Apparently, the providers of the major AI models are actively moving from flat-fee pricing to usage-based, token pricing. It’s creating some challenges for IT budgets. And that means, as this Troutman Pepper Locke alert describes, that this shift may also have disclosure implications for public companies, especially for MD&A.
Since “increased expenses incurred with AI token costs” may have a material impact on a company’s financial statements, MD&A disclosure may need to address:
– The reason for period-to-period changes in operating costs, discussed in quantitative and qualitative terms, to the extent AI costs are already having a financial statement impact;
– Known trends or uncertainties reasonably likely to cause a material change in the relationship between costs and revenues if the pricing shift and AI adoption results in the two-part “reasonably likely” assessment being met;
– AI investments or token consumption as known trends, demands, commitments, events or uncertainties reasonably likely to impact the company’s liquidity; or
– AI usage metrics (like token consumption rates, per-employee spend or AI ROI), if tracked, as key performance indicators (KPIs) used to manage the business.
The accounting — and disclosure — may be different industry by industry or company by company:
Different companies may account for AI token costs differently. For example, some companies may account for token costs in costs of revenue, while others may account for them as general and administrative (G&A) costs. For other companies, AI token costs might be accounted for research and development (R&D) expenses. For example, AI has started to significantly affect biopharmaceutical and biotechnology companies by rapidly transforming the drug development process, enhancing and speeding target identification, molecular design, clinical trials optimization, and regulatory processes — these companies are likely to record AI token costs as R&D expenses.
With the second quarter about to close for calendar year companies, the alert suggests four steps companies should take as they prepare for their next 10-Q, including assessing the materiality of AI costs, evaluating the cost structure shift, reviewing internal AI monitoring and governance and coordinating across legal, finance and IT to assess disclosure requirements.
One upside from the fact that public companies have been required to file their insider trading policies as exhibits to their Form 10-K filings for the last two years is that we now have a lot more data on trends and a greater ability to benchmark policies against market practice and company peers. Goodwin recently reviewed policies filed during the 2025–2026 annual reporting season to assess how they approached some hot topics. This alert describes how the policies handle trading in other companies, the prediction markets, Rule 10b5-1 plan usage, gifts, trading windows (timing and covered employees/consultants) and pledging.
With respect to Rule 10b5-1 plans, Goodwin looked at whether the insider trading policies mandate the use of Rule 10b5-1 trading plans and whether they impose additional restrictions beyond those required by the rule.
With respect to mandatory usage, there is near unanimity across sectors that directors and executive officers are not required to conduct all transactions in company securities pursuant to a Rule 10b5-1 trading plan. With respect to additional restrictions, nearly all policies impose an advance notice period for internal review of proposed trading plans (e.g., at least five business days before adoption). It is also common for policies to include provisions that allow for the company to impose additional, unspecified conditions prior to approving a proposed plan, as well as to include a requirement that the plan must allow the company to direct the broker to suspend or terminate the plan under certain circumstances.
Beyond those relatively common provisions, approximately 25% of policies include additional restrictions. We did not observe a pattern across industries or market capitalizations. More common supplemental restrictions included:
– minimum and/or maximum term lengths for the plan (most common were six months and two years, respectively) – prohibitions on hedging transactions involving securities subject to the plan – limits on the number of plan amendments permitted during a 12-month period – cooling-off periods following voluntary plan terminations – restrictions on engaging in transactions outside an approved plan – limits on which individuals may utilize trading plans – requirements to use specific brokerage firm
On the treatment of gifts, they found that a consensus has emerged, with 85% of the reviewed policies requiring preclearance for gifts, though there were sector-specific outliers, including large-cap banks (73%) and pre-revenue life sciences companies (68%).
For our latest Timely Takes podcast, John was joined by Sean Dowd, a Partner and Managing Director in the Risk practice at AlixPartners, to discuss the results of AlixPartners’ 2026 U.S. Risk Survey, which analyzes the top risks facing U.S. companies right now, based on responses from 500 executives in legal, compliance and regulatory roles. In this 30-minute podcast, they discussed:
Trends driving continued growth in disputes
How AI, cyber incidents and deal activity are reshaping risk
What companies should do to implement effective AI governance
Navigating differing AI regulations across jurisdictions
Reasons why cyber and data privacy preparedness still lag
Redefining resilience against AI-driven cyber threats
Explaining the gap between data privacy best practices and execution
The rise in financial crime risk and decline in confidence of detection
Why preparedness for geopolitical and supply chain risk is declining
New risks and control gaps emerging with crypto use
If you’re interested in sharing your insights on a topic that you think would likely be of interest to members of TheCorporateCounsel.net or our other sites, we’d love to hear from you. You can contact me at mervine@ccrcorp.com or John at john@thecorporatecounsel.net.
Earlier this month, eleven U.S. Senators – all the Banking Committee Democrats – urged the White House to begin the process for nominating Democratic officials to the bipartisan agencies within the Committee’s jurisdiction, including the SEC. The letter written by Senators Warnock and Van Hollen argues:
Open-ended vacancies damage the leadership structure that Congress established for these agencies. A full slate of commissioners and board members can bring a range of perspectives to policies that shape our markets. But as the SEC, FDIC, NCUA, and EXIM now pursue consequential reforms across the economy and financial system, we are concerned that their lack of Democratic voices thwarts congressional intent. And while empty board seats are a pressing issue at a number of agencies, they are an especially important concern for the Committee, with several significant multi-member commissions within its jurisdiction.
For the SEC, the Senators point to reports that the Administration is preparing to nominate a new Republican to the SEC to replace Commissioner Peirce, without making any moves to fill the other two vacancies reserved for Democrats.
The White House is doing so despite the fact that the Securities Exchange Act mandates that SEC nominations alternate between parties “as nearly as may be practicable” and Chair Paul Atkins, a Republican, was the most recently appointed commissioner.
We should be clear: No practical barrier prevents the President from next appointing a Democrat to the SEC. If the President nominated a Republican to replace Commissioner Peirce without also nominating a Democrat to the SEC, he would violate the Securities Exchange Act.
By statute, the SEC is to be composed of five commissioners appointed by the President by and with the advice and consent of the United States Senate. Not more than three of such commissioners may be members of the same political party, and in making appointments, members of different political parties are required to be appointed alternately as nearly as may be practicable.
The SEC has been down to three commissioners, all of the same party, since early this year, and Commissioner Peirce will depart the agency in the fall when her term extension expires.
Last week on CompensationStandards.com, I blogged about the Delaware Chancery Court’s decision in Ayers v. Foley, which involved challenges to director compensation – both the compensation of all the non-employee directors and a special equity award to the company’s chairman. Vice Chancellor Will notes in the decision that “Delaware courts have yet to interpret” subsection (d)(2). Section 144(d)(2) is the newly added heightened presumption of disinterestedness for independent directors of listed companies. University of Colorado Law Prof Ann Lipton says on the Business Law Prof Blog:
With respect to the award to the board, the defendants conceded that this was an interested transaction, with no cleansing mechanisms, and demand was excused; the only argument they made was that plaintiffs’ complaint did not make it “reasonably conceivable” that the compensation was not entirely fair. That argument was a heavy lift, and VC Will rejected it; those claims will proceed. The real action concerned the grant to the company founder and chair.
For demand to be excused for the founder grant, she had to determine whether a majority of the board was disinterested. (Nine of 11 were determined by the board to be independent under NYSE rules.) So the novel question she had to tackle was whether Section 144(d)(2)’s new presumption of disinterestedness applies beyond Section 144’s purview (transactions with controlling stockholders and interested directors and officers) and, specifically, whether it applies to demand excusal. As Ann notes:
DGCL 144 does not in any way incorporate or reference [Court of Chancery] Rule 23.1 [governing pleading requirements for derivative actions.] It even uses different terminology than the caselaw developed under Rule 23.1: Rule 23.1 caselaw distinguishes between “independence” and “disinterestedness,” and while DGCL 144 clearly includes both concepts substantively, it combines them under a single rubric, “disinterest” [. . .]
On the other hand, from a judicial perspective, it is uncomfortable to have a definition of independence for cleansing purposes that is distinct from the definition of independence for the purposes of demand excusal, each of which is subject to a distinct particularity standard.
It is even more uncomfortable when you consider that demand excusal is, as a practical matter, an inquiry into whether a particular type of decision was cleansed – the decision whether to bring a lawsuit. That is, most potentially “interested” board decisions involve actual contracts – to buy something, to sell something, to grant compensation. In the demand context, it’s a different type of potentially interested board decision – the decision whether to sue. Either way, though, we’re talking about what is sufficient to cleanse that decision such that the court will defer to it. Viewed that way, there is no reason the cleansing procedures for the two – actual transactions/contracts, versus decisions whether to bring a lawsuit – should differ at all.
Ultimately, VC Will determined that the General Assembly intended the presumption to apply broadly, including to demand excusal. Ann says this raises the question of whether all of Section 144’s cleansing procedures apply to demand excusal, which could significantly affect the construction and use of special litigation committees.
Harmonization of policies and practices between the SEC and the CFTC has been a focus of both agencies over the past year. The first big step toward harmonization was the signing of a historic Memorandum of Understanding to guide their coordination and collaboration, which Dave blogged about in March. A joint Interpretive Release clarifying the application of the securities laws to digital assets followed shortly thereafter. These efforts have continued, as evidenced by last week’s announcements by both agencies of requests for public comment on potential opportunities to:
– Harmonize, modernize, and streamline data reporting requirements in their regulation of the security-based swap and swap markets.
For the harmonization of definitions and interpretations, specific topics for public input include:
– Definitions relating to swaps and security-based swaps, including the scope of certain exclusions from the swap definition
– Treatment of mixed swaps
– Treatment of novel or emerging products
– Jurisdictional and interpretive questions
– Potential areas in need of greater clarity regarding regulatory definitional lines
– Potential areas for alternative compliance
For data reporting requirements, the joint request seeks input on:
– Harmonization across frameworks
– Transparency and data quality
– Operational complexity
– Standardized identifiers and reference data
– Implementation considerations
Both public comment periods will remain open for 60 days following publication of the request for comment in the Federal Register.
Most “DExit” activity to-date has involved controlled companies. But as recapped in this Vinson & Elkins blog, three widely held public companies have proposed reincorporating to Texas this year. They each took different approaches to governance structures, and experienced varied voting outcomes. Here’s an excerpt (names redacted here but available in V&E’s blog):
While all three companies extolled their nexus to Texas (including operational and financial links) and lack of connection to Delaware (characterized as a “historical footnote” by Company A) in their proxy statements, only Company A’s and Company B’s reincorporation proposals prevailed. These divergent outcomes underscore that the path to Texas must be carefully tailored to each company’s shareholder base.
* Company A: Anticipating concerns that a reincorporation would be perceived to weaken shareholder rights, Company A emphasized in its proxy materials that it declined to adopt certain TBOC provisions—specifically the derivative litigation ownership threshold, the shareholder proposal ownership threshold, and the jury trial waiver. However, Company A stopped short of committing not to adopt such provisions in the future, which could be accomplished by board-only bylaw amendments without a shareholder vote under Texas law. Company A also filed multiple proxy supplements to directly refute ISS and Glass Lewis claims that the move would harm shareholders’ rights and to further explain differences in Texas’s legal structure. In supplemental proxies, Company A also responded to concerns raised in a filing by New York City Comptroller Mark Levine that a Texas move “sets the stage for the potential erosion of shareholder rights under Texas state law.”
* Company B: While Company B similarly did not adopt ownership thresholds for initiating derivative litigation or bringing shareholder proposals, it went a step further than Company A by explicitly opting out of those provisions in its Texas charter. Accordingly, future adoption of either provision would require shareholder approval (rather than board-only action). ISS has called this approach a “best practice.”
* Company C: Company C implemented a different approach altogether, proposing Texas governing documents that included a one-percent derivative litigation ownership threshold (significantly below the three-percent limit) and seeking a shareholder advisory vote prior to adopting the shareholder proposal ownership threshold. Both measures, along with the reincorporation proposal itself, failed to win shareholder approval.
In addition to wanting to move to Texas, the companies had at least one thing in common: Each of them had to overcome proxy advisor opposition to their reincorporation proposal. The blog explains:
As with most other recent Texas reincorporation proposals, ISS and Glass Lewis recommended against all three companies’ redomestication proposals, citing harm to shareholder rights. ISS, in particular, warned that a Texas reincorporation would make it more difficult for shareholders to hold directors and officers accountable.
During the course of its proxy season, Company A pushed back aggressively, filing proxy supplements contending that ISS’s and Glass Lewis’s respective recommendations were based on “flawed analysis,” “speculation” and “immaterial factors,” and that the proxy advisors failed to disclose their “obvious” conflicts of interest resulting from their ongoing legal battle with the Texas Attorney General.[5]
Company A also ran a widespread media campaign, which included running ads in major newspapers, like the Wall Street Journal, to support the reincorporation. By contrast, Company B and Company C did not publicly refute the proxy advisor recommendations prior to their shareholder meetings. Following its failed vote, Company C cited ISS’s and Glass Lewis’s “ill-informed influence and recommendation against the firm re-domiciling in its home state” as a significant factor contributing to the proposal’s rejection by shareholders.
ISS and Glass Lewis have recommended against the vast majority of Texas reincorporation proposals, despite the case-by-case analysis described in their voting policies.
Delaware currently remains the state of choice for the vast majority of public companies, so these reincorporation proposals and decisions are still relatively novel and at this point there isn’t a well-developed, standardized playbook for a winning proposal. That said, companies can learn from this year’s outcomes – especially when it comes to the timeline and planning. As the V&E team notes, each of the three companies submitting Texas reincorporation proposals this year spent a lot of time teeing up the ask – 7 months or more. So, if you’re considering a move in 2027, now might be the time to start discussing the strategy.
John blogged last month that the Delaware General Assembly had passed this year’s amendments to the Delaware General Corporation Law. Last week, Delaware Governor Matt Meyer signed the amendments into law, and they’ll go into effect August 1st.
See the legislative history page for all the details. Here’s a reminder of what the changes will do, from John’s earlier blog and the official synopsis:
Section 1. Section 1 of this Act confirms that if a certificate of incorporation includes a provision that “opts out” of the class vote specified in § 242(b)(2) of Title 8 to increase or decrease the number of shares of a class of stock authorized for issuance, including a provision that requires the affirmative vote of the holders of a majority of the stock (or a majority of the votes of such stock) entitled to vote, that “opt out” will not be deemed an express provision that has the effect of “opting out” of the default provisions of § 242(d). Instead, § 242(d) will apply unless the § 242(b)(2) “opt out” expressly states that the corporation is not governed by § 242(d)(1) or (2), or the § 242(b)(2) “opt out” provision specifies a greater or additional vote to increase or decrease the authorized number of shares of 1 or more classes of stock.
Section 2. Section 2 of this Act amends § 275 of Title 8, which addresses the dissolution of a corporation. New § 275(h) provides that the authority and responsibilities of the registered agent of the corporation terminate at the time the dissolution of the corporation becomes effective, except with respect to service of process that the registered agent has received before that time. New § 275(i) establishes procedures for the Secretary of State to accept service of process for a dissolved corporation after the dissolution has become effective. The amendments to § 275(d) and (f) require a corporation to include in its certificate of dissolution an agreement that the dissolved corporation may be served with process in the State by service to the Secretary of State in accordance with the Secretary of State’s rules and regulations.
Section 3. Section 3 of this Act amends § 312(j) of Title 8, which addresses the revival of the certificate of incorporation of a nonstock corporation if the certificate has become forfeited or void. The amendments delete reference to actions taken by members of a nonstock corporation who are entitled to vote on a dissolution of the corporation. The provisions of § 312(j), when read together with § 312(h), contemplates member action only to elect persons to the governing body of the corporation if there are no such persons then in office to revive the corporation. Because no action by members entitled to vote on a dissolution is required for revival, the reference to these members is being deleted. In addition, because no member action is required to revive a corporation if there are persons then serving on the governing body of the corporation, amended § 312(h) also clarifies that member action will be taken for a revival only “if any” member action is necessary.
Section 4. Section 4 of this Act provides that this Act takes effect on August 1, 2026. This Act requires a greater than majority vote for passage because § 1 of Article IX of the Delaware Constitution requires the affirmative vote of two-thirds of the members elected to each house of the General Assembly to amend the general corporation law.
To advise on whether an internal investigation is needed, you don’t just need to understand the applicable legal issues – you also need to exercise judgment and be familiar with the process. Sometimes, though, it can be challenging in the moment to recognize whether or not an issue is pointing towards an investigation.
This Faegre Drinker memo provides a helpful framework to identify common triggers for internal investigations and execute an effective, privilege-protected investigative process. The memo flags these stockholder demand triggers and summarizes the applicable Delaware law:
– Books and records demands
– Appraisal demands
– Derivative demands
Other triggers that the memo covers include white collar and government notices and internal misconduct. The memo explains that an internal investigation may be appropriate where:
– There are credible allegations of misconduct, and this includes gatekeeping reviews to determine credibility.
– A regulator has indicated, through formal or informal means, that there is potential misconduct.
– The issue could affect:
* Financial reporting or disclosures
* A pending or contemplated transaction
* Regulatory compliance or enforcement exposure
– The company must respond to stockholders, auditors, or regulators.
– The board is required to make a formal decision, such as responding to a derivative demand.
In these circumstances, engaging experienced counsel — often outside counsel — can help ensure that the investigation is conducted effectively and with appropriate independence.
The memo then walks through the steps of the investigative process and how to preserve privilege and independence and outlines key considerations for an external communications strategy during and after the investigation. Of course, practice makes perfect, and the Faegre Drinker team notes that for companies facing significant risk, tabletop exercises can be a valuable tool. Here’s an excerpt:
These exercises simulate scenarios such as:
– Receipt of a subpoena or search warrant
– Parallel civil and criminal investigations
– Media or market disclosures
The memo concludes with these best practices and pitfalls:
– Respond promptly and in good faith to all stockholder and government demands — delay or intransigence can result in adverse inferences, fee-shifting, or reputational harm.
– Maintain a clear record of the board’s oversight and involvement; this is critical protection if the investigation is later scrutinized by a court or regulator.
– Carefully consider privilege risks when communicating with auditors, business partners, or third parties.
– If criminal or regulatory action is possible, coordinate closely with outside counsel to avoid interfering with government investigations and to manage parallel proceedings.
– Use investigation findings as an opportunity to strengthen compliance, remediate issues, and update company policies or training as needed.
Programming Note: Our blogs will be off tomorrow in honor of Juneteenth. We will return on Monday, June 22nd.
The comments are rolling in on the SEC’s semiannual reporting proposal – so far, many of the submissions are from individual investors who oppose (or strongly oppose!) the proposal. This tracker from Professor Tzachi Zach at The Ohio State University Fisher College of Business categorizes the letters so that you can see at a glance the number that oppose, support, or conditionally support the proposal.
Although the overwhelming majority of commentors currently oppose the proposal, it’s worth noting that not all of the feedback is in quite yet – more on that below – and also that trade organizations often submit letters on behalf of all their members. That means the feedback may not translate neatly to a “one vote per letter” type of tally at the end of the day. But it’s still useful to see how different groups of market participants are reacting, and it will be up to the SEC to decide what’s persuasive. For extra credit, Professor Zach also built a comment tracker for the 2018 proposal on this topic – that proposal ultimately generated mixed feedback.
Many market participants have not yet submitted letters – and as this letter from MFA, AIMA and SIFMA Asset Management notes, it’s a bit challenging to have the deadline fall on the first business day after Independence Day (where we will be celebrating the 250th anniversary of the US Declaration of Independence, no less)! That 5-page letter essentially says, “Please sir, may we have until September 4th?”
As someone who has worked on comment letters for SEC rulemaking and knows how much effort goes into them – not the one-paragraph submissions that seem to be most common on this proposal to-date, but the more thorough variety – an extension sounds great to me! Whether that’s realistic or not in terms of the SEC accomplishing agenda items, might be another story.
