One of the hallmarks of the post-Enron, post-financial crisis era is an emphasis on good corporate governance. Governance practices matter to key constituencies, including investors, regulators and courts called upon either to assess corporate conduct or to decide whether to pierce the corporate veil and impose personal liability on shareholders. Governance is a broad topic, and includes the balance struck between the authority of boards and shareholders, the policies established to ensure that matters that should be subject to board oversight are brought to the attention of directors in a timely fashion, and the procedures designed to ensure that the board and management appropriately perform their responsibilities.
Appropriate sensitivity to governance issues is often essential to continued investor support for a company’s board and management, while failure to address governance failings can be used as a wedge issue by activist shareholders. When a company is under regulatory scrutiny, government agencies often look first to the “tone at the top” − the governance practices and compliance environment set by company management and directors − in assessing the severity of potential sanctions to be sought. When courts are asked to evaluate board decisions, they frequently scrutinize the process by which those decisions were reached, and the safeguards established by the board to deal with potential conflicts of interest and other issues that might implicate the directors’ compliance with their fiduciary duties. Finally, when plaintiffs seek to have a corporate entity disregarded and to impose personal liability on shareholders, courts review closely the extent to which the company has complied with recordkeeping and other corporate governance requirements.
We provide a wide range of corporate governance services for privately held and publicly traded companies and their officers and directors. Our services include:
- Assisting boards of directors in establishing and evaluating standards for qualification and selection of directors
- Advising boards of directors on various issues concerning their fiduciary and oversight responsibilities
- Advising on matters relating to the establishment and use of special board committees
- Assisting in development of policies and procedures concerning director access to management, employees, auditors and independent advisors
- Assisting in the preparation of appropriate records of board actions and advising and assisting the board and management concerning preparation of board packages, minutes and other recordkeeping issues
- Advising on director compensation and D&O insurance and indemnity issues
- Providing advice and assistance to public companies on governance issues uniquely impacting them, including NYSE and Nasdaq requirements concerning the establishment and responsibilities of various board committees, governance policies of proxy advisory firms and key institutional investors, and emerging public company governance issues
- Assisting in benchmarking governance practices against peer company practices and regulatory requirements and in identifying best practices