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2026 Executive Compensation Reminders for Public Companies

"[1] Monitor ongoing developments on executive compensation disclosure rules; [2] Review executive security practices and related disclosure considerations; [3] Review proxy disclosures around non-GAAP measures in incentive plans; [4] Review 2025 say-on-pay voting trends ... [5] Stay current on proxy advisor firm developments ... [6] Ensure operational readiness for potential clawbacks; [7] Evaluate CEO succession planning and related disclosures; [8] Prepare for expansion of Section 162(m) covered employees in 2027 and the new aggregation rule; and [9] Monitor noncompete developments."

Colorado Approves Extension of AI Regulation to Health Insurers

"[C]overed insurers should begin preparing now to meet the new governance, risk management, and reporting requirements: ... [1] Compare existing governance and risk management frameworks against the Amended Regulation's requirements ... [2] Ensure directors and senior executives are prepared to oversee ECDIS and Model use ... [3] Monitor forthcoming guidance ... on testing requirements and evaluate whether current internal testing practices can be adapted to satisfy Division standards."

Executive Order Clears Path for Alternative Assets in 401(k) Plans

"To truly achieve the stated objectives of the Executive Order ... a safe harbor regulation ... would establish a prudent process for fiduciaries to follow when evaluating whether to offer plan participants the opportunity to invest in a professionally managed asset allocation fund that includes alternative assets as part of the fund's asset mix. ... Summary of the Executive Order ... Prior conflicting DOL guidance ... The impact of litigation on investment choice ... Intent of the Executive Order and benefits of a regulatory safe harbor ... What comes next."

The (Hopefully) Final Chapter in the Intel ERISA Litigation: Implications for Private Market Assets in 401(k) Plans

"The Ninth Circuit affirmed that ERISA's duty of prudence looks to a fiduciary's prospective decision-making, not hindsight performance, and that 'apples-to-oranges' comparisons on returns or fees cannot, by themselves, establish imprudence.... Echoing the [DOL's] 2020 information letter, the court found that private funds are not per se off-limits.... Intel's almost seven-year, ultimately meritless lawsuit -- and the possibility that other circuits could apply a more plaintiff-friendly standard -- means that fiduciaries may still hesitate absent an express statutory or regulatory safe harbor for including professionally managed, diversified fund options in which private market investments are a component." [Anderson v. Intel Corp. Inv. Policy Comm., No. 22-16268 (9th Cir. May 22, 2025)]

Key Executive Compensation Issues for PE Sponsors in Take-Private Transactions

"Careful planning is needed across a range of issues ... to avoid surprises that may disrupt management stability at a key inflection point in the company's trajectory.... [1] Potential 'good reason' severance exposure ... [2] Section 280G golden parachute tax ... [3] Compensation disclosure obligations ... [4] Management equity: outstanding public company awards.... [5] Management equity under private ownership."

Unpacking President Trump's New Executive Order on Prescription Drug Pricing

"[Executive Order 14273] does not carry the force of law and does not provide details explaining how the administration will seek to accomplish its policy objectives. Many of the Executive Order's proposals appear to require congressional action and/or formal rulemaking, each of which could take many months, if not years, to accomplish and could be subject to legal challenge. ... [This article addresses] the components of the Executive Order and what they mean for the regulated industries[.]"

IRS Proposes New 162(m) Regulations

"The proposed regulations define 'employee' using Section 3401(c), which includes both common-law employees and corporate officers.... The determination of which employees are among the five highest-compensated tracks tax principles, rather than SEC principles ... The proposed rules also apply the current Section 162(m) affiliated group rules to determinations of the five highest-compensated employees for each taxable year."

2025 Executive Compensation Reminders for Public Companies

"[1] Understand SEC disclosure and tax implications of executive and director perks ... [2] Revisit ESG (including DEI) goals in short- and long-term incentive plans ... [3] Enhance disclosure for adjustments to non-GAAP metrics that increase incentive payouts ... [4] Comply with new disclosure requirements for timing of option awards ... [5] Prepare for the third year of pay-versus-performance disclosures ... [6] Assess next steps on Dodd-Frank clawback policies and recovery analyses ... [7] Consider expanding clawback policies beyond Dodd-Frank minimum requirements ... [8] Stay current on ISS and Glass Lewis policy changes ... [9] Monitor noncompete developments and reassess restrictive covenant programs."

Employment and Employee Benefits Areas to Watch in Trump’s Second Term

"The incoming Trump administration will likely pull back from defending Biden-era rules from court challenges, including the Federal Trade Commission's recent ban of noncompetes, the DOL's updated definition of an investment advice fiduciary under ERISA and a DOL rule permitting ERISA fiduciaries to consider ESG issues when making investment decisions. Changes in regulation at the federal level could lead to an increase in legislative and judicial activity at the state level ... The new administration, like Trump's previous administration, will likely target the [ACA] and other healthcare-related policies, leading to significant changes ahead in healthcare coverage requirements."

Rethinking Clawback Policies for the 2025 Compensation Season

"Institutional Shareholder Services (ISS) has updated its executive compensation policies, clarifying that, for purposes of say-on-pay vote recommendation, clawback policies must exceed Dodd-Frank requirements by explicitly covering all time-vesting equity awards to qualify as 'robust.' This update underscores critical considerations for public companies as they evaluate whether to adopt or amend discretionary policies in the upcoming 2025 compensation season."