Efforts by the Trump administration, anti-DEI activists, and private plaintiffs to target companies that continue to maintain DEI programs are receiving a lot of attention, but if companies think that the only risk they face is failing to unwind these programs as quickly as possible, a recent Bloomberg Law article says they need to think again. According to SMU Law Prof. Carliss Chatman, companies that roll back these programs may put themselves in legal jeopardy for that decision as well.
As she explains in the article, the issue arises under a Reconstruction Era civil rights statute, 42 USC §1981, which prohibits racial discrimination in making and enforcing contracts:
Section 1981 was enacted after the Civil War to guarantee all persons in the US the same right to make and enforce contracts “as is enjoyed by white citizens.” While the statute is often overlooked in corporate compliance discussions, it remains a potent tool for challenging race-based interference with commercial relationships.
Recent DEI pullbacks—especially those terminating or reducing contracts with Black vendors—may expose companies to Section 1981 litigation. Even in the wake of the Supreme Court decision Comcast Corp. v. NAAAOM, which imposed a but-for causation standard, companies are vulnerable if plaintiffs can show that race was a motivating factor in the decision to alter or end a contractual relationship.
This risk isn’t hypothetical. As companies such as Target and McDonald’s face public scrutiny for reversing course on supplier diversity, Black-owned businesses are left with fewer procurement opportunities and diminished access to markets that briefly opened during the post-George Floyd DEI wave.
If those opportunities didn’t evaporate because of objective performance metrics, but due to external political pressure or discomfort with racial equity branding, that may be enough to support a Section 1981 claim.
The article also points out that, if companies have previously highlighted their DEI policies as being a material component of their business strategy, sudden changes to those policies may trigger disclosure obligations under Regulation S-K and expose those companies to disclosure-based shareholder claims.
It’s been a tough year for business leaders, with each week seemingly bringing another unpleasant surprise for them to deal with. Since that’s the case, maybe it’s not surprising some of the responses to a recent survey of over 500 C-Suite executives by PwC and The Conference Board suggest that directors are increasingly getting on the nerves of corporate executives. For example:
– A whopping 93% of executives say they want someone on their board replaced (highest ever), but only 50% have confidence in their board’s ability to remove underperforming directors.
– Only 32% of executives think their board has the right expertise, with international, AI, and environmental/sustainability expertise topping the list of executives’ “want to haves” for their boards.
– 32% of executives think that their boards overstep the boundaries of their role. That’s double the percentage who thought so last year.
On the other hand, the survey also found that the percentage of C-Suite executives who rate their boards’ performance as excellent or good has increased from 29% in 2021 to 35% last year. However, that rating varies widely depending upon a particular executive’s role.
In that regard, 94% of CEOs and 72% of CFOs rate their boards’ performance as excellent or good, but that positive assessment plummets when you move down the ranks. Only 23% of CAOs, 32% of CHROs, 21% of CIOs and 23% of GCs give their boards an excellent or good rating. This excerpt from the survey suggests some reasons that might account for the differences in assessments of the board’s performance between various members of the C-Suite:
Not all executives have full visibility into board dynamics or deliberations, with perceptions shaped by select touchpoints or outcomes rather than the full scope of board responsibilities. Executives who interact with the board frequently tend to have a stronger grasp of its role and responsibilities. Those with more limited access to board discussions may have different expectations, often believing directors should have greater expertise in their functional areas. This could create a gap in perceived effectiveness among all executives.
This Troutman Pepper Locke alert says that the bill may actually be more complex and confusing than its title suggests, including with respect to when a digital asset is a security:
Despite promises of clarity in the Act’s short title, its definitions and numerous cross references to securities and commodities statutes and rules provide a complex and potentially confusing approach to clarifying status as a security and, accordingly, regulatory jurisdiction over digital assets.
Digital commodities and permitted payment stablecoins — which are currently the subject of proposed regulation under H.R. 2392, the Stablecoin Transparency and Accountability for a Better Ledger Economy Act of 2025 (the STABLE Act of 2025) — would expressly be excluded from the definition of “security” under the securities laws. In addition, the Act clarifies that a digital asset that is directly transferable peer-to-peer and recorded on the blockchain is not an “investment contract” and, therefore, not a security.
It also “distances the digital assets regulatory regime from existing securities and commodities laws” in a number of other ways and leaves gaps that it requires the CFTC to address through rulemaking that, in some cases, must be joint with the SEC.
After a Full Committee Markup hearing on June 10, the bill passed the House Committee on Financial Services and the House Agriculture Committee on Wednesday with bipartisan support. CoinDesk reports that the markups from each committee will be combined into a unified committee report to be considered by the full House.
We’re only halfway through 2025, and the year has already given us plenty to talk about when it comes to developments in securities regulation, executive compensation, and corporate governance. That’s even before we add in the significant governance, disclosure and compliance challenges created by unexpected surprises like dramatic changes in tariff policy and the potential for a full-blown global trade war.
In the past, our PDEC Conferences have started on a Monday, but this year, they will be held on Tuesday & Wednesday, October 21-22, at Virgin Hotels Las Vegas, with a virtual option for those who can’t attend in person. Reach out to our team to register by emailing info@ccrcorp.com or calling 1.800.737.1271. If you act now, you’ll also be able to take advantage of our Early Bird Rate and save a bundle on your registration!
We won’t be blogging tomorrow in recognition of the Juneteenth holiday. Our blogs will be back on Friday.
We’ve previously blogged about updating risk factor disclosures in light of President Trump’s “Liberation Day” tariffs, but in this “D&O Diary” blog, Kevin LaCroix expands the discussion to address legal and compliance risks that companies face when doing business during a trade war. This excerpt discusses some of tariff-related compliance issues that companies may face:
In addition to the potential impact from the tariffs on corporate business results, companies also face increased tariff-related enforcement and regulatory risks. For example, a May 12, 2025, memo stating the U.S. Department of Justice’s policies on white collar crime identified as a key threat to U.S. national security from “trade and customs fraudsters, including those who commit tariff evasion,” who may seek “to circumvent the rules and regulations that protect American consumers and undermine the Administration’s efforts to create jobs and increase investment in the United States.”
In addition, as the memo’s authors note, the SEC will likely “continue to investigate companies that misrepresent identities of suppliers and customers to avoid the impact of sanctions and tariffs, falsely improve their profit margins by not recording costs associated with sanctions and tariffs, intentionally conceal disappointing financial performance in key parts of their business, or otherwise engage in accounting fraud to mislead investors.”
Kevin points out that in 2019, the SEC brought enforcement proceedings against a public company based on alleged misrepresentations concerning the country of origin of goods or materials. He also references the possibility of liability under the False Claims Act for tariff-related violations, which is a topic we’ve also blogged about.
While it’s important to keep these ongoing risks in mind when updating risk factor disclosure, it’s even more important to ensure that the potential for tariff-related misconduct is appropriately addressed in corporate compliance programs.
Compliance issues are far from the only tariff-related operational challenges facing companies. This Debevoise memo discusses some of the friction points in commercial contracts that may arise due to tariffs. Here’s an excerpt addressing the potential contractual implications of supply chain disruptions:
Tariffs may cause delays and increase costs along a company’s supply chain. This may affect the ability of companies to meet contractual delivery, payment or timing obligations.
To assess risks in this scenario, companies should identify any price, delivery, timing or payment obligations in their contracts that may expressly allocate tariff risks to any given party. Some contracts, for example, may provide that the purchase price is inclusive of all applicable tariffs, whether existing or imposed during the term of the contract, thereby allocating tariff risks to the seller. Other contracts may establish procedures for determining which party bears the risk of any material change in circumstances, including tariff increases. For example, the seller may be given an opportunity to propose an adjusted price to reflect an increase in tariffs, after which the parties are to negotiate an equitable adjustment in good faith.
But not all fixed price, delivery or timing clauses will account for tariff risk. In many cases the clauses will impose hard deadlines and firm prices with clear consequences if an obligation is not met. Fixed delivery or “time is of the essence” provisions, for example, could allow the buyer to cancel the order, seek liquidated damages, or claim nonperformance for any late deliveries regardless of the cause. Some contracts may account for such risks in other types of clauses, which we describe below. However, where there is any ambiguity in the contract’s accounting of such risk, parties should expect dispute vulnerability to increase.
The memo points out that parties to a contract may have allocated tariff risk through broad indemnity or pass-through provisions, even if tariffs are not specifically called out in the language of the contract. It also addresses the potential role of liquidated damages provisions, force majeure provisions and non-contractual excuses for non-performance, and issues surrounding contract terminations and renegotiations.
Tune in at 2:00 pm Eastern today for our annual CompensationStandards.com webcast “Proxy Season Post-Mortem: The Latest Compensation Disclosures” to hear Mark Borges of Compensia, Dave Lynn of CompensationStandards.com & Goodwin and Ron Mueller of Gibson Dunn discuss the ins and outs of compensation disclosures during the 2025 proxy season and share some thoughts on the SEC’s upcoming Executive Compensation Roundtable, for which all three of them are serving as panelists.
In the last two years, we’ve extended the runtime of this program to 90 minutes since we were all tackling major new rulemaking. (I’m talking about you, PvP and clawbacks!) So much has happened this proxy season, we’re sticking with a 90-minute so Ron, Mark and Dave have time to cover all these hot topics:
2025 Shareholder Engagement Challenges
2025 Proxy Statements — DEI and Other E&S Developments
2025 Proxy Statements — Executive Compensation Disclosures
– Say-on-Pay during the 2025 proxy season
– CD&A highlights
– Pay-versus-Performance disclosure
– Compensation clawbacks
– Perquisite disclosure
– Proxy advisory firm policies
– Equity award grant practices
Shareholder Proposals
Upcoming SEC Roundtable
Members of CompensationStandards.com can attend this critical webcast at no charge. If you’re not yet a member, you can sign up by contacting our team at info@ccrcorp.com or at 800-737-1271. Our “100-Day Promise” guarantees that during the first 100 days as an activated member, you may cancel for any reason and receive a full refund. The webcast cost for non-members is $595.
We will apply for CLE credit in all applicable states (with the exception of SC and NE which require advance notice) for this 90-minute webcast. You must submit your state and license number prior to or during the program using this form. Attendees must participate in the live webcast and fully complete all the CLE credit survey links during the program. You will receive a CLE certificate from our CLE provider when your state issues approval; typically within 30 days of the webcast. All credits are pending state approval.
This program will also be eligible for on-demand CLE credit when the archive is posted, typically within 48 hours of the original air date. Instructions on how to qualify for on-demand CLE credit will be posted on the archive page.
On Friday, the SEC announced the appointment of Kurt Hohl to serve as the agency’s Chief Accountant. This excerpt from the SEC’s press release provides information on Mr. Hohl’s accounting industry and regulatory experience:
Mr. Hohl most recently founded Corallium Advisors, which helps businesses navigate the complexities of auditing, regulatory compliance, risk management, and initial public offerings. Before that, he spent 26 years as a partner at Ernst & Young (EY) in a variety of roles. His final EY role was as global deputy vice-chair of EY’s Global Assurance Professional Practice. In that role he was responsible for the operation and oversight of the technical, regulatory, risk, and quality oversight functions of EY’s global professional practice organization — a team of more than 1,400 professionals.
Mr. Hohl previously served at the SEC from 1989 to 1997, rising to Associate Chief Accountant in the Division of Corporation Finance. There he authored what became the Financial Reporting Manual, a primary guide for the SEC accounting staff and practitioners in the application of the federal securities laws. He began his professional career at Deloitte Haskins & Sells.
Ryan Wolfe, the SEC’s Acting Chief Accountant since Paul Munger’s departure in January, will return to his prior position as Chief Accountant for the Division of Enforcement.
The SEC also announced the appointment of Brian Daly as Director of the Division of Investment Management and the appointment of Erik Hotmire as the agency’s Chief External Affairs Officer and Director of the Office of Public Affairs.
If you’re following the DExit debate, you may be interested in this recent blog by Prof. Ben Edwards, which tracks the status of all 2025 public company Nevada reincorporation proposals. According to the blog, 12 of 14 proposals to move from Delaware to Nevada have passed, and the failure of the other two to pass was due to a large number of broker non-votes. Prof. Edwards notes that one vote in particular may be worth keeping in mind when it comes to the formula for success of future proposals:
One thing worth highlighting here is that Fidelity National succeeded on its second attempt to shift to Nevada. Previously in 2024, it secured 1110,277,692 votes in favor with 107,467,828 votes against. With about 27,000,000 broker non-votes, this wasn’t enough for the necessary majority. This year the votes were different with 147,059,505 votes cast in favor of the move and 74,874,567 votes cast against the move.
So what changed? As I covered in an earlier post, Fidelity National’s Nevada charter increased shareholder protections above the Nevada default threshold. This may have shifted some votes and makes it something to watch for future efforts.
The blog says that two proposals to move from Delaware to Nevada are currently pending, along with one proposal to move from New York to Nevada. Moves by public companies from Delaware to Nevada or other states are getting a lot of media attention, but let’s face it, 14 public company migrations during the current year with the possibility of two more isn’t exactly a reincorporation tidal wave.
My guess is that we’ll need to see whether, over time, IPO candidates are incorporating in places other than Delaware in order to assess just how big a long-term threat Delaware is facing. That’s because the data suggests that most Delaware public companies are unlikely to migrate, and some have argued that the bigger threat may be from private equity and venture capital investors who are persuaded that other jurisdictions will offer them a greater opportunity to keep calling the shots post-IPO than will the Delaware Chancery Court.
The latest issue of The Corporate Counsel newsletter has been sent to the printer. It is also available now online to members of TheCorporateCounsel.net who subscribe to the electronic format. The issue includes the following articles:
– Brace for Impact: Grappling with Economic Uncertainty
– The Staff Throws a Lifeline to Rule 506(c) of Regulation D
– Navigating Shareholder Engagement After the Staff’s February 2025 Schedule 13G Guidance
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