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In Bloomberg Law Insights, Ropes & Gray Attorneys Provide Considerations for General Counsel at Companies with Shareholder-Nominated Directors

Practices: Shareholder Engagement and Activism, Special Situations

Corporate partner and co-head of the special situations practice Jeff Katz, litigation & enforcement associate Annie Hancock and corporate associate Keith MacLeod co-authored an Aug. 31 article published by Bloomberg Law Insights that examines practical considerations for general counsel following the election or appointment of a shareholder-nominated director to the company’s board.

The article, titled “So You’ve Got A Shareholder-Nominated Director … Now What? Practical Considerations for General Counsel”, explains that adding a shareholder-nominated director to a board often presents company counsel with a number of challenging questions under Delaware corporate law, and provides a brief introduction to navigating some of these issues.

The questions for general counsel that are addressed in this article include:

  • What affirmative information-sharing duties does the company have to the incoming shareholder-nominated director?
  • May the shareholder-nominated director share confidential and/or privileged company information with the shareholder and, if so, under what circumstances?
  • How can the incumbent board manage any adversity that develops with the shareholder and/or its director designee?
  • When should the company treat the shareholder-nominated director as interested or lacking independence with respect to a major company transaction?
  • How can the company mitigate the risk of liability where the presence of the shareholder-nominated director(s) prevents the board from pursuing a transaction on a disinterested and independent basis?
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