Resource Library

This interactive session will demonstrate how corporate counsel should react when their organization is hit with major litigation, including a governmental investigation targeting directors and officers. Attendees will participate in a “What should you do next?” discussion using electronic voting and Q&A throughout the session. By walking through the phases of a crisis as it typically unfolds, the panel will cover critical issues such as formation of special board committees, internal investigations, government disclosure, media strategy, hiring outside counsel, directors and officers (D&O) insurance and indemnification rights, attorney–client privilege concerns and must-know areas of D&O liability exposure. Special focus will be given to corporations with a global footprint that face exposure across international lines. The panel will use sample cases pulled from recent headlines, including insider trading investigations; cases involving the Foreign Corrupt Practices Act; whistleblower cases and cases involving faulty accounting and disclosure allegations.

This panel will focus on how judges and in-house counsel can work together to drive efficiency in our sometimes-byzantine litigation system, while retaining our profession's high ethical standards. From basic case management to better use of technology, courts have the same interests as in-house counsel, namely to drive better legal outcomes more efficiently. However, judges usually only hear from the outside bar, rather than corporate counsel who share their interest in timely, ethical and efficient resolution of legal matters. Join this panel of business court judges from around the United States to exchange thoughts about how the US litigation system can improve and how you can supervise litigation more effectively, while ensuring that you comply with relevant ethics rules, such as ABA Model Rules 1.1, and 3.2, among many others.

Industrial catastrophes rarely occur at convenient or expected times. Corporations are faced with numerous potentially conflicting challenges, priorities and demands such as injured or dead workers; facility and equipment damage; toxic releases; governmental investigations; negative publicity; possible criminal charges; and civil litigation. Preparation cannot wait until such an event takes place—proper planning can reduce corporate exposure arising from such events. Program attendees will have a greater knowledge of the multitude of issues likely to arise from an industrial catastrophe. They will be better versed in the appropriate steps to prepare for worse case scenarios and avoid unnecessary challenges after the event.

Discuss key steps your peers take when faced with a new lawsuit; Discuss why, when and how your peers establish and manage a litigation hold; Learn the importance of your focus as in-house counsel – it’s not just on getting those pleadings filed, but also implementing litigation holds, managing outside counsel, conducting investigations, analyzing your position, determining strategy and much more; Understand how your peers assess the financial impact a particular piece of litigation may have on your organization, and how they provide management with the tools and knowledge that management needs to make decisions about risk; Learn to take steps and create programs to prevent litigation and, when disputes occur, how to resolve them as early as appropriate for your business; discuss cost benefit analysis and risk assessment to determine whether to get in, stay in or get out; and Discuss how to conduct a thorough post mortem of each case in order to develop a list of “lessons learned” that will direct you in the future.

Activist investor campaigns have reached record numbers in recent years and have become increasingly organized and costly to the targeted companies. Through case study analysis of several recent campaigns, this program will go in-depth on best practices for companies to follow before and when an activist comes knocking, including: What went right in recent campaigns? What went wrong? What were the end results and what could have been done differently? What has changed from an investor relations perspective since the activist campaign? What are some investor relations takeaways from what the companies did/didn’t do? What are some general best practices and strategies in these situations that can be implemented proactively, during a campaign and post-mortem?What defenses does a company have against a campaign and/or a proxy fight? How do these case studies demonstrate any larger trends in activist campaigning? What types of attributes/actions might draw activists’ attention, based on these recent campaigns?

Shakespeare said, "All the world's a stage;" in this session we are all players. This program will be your stage, and you will have a part in this two part drama involving both the acquisition of a business enterprise and a subsequent litigation when the parties’ expectations go awry. Here’s the plot of the drama: Through participating in a live negotiation exercise, attendees will gain insights into high-level negotiating strategies and tactics. Through engaging in a workshop, attendees will learn to create leverage in order to increase the likelihood of optimal negotiation outcomes. By viewing a mock mediation staged by the faculty members, attendees will decide where the line is between bluffing and dishonesty. When presented with an impasse, attendees will be given tools to get the negotiations back on track. With input from faculty members, attendees will get feed-back on negotiation styles and exit with pragmatic take-aways for use in future real life negotiations.

Between legislation and major court decisions, the patent landscape has changed drastically over the last several years. In light of this, companies should look at their patent strategies holistically, from all angles, including prosecution, licensing, litigation, and post grant procedures and the interplay among them. For instance, patents must have claims with detectable infringement and be capable of withstanding validity challenges in different forums. To obtain patents like these, it is necessary to understand every step of patent prosecution, how patents are enforced in federal court, and how patents are defended at the US Patent Trial and Appeal Board. Likewise, companies facing litigation or post-grant challenges, such as inter partes reviews, need the technical knowledge of patent prosecution that attorneys who have prosecuted patents possess. This program will provide a view from the trenches with a number of war stories and perspectives from the US Patent and Trademark Office’s Silicon Valley office and in-house and outside counsel alike.

Internal investigations can be advisable or required when evaluating an employee complaint or defending the company against a formal employment claim. But there are many questions: Should you speak directly to the litigating former employee? What if the litigant is a current employee? Can you ask human resources to communicate with the litigant directly on your behalf? Can you speak to co-workers? Can you require co-workers to speak to you? Can you check the litigant's social media posts? Can you read their Internet email if accessed from your employer's network? Can you, and should you, protect the attorney–client and work product evidentiary privileges? And what if you are investigating your own boss? Learn how to ethically conduct an employment investigation from a panel of experienced corporate counsel as they discuss challenges, ethical obligations and best practices of internal employment investigations and litigation around the globe.

The majority of new companies started in the United States will fail. Some estimates say as many as nine out of every 10 new businesses will fail. This is a staggering statistic! This panel will delve into what in-house counsel need to know if their place of business starts failing. What role does in-house counsel play in sounding the alarm bells and letting others know that bankruptcy may be the best idea? What are the differences between Chapter 7 and Chapter 11 when it comes to a business bankruptcy? What are the disclosure obligations when the company cannot meet current expenses? When and to whom should disclosure be made – board of directors, vendors, employees, regulators? What are the operational issues as insolvency approaches? This panel will discuss what to expect if your company fails, the legal pitfalls to avoid to protect everyone involved, and how involved an in-house lawyer should be in the wind-down process. The panel will also address what in-house counsel need to know when a vendor or customer is going through the bankruptcy process.

In our annual review of the topics shaping governance today, we consider the ideas that will trend in boardrooms across Canada for months and years ahead. The dominant theme in Davies Governance Insights 2012 is the ability of the shareholder to take control of the governance agenda. In the Power and Influence of Canadian Shareholders, we look at three very different situations in which shareholders succeeded in their demands for governance change. <br /><br />In Boards Seek Fairness for All Shareholders, we describe the TELUS response to empty voting and the trend among mining companies to adopt advance notice bylaws. Both reflect the efforts of boards to resist shareholder actions that do not benefit all shareholders. In Shareholder Democracy Movement Continues we consider the status of majority voting and say on pay and Focus on the Integrity of the Shareholder Vote Intensifies brings up to date developments in the very important, if complex, area of the proxy voting system in Canada. Challenges in Overseeing Operations in Emerging Markets sets out the most important challenges demanding the attention of boards and management teams of issuers with operations in emerging markets. We end our review with a catalogue of the most recent developments in governance standards under New Governance Guidelines, Criteria and Rankings.