Takeaways from the 12th Annual Spring Forum on M&A and the Boardroom

Thank you to the in-person attendees who once again filled the venue to capacity and to the hundreds who joined virtually at the 12th Annual Spring Forum on M&A and the Boardroom, co-hosted by Freshfields and the Berkeley Center for Law and Business. Here is our annual report-out along with key takeaways and a link to the video recordings on the forum website. 

Videos of the panels, where available, can also be found hyperlinked at the headings below.

The Roles of M&A and Antitrust in the Tech Sector

Cory Doctorow, author of the best-selling critique of M&A and Antitrust in the Tech Sector, Enshittification: Why Everything Suddenly Got Worse and What to Do About It; and Manish Kumar, Former Chief of DOJ Antitrust Division-San Francisco Office and Partner at Freshfields; Moderated by Frank Partnoy, Professor, University of California, Berkeley School of Law

Address by Cory Doctorow

Cory Doctorow led with his “platform enshittification” thesis that consumer-facing tech companies go through the following phases:

(1) Initially, provision of genuine value to users to attract and build scale; 

(2) Followed by degradation of the user experience to extract value for business customers; and 

(3) Finally, extraction of the remaining surplus from business customers to benefit shareholders and executives, thereby leaving the platform increasingly unfriendly to users and business partners. 

He tried to make the case that this dynamic is a structurally inevitable consequence of M&A and lax antitrust enforcement.  According to Doctorow, this syndrome is attributable not to the failure of consumers "to shop carefully" or individual tech executives, but to an "enshitogenic policy environment" — decisions taken in living memory, with foreseeable consequences that, he argued, allowed market concentration to entrench itself. Doctorow outlined support for this argument by detailing the evolution of several well-known tech companies.

Doctorow acknowledged that both the FTC (under Chair Lina Khan) and the DOJ-Antitrust Division (under Assistant Attorney General Jonathan Kanter) had shifted toward more aggressive enforcement, but cautioned that structural limitations (including judicial skepticism of novel theories of harm and finite agency resources) constrained what their ambitious posture could realistically accomplish. 

He concluded his address by trying to substantiate his claims that anti-monopoly activism is surging globally and that we are living in the most promising moment for antitrust reform in a generation. 

Fireside Chat with Author Cory Doctorow and Former Chief of DOJ Antitrust Division-San Francisco Office Manish Kumar

The fireside chat between Doctorow and Manish Kumar, moderated by Frank Partnoy, delved into the tension between the perspective of a critic who views the enforcement record as a failure of political will and the perspective of a practitioner who spent years inside the enforcement apparatus navigating the legal and institutional constraints that define what is achievable. 

The conversation opened with a discussion of regulatory capture. Kumar argued that what may appear to be regulatory capture is more often an exercise of prosecutorial discretion: enforcers are bound by the facts and the law and must meet demanding burdens of proof. He observed that the legal standards governing merger challenges remain demanding, and that federal courts have not been receptive to enforcement theories that rely heavily on speculative projections of future competitive harm. 

Doctorow pushed back, tracing regulatory capture to the Reagan administration's decision to reorient and limit the enforcement of antitrust law to select economic theories of consumer protection, which he argued had the "incredibly predictable effect" of creating the market concentration now evident across the economy. 

Doctorow then delved into his endorsement of the idea that enforcers should challenge acquisitions of nascent rivals before competitive harm materializes. Kumar acknowledged the theory's intuitive appeal but noted that courts have been reluctant to treat speculative competitive threats as a legal standard. Doctorow replied by arguing that waiting for harm to become legally cognizable is effectively authorizing it. By the time damage is provable the acquisition has already reshaped the market.

Doctorow and Kumar agreed that regardless of which administration occupies the White House, the technology sector will remain a sustained focus of antitrust scrutiny. The legal and policy questions raised by platform dominance and artificial intelligence integration are structural and durable. The enforcement infrastructure built over the past several years, including litigation experience, economic modeling capacity, and expanded public awareness of platform market power, will not be easily dismantled. Both participants agreed that the next phase of tech antitrust will be defined not by whether enforcement occurs, but by which legal theories survive judicial review and which remedial tools prove capable of restoring competition in concentrated digital markets.

DExit and Other State Corporate Law Developments

Honorable Lori W. Will, Vice Chancellor, Delaware Court of Chancery; Jai Ramaswamy, Chief Legal and Policy Officer, Andreessen Horowitz; Doug Sharp, Senior Director, Associate General Counsel, Coinbase; John DiTomo, Partner, Morris Nichols Arsht & Tunnell; Moderated by Ethan Klingsberg, Co-Head of US Corporate/M&A, Freshfields

The Arguments for a Shift from Delaware to Nevada or Texas

The panel opened with Ethan Klingsberg setting the table by discussing the recent impacts of:

• the recent blog post, authored by Jai, that his firm Andreessen Horowitz, one of the largest VC funds in the world, was “leaving Delaware” and recommending that its portfolio companies consider doing the same;
• the proxy statement and board process in which Doug had an important role that led to Coinbase reincorporating recently from Delaware to Texas; and
• thoughtful articles recently published by Vice Chancellor Will and John, respectively, about the history, recent developments in, and challenges faced by Delaware corporate law. 

Vice Chancellor Will then discussed perspectives on the extent to which Delaware corporate jurisprudence has become infused with too much subjectivity and complexity. She made the case for a Delaware corporate law jurisprudence that is grounded in the fundamental fiduciary duties of care and loyalty, private ordering, clear guardrails, and support for value creation for shareholders.  

Doug Sharp then weighed in by explaining that Coinbase reincorporated from Delaware to Texas not due to dissatisfaction with any single outcome but as a result of concern about shifting standards and unpredictability. He conveyed that he viewed the litigation challenges to the Activision-Microsoft merger agreement approval process as an example of a scenario where the board of a Delaware corporation believed it understood the applicable rules, only to find that it had not. 

The panel then engaged in an assessment of the contention, in both the Coinbase proxy statement and the A16z blog post, that Texas and Nevada are “more code-based” and therefore their corporate jurisprudence will be “more predictable” than Delaware. Ethan pointed to the predictability and precision of where Delaware courts stand on shareholder rights plans, fiduciary termination fees, exceptions to no-shop undertakings, and other elements of merger agreements and processes that Texas and Nevada lack. Doug and Jai conceded that, other than Louisiana, no state had a civil code system and that there would be some uncertainties for Texas and Nevada corporations in the coming years. 

Jai argued though that, despite Nevada courts’ lack of corporate law case law, Nevada’s recent statutory amendments do ensure that the business judgment rule will always prevail and that the courts will not creep toward implementation of an entire fairness doctrine for review of transactions with controlling shareholders. John was more cautionary, urging clients to ask hard questions about what terms like “intentional misconduct” and “fraud” actually mean under Nevada law before assuming that concepts with language resembling Delaware doctrines will be applied in the same way. 

The panel then engaged in a revealing discussion of the movement toward a corporate world largely populated by portfolio companies of private capital funds and by controlled, founder-led companies. Jai and Doug discussed the premium placed on the ability to evolve and innovate quickly, and questioned the extent to which corporate law protections of minority shareholder rights fit into this paradigm. 

John and Vice Chancellor Will then shared their positive views on the amendments to DGCL Sections 144 and 220 and essentially made the case that the safe harbors and standards of review provided for in these amendments were consistent with Vice Chancellor Will’s “back to basics” philosophy and should be appealing to entrepreneurs.   

Ethan then probed with John and Vice Chancellor Will the extent to which the recent EngageSmart decision, although decided by the Delaware Court of Chancery under the standards that preceded the recent DGCL amendments, showed that shareholder plaintiffs in Delaware would continue to be able to defeat motions to dismiss challenges to controlling stockholder transactions when there were questions of adequacy of disclosure in proxy statements, director independence, and aiding and abetting liability on the part of financial advisors. 

Vice Chancellor Will helpfully discussed her grant of a motion to dismiss claims against a controller transaction in Roofers vs. Fidelity National despite the applicability of the entire fairness standard. Arguably, the openness of the Court of Chancery to dismissal of entire fairness cases on the pleadings, even if all the safe harbor criteria in the new Section 144 have not been satisfied, is as important a development as the amendment of Section 144. 

The panel concluded with a discussion of the political dynamics in Delaware, Texas and Nevada. Delaware derives approximately one-third of its state budget from franchise taxes, creating a structural incentive for legislative responsiveness that Texas - with a large and diversified economy - does not face. Panelists further noted that Texas's politically appointed business court judiciary introduces variables that are absent from Delaware's constitutionally mandated, politically balanced court system. The panel further discussed how Texas in particular has a volatile state government prone to taking extreme positions that may, at some point, become infused into its corporate law statutes. 

John observed that state competition has already produced a healthy result, prompting Delaware to respond with legislative speed. Vice Chancellor Will cautioned that predictability, Delaware's foundational advantage, is built over decades of correction and refinement that no competitor jurisdiction can yet replicate. She offered a measured closing prediction: investors will ultimately gravitate toward the jurisdiction that best balances fiduciary discretion with investor protection.

The European Commission’s Approach to Tech M&A 

Hans Zenger, Head of the Unit at the Chief Economist Team of DG Competition of the European Commission; and Janet Lang, Antitrust Partner at Freshfields

Key Takeaways:

• The European Commission is revising its merger guidelines, with two central aims: adopting a more dynamic view of competition and giving greater weight to efficiencies, including complementarities and internal synergies.
• Europe's competitiveness agenda born from the Draghi Report, which called for stronger industrial capacity and greater strategic investment across the EU, provides the policy backdrop for the revised merger guidelines, but the Commission will maintain a competition standard rather than shifting to a public interest test.
• On European champions, Zenger conveyed that merger control should not be overplayed to create European champions by design, as successful companies have historically been built bottom-up, not through mergers or other intervention.
• AI markets exhibit fundamentally different characteristics from prior platform markets, weaker network effects, easy switching, higher marginal costs, poor IP protection, and limited advertising monetization, making market power harder to establish at this point in time.
• Internal documents play a heightened evidentiary role in tech mergers given the forward-looking and dynamic nature of the competitive assessment.

Address by Hans Zenger

Hans Zenger opened by outlining the most significant current development in European merger control: the revision of the Commission's merger guidelines, which date from 2004, a pre-digital era in which the guidelines were not designed with technology-driven markets in mind. He noted that draft guidelines will soon be published for public consultation, and identified two principal changes (note that these draft guidelines were since published on April 30, 2026 (see blog post here, following Zenger’s remarks at the Berkeley Forum)). The first is a more dynamic perspective on merger assessment, moving away from viewing markets as static collections of narrowly defined product markets and instead treating economies as a dynamic network that evolves over time, a shift applicable to both traditional industries and technology sectors. The second is a greater role for efficiencies, which Zenger observed have historically been less prominent in merger control guidelines globally than economists would have expected.

Zenger then turned to the political backdrop. He explained that European competitiveness is a major driver of the guidelines revision, and offered an analysis of China's industrial policy, noting China’s intense domestic competition creates Chinese companies which are primed to conquer foreign markets. He pointed to the electric vehicle sector as an example. Zenger contrasted this with the approach of some European companies in sectors such as telecoms and airlines, which seek not to compete across an integrated European market but to consolidate local pockets of influence within a fragmented one. Zenger concluded by stating that the Commission is "not in the business of trying to provide presence for local monopolies" but rather aims to create conditions where firms can scale up and become stronger competitors through mergers.

Fireside Chat by Janet Lang with Hans Zenger

Janet Lang opened with noting the influence of the Draghi Report in focusing attention on growth, innovation, and scale, and asked how these abstract objectives translate into competition law practice. Zenger described the Draghi Report as important for highlighting structural problems, particularly market fragmentation across 27 member states and the absence of an integrated capital market. However, he drew a clear distinction between the merger guidelines and Article 22 EU Merger Regulation (EUMR), with EUMR defining the legal limits of what merger control can do, emphasizing that the guidelines would not transform competition law into a public interest test.

On European champions, Zenger cautioned against "asking the hairdresser whether we need a haircut." Where mergers do not create significant competition problems, or where problems are minor compared to complementarities and efficiencies, the Commission would support them insofar as the standard for competition law is met. But he warned against building champions through political design, observing that great companies are built bottom-up, not top-down, and that the primary contribution politics can make lies in lowering trade barriers, cutting red tape, and fostering an investment-friendly climate.

On AI, Zenger observed that it remains an extraordinarily competitive field, with three well-financed major competitors and at least half a dozen strong second-tier players, all of whom are engaged in rapid innovation with prices far below cost. He then explained why AI markets have not followed the trajectory of prior platform markets. AI companies’ network effects are relatively small when compared to other digital platforms and switching between providers remains easy; token-based computation involves significant marginal costs unlike near-zero marginal cost platforms; advertising-based monetization does not translate well. He suggested this explains why Chinese competitors remain only months behind despite limited GPU access. He also noted that smaller European firms like Mistral continue to grow by serving users seeking sovereign AI.

Zenger acknowledged, however, that certain layers of the AI supply chain could present antitrust issues and potentially problematic horizontal acquisitions.

On how the revised guidelines would address this unsettled landscape, Zenger explained that a central objective is to move beyond static classifications of firms as competitors or complements. In today’s fast-changing markets, today's complement can quickly become tomorrow's substitute and new entrants often build outside an incumbent's "kill zone" with differentiated products before expanding to challenge the incumbent directly. This rigid lens has, in his view, led to overly permissive merger control in certain cases. On efficiencies, he stated that the most convincing arguments involve strong complementarities or synergies that address a genuine market failure. The key question is what the merger concretely enables that could not be achieved independently. Scale in itself is neither a theory of harm nor an efficiency.

Finally, on evidence, Zenger noted that the Commission's approach has evolved significantly. Early in his career at DG Competition, merger review relied almost exclusively on economic evidence, with counsel urging the Commission to look at internal documents instead. Now the argument has reversed, with counsel dismissing internal documents as "tech bros fantasizing about how they will rule the world." Zenger concluded that both forms of evidence should be used together, but that internal documents play a significantly greater role in tech mergers because the competitive assessment is inherently forward-looking, unlike a merger in consumer goods that can be more easily assessed on margins, market shares, and diversion ratios alone.

Burgeoning Role of State Attorneys General in US Antitrust Enforcement and Review of Mergers

Patricia Conners, Stearns Weaver Miller, P.A., Former Chief Deputy for the Florida Attorney General’s Office; Gwendolyn Lindsay Cooley, Founder and CEO Taimet; Ellen Rosenblum, Oregon State AG (2012-24), Senior Counsel Freshfields; Christine Wilson, FTC Commissioner (2018-2023), Head of US Antitrust Practice Freshfields

Key Takeaways:

• While State Attorneys General (State AGs) have long been active in US merger enforcement, they increasingly have begun taking stances that diverge from those of the federal antitrust enforcers, adding complexity to the merger review landscape. Bolstered by increased budgets and high caliber talent departing the federal agencies, the state AGs are launching investigations and initiating lawsuits when previously they would have largely deferred to federal enforcers.
• State AGs originally became more interventionist as they perceived an enforcement vacuum at the federal level. Now, though, their increased budgets and staffs mean that they are here to stay, regardless of how active the federal enforcers are.
• The introduction of state-level pre-merger notification regimes (mini-HSR laws) in states such as Washington, Colorado, and California (forthcoming) gives state AGs earlier and independent visibility into transactions, allowing states to make more informed decisions on where to intervene.
• In this evolving landscape, companies assessing the risk of state intervention should consider three factors: which states are affected by the transaction, which states are most active in antitrust enforcement, and which sector the deal is in. Because most AGs are elected officials, consumer-facing sectors like telecoms, groceries, and healthcare offer high-profile opportunities to demonstrate action on behalf of constituents.

Panel Discussion

Patricia Conners began the discussion by noting that states have long been involved in antitrust enforcement, with multi-state enforcement efforts dating back to the 1979 Multistate Antitrust Taskforce. These earlier cases focused on more standard antitrust matters, such as price fixing and resale price maintenance. State enforcement has since evolved. States now bring independent actions, and serve as "gap fillers," in key areas such as privacy and data protection, algorithmic pricing, and AI, stepping in wherever it is perceived that Congress has failed to act or federal regulators are moving too slowly. She further noted that state AGs’ resources have grown substantially, with state offices absorbing experienced lawyers departing the federal agencies whose expertise lends to the new trend towards increased independent merger challenges.

Gwendolyn Lindsay Cooley reinforced that state AG antitrust activity is not new. The Clayton Antitrust Act of 1914 authorized state AGs to challenge mergers, which the Supreme Court affirmed in California v. American Stores (1990). She instead proposed that state AGs have simply been undervalued when pricing deal risk. State AGs will intervene on important “bread and butter” issues that impact their citizens, as demonstrated by the state challenges to the T-Mobile/Sprint (cell phone bills) and Albertsons/Kroger (groceries) mergers. Notably, in the Albertsons/Kroger matter, both Colorado and Washington filed suit independently before the Federal Trade Commission’s enforcement action.

The panel then examined the growing landscape of state-level pre-merger notification requirements (the so-called “mini-HSR” regimes), including the enacted regimes in Colorado and Washington and the forthcoming regime in California. Cooley noted that merging parties need to be aware of these mini-HSR regimes, but also states’ additional, industry-specific notification requirements. For example, there are approximately 30 sector-specific notification requirements in healthcare, plus niche regimes covering industries like fuel oil and cannabis. These reporting requirements demonstrate the need of merging parties to be aware of state involvement early on in a transaction.

Christine Wilson observed the important role that economics plays in assessing the competitive impact of mergers and business conduct and asked whether the expansion of state AG resources has alleviated the challenge that states have historically faced in retaining high-quality (and high-priced) economic consultants. Conners explained that this dynamic has changed significantly: several states, including Florida, Texas, New York, and California, now have in-house economists, and the State Antitrust Enforcement Center provides grants to help states retain outside experts. Access to sophisticated economists has been a game changer for early case assessment, improving case selection and providing states with the analytical foundation to diverge from federal enforcement outcomes with confidence. The mini-HSR regimes also play a crucial role in aiding case selection by providing states with independent access to transaction documents, allowing state AGs to better assess the strength of a potential case prior to taking action. 

The discussion then turned to the factors most likely to prompt states to challenge mergers independently. The panel agreed that the decisive factor is direct, tangible consumer impact – the T-Mobile/Sprint challenge was driven by expected price increases of approximately $5 per month per user, while the Albertsons/Kroger challenge centered on the prospect of higher grocery prices during a period of inflation. Conners emphasized that states focus on the industries that matter most to their citizens. Ellen Rosenblum later underscored this point, observing that AGs are elected officials who respond to political incentives: antitrust enforcement generates headlines, and AGs will not defer to federal agencies when they see an opportunity to act on behalf of consumers.

A key question was whether state activity would recede if the perceived vacuum of federal enforcement were to wane. The panel's unanimous answer was no. Conners stated that there would be no scaling back: during periods of strong federal enforcement, states will cooperate more closely with federal agencies, with fewer disparate outcomes, but states will continue to diverge where they disagree and fill gaps where they see inaction. Lindsay Cooley highlighted the "FOMO" dynamic among elected AGs – once one state brings a challenge, others face constituent pressure to follow. 

To close the panel, the discussion turned to the shortlist of state AGs that merging parties should keep top of mind. Cooley first urged merging parties to avoid engaging with states beyond satisfying mini-HSR filing obligations because staying under the radar is beneficial. When a merger runs a high risk of state intervention, though, those states with the most aggressive enforcement records — Washington, California, Colorado, New York, and Illinois — should be prioritized. Cooley also suggested that engagement with certain Republican-led states — including Texas, Florida, Tennessee, and Ohio — could provide a countervailing force. Conners noted that in the technology sector, Republican and Democratic AGs collaborate closely, as seen in Texas and New York’s collaboration on Google enforcement. But the considerations for each deal will be quite fact-specific, and merging parties should consult with counsel experienced in state AG issues. 

The panel concluded by underscoring the central fact that robust state AG enforcement is here to stay. Regardless of the intensity of federal enforcement, strengthened state AGs will now move decisively to protect the interests of their constituents. The careful merger practitioner now considers a merger risk assessment incomplete unless it takes the likelihood of state AG interest into account.  

How to Evaluate AI Companies

Claire Hart, Former Chief Operating Officer and Chief Legal Officer, Groq; Sue Meng, Partner and Managing Director, Duquesne Family Office; Jennifer Miller, General Counsel, Superhuman (formerly known as Grammarly); Moderated by Anna Gressel, Global Co-Head of AI Practice, Freshfields

Anna Gressel opened the panel with an observation about how much the AI dealmaking landscape has shifted in the past 18 months. Jennifer Miller reflected on how Superhuman has leaned into that shift, completing at least three acquisitions in the prior eighteen months. Sue Meng described the pace of change as exponential, noting a year earlier she was more interested in the application layer than the model layer, a position that has since reversed. When evaluating investment opportunities, Meng also noted that Duquesne will largely drive the conversation about articulating a central thesis for the company’s direction in the rapidly changing AI space. Claire Hart stressed the importance of staying nimble and “keeping your knees bent” in order to pivot quickly and succeed in an environment where the number of winners is uncertain.

On the question of how to stay oriented in the midst of constant uncertainty and change, the panelists agreed that it was important to stay perpetually curious. Miller emphasized that as an acquirer, it is key to understand what is happening at many different companies, constantly trying new products, and looking for bold, complementary visions. Hart emphasized the importance of internal information sharing, drawing on what the sales team is hearing from customers across different industries and sectors. Meng's approach as an investor is to treat her deal flow as a real-time market signal, as receiving a high volume of pitches gives her a sense of the themes that are gaining momentum. Meng carefully observes what excites the smartest young engineers she meets and has noted a visible shift in enthusiasm among young talent from pure AI toward robotics and physical AI. Hart added that her experience running a large cloud business alongside a hardware business at Groq gave her an unusually wide view across the stack, making it easier to see when conditions were changing. 

The panel was transparent about the difficulties of making deals in an environment where business models are likely to change. Miller noted that every week there are new companies with eye-popping valuations that can put stars in the eyes of founders. Miller and Hart agreed having these conversations may be harder with younger teams that have not gone through the acquisition or investment process previously. On business model durability, Meng noted the history of significant pivots in tech companies, a sentiment echoed by Hart from her experience at YouTube as it evolved into a sophisticated content platform. She said it was important for founders to have a clear vision while also understanding they can get there in different ways. Miller noted that she looks for curiosity, humility, and openness to change, noting that businesses will fail if they cannot evolve.

Looking ahead, the panelists discussed what new developments they are expecting over the next year. Miller said she is expecting to continue to see consolidation, while Meng forecasted a technological breakthrough in the AI space. Hart expressed hope that the geopolitical and regulatory uncertainty around energy, data centers, and physical infrastructure will begin to settle, creating the conditions for the next wave of innovation to proceed. Gressel finished by noting it will be exciting to see what new technologies become unlocked from consolidation and innovation across the industry.

Fireside Chat: A Conversation with SEC Division of Corporation Finance Director James J. Moloney

James J. Moloney, Director, SEC Division of Corporation Finance; Moderated by Sarah Solum, Global Co-Head of Capital Markets and US Managing Partner

Key Takeaways:

• “Company Registration” Framework:  The most revolutionary change under discussion — this potential new framework would upend the current deal-by-deal registration model with a one-time “drivers’ license” model for companies, reducing the friction, cost and delayed market access associated with multiple registration statements.
• Reduced Disclosure Requirements:  The SEC’s wide-ranging review of Regulation S-K aims to cut back on onerous disclosure, including executive compensation, potentially making IPO and other prospectuses, annual reports and proxy statements shorter, simpler and less resource intensive and time consuming.  
• Voluntary Semi-Annual Reporting:  Companies would be permitted to forego the current mandatory quarterly reporting cycle and instead report results twice a year under newly proposed rules.
• Alternative IPO Structures: The SEC is actively engaging with proposals for “hybrid direct listings”, offering expanded options for companies considering going public.   
• Incremental M&A Reforms: The Division is looking to reduce unnecessary friction in M&A transactions, as evidenced by a recent exemptive order designed to streamline all-cash friendly M&A tender offers.
• Approach to reform: With Director Moloney at the helm, expect to see both major rulemaking proposals and more minor but impactful reforms through interpretations, exemptive orders and no-action letters.

Director Moloney opened with a vivid image to explain his decision to return to the SEC after over two decades in private practice: he saw an opportunity to help modernize rules that had accumulated over time like “thirty coats of paint on a piece of wood.” He was careful to distinguish modernization from deregulation: “I would call it . . .  applying common sense.” Many of the SEC’s existing rules, he argued, are so old that they need updating to make it easier for market participants and more useful to investors. Like other conference attendees, Director Moloney emphasized that rules should not be static and should adapt to changing times. 

The discussion focused on three areas of reform — public company disclosure, M&A rules, and IPOs, — as well as Director Moloney’s multi-track approach to reform.

Public Company Disclosure

On potential reforms to public company disclosure, Director Moloney confirmed that “everything’s on the table” but emphasized that “we’re not giving away the store.” Under the leadership of a senior advisor dubbed the “S-K Czar,” the Division is reviewing each item of Regulation S-K, the backbone of the public company disclosure rules, from a materiality lens. The animating principle: “If everything is material, then nothing is material.” He dismissed the argument that AI would solve the disclosure overload problem.

On executive compensation, Director Moloney acknowledged that legislatively imposed disclosure requirements cannot be eliminated but confirmed ambitions for what some have called “Ozempic level shrinkage” of the disclosure rules.  Prominent investors like Warren Buffett have observed that the original “name and “shame” intent of the current executive compensation disclosure regime has had the opposite effect of ratcheting up executive compensation. Over time, the complexity of the rules and the density of disclosure has continued to grow. On executive security, Director Moloney suggested the Division’s thinking is evolving: if executive continuity and security is important enough to warrant a risk factor, then “maybe that’s just the cost of doing business” rather than a perquisite. And on the Pay vs. Performance rules, he pointed to the proliferation of compensation consultants, multiple peer groups for different purposes, and disclosures that “people are not reading.” 

Director Moloney previewed the SEC’s May 5, 2026 rule proposal to permit semi-annual (rather than quarterly) reporting for public companies. While subject to a traditional notice-and-comment rulemaking, Director Moloney noted that the proposed semi-annual reporting regime would be voluntary.  When asked whether he expected there to be significant uptake by public companies, he pointed to certain categories of company, such as pre-revenue life sciences companies, smaller regional banks and IP royalty companies, for which semi-annual reporting could make sense. He also predicted that market practice would evolve to resolve concerns about lengthy reporting cycles and enable insiders to trade and companies to buy back stock, such as through disclosure of quarterly “flash numbers” via Form 8-K. For a detailed analysis of the impact of the proposed rule, see our alert “SEC Proposes to Let Companies Report Twice a Year — What Public Companies Need to Know.”

Tender Offers and M&A

Turning to M&A, Director Moloney framed it as an area that has been overshadowed by other Division priorities over the years and noted that many rules were adopted prior to the broad proliferation of computers (much less mobile devices). He highlighted a number of recent guidance releases and Division orders in the M&A space, including measures designed to cut down lengthy time periods that he views as antiquated in an era where information is just a click away.

The centerpiece of this discussion was the Division’s new exemptive order, issued just a few days before the conference, cutting the minimum tender offer period from 20 to 10 business days for certain all-cash transactions. (For a detailed analysis, see our prior alert, “SEC Halves Tender Offer Period for Negotiated All-Cash Deals from 20 to 10 Business Days — A Potential Game-Changer for M&A Execution.”) Director Moloney dismissed academic criticism that the order could revive coercive “Saturday Night Specials” (surprise hostile tender offers designed to force shareholders to act quickly, without allowing management time to mount a defense), noting that the exemptive order’s shortened timeline (which applies only to all-cash friendly transactions involving a tender offer for all shares, as well as issuer buybacks for less than all shares, and private/pre-IPO company self-tenders) falls away if a hostile or competing bid emerges. “I think they’re wrong on this one,” he said.

Director Moloney also signaled that the Division is revisiting the 2015 no-action letter on abbreviated debt tender offers — currently permitting five-business-day offer periods — noting it is now 11 years old and “not a single person has complained,” but that “you may see some modernization in that.” 

On Regulation M-A more broadly, he said he had not heard many complaints but extended an open invitation: “If somebody sees something that they really think is creating friction in merger and acquisition transactions, let us know.”

IPOs and Capital Formation

On IPOs and capital formation, Director Moloney observed that being a public company has lost some of the prestige it once carried, in part due to the friction, complexity and cost of going public and being public. 

Most notably, Director Moloney described a potential shift from transaction-based to company-based securities registration. Such a shift would be a major departure from the transaction-based approach to securities registration embedded in the structure of the Securities Act of 1933 and related rules. Director Moloney acknowledged the significance: when he first heard the idea from former Commissioner Steve Wallman in the 1990s, “I was clutching my pearls.” The vision: “you register once. And then we know who you are, and then we follow what you’re doing,” rather than repeatedly registering individual offerings. He compared it to getting a driver’s license: “there are all these things in life where you register once.” Although he cautioned that there would be a rulemaking process and that its outcome would be uncertain, Director Moloney emphasized that he is invested in putting such a proposal on the table, suggesting that it will be “better than your wildest dreams.” (While the details of such a company-registration regime remain to be seen, we expect it could take inspiration from the 1996 Report of the SEC’s Advisory Committee on the Capital Formation and Regulatory Processes, which Commissioner Wallman chaired.) 

Director Moloney also indicated an openness to alternative IPO structures. As an example, while he acknowledged that direct listings have had limited uptake (Spotify, Palantir, and Coinbase notwithstanding) because they do not permit straightforward primary capital raising, he revealed that the Division has recently received proposals for “hybrid direct listing” structures. “Just because you’ve always done it one way doesn’t mean it always has to be that way.” 

Another potential lever (and the subject of imminent rulemaking) is filer status reform, which he described as a “million check boxes” where “you could spend a week just trying to figure out what your category is.”  This refers to categories appearing on the cover of Form 10-K, such as “non-accelerated filer,” “accelerated filer,” “large accelerated filer,” “smaller reporting company,” and “emerging growth company,” which have implications for a company’s SEC filing deadlines, disclosure burden, financial statement requirements and SOX audits.

Asked about the tension between protecting retail investors while also allowing individuals to participate in the potential upside in private companies, Director Moloney  acknowledged that the growth of trillion-dollar private valuations has raised questions about whether too much capital is concentrated outside public markets. But Director Moloney pushed back on the notion that trying to make the public markets more attractive means opposing private markets: “it’s an ecosystem . . . it’s a yin and a yang,” and he is focused on creating “doors and windows” for companies to pursue the paths that make the most sense for them. He also described cross-divisional coordination of the SEC’s Division of Corporation Finance with other divisions — namely the Divisions of Investment Management and Trading and Markets — to expand individual investors’ ability to invest in private companies and participate in growth before those companies tap the public markets.

Approach to Reform

While Director Moloney emphasized early in the discussion that he is “thinking big,” he made it clear that he is leaning into the Bay Area ethos when describing his multi-track approach to guidance and rulemaking. While rulemaking is a critical component of the SEC’s approach, he noted that it is a slow process made slower by federal interagency review and cost/benefit analysis requirements, requiring these releases to be put out “one at a time.” To supplement and avoid losing momentum, Director Moloney has focused on other levers available to the Division, including no-action letters, exemptive orders, and Corporation Finance Interpretations, or CFIs (formerly known as Compliance & Disclosure Interpretations, or C&DIs). These approaches can permit rapid course corrections: if there are issues with an exemptive order, for example, “I can add a condition, I can subtract a condition.” Solum described this as “very Silicon Valley,” and Director Moloney embraced the characterization: “beta testing.” 

Fireside Chat: A Conversation with Delaware Supreme Court Justice Karen Valihura

Honorable Karen L. Valihura, Justice, Supreme Court of Delaware; Moderated by Adam Badawi, Professor, University of California, Berkeley School of Law, and Mary Eaton, Co-Head of US Securities & Shareholder Litigation, Freshfields 

Key Takeaways:

• The Delaware Supreme Court's docket is primarily composed of criminal matters (approximately 55%), with corporate cases making up less than 30%. The court has no discretion over which cases it hears, taking all appeals from trial courts.
• Delaware independence standards are distinct from stock exchange independence standards. While Senate Bill 21 introduced a presumption of independence for publicly listed companies under Section 144 based on stock exchange rules, this does not disturb the common law presumption of independence.
• Recent statutory amendments to Section 220 define "books and records" to include a core set of documents (e.g., minutes, director and officer independence questionnaires) and impose a higher burden for shareholders seeking materials beyond this defined set.
• The Palantir decision clarified that companies cannot resist production of key records simply because they are maintained informally (e.g., in emails) rather than in traditional minute books.
• The Authentix opinion established that certain fundamental provisions of the Delaware General Corporation Law, such as the right to inspect books and records and the right to compel an annual meeting, cannot be waived by agreement in the corporate form, unlike in alternative entities.
• The Mindbody decision clarified the scienter requirement for aiding and abetting liability, mandating actual knowledge of both the primary actor's breach of fiduciary duty and the wrongfulness of the aider and abettor's own conduct. This framework results in a narrow form of liability and explicitly rejects the notion of financial advisors as "gatekeepers" with an affirmative obligation to prevent fiduciary breaches.

Professor Badawi and Mary Eaton engaged Justice Valihura in conversation about the Delaware Supreme Court and its recent jurisprudence on some of the most contested questions in corporate law. The candid exchange provided practitioners with an inside perspective on how the court understands its own role and how it approaches the doctrinal questions that boards, advisors, and litigants encounter most frequently.

The Delaware Supreme Court

Justice Valihura opened with an orientation to the Delaware Supreme Court that many practitioners may find surprising: on average, corporate cases represent less than around thirty percent of the court's docket, with criminal matters accounting for approximately fifty-five percent and family law for most of the remainder. The court is a court of appeals with no discretion over which cases it hears. It takes everything that comes up from the trial courts, and decides significant corporate cases either en banc or in panels of three, with oral argument in roughly forty percent of cases selected on the basis of policy implications or issues that need clarification. She addressed the use of per curiam decisions, noting that the court employs them sparingly in its discretion; the Tesla compensation case was a notable exception, and she confirmed that its per curiam form reflected the fact that the justices had different views on the merits. On the question of whether franchise tax considerations exert any pressure on the court's decision-making, she was unequivocal: decisions are based on the law and franchise considerations do not play a role. She reflected candidly on her twelve years on the court, noting that she cannot personally identify a decision where she thinks the court got it wrong, but acknowledged that the General Assembly and the general public may not always agree. 

Director Independence

The conversation turned to director independence, which Justice Valihura described as a topic that “permeates the landscape” of Delaware corporate law, relevant to special committee formation, oversight liability, and derivative litigation alike. She addressed the relationship between stock exchange independence standards for public companies and Delaware law, noting that the two are not coextensive and that Delaware has extensive case law making clear that stock exchange independence standards do not answer the question of Delaware independence. She noted the legislature's decision in Senate Bill 21 to make independence under relevant stock exchange rules for a publicly listed company a presumption of independence for conflicted transactions under Section 144 is intended to reduce fact-intensive litigation, but she was careful to note that Section 144's synopsis states expressly that the provision was not intended to disturb the common law – where a presumption of director independence is ingrained into the law. It was also noted that the statutory presumption under Section 144 does not apply to private companies and it remains an open question whether the new statutory test will apply in contexts other than conflicted transactions. Justice Valihura used the Zynga case to illustrate the pleading standard at stake: a plaintiff challenging director independence based on the company’s decision to determine that the relevant director lacked independence under the stock exchange’s standards due to a director's co-ownership of a small airplane with a controlling stockholder failed, in her view, to plead the lack of independence with the requisite particularity to rebut the common law presumption of independence. She dissented from the majority's finding that the board lacked independence, arguing that a mere friendship or shared asset is not enough - if you're pleading lack of independence, you need to plead with particularity. Justice Valihura noted that she does not see how the Zynga case would be decided differently post-introduction of Senate Bill 21. 

Section 220 Inspection Demands

Justice Valihura addressed Section 220 books and records demands, describing them as one of the more practically consequential areas of recent Delaware corporate litigation. The statutory amendments recently introduced define “books and records” as a specified set of core documents, including officer and director independence questionnaires, charters, certain contracts, and bylaws, and impose a higher burden on shareholders seeking materials beyond that defined set. She noted that Section 220 cases, which are supposed to be streamlined, fast-moving summary proceedings, had over the years become bogged down with overbroad requests for emails and other informal documents which are expensive and burdensome to produce, often as precursors to derivative claims, and that the General Assembly was plainly trying to address that dynamic. She discussed the Palantir decision as establishing an important practical limit: if a company maintains its key records in emails or other informal forms rather than formal minute books, it cannot resist production simply because those records are not organized in a traditional way. 

Limits of Contractual Waiver for Corporations

Justice Valihura addressed the Authentix opinion, in which the court identified certain DGCL provisions so fundamental to the corporate form that they cannot be waived even by agreement. In that case, the issue was whether or not appraisal rights could be waived in a private agreement. In that decision, Justice Valihura dissented on the basis that the waiver provision was unclear. The majority in that case considered the previous de minimis requirement for appraisal rights, and felt that the prior requirements meant the appraisal rights should be waivable. The majority did agree that certain provisions of Delaware corporate law cannot be waived. They focused principally on Section 220 and Section 211(c) - the right of stockholder to compel an annual meeting - as non-waivable, and she expressed the view that the right to vote on a merger or charter amendment and the periodic election of directors likely fall into the same category, describing them as part of the essential stockholder balance of power that defines the corporate form. In alternative entities, she noted, these rights can be waived; in the corporate form, they cannot. 

Aiding and Abetting Liability: RBC and Mindbody

Justice Valihura closed with a discussion on aiding and abetting liability for financial advisors and third-party buyers - an area where two recent Delaware Supreme Court decisions, both of which she authored, have significantly clarified and narrowed the doctrine. She explained that Mindbody, which involved third-party buyers in an arm's-length acquisition, presented a genuine issue of first impression: what level of scienter is required for a buyer to face aiding and abetting liability? With no existing Delaware framework to draw on, the court turned to Section 376 of the Restatement of Torts and developed a test, which requires that the aider and abettor have actual knowledge of the primary actor's breach of fiduciary duty and actual knowledge of the wrongfulness of its own conduct. She then addressed whether Mindbody can be reconciled with RBC, which involved financial advisors on facts she described as egregious - advisors who had, in the trial court's finding, essentially duped the board into breaching its fiduciary duties, leaving the scienter requirement uncontested on appeal. Speaking for herself, Justice Valihura said she did not believe the court intended to establish one test for third-party buyers and a different test for advisors: RBC was a narrow opinion. She was equally clear about what RBC did not do: footnote 191 of the opinion expressly declined to adopt the trial court's conception of financial advisors as gatekeepers with an affirmative obligation to prevent fiduciary breaches. The result, across both decisions, is a narrow form of liability that is a difficult standard to assert successfully.

The firm would like to thank Andrew Lee, Bhavya Sharma, Daniel Fox, Brooke Longhurst, Yungjee Kim, Kayla Weston, Callum Riseley, Claire Wolter and Aaron Stanislawski for their contributions to these takeaways.