Internal Investigations by Board Committees: When needed, why independence is critical, selecting committee members, complex privilege issues, pitfalls for the unwary and best practices
Gregory A. Markel
Seyfarth Shaw LLP
Greg is chairman of the Litigation Department of Seyfarth Shaw LLP’s New York office, is Co-Chair of the national Securities Litigation Practice, and is a member of the National Litigation Leadership Team.
Seyfarth Shaw LLP
Sarah Fedner: Sarah is a managing associate with significant experience representing special committees and individual officers and directors of large publicly traded corporations in both federal and state courts, as well as in connection with regulatory and internal investigations.
On-Demand:February 23, 2023
$195.001.5 hour CLE
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The ultimate authority to make decisions for a corporation is the board of directors acting by majority vote of independent directors. One of the powers that a board has is to delegate issues to a committee of the board if this delegation is approved by a majority of the independent directors. We will now turn to the question of when should a committee be created and have an internal investigation be delegated to that committee.
Key topics to be discussed:
Why Independence Is Critical
Selecting Committee Members
Complex Privilege Issues
Pitfalls For the Unwary
Date: February 23, 2023
Gregory A. Markel | Seyfarth Shaw LLP
Greg is chairman of the Litigation Department of Seyfarth Shaw LLP’s New York office, is Co-Chair of the national Securities Litigation Practice, and is a member of the National Litigation Leadership Team. Greg is a nationally known trial lawyer with vast experience in securities litigation, directors and officers defense, mergers and acquisition litigation, corporate governance litigation and antitrust litigation, particularly in bet your company cases.
He is a recognized leader in the profession. He has for years been highly ranked by Chambers for Securities Litigation. He was named by Best Lawyers as M&A Litigation, Lawyer of the Year, for 2018 as well as currently a leading lawyer in Securities, Antitrust and Commercial Litigation. LawDragon magazine recently inducted Mr. Markel into its Hall of Fame and recognized Mr. Markel as a “legend” and one of only 50 lawyers and judges in the legal profession in the United States who was named to the Law Dragon 500 for 10 consecutive years. He has also been recognized by many other publications including by Benchmark as a national Litigation Star, for outstanding performance by Best Lawyer’s in America, Legal 500 Leading Commercial Litigators, “Best in Class” in the legal profession by BestofUS.com, Marquis’ Who’s Who for a Lifetime Achievement Award, Super Lawyers, The International Who’s Who of Commercial Litigators and many others. Prior to joining Seyfarth, Mr. Markel was Chair of the Litigation Department and Chair of the Securities Litigation Group for 12 years at Cadwalader.
Greg is a graduate of Yale Law School, the University of Michigan with an MBA in Finance and Columbia College. He is Chairman of the Center for Corporate Governance at the New York County Lawyers Association.
He is a member of the Business Law, Litigation and Antitrust sections of the American Bar Association; the Federal Bar Council; the Securities Industry Association – Compliance & Legal Division, and the New York State Bar Association – Commercial Litigation Section. He frequently speaks on panels and writes on a range of topics, such as securities litigation, director’s and officer’s liability, commercial litigation, accountants’ defense, law firm management and Internet litigation. He has been a winner of the prestigious Burton Award for Distinguished Legal Writing in 2018, 2016 and 2007.
Sarah Fedner | Seyfarth Shaw LLP
Sarah Fedner: Sarah is a managing associate with significant experience representing special committees and individual officers and directors of large publicly traded corporations in both federal and state courts, as well as in connection with regulatory and internal investigations. Sarah’s extensive corporate governance and securities litigation experience includes representing the special committee of one of the oldest and largest banks in the United States in conducting an internal investigation in response to shareholders’ demand letters, defending the former controller of an international rental company in a federal securities class action alleging fraud, as well as a related federal government investigation, and representing the directors and officers of a pre-IPO technology startup company in a shareholders class action. Over the past year, Sarah has been the lead associate on three large internal investigations for Global and Fortune 500 companies, during which she was responsible for conducting witness interviews and preparing comprehensive case assessments and recommendations for clients.
Sarah also has been an active thought leader by regularly writing about and organizing and moderating panels on securities and fiduciary litigation issues. She has had articles featured in prominent securities publications, including the D&O Diary and the Review of Securities and Commodities Regulations, and written on numerous securities-related topics including, event driven securities litigation in the “Me Too” era, the consequences of the Cyan decision, mootness fees in merger cases, ESG-related securities litigation and best disclosure practices, and access to corporate books and records under Delaware law. She has helped organize a number of panels, including securities-related panels for the New York City Bar’s annual Securities Litigation Institute and panels discussing diversity and the law for the New York County Lawyers Association. She has also moderated two panels for the NYCLA Center for Corporate Governance this year, including one panel on voting rights and another on the role of corporations in commenting on and responding to various social issues.
I. Scenarios Giving Rise to Investigations by Independent Committees | 12:00pm – 12:30pm
II. Appointing an Independent Committee | 12:30pm – 1:00pm
Break | 1:00pm – 1:10pm
III. Conducting the Investigation | 1:10pm – 1:25pm
IV. The Committee’s Findings and Recommendations | 1:25pm – 1:40pm