Elon Musk, with a net worth close to $240 billion, is not one to shy away from his dislike of the Securities and Exchange Commission (“SEC”). (Forbes, last visited Feb. 4th, 2022). As the CEO of Tesla, Inc. (“Tesla”), Musk has repeatedly tweeted comments that have affected both Tesla’s stock price and his reputation with investors. A tweet from November 6, 2021 regarding Tesla has caught the eye of investors, some of whom filed a Delaware lawsuit on December 16, 2021, alleging mismanagement of the company based on the tweet. (Mike Leonard, Bloomberg Law). The tweet polled Musk’s approximately 70 million followers asking if he should sell a tenth of his stake in the company, and 57.9% of those who viewed his poll voted for the sale. . .

Although digital currencies have been the hottest topic in the blockchain area for several years, investors are increasingly turning their attention to a digital asset that is valuable for the item it represents rather than for its potential use as a currency. Non-fungible tokens (“NFTs”) are digital versions of artwork, music, trading cards, autographs, and other collectibles that are secured on a blockchain and purchased using a recognized cryptocurrency, such as Ethereum or Bitcoin. (Robyn Conti and John Schmidt, Forbes Advisor). However, unlike cryptocurrencies, every NFT has its own digital signature, which makes them impossible to copy and thus significantly enhances their value. Id. . .

On July 9, 2021, President Biden issued an executive order, “Promoting Competition in the American Economy,” which mandates greater scrutiny placed on merger deals throughout multiple sectors. (The White House, Promoting Competition in the American Economy). The order makes clear that the current Administration’s policy is to “enforce the antitrust laws to combat the excessive concentration of industry, the abuses of market power, and the harmful effects of monopoly.” Id. The order establishes a White House Competition Council, led by secretaries of multiple federal agencies, to “provide a coordinated response to overconcentration, monopolization, and unfair competition in or directly affecting the American economy.” Id. The order also encourages all appropriate agencies to vigorously and fairly enforce the Clayton Antitrust Act of 1914. . .

An emerging trend among corporate investors is the use of shareholder activism to effectuate some change to a corporation, with a focus on a company’s environmental and social justice performance. (Mary Ann Cloyd, Harvard Law School Forum on Corporate Governance). Activism methods include supporting hedge funds in their effort to win board seats, urging fellow shareholders to withhold their vote on a nominated board candidate, and supporting a formal shareholder proposal. Id. In a major win for investors seeking action by large oil and gas companies to substantially reduce their carbon footprint around the world, activist investment firm Engine No. 1 (“Engine”) succeeded in gaining three seats on the board of directors of Exxon Mobil (“Exxon”) through a shareholder vote in late May 2021. (Pippa Stevens, CNBC). By securing three seats on Exxon’s board, Engine is now able to induce significant carbon-cutting action by the company, and other multinational energy and gas firms may soon be pressured by similar activist firms to follow suit.

On March 21, 2021, the Canadian Pacific Railway and the Kansas City Southern Railway Company (“KCS”) announced a cash and stock deal valued at $29 billion to link the United States, Mexico, and Canada by rail for the first time (Lauren Hirsch, The New York Times). The two corporations would have merged their rail networks into a combined 20,000 miles of tracks stretching from British Columbia through the central U.S. and into Mexico. Id. The combined company, called Canadian Pacific-Kansas City, would have been the smallest of all the major railroads operating in North America, but it would have provided significant economic benefits based on the United States-Mexico-Canada Agreement, a multilateral free trade agreement that was enacted as a successor to NAFTA in July 2020. Id. The merger would have resulted in the common stock shareholders in KCS receiving 0.489 of a Canadian Pacific share and $90 in cash per share for each share held of KCS common stock. (March 2021 Investor Presentation).