Shareholder Activism

Overview

Shareholder activism continues to grow, and the statistics are striking. Over the last five years, activists have prevailed in 45 percent of disputes with companies. In many recent proxy contests and activist campaigns, companies have found themselves vulnerable to the latest tactics employed by hedge funds and other activist shareholders seeking to exert substantial influence over the company’s day-to-day operations, with the “stated” overall goal of enhancing shareholder value.

There is not much you can do to prevent an activist shareholder from accumulating a significant position in your company’s stock. However, your ability to forestall or prevail in a contested solicitation or other campaign depends on whether you have received insightful, strategic, and practical advice.

Blank Rome’s shareholder activism team includes attorneys from our New York; Washington, D.C.; Philadelphia; and Wilmington offices—focused on assisting you in developing a comprehensive strategy to prepare for, avoid, and respond to these threats. 

Whether performing a comprehensive assessment of your vulnerabilities, advising your board and management on the best response to shareholder demands and proposals, or defending you in a proxy contest or consent solicitation initiated to replace a board of directors, we’ll work with you to assess the best approach that fits your specific situation.

How We Can Help

Preparation and Planning

One of the key factors in mounting a successful defense in a threatened or contested solicitation is early planning and thorough preparation. The starting place is understanding what might make you both vulnerable and attractive to an activist investor. 

As part of this review, we examine not only structural weaknesses that may exist in your bylaws and certificate of incorporation, but also nonstructural vulnerabilities that may result from your corporate governance practices, investor relations and public relations programs. During this assessment, we work closely with your management and, as appropriate, other external advisers, including investment banking, public relations, and investor relations firms.

After we complete our assessment, we provide a detailed report of vulnerabilities and options to help eliminate or mitigate them. We then review the report with you and work with you in developing appropriate strategies and an implementation plan.

The Right Team

The future of your company can be at stake in a contested solicitation. It is critical that the entire team provides you with correct and coordinated real-time responses. The right team would include not only sophisticated counsel and company representatives, but also proxy solicitation, investor and public relations firms with contested solicitations experience. We can also make our relationships available to you, if needed.

We also develop companion litigation strategies to ensure that your rights are aggressively pursued and protected. Because many of these litigation battles are fought in the Delaware state courts, our Delaware litigators serve as valuable resources.

In many cases, shareholder activist campaigns are waged on the basis of who has the better messaging to shareholders. In addition to Blank Rome’s experienced in-house crisis communications team, we have close working relationships with many leading crisis communications firms that can help your company win the “hearts and minds” of your shareholders.

What Sets Us Apart

  • Many Blank Rome attorneys have spent part of their careers working for such key regulatory agencies as the Securities and Exchange Commission (“SEC”) and the National Association of Securities Dealers (“NASD”). In addition, Blank Rome’s shareholder activism group includes numerous former attorneys from the Department of Justice.
  • Our key partners have written extensively in these areas as thought leaders and are routinely sought by the media to comment on shareholder activism and related matters.
  • Our attorneys have authored and edited a number of popular books regarding public companies, including Corporate Governance Best Practices: Strategies for Public, Private, and Not-for-Profit Organizations and The Complete Guide to Employee Stock Options, and have written extensively on the topic of shareholder activism. 

Experience

  • Drafting disclosures for proxy statements and other securities filings for changes to certificates of incorporation proposed for shareholder approval, and intended to eliminate or mitigate vulnerabilities.
  • Making presentations to boards of directors on appropriate responses to the demands and proposals of an activist shareholder.
  • Defending companies against proxy contests and consent solicitations that sought to replace boards of directors with slates of nominees selected by activist shareholders and preparing the appropriate disclosure and other documents.
  • Reviewing a company’s corporate governance documents for structural vulnerabilities and advising specifically on the options available for eliminating or mitigating such vulnerabilities.
  • Advising companies on how to deal with shareholder proposals made under Rule 14a-8, including seeking no-action letters from the SEC.
  • Advising boards of directors on their fiduciary duties in responding to activist shareholder situations.
  • Advising companies on how to respond to “white papers,” notices of nomination, requests for shareholder lists, and other communications from activist shareholders.
  • Advising companies on the adoption and implementation of shareholder rights or “poison pill” plans.
  • Reviewing Schedule 13Ds and proxy and consent solicitation statements filed by activist shareholders with the SEC to assess compliance with applicable securities laws.
  • Reviewing and responding to shareholder demands for the right to inspect shareholder and other corporate records.
  • Reviewing investor presentations, media releases, and other shareholder communications prepared for a pending proxy contest or consent solicitation.
  • Assisting clients with drafting and negotiating proxy contest settlements, public disclosure, and the related securities filings.
  • Assisting companies in planning and scripting meetings where activist shareholders are involved.
     

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