The informed council 2021-2022 | Skadden, Arps, Slate, Meagher & Flom LLP


Administrators face ever-changing challenges. To help boards find their way, Skadden has launched The informed council, a periodic collection of concise articles that provide background information on key issues facing administrators. In these articles, we aim to help point out potential issues that may not be fully appreciated, explain trends, share our observations, and give administrators practical advice without too much legalese. These articles are based not only on Skadden’s knowledge of the law, but also on our front-line experience in boardrooms.

Winter 2022

What exactly is an independent director? (Hint: it’s more complicated than you think)
Director independence means different things for different purposes, and it is situational. When directors’ actions are challenged, courts often take into account personal and professional ties that might suggest divided loyalties.

2022: What you need to know…
This year, we expect to see new disclosure requirements; SEC Rule Changes Affecting Directors; militants adopt new tactics; changes to shareholder voting processes; tax and antitrust developments that could alter the way companies execute transactions; and revised trade rules that will impact many businesses. Here’s a quick guide to topics that could affect your decisions as an admin in 2022.

Interview: SEC changes would let you know more about your shareholders
The SEC has proposed updating disclosure requirements for investors who acquire 5% of a company, shortening disclosure deadlines and making certain derivatives subject to the rules. As Skadden partner Brian Breheny explains, another change would loosen the definition of investors acting as a “group,” potentially requiring them to disclose their holdings and intentions sooner.

Fall 2021

Don’t Let the Feds Beat You at the Data Mining Game
Enterprise compliance systems must adapt to a world where law enforcement agencies are increasingly adept at using sophisticated data analytics to detect breaches.

Crisis in the C-suite: A 10-step plan
When senior executives are accused of misconduct, directors are thrust into the center of the crisis, with the pressure to make quick decisions. Boards need a clear action plan to ensure allegations are addressed and to minimize legal, regulatory, financial and reputational damage.

Interview: Companies may soon better understand their shareholder bases and insiders may face new restrictions on scheduled stock sales
SEC veteran Raquel Fox explains how a bill in Congress would require investment funds to disclose their positions in derivatives and what the SEC could do to combat perceived abuse by directors and executives. pre-programmed stock sale plans.

Antitrust enforcement takes a sharp left turn
Progressives in the Biden administration are reshaping antitrust policy through key appointments and an executive order that aims to increase competition across the economy, not just in the tech sector. Expect more scrutiny of mergers and employment practices, in particular.

This is not your grandparents’ request for books and records
As plaintiffs have changed their litigation strategy and Delaware courts have expanded shareholders’ rights to search company records, boards need to be aware of the changes and evaluate how they communicate and record litigation. decision-making by the board of directors.

Summer 2021

Four questions on the minds of directors as the world returns to work
Businesses will generally be allowed to require employees to return to the office or other facility and to mandate vaccinations and/or testing. But they will have to follow state and federal laws, enforce their rules impartially, and be mindful of permitted exceptions.

What Exxon Mobil shareholder votes mean
The election to Exxon’s board of three directors nominated by an activist climate-focused fund and shareholder support for lobbying disclosures highlights the ESG forces companies now face. The result could embolden other ESG activist funds.

Is tax competition dead?
G7 support for a more uniform global framework for corporate taxation could reduce the ability of countries to use low tax rates to attract business. Overall, the plan would likely raise taxes for many multinationals.

Fintech Disruption: It’s Not That Simple
Financial institutions and regulators will have to deal with potential disruptions that could come from decentralized finance (DeFi) technology and cryptocurrencies.

Interlocking Boards: The Antitrust Risk You May Have Never Heard Of
The Clayton Act prohibition against competitors sharing directors or officers could be a tool if antitrust regulators look for new ways to preserve competition. Tech companies could be particularly vulnerable.

Spring 2021

What am I getting myself into? Five questions future PSPC directors should ask
Much has been written about SPACs, but what does it mean to be the director? We highlight issues that potential board candidates should have on their radar and questions they should ask.

Just between you and us
The technical requirements of attorney-client privilege can trip up clients who are not careful. Here’s a list of common misconceptions and actual foot faults we’ve seen.

Shareholder lawsuits demand more progress on diversity
Your board includes women and underrepresented minorities. Yet you may still be the target of a new wave of derivative shareholder lawsuits urging companies to take aggressive action to further promote diversity and inclusion.

Seeking Board Diversity: Practical Tips, Statistics on Progress
Corporate governance thought leaders offer pragmatic suggestions for companies and directors looking to diversify their boards, C-suites and workforces.

Winter 2021

Why does the brand of my phone affect my credit rating?
The predictive power of artificial intelligence and alternative data is often mysterious. And that’s a problem.

A practical guide to the role of administrators in the fight against ransomware
Ransomware is such a big threat to businesses that administrators need to take an active role in overseeing cybersecurity programs.

Brexit deal leaves big holes
The Brexit deal covered goods but not financial or other services, creating uncertainty for many businesses.

ESG: many requirements, few clear rules
Regulators and investors are urging companies to act on ESG issues, but there are few agreed standards. What is advice for?

New tactics and ESG themes take shareholder activism in new directions
The lines between activists and private equity firms are blurring and new types of activists are emerging.

Get Used to the New Normal in US-China Trade Relations
Restrictions are unlikely to be eased under the new administration as there is now bipartisan support for taking a hard line with China.

Audio interview: how far can the SEC go?
Opponents of mandatory climate risk and diversity disclosures will argue they overstep the agency’s authority — a six-minute conversation with Robert Stebbins, the SEC’s general counsel until January.

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