Delaware Governance Institute

Past Events

Thursday, October 12, 2023
9:30 am – 4:45 pm (8am registration)

CLAYTON HALL CONFERENCE CENTER
UNIVERSITY OF DELAWARE
100 David Hollowell Drive
Newark, DE 19716

WELCOME!

The John L. Weinberg Center for Corporate Governance and the Corporate Governance Committee of the American Bar Association’s Business Law Section will co-host the in-person Delaware Governance Institute.

This program will feature members of the Delaware judiciary, including the Honorable Collins J. Seitz, Jr., Chief Justice of the Delaware Supreme Court and the Honorable Kathaleen St. J. McCormick, Chancellor of the Delaware Court of Chancery; members of the corporate community and plaintiff and defense attorneys, regulators, governance professionals, and institutional investors. In addition to the luncheon speaker(s), the Institute will consist of four panels, covering the most significant recent trends in Delaware law and corporate governance.

The topics to be explored by the Panels:

• The ESG Pendulum Swings Back (or is it a “Wrecking Ball”?”)
• The March of Caremark:  What must directors do to avoid stepping on landmines?
• Conflict Transactions under a Microscope:  When does (and should) MFW apply?
• Managing Everything, Everywhere, All at Once: How to have an effective board in these unusually challenging times

Speakers and panelists confirmed to date include:

• The Honorable Collins J. Seitz, Jr., Chief Justice, Delaware Supreme Court
• The Honorable Kathaleen St. J. McCormick, Chancellor, Delaware Court of Chancery
• Rick Alexander, Founder and Chief Executive Officer, The Shareholder Commons
• Paul Atkins, Chief Executive, Patomak Global Partners; and former Commissioner, Securities and Exchange Commission
• Lisa Boyd, Managing Director, Joele Frank, Wilkinson Brimmer Katcher
• James Cole, Jr., Chairman & Chief Executive of The Jasco Group, LLC; Director and Chair of the Nominating and Governance Committee, AIG
• Lawrence A. Cunningham, Special Counsel, Mayer Brown; Professor Emeritus, George Washington University; and Director, Markel Group and other public companies
• Michelle Edkins, Managing Director, Blackrock Investment Stewardship
• Peggy Foran, Chief Governance Officer, Senior Vice President and Corporate Secretary, Prudential Financial, Inc.
• Mary Francis, Corporate Secretary and Chief Governance Officer, Chevron Corporation
• Lawrence A. Hamermesh, Professor Emeritus, Widener University Delaware Law School
• Meredith Kotler, Partner, Co-head Securities & Shareholder Litigation, Freshfields Bruckhaus Deringer LLP
• Trevor S. Norwitz, Partner, Corporate, Wachtell, Lipton, Rosen & Katz
• Frank M. Placenti, Shareholder, Greenberg Traurig
• Melissa Sawyer, Partner, Global Head of the Mergers & Acquisitions Group and co-head of the Corporate Governance Practice, Sullivan & Cromwell LLP
• Gregory V. Varallo, Partner, Bernstein Litowitz Berger & Grossmann LLP
• Mary Beth Vitale, CEO and Principal, Pallera, LLC; Director, Luna Innovations
• John W. White, Partner and Chair of the Corporate Governance and Board Advisory Practice, Cravath, Swaine & Moore LLP *

Keynote Speakers:

• Elad L. Roisman, Partner, Corporate, Cravath, Swaine & Moore LLP; and former Commissioner and Acting Chairman, Securities and Exchange Commission
• Prashant Yerramalli, Vice President of Operations and Regulatory Affairs, Public; and former Chief of Staff for Securities and Exchange Commission Chairman Gary Gensler
• Robert Stebbins, Partner, Corporate & Financial Services Department and Co-Chair of the Corporate Governance practice, Willkie Farr & Gallagher LLP; and former General Counsel, Securities and Exchange Commission, Moderator

This program will be highly relevant as Delaware law and court decisions are highly influential on corporate and governance practices throughout the country.

Program Co-Chairs: Justin P. Klein, Director, John L. Weinberg Center for Corporate Governance, and Frank M. Placenti, Esq, Chair of the ABA Corporate Governance.Committee, and Shareholder, Greenberg Traurig, LP.

Steering Committee Members:  Louisa K. Cresson, Assistant Director, John L. Weinberg Center for Corporate Governance; Katayun Jaffari, Chair-elect of the ABA Corporate Governance Committee, chair of the Corporate Governance Group, co-chair of the Capital Markets & Securities Group, and co-chair of the ESG Practice, Cozen O’Connor; John W. White, Partner and Chair of the Corporate Governance and Board Advisory Practice, Cravath, Swaine & Moore LLP; Tammy L. Mercer, Chair of the Corporate Litigation and Counseling Section, Young Conaway Stargatt & Taylor, LLP; Patricia O. Vella, Partner, Corporate Counseling, Morris, Nichols, Arsht & Tunnell LLP; and Trevor S. Norwitz, Partner, Corporate, Wachtell, Lipton, Rosen & Katz.

CLE: CLE credit will be offered. Materials will be sent in advance of the program.

Resource Materials

• The Shareholder Commons’ rebuttal to State Street’s Notice of Exempt Solicitation, 2023
• “ESG in 2023: Looking at the Year Ahead,” January 26, 2023
• “On the Debate Regarding ESG, Stakeholder Governance, and Corporate Purpose,” March 13, 2023
• “Navigating the Current ESG Landscape: Recommendations for the Board and Management,” May 22, 2023
• “DEI Initiatives Post-SFFA: Considerations for Boards and Management,” August 8, 2023
• In re Caremark International Inc. Derivative Litigation (1996)
• Marchand v. Barnhill (2019)
• In re Clovis Oncology Derivative Litigation (2019)
• In re the Boeing Co. (2021)
• In Re McDonald’s Corp. Stockholder Litigation (Jan 2023)
• In re McDonald’s Corp. Stockholder Litigation (March 2023)
• In Re ProAssurance Corp. Stockholder Derivative Litigation  October 2023)
• “Caremark Exposure – And what to Do About It,” January 23, 2023
• “The Securities and Exchange Commission — Current Rulemaking Agenda”

• “Optimizing the World’s Leading Corporate Law: A 20-Year Retrospective and Looking Ahead” November 2021
• “Activist-appointed Directors” by Jun-Koo Kang , Hyemin Kim, Jungmin Kim, Angie Low : SSRN (October 2020)
  The Upside of Virtual Board Meetings (hbr.org) (2020)
• “Faultlines: understanding how board composition may influence team dynamics and subgroup formation in corporate boards,” from Research Handbook on Diversity and Corporate Governance (2023)
• “Welcome on Board? Appointment Dynamics of Women as Directors” Journal of Business Ethics (springer.com) (2023)
• “Activism, ESG and universal proxy: How to make friends and influence shareholders” Corporate Secretary (August 2023).
• “Shareholder Activism: Lessons from the First Season of Universal Proxy”,  Harvard Law School Forum on Corporate Governance (July 2023).
• “Why Boards Should Think Like Activists”, Heidrick & Struggles (no date).
• “What can we learn from virtual boardroom dynamics to shape future decision making?”, LinkedIn (May 2020).
• “A Board’s Guide To Conducting Virtual Shareholder Meetings,” Law360 (April 2020).
• “Board Dynamics in a Virtual World,” LinkedIn (April 2020).
• “NACD: ‘New universal proxy card rules and growing access to proxy voting will sow disorder in the boardroom–but bring enlightenment in the long term’”, Fortune (March 2023).

Media Coverage

• UDaily article – “Insider Insights into the Corporate World”
• Harvard Corporate Governance Blog- “Optimizing” and Match: Bad Policy Threatens to Drive Bad Law”

Delaware Law Update

Past Events

Delaware Law Update
Tuesday, April 4, 2023
Clayton Hall, University of Delaware, Newark, DE

Watch Video

Delaware has seen developments over the past year – and is facing new open questions – in a number of areas of corporate law.  The Panel discussed the following:

• The Court of Chancery for the first time applied oversight duties to officers in In re McDonald’s Corp. Stockholder Derivative Litigation, raising a host of questions for corporations and practitioners.
• Following the Court of Chancery’s decision in Garfield v. Boxed, Inc., which arose out of a de-SPAC transaction, the Court has been asked by other post-de-SPAC companies to validate hundreds of millions of shares of stock called into question by Garfield.
• The Court of Chancery set forth a new test for the independence of special committees under the MFW analysis, and that test is currently facing challenge in the Delaware Supreme Court.
• The General Assembly amended Section 102(b)(7) of Delaware’s General Corporation Law to allow exculpatory provisions for corporate officers, and the Court of Chancery is currently hearing challenges to early implementations of those exculpatory provisions.

The panel participants were:

• Corinne E. Amato, Director, Prickett, Jones & Elliott
• Rolin P. Bissell, Partner, Young Conaway Stargatt & Taylor
• Gary A. Bornstein, Partner, Cravath, Swaine & Moore
• Blake Rohrbacher, Director, Richards Layton & Finger (Moderator)

Materials:

1. ””In re Lordstown Motors”: Providing Relief Form ‘Untold Chaos”, by Nathaniel J. Stuhlmiller and Daniel S. Barrow, Delaware Business Court Insider, March 1, 2023.
2. “Amendments to the DGCL permit Officer Exculpation,” by John mark Zeberkiewicz and Robert B. Greco, Insights, vol. 36, no. 10, October 2022
   
3. “Three Lessons From Three years of Post-‘Marchand’ Caselaw,” by Nathaniel J. Stuhlmiller and Brian T. M. Mammarella, Delaware Business Court Insider, November 16, 2022
4. “Delaware Law Update” Bios