Resource Library

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.

The evolving landscape of economic sanctions continues to be the foremost concern to global corporations as new countries and regimes are targeted, amendments to diplomatic positions and policies are implemented, new tools emerge for implementation and enforcement efforts remain steady. Hear from experts with varying perspectives (outside counsel and in-house counsel from both sides of the pond and former senior Office of Foreign Assets Control (OFAC) employees) on the current state of US and EU economic sanctions, including those targeting Ukraine/Russia, Iran, Cuba, North Korea, Sudan, Syria and Myanmar. Explore the new issues and considerations in-house lawyers should be thinking about, how to navigate an atmosphere of increased compliance from a global perspective and what to take away from recent global enforcement trends. The discussion-style panel is composed of A&O experts from the United States and Europe, former OFAC employees and industry participants from global corporations and financial institutions.

Courts and administrative agencies, including the US National Labor Relations Board, are expanding the definition of “employer” to allow liability for employment obligations to cross corporate lines. Various legal theories, including joint employer, single employer, and alter-ego theories, are being used to treat nominally separate corporate entities as one employer for liability purposes. The result of this definitional expansion is that affiliated companies are being found liable for labor and employment law violations of subsidiary or sister companies, including violations of the Worker Adjustment and Retraining Notification, Employee Retirement Income Security Act, wage and hour, discrimination, and whistleblower laws, among others. Many corporate structure forms are put at risk, including holding and operating companies, parent-subsidiary relationships, private equity management-portfolio company relationships, general and limited partnerships, independent contractor relationships, and joint ventures. This session will address the factual and legal bases for disregarding corporate separateness in the labor and employment law setting and suggest practical strategies to minimize or avoid liability.

The European Unified Patent Court (UPC) – which centralizes patent litigation throughout most of the EU – is on track to go live in late 2016 or early 2017. The new UPC is expected to rival and potentially surpass US courts as the preferred venue for major patent disputes, as US companies will be able to obtain an EU-wide injunction via a single litigation, instead of having to litigate in each jurisdiction. This will drastically reduce costs and improve enforcement, but it won’t be easy. The new system and the changes in procedure and process are complex. Companies must assess multiple factors to decide in advance whether to participate or opt-out. This panel comprised of lawyers dually qualified in the US and UK will focus on how the UPC will impact IP filing and enforcement strategies of US companies, and answer questions such as: What strategic planning should US companies be doing now to prepare for the UPC?; What are the best practices to protect US companies’ patent portfolios in Europe?; What are the commercial advantages of opting-in or out of the UPC?; How will early UPC participants shape the new court system?; How do US companies decide whether to opt-in or opt-out?; How do US companies approach product clearance and FTO in Europe, particularly as applied in licensing and acquisitions?; What are the options for mitigating significant competitor patent risk before it is exacerbated by the UPC?