the results of its consultation on the EU’s Horizontal and Non-Horizontal Merger Guidelines.  This Goodwin memo says that the feedback received from participants in the consultation indicates that the EU’s Guidelines need to be overhauled.  This excerpt identifies some of the key themes raised by respondents:

Call for Clearer, Future-Ready Rules: Most respondents found the guidelines unclear and incomplete, requesting more dynamic, forward leaning guidance addressing novel theories of harm, including ecosystems, network effects, and potential competition.

Legal Uncertainty Still Reigns: Many stakeholders viewed the guidelines as falling short on legal certainty and transparency. Larger companies and advisory professionals, in particular, criticised the ambiguity of the existing guidance and called for clearer, more predictable standards.

Innovation Still Under-Reflected: Around two thirds of respondents believed the guidelines do not adequately explain how the European Commission assesses innovation or other dynamic factors, a growing concern in fast moving markets.

Digitalisation Gap: Nearly 4 in 5 respondents said the guidelines lag behind the tech-driven economy and fail to reflect digital market realities.

Sustainability Blind Spot: A strong majority believed the guidelines do not provide clear, correct, updated, and comprehensive guidance on how merger control reflects the transition to a sustainable and climate-neutral economy with clean and resource-efficient solutions.

In addition, the memo reports that almost all respondents agreed that the EU’s framework for assessing market power and dominance needs updating and a majority believed that the framework for assessing efficiencies is too narrow. Most also expressed concern that public policy considerations are insufficiently addressed by the current Guidelines and requested clearer guidance on how national security and defense considerations will be dealt with.

– John Jenkins

Paul Weiss recently published the November issue of its “M&A at a Glance,” which provides data on M&A transactions during the month of October 2025.  Here are some of the key takeaways:

– In October, total deal values gained in the United States and globally, driven by the announcement of several strategic megadeals. Although deal counts fell by 49% in the United States and 36% globally, total deal values were still up 7% and 22%, respectively. In comparison, sponsor activity was down in the United States and globally by both total deal value and total deal count. Year-over year trends were similar.

– Computers & Electronics was the leading U.S. industry for M&A, topping the charts by deal value and count for October and over the last twelve months (LTM).

– Of U.S. public deals announced in October: Average reverse break fees (RBFs) were 5.4%, slightly lower than the 5.9% LTM average. Both financial and strategic buyer RBFs were slightly below LTM averages. 14% of deals had a go-shop provision (including half of the sponsor deals announced). 8% of deals were hostile or unsolicited, compared to 12% for the LTM.

– John Jenkins

Last year, I blogged about the NFL’s decision to allow its franchises to seek investments from a group of approved PE sponsors.  Since then, teams like the Patriots, Giants, and 49ers have obtained significant investments from private equity and other investors. When you add in the record-breaking sales of pro sports franchises like the Boston Celtics, the LA Lakers, and the Washington Commanders, it’s become clear that pro sports teams are becoming an important asset class for M&A transactions.

In recognition of this development, this recent Cooley memo addresses some of the key challenges that buyers face in structuring investments in and acquisitions of professional sports franchises. Some of these challenges include:

– Debt and security limits. League rules often limit the amount of debt that a team can use to finance the acquisition of a team, and generally do not permit team assets to serve as security for such acquisition financing. Typically, these debt limits are in the hundreds of millions of dollars and are far short of the amount needed to meaningfully finance the acquisition of a team valued in the billions of dollars.

– Limits on number of owners and minimum size of investment. League rules often limit the number of individuals (e.g., 25) who can be an owner in a sports team and further require that each owner must own at least a minimum percentage (e.g., 1%) of a team to qualify as an owner.

– Limits on institutional ownership. While participation by institutional investors is generally permitted across the major American sports leagues, most leagues limit the amount of equity that institutional investors and sovereign wealth funds can hold in a team (generally between 15% and 30%, depending on the league).

– Fitness for ownership. Further limiting the sources of capital available for a potential buyer are league rules concerning the suitability of a prospective investor as an owner. The leagues tend to require extensive background checks, obligate owners to provide capital to the franchise as and when required to cause the relevant teams to be operated in a first-class manner, and to indemnify the sports league and its affiliates, often on a joint and several basis.

The memo addresses some of the unique transaction structures that have evolved in order to address these challenges, most notably multistep structures allowing the transfer of franchise ownership to be completed over time.  It also addresses the protections for both buyers and sellers that are often included in these deals to respond to the default and other risks presented by transactions with deferred closings.

– John Jenkins

While the Trump administration’s approach to M&A antitrust review and enforcement has been somewhat more relaxed than what dealmakers encountered during the Biden administration, there still have been more than a few curveballs from antitrust regulators that parties have had to address. These include regulatory scrutiny of ESG & DEI programs, a more active industrial policy demonstrated by the use of tariffs, and the US government’s decision to take investment positions in companies in strategic industries.

A panel including representatives of H/Advisors Abernathy, King & Spalding and Jenner & Block at the recent Ray Garrett Corporate & Securities Law Institute provided some recommendations on how to successfully navigate this environment. This excerpt from an H/Advisors Abernathy memo summarizing the panel’s discussion shares some of the panelists’ insights:

Have a plan to get ahead of likely issues. The transactional nature of this administration, and the hot topics on which they are focusing, should not come as a surprise. The Trump administration, and many Congressional Republicans, campaigned on these commitments. They told voters what they would do and now they are following through with promises. Self-audit your workplace and culture (i.e. DEI and ESG) programs, review prior disclosures and public statements, understand what motivates your regulators and representatives.

Plan for today’s new media landscape. For deals under regulatory scrutiny, the battleground today still includes The Wall Street Journal, Financial Times, the wires and New York Times, but the terrain has shifted. Leaders and their staffs are turning more often to podcasts, newsletters and partisan or niche outlets driving messages on social media. Think differently and with creativity so you are directly reaching decisionmakers where they are now, not where they have traditionally been.

Engaging with Congress can be an opportunity. Too many companies choose to be too reactive in engaging with Congress. On large transactions, now, that assumption is frequently a mistake. Recently, Congress has demonstrated a track record of influencing change at organizations of all sizes. It is prudent to assemble to team of lobbyists, lawyers, and communicators to educate, build relationships where they don’t exist, and provide a political strategy, as appropriate. Having this deep bench can help deter, deflect or at least better inform investigative activity. In an M&A context, Members of Congress have proven to be effective at influencing perception in the White House and among agency leadership.

In dealing with Congress, the memo advises that companies keep in mind the priorities of their various audience. For example, Senators focus primarily on impacts to their states, while House Committee leaders focus on national issues – and regulators and members of the majority are very concerned about the online reaction to high-profile issues and how that’s reflected back to them through their constituents.

– John Jenkins

The latest development in the DExit debate is Coinbase’s announcement that it will reincorporate in Texas. Stockholder approval was already received by written consent, and the company filed a preliminary information statement on Wednesday. That same day, the WSJ ran an op-ed penned by Paul Grewal, Coinbase’s CLO, “Why Coinbase Is Leaving Delaware for Texas.”

Even just due to the company’s size and name recognition, this move is a notable one. I also thought it was interesting that one of the reasons given in the information statement is the nature of Coinbase’s business and how the State of Texas is approaching digital assets. I haven’t seen industry-specific factors like this commonly cited as a reason to reincorporate.

Preemption rights — provisions in cooperative agreements that give one party the option to buy the other’s interest before it can be sold to a third party — often give rise to disputes. This Debevoise alert cites Chevron’s acquisition of Hess as an example of a parent-level transaction delayed by over a year because of a dispute regarding preemption rights contained in the joint operating agreement of a significant asset. Given the risk of unintended consequences, the alert provides practical tips for drafting preemption rights that work as intended — including to prevent them from “interfering with large-scale transactions, parent-level M&A or IPOs.” The first tip is an existential one:

Weigh the costs and benefits of including a preemption right in the first place. Parties should bear in mind that preemption right provisions are reciprocal and have inherent costs to all parties involved. In particular, because preemption rights can restrict the transfer or sale of a given asset, they can impact not only its marketability but that of the associated businesses. At the same time, preemption rights have discrete benefits, most notably in affording joint venture partners some control over their collaboration partners.

When included, it recommends that the provision be very clear about:

– when the preemption right is triggered, including precise definitions of “transfer” and “change in control”;

– the types of transactions, if any, that are carved out from its scope;

– what happens if the preemption right is triggered, including how the stake would be valued, the timeline for exercising the right and other procedural steps; and

– a clear and efficient dispute resolution mechanism in case there is a disagreement.

It also says you need to anticipate the impact on certain transactions, especially ones at the parent level:

An asset-level preemption clause can complicate larger deals up the chain of ownership if it is not properly limited. For example, parties may wish to exempt transactions where the asset in question represents only a small percentage of the value of the overall transaction. Parties might also consider bespoke carve-outs that contemplate a specific future transaction. For example, parties sometimes choose to carve out IPOs or ultimate parent level transactions from the preemption right, so that a company can go public or undertake a corporate merger without triggering preemption rights across its portfolio of agreements at the asset level.

– Meredith Ervine