Event

Morgan Lewis - Shareholder Activism Defense: What You Need to Know About the Securities Laws, Rules, and Practice

Listen to a recording of the presentation >>

November 9, 2016
2:00 PM - 3:30 PM ET

Every shareholder activism defense situation involving a company with shares registered under Section 12 of the Securities Exchange Act of 1934 is governed by the U.S. federal securities laws, rules and interpretative guidance.

The application of the federal securities laws and rules to shareholder activism defense situations often involves provisions of the federal securities laws that are less relevant to non-contested situations. Even with respect to those provisions of the federal securities laws that are applicable to non-contested situations, their application to contested situations can be extremely nuanced and may not be abundantly clear to in-house and outside counsel as well as others not used to applying the federal securities laws to proxy contests and other contested matters.

Please join Morgan Lewis corporate partner and shareholder activism defense practice leader Keith E. Gottfried and senior associate Sean M. Donahue for the webinar “Shareholder Activism Defense: What You Need to Know About the Securities Laws, Rules, and Practice.” During this 90 minute webinar, we will provide an overview of the federal securities laws and rules applicable to shareholder activism defense situations and the SEC disclosure issues specific to proxy statements, proxy cards, fight letters, press releases, investor presentations, website and social media postings, and other materials that are prepared in connection with proxy contests and other contested solicitations. Key topics to be covered will include the following:

  • Investor / activist filings on Form 13F, Schedule 13G and Schedule 13D
  • The SEC’s EDGAR filing tags unique to filings in connection with contested solicitations
  • Shareholder communications prior to filing a definitive proxy statement, required legends and determining when a filing with the SEC is required pursuant to Rule 14a-12
  • Overlap between filings made pursuant to Rule 14a-12 and Form 8-K
  • Including risk factors and other disclosures referencing a contested solicitation in the Form 10-Q and Form 10-K
  • When is a preliminary proxy statement required to be filed under Rule 14a-6
  • Importance of a well-thought out timetable for SEC clearance of the proxy statement
  • Proxy statement disclosures specific to contested solicitations (legends, background of the solicitation, discussion of opposing solicitation, voting mechanics, participant disclosures, etc.)
  • Pros and cons of using the company’s proxy statement for messaging
  • Best practices for preparing the proxy statement’s background / chronology of the solicitation
  • Proxy card issues specific to contested solicitations
  • SEC review process for contested proxy statements
  • Rule 14a-9’s prohibition against false and misleading statements
  • Avoiding SEC comments on proxy statements, fight letters and other shareholder communications prepared in connection with a contested solicitation
  • “Bedbug” / “poison pen” letters to the SEC on the activist investor’s proxy statement, fight letters and other shareholder communications
  • Shareholder communications after filing a definitive proxy statement

Speakers

Keith E. Gottfried, a corporate partner resident in our Palo Alto, CA and Washington, DC offices, leads the firm’s shareholder activism defense practice. Keith spends close to 100% of his time advising public companies across the United States on activist defense matters. Over the course of a legal career that spans almost 25 years, Keith has been involved in advising numerous public companies in connection with high-profile proxy contests, special meeting demands, consent solicitations, withhold campaigns, and unsolicited acquisition proposals as well as contested and negotiated M&A transactions. Keith is a well-known adversary to the law firms and other advisors that assist activist investors. Frequently quoted by the national business media on issues relating to shareholder activism, Keith publishes and presents regularly on the strategies companies and their boards of directors can apply to make themselves less vulnerable to activist investors as well as strategies for shareholder engagement. Keith is listed in Chambers USA which ranks him as a leading corporate/M&A lawyer. As activist campaigns closely resemble political campaigns, Keith also brings to activism defense matters the political insight he gained as a U.S. Senate confirmed White House appointee in the administration of President George W. Bush.

Sean M. Donahue, a senior associate resident in our Washington, DC office, is a member of the firm’s shareholder activism defense practice. Like Keith, Sean also spends close to 100% of his time advising public companies across the United States on activist defense matters. Sean is also well-known in the activist investor advisor ecosystem and has been involved in over a dozen activist defense matters, including numerous high-profile proxy contests where the activist sought the election to the target’s board of directors of a minority or control nominee slate. Prior to joining Morgan Lewis, Sean served as an attorney-adviser with the U.S. Securities and Exchange Commission (SEC) in the Division of Corporation Finance and our activism defense clients benefit from Sean’s extensive experience with SEC disclosure issues, particularly those relating to contested solicitations.

About the Morgan Lewis Shareholder Activism Defense Practice

Morgan Lewis’s market-leading, nationally-recognized and rapid response shareholder activism defense practice advises public companies across the United States and abroad in a wide array of industries with respect to preparing for and/or responding to high-profile proxy contests, special meeting demands, withhold campaigns, shareholder proposals and other activist shareholder campaigns as well as contests for corporate control and contested M&A situations. Morgan Lewis’s shareholder activism defense practice also advises public companies on the latest techniques for lessening a company’s vulnerability to activist shareholders, strategic communications, board composition enhancement programs and corporate governance matters. Morgan Lewis’s shareholder activism defense practice also advises public companies and their boards of directors on strategies and best practices for engaging with activist shareholders in order to help our clients avoid costly and distracting activist campaigns.

Morgan Lewis was recently ranked No. 1 among all law firms for legal defense of public companies against activist shareholders in the Thomson Reuters Global Shareholder Activism Scorecard for the first half of 2016. The ranking is as of August 18, 2016 and is based on the number of publicly-disclosed activism defense matters that Morgan Lewis has advised on.