Over the past several years, the focus on corporate governance standards applicable to public companies has increased dramatically as deficiencies in the area have been repeatedly highlighted in the media.
We counsel management teams, boards of directors, special purpose board committees and other clients on a myriad of corporate governance and other regulatory or ethical compliance matters. We not only help our clients understand the implications of the governance requirements or challenges they face, but also help them develop strategies for compliance and avoidance of future problems. Notwithstanding the presence of several fundamental standards and approaches to address many sensitive matters, each corporate governance or compliance situation is likely to be unique in some important respect. As a result, flexibility and creativity are essential to developing an appropriately customized strategy and plan for effective resolution of many situations.
We regularly advise clients on a broad range of complex or sensitive governance or compliance issues, including:
- Audit committee practices
- Public disclosure regimes and officer certifications
- Insider trading rules and procedures
- Shareholder interaction and initiatives
- Board structure, composition and processes
- Fiduciary duties under corporate and other state laws
- Stock market listing compliance
- Codes of ethics or conduct and other related party transaction protocols
- Overall corporate governance guidelines and compliance programs
In addition to providing legal services, our attorneys regularly speak to senior officers and directors of public companies, as well as at seminars and other instructional programs, on Sarbanes-Oxley and related corporate governance initiatives. We often team with "Big 4" accounting firms, the National Association of Corporate Directors (NACD), and other organizations active in the corporate governance arena to exchange perspectives on corporate governance practices and initiatives and to advance learning generally on how corporate America is responding to reforms. Through these activities, we are able to supplement our legal advice with valuable perspectives on national and industry-specific trends.
- Special Committees
We frequently represent committees of outside directors or other special committees, delivering independent legal advice in order to consummate a variety of transactions involving management groups, major stockholders or other company affiliates. These matters include going-private transactions, management buyouts, auction sales and a wide range of transactions in which company insiders may have a substantial personal interest.
In these engagements, we regularly advise clients on a broad range of issues, from directors’ fiduciary responsibilities in considering and approving affiliate transactions, to options for efficient and prudent transaction structures, to myriad issues under state and federal securities laws and state corporate laws. We also counsel outside committees on duties with respect to insolvent entities (both before and after the filing of a bankruptcy petition), including assisting committees in analyzing potential legal claims. We also counsel our clients on the strategic aspects of transactions, which assistance often provides value beyond the pure legal services.
- Special Investigations/Internal Audits
We have conducted numerous internal audits and investigations on behalf of companies in a variety of areas, including alleged fraudulent conduct, accounting irregularities, consumer protection, environmental, ERISA fiduciary compliance, securities, antitrust and government procurement fraud. Independently conducted internal audits and development of compliance programs make good business sense — a relatively small investment up front can prevent colossal damage to the company down the road. Where a problem has already arisen, we can assist in responding to the crisis situation that frequently ensues, and in implementing damage control measures to limit the long-term impact and related adverse publicity to our clients.
We help clients limit liability under various federal regulations. For example, the Federal Sentencing Guidelines allow for a reduction in a company’s fine if the company does not unduly delay in reporting federal offenses. Our audits and compliance programs can help to detect such offenses, making early reporting possible. In addition, the Department of Justice has established a leniency program in the antitrust area that is available only to the company that first reports an antitrust violation. That leniency generally eliminates the risk of prosecution for the reporting company and its employees. An effective compliance program is also a factor in Department of Justice decisions on whether to treat an environmental violation as a criminal matter.
- Shareholder Litigation
We have considerable experience in shareholder litigation, against public companies and their executives and independent accounting firms, concerning financial reporting issues, state statutory and common law claims, as well as securities law claims. Through such representations, we have developed substantial relationships with forensic accountants, economists, valuation experts and other specialists whose services are typically required to achieve favorable results.
We have handled a variety of litigation involving pension and welfare plans, including both single and multi-employer plans, in defending against claims made by the Department of Labor (DOL), the Internal Revenue Service (IRS), and the Pension Benefit Guaranty Corporation (PBGC), among others. These matters often include claims of fiduciary breach, prohibited transactions, alienation of benefits, plan service provider malpractice, withdrawal liability and disputed benefit claims. Our attorneys in this area are full-time ERISA lawyers who devote their full attention to matters involving the complex ERISA statute, giving them an edge over full-time litigators with only limited experience with ERISA issues.
- Special Projects
We counsel clients in distressed financial situations, where sensitive special issues must be addressed proactively to avoid larger problems down the road. We investigate complex financial situations and structure and negotiate effective solutions for our clients. Several of our attorneys have served as trustees and examiners representing debtors, creditors' committees, equity committees, indenture trustees and purchasers and prospective purchasers of debtors or their assets. Many of the cases involved complex sets of legal and business issues relating to matters such as mass torts, pension underfunding, labor unions, environmental contamination and intellectual property disputes.
In addition, we have significant experience assisting clients in complying with environmental laws and regulations. Our attorneys, many of whom have scientific or technical backgrounds, are experienced in investigating, evaluating and developing environmental compliance programs for numerous industry sectors. This proactive approach to environmental compliance evaluation helps our clients to avoid environmental violations and federal and state agency involvement and to respond quickly and efficiently when they become aware of potential infractions.