Corporate Counseling & Governance

Overview

The attorneys in Potter Anderson's Corporate Counseling group are skilled in finding creative solutions to corporation law issues that both accomplish the client's goal and reduce the risk of liability from any ensuing challenge. Several of the partners in the corporate counseling group are “leading lawyers” according to Chambers USA:  America's Leading Lawyers for Business. In addition, three members of our Corporate Counseling group serve on the governing council of the Corporation Law Section of the Delaware State Bar Association, the source of virtually all annual revisions to the Delaware General Corporation Law (DGCL).

Our attorneys are routinely retained to advise boards of directors, management and significant stockholders of Delaware corporations with respect to their fiduciary obligations under Delaware law, as well as the negotiation, structuring and effectuation of fundamental corporate transactions such as mergers, asset sales, recapitalizations, and appropriate responses to solicited and unsolicited acquisition proposals. In many of these activities, our corporate counseling group works closely with our Corporate Litigation group to ensure that the corporation and its directors and officers understand and, therefore, can anticipate and reduce the litigation risks inherent in today’s corporate environment.

Mergers and Acquisitions

The firm regularly serves as Delaware counsel in mergers, acquisitions and divestitures and other types of business transactions, ranging from both nationally and internationally prominent solicited and unsolicited transactions to transactions involving the financing, restructuring and sale of privately held corporations. The firm’s Corporate Counseling group works closely with, and many also practice in, our M&A group, advising boards of directors, management and significant stockholders with respect to the negotiation, structuring and effectuation of mergers and acquisitions and responses to solicited and unsolicited acquisition proposals, including the implementation of defensive measures such as “poison pill” rights plans. We also have been involved in many of the major proxy contests in recent years, including contests involving The Walt Disney Company, Hewlett-Packard and El Paso Corporation.

General Corporation Law and Corporate Governance

Our Corporate Counseling group advises boards of directors and their advisers with regard to the fiduciary duties of directors and officers, technical aspects of the DGCL, and a variety of other corporate governance issues. Such matters include issues relating to the structure and composition of board committees, the scope of authority that may be delegated to board committees and to corporate officers, and advice concerning compliance with “best practices” of board conduct. The attorneys practicing in this area also are retained regularly to advise corporations and their directors and officers with respect to a multitude of corporate questions and interpretations - ranging from matters of day-to-day management to highly technical interpretations under the DGCL. Through their active involvement with the bodies responsible for adopting changes both to the DGCL and the Model Business Corporation Act, as well as their participation in numerous American Bar Association committees and extensive speaking and writing on corporate law issues, our corporate counseling attorneys are at the forefront of developments in corporate governance.

Special Committee Representation

Potter Anderson has been extensively involved in the counseling of special committees of the boards of directors of numerous Delaware corporations, both in the context of committees formed in response to stockholder demands for the institution of derivative litigation and in corporate transactions in which one or more members of the board of directors may have a material conflict of interest.

In recent years, these assignments have included advice to committees of the boards of directors of some of the largest corporations in the world. In this regard, our corporate counseling attorneys work closely with the committee members, company counsel, and the committee’s investment advisers to ensure any action taken by the special committee will achieve the committee’s business goals while at the same time comporting with applicable standards of director conduct.

Opinion Practice

Our Corporate Counseling group also routinely renders written advice to its corporate clients and their advisers. In addition to providing third-party closing opinions about Delaware corporate law issues in connection with a variety of transactions, we often render reasoned opinions to our corporate clients and their boards of directors. Our reasoned opinions frequently address interpretational issues involving bylaw and charter provisions, annual meetings, requisite stockholder votes, indemnification obligations, stock sales and issuances, asset sales, dissolutions, liquidations, dividends, stock redemptions and repurchases, stock splits, asset revaluations and management delegation issues. Such advice can help to protect directors from personal liability with respect to the question at issue. In addition, we frequently render opinions in support of issuer requests to exclude shareholder proposals from public company proxy statements.