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Special Board Committees

Total Credits
2 - 2.7
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Panel 1: Special Committees for Investigations and Litigation

The panel will discuss the roles of special committees in investigations and litigation; defining the scope and delegation of authority; demands on boards, conflicts, independence; extent of inquiry; legal standard for adequacy of investigation; reports to the board, special committee reports to boards—written or oral; and waiver of privilege.

Panel 2: Special Committees for Evaluating Transactions

Our panelists will discuss the charter of the committee; delegation of authority from the board; choice of independent committee members; the role of activists; independence of financial advisors and lawyers; conflicts; waiver of privilege; valuation issues; use of experts; and reports to the board.

Lecturer Bios

Gregory A. Markel, Esq.

Greg Markel is a partner in the Litigation Department of Seyfarth Shaw LLP’s New York office. Mr. Markel is a nationally known trial lawyer who concentrates his practice on corporate governance litigation, mergers and acquisition litigation, directors and officers defense, securities litigation and antitrust litigation particularly in bet your company cases.

He has been recognized for years as a leader in the profession. LawDragon magazine recently recognized Mr. Markel as a “legend” and one of only 50 lawyers and judges in the legal profession in the United States who have been named to the Law Dragon 500 in each of the last ten years. He has also received recognition from many other publications including Acquisition International’s 2015’s Most Highly Regarded Litigators, 2013 Lawyers of the Year for Mergers and Acquisition by Best Lawyers, LawDragon’s 500 Leading Lawyers in America, and one of the 100 Securities Litigators You Need to Know, one of the Top 100 Lawyers in New York by Super Lawyers, highly ranked by Chambers for Securities Litigation, 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, The International Who’s Who of Commercial Litigators and many others.

He is a member of the Boards of the Legal Aid Society, the New York County Lawyers Association (NYCLA), Junior Achievement of New York and the Historical Society of New York Courts.

Mr. Markel is Chairman of the Center for Corporate Governance of the New York County Lawyers Association. He and Gillian Burns recently received the Burton Award for Distinguished Legal Writing.

Mr. Markel is a graduate of Yale Law School, the University of Michigan with an MBA in Finance and Columbia College.

He is a member of the Business Law, Litigation and Antitrust sections of the American Bar Association; the Federal Bar Council; the City Bar Committee on Securities Litigation; the Securities Industry Association – Compliance & Legal Division; the New York State Bar Association, Commercial Litigation Section, is a Fellow of the New York Bar Foundation. He is frequently called on to comment on legal issues for the Wall Street Journal, The Financial Times, CNBC, Bloomberg TV, Bloomberg Radio, The New York Times, Time, Newsweek, The Daily and the Associated Press. Mr. Markel frequently speaks to the press and others on a range of topics, such as director’s and officer’s liability, securities law, commercial litigation, accountants’ defense, law firm management and Internet litigation.

David A. Katz, Esq.

David A. Katz is a partner at Wachtell, Lipton, Rosen & Katz in New York City, an adjunct professor at New York University School of Law, a senior professional fellow at New York University Center for Law and Business, and an adjunct professor at Vanderbilt University Law School. Previously, he was an adjunct professor of management at the Owen Graduate School of Management at Vanderbilt University. Mr. Katz is a corporate attorney focusing on the areas of mergers and acquisitions, shareholder activism and complex securities transactions, has been involved in many major domestic and international corporate merger, acquisition and buyout transactions, strategic defense assignments and proxy contests, and has been involved in a number of complex public and private offerings and corporate restructurings. He also counsels boards of directors and board committees on corporate governance matters and crisis management. Mr. Katz has taught Mergers and Acquisitions at New York University School of Law for over 15 years and co-teaches a joint law and business short course on mergers and acquisitions at Vanderbilt University Law School. In 2004, he was chosen by The American Lawyer as one of the 45 highest performing members of the private bar under the age of 45; in 2005, 2012 and 2015, he was selected by The American Lawyer as a Dealmaker of the Year; in 2015, he was named by NACD Directorship as one of the 100 most influential players in corporate governance for the fourth consecutive year and for the sixth time overall; in 2013 he was named Lawyer of the Year by Global M&A Network; in 2014 and each of the five prior years he has been named Who's Who Legal's Mergers and Acquisitions Lawyer of the Year, in 2014 was also named Who’s Who Legal’s Corporate Governance Lawyer of the Year and in 2015 he was named Who's Who Legal's Corporate Governance and M&A Lawyer of the Year; and in 2015 he was elected by The American College of Governance Counsel as an Inaugural Class Fellow. Mr. Katz is a member of the American Bar Association, Section on Business Law, where he is co-chair of the Committee on Mergers and Acquisitions Task Force on the Dictionary of M&A Terms and a member of the Committee on Mergers and Acquisitions Subcommittee for Acquisitions of Public Companies. Mr. Katz is co-chair of the Tulane Corporate Law Institute and is also a member of the Federal Securities Laws Committee, the New York State Bar Association and the Association of the Bar of the City of New York. Mr. Katz is a member of the Society of Corporate Secretaries and Governance Professionals and the National Association of Corporate Directors. He sits on the Board of Directors of The Partnership for Drug-Free Kids and is a member of the Advisory Board at the John L. Weinberg Center for Corporate Governance at the University of Delaware. He writes a bi-monthly column on corporate governance for the New York Law Journal. Mr. Katz is a graduate of Brandeis University and New York University School of Law.

Jack B. Jacobs, Esq.

JACK JACOBS has more than 45 years of legal experience most notably serving on the Delaware Supreme Court from 2003–2014, and before that, as Vice Chancellor of the Delaware Court of Chancery since 1985. Before his appointment as Vice Chancellor, he practiced corporate and business litigation in Wilmington since 1968. Former Justice Jacobs is currently an Adjunct Professor of Law at the Law Schools of New York University, Columbia University, Vanderbilt University and the University of Pennsylvania. His practice includes advising companies and boards of directors on Delaware law issues, including fiduciary duties and with respect to mergers and acquisitions. Former Justice Jacobs is also available for mediation and arbitration proceedings and Special Committee and Special Litigation Committee investigations and monitorships in response to shareholder demands or government requirements. Former Justice Jacobs is recognized in the 2016 and 2017 editions of The Best Lawyers in America.

Eileen T. Nugent, Esq.

Ms. Nugent has advised on a significant number of leveraged buyouts (LBOs). She has represented the full range of transactional parties, including buyers, sellers, controlling stakeholders, boards of directors and special committees, LBO organizers and management teams, as well as investment bankers and various financing sources. She has worked on numerous recapitalizations and other “reverse LBO” transactions, such as initial public offerings, and is one of the firm’s leading practitioners in the field of M&A and restructuring of financially distressed companies. The breadth of her experience has resulted in her being increasingly regarded as a senior legal, business and strategic adviser to her clients, particularly in the areas of corporate governance and conflict-of-interest situations, including dealing with significant stockholders. Select noteworthy transactions include her representation of: ¦ Warner-Lambert Company in its planned $85 billion merger-of-equals with American Home Products Corporation and its ultimate acquisition by Pfizer Inc.; ¦ Trane Inc. (formerly American Standard) in its $10.1 billion acquisition by Ingersoll-Rand Company Limited; ¦ the special committee of the board of directors of Avaya Inc. in its $8.2 billion leveraged buyout and going-private acquisition by Silver Lake Partners and TPG Capital; ¦ Cephalon, Inc. in its $6.8 billion acquisition by Teva Pharmaceutical Industries Limited; ¦ Burger King Holdings, Inc. in its approximately $4 billion acquisition by 3G Capital Management. This transaction was recognized in the 2011 Financial Times “US Innovative Lawyers” report; ¦ Endo Pharmaceuticals Holdings Inc. in its $2.9 billion acquisition of American Medical Systems Holdings Inc. Skadden also represented Endo Pharmaceuticals in the related $2.7 billion acquisition financing; ¦ AMC Entertainment, Inc. in its $2 billion sale to J.P. Morgan Partners and Apollo Partners Limited; ¦ American Standard in the spin-off of its vehicle control systems unit, WABCO, into a new publicly traded company, and in its $1.8 billion sale of its bath and kitchen products business to Bain Capital Partners LLC; ¦ Endo Pharmaceuticals Holdings Inc. in its: $1.2 billion acquisition of Qualitest Pharmaceuticals, Inc. from Apax Partners L.P.; $370 million acquisition via a tender offer of Indevus Pharmaceuticals, Inc.; $223 million acquisition of HealthTronics, Inc.; and $168 million acquisition of Penwest Pharmaceuticals Co.; ¦ Becker Underwood, Inc., a producer of non-pesticide agricultural products, in its $1 billion acquisition by BASF, a chemical company; ¦ Medtronic, Inc. in its $487 million sale of Physio-Control, Inc., a provider of emergency medical response technology, to affiliates of Bain Capital, LLC; ¦ Bentley Pharmaceuticals, Inc. in its approximately $360 million acquisition by Teva Pharmaceutical Industries Limited; ¦ PNBK Holdings LLC, an entity controlled by Mr. Michael Carrazza, in connection with its acquisition of a controlling stake in Patriot National Bancorp, Inc. PNBK Holdings invested up to $50 million to purchase approximately 33.3 million newly issued shares of common stock of Patriot National, representing nearly 88 percent of the fully diluted common stock of the company; ¦ Smith Kline Beecham in its acquisition of Sterling Drug and the disposition of its North American business to Bayer and its animal health business to Pfizer; and ¦ Donna Karan in the sale of Ms. Karan’s company and Donna Karan International Inc. to LVMH, S.A. Private company transactions on which Ms. Nugent has worked include a broad array of situations, with a concentration on highly leveraged companies, as well as subsidiaries and divisions of large public companies. She has represented Allied Domecq plc; Avenue Capital; Columbus Nova; DLJ Merchant Banking Partners III, L.P.; DST Systems, Inc.; Kelso & Company; Oaktree GmbH; and Trimaran Fund, among others, in a number of private company transactions. Ms. Nugent is a frequent lecturer and panelist at the Practising Law Institute, ALI-ABA and other M&A seminars; is the vice-chair of the annual Tulane M&A Institute; and has published articles on a wide variety of M&A-related legal topics. She has taught selected M&A classes at Harvard Law School and New York University School of Law and is an adjunct professor at the University of Virginia School of Law and Cornell Law School. She is a co-author of a well-known two-volume treatise titled Negotiated Acquisitions of Companies, Subsidiaries and Divisions. Ms. Nugent has been recognized in Chambers Global: The World’s Leading Lawyers for Business for her work in M&A and private equity, Chambers USA: America’s Leading Lawyers for Business, The International Who’s Who of Corporate Governance Lawyers and The Best Lawyers in America. She was named to The National Law Journal’s list of 2015 “Trailblazers,” which honors lawyers who have advanced their legal practice areas through the use of innovative strategies, and was previously named by the Financial Times as one of its “top 10 agents of change” in the legal profession. Ms. Nugent also has repeatedly been named to Lawdragon 500 Leading Lawyers in America.

Francis J. Aquila, Esq.

Frank Aquila has a broad multidisciplinary practice that includes extensive experience in mergers and acquisitions and corporate governance. He has been engaged in many high profile matters that include activism, cross-border transactions, leveraged buyouts, proxy contests and unsolicited bids as an adviser to global leaders such as Amgen, Andeavor, Anheuser-Busch InBev, Avon, Cheniere Energy, Diageo, Diebold Nixdorf, International Airline Group, Kraft, Navistar International and United Rentals. Mr. Aquila also regularly counsels boards of directors and board committees on corporate governance, crisis management and matters affecting corporate policy and strategy. Mr. Aquila has been consistently recognized as one of the world’s leading mergers and acquisitions lawyers. The breadth of his practice has resulted in his being recognized as one of a handful of lawyers ranked by Chambers Global in Band 1 (their top tier), as an American Lawyer “Dealmaker of the Year,” as a recipient of the Atlas Award as “Global M&A Lawyer of the Year” and as a three-time Law360 MVP. For his work in corporate governance, Mr. Aquila has been regularly named by the National Association of Corporate Directors (NACD) to their “Directorship 100” – one of the 100 most influential people in corporate governance and inside the boardroom. Best Lawyers in America has named Mr. Aquila as its 2017 Corporate Governance Law “Lawyer of the Year.” In 2014, Global M&A Network recognized him as one of the top 50 lawyers in the world. Mr. Aquila is widely acknowledged as an innovator and thought leader in the profession. In 2015, The Financial Times recognized his representation of Kraft in its merger with Heinz to form The Kraft Heinz Company as one of the most innovative in North America. In 2009, Mr. Aquila was selected by the American Bar Association as a “Legal Rebel” – one of the profession’s 50 leading innovators. In 2015, The National Law Journal named him as one of M&A’s “Trailblazers” for “excellence in dealmaking.” He is also a two-time winner of the Burton Award for Legal Achievement (2005, 2010) and led the Sullivan & Cromwell team advising on The American Lawyer’s 2016 “Deal of the Year” – Kraft merger with Heinz. During the course of his career, Mr. Aquila has advised numerous clients in many of the largest and most important global transactions that have been transformational across a range of business sectors?. In pharmaceuticals he represented The Upjohn Company in its merger with Pharmacia to create Pharmacia & Upjohn and its subsequent acquisition of Monsanto to form Pharmacia. In beverage alcohol Mr. Aquila represented Grand Metropolitan in its combination with Guinness to form Diageo and Diageo in its acquisition of Seagram Wine & Spirits. In brewing he represented InBev in its successful bid for Anheuser-Busch and Anheuser-Busch InBev in its follow-on deals to acquire SABMiller, Grupo Modelo and Oriental Brewery. In biotech he represented Amgen in its acquisitions of Abgenix and Onyx. In aviation he represented British Airways in its combination with Iberia to form IAG International Airlines Group. In consumer packaged goods Mr. Aquila represented Pillsbury in its combination with General Mills and Kraft in its merger with H.J. Heinz to form The Kraft Heinz Company. In equipment rental he represented United Rentals in its acquisition of RSC to form the world’s largest equipment rental company. In automated payment systems and ATMs Mr. Aquila represented Diebold in its combination with Wincor Nixdorf to form Diebold Nixdorf. Mr. Aquila is a member of the Firm’s Management Committee. Previously, Mr. Aquila was the co-managing partner of Sullivan & Cromwell’s General Practice Group and in that role he was responsible for almost 500 lawyers in 12 offices around the world. This group includes the Firm’s corporate, financial institutions, securities, mergers and acquisitions, corporate governance, real estate, leveraged finance, private equity, project finance, restructuring and intellectual property transactional practices.

Ronald Orol

Ronald Orol leads The Deal's coverage of activist hedge fund managers, a high-profile group of corporate investors who press for blockbuster deals and were the subject of his book “Extreme Value Hedging: How Activist Hedge Fund Managers are Taking on the World.” Orol also specializes in reporting on bank and securities regulation in the wake of the 2008 financial crisis. Orol’s reporting covers a wide range of Washington issues critical to dealmaking, including financial reform, Securities and Exchange Commission rules impacting IPOs and mergers and federal oversight of bank transactions. Orol is an occasional commentator on TheStreet TV, BBC World Television and National Public Radio. He received z Bachelor of Journalism Honors degree from Carleton University, a Business and Economics Journalism Masters Degree, Journalism and MBA from Boston University and completed night courses including principles of accounting I, II and financial statement analysis, at Graduate School USDA in Washington D.C.

Martin L. Seidel, Esq.

Martin L. Seidel is a partner in Willkie’s Litigation Department. He has more than 25 years’ experience in securities and corporate litigation and arbitration, with an emphasis on corporate control contests, transaction-related securities and shareholder litigations, multiparty class actions and derivative litigations. He regularly advises on litigation matters related to mergers and acquisitions, securities laws, corporate accounting and disclosure, and corporate governance. Mr. Seidel has tried cases before state and federal courts throughout the United States as well as arbitral tribunals. He has handled investigations before the U.S. Securities and Exchange Commission, FINRA, the U.S. Department of Justice and the U.S. Federal Trade Commission, and by state and federal prosecutors and state Attorneys General across the country. Mr. Seidel provides clients – including Fortune 500 companies, leading financial institutions, corporate boards, directors and senior executives – with guidance on: •M&A, corporate control and activism-related litigation •corporate control and corporate governance issues •complex securities, shareholder and derivative litigations •insider trading, market manipulation and accounting fraud litigations and investigations He has advised key players in numerous high-profile matters, including takeover litigation and defense for Salix Pharmaceuticals, Élan Corporation, Pfizer, Jos. A Bank and Quest Software; and litigations and investigations involving Hollinger, HealthSouth, Bear Stearns, Adelphia and Refco/SphinX. Mr. Seidel is recognized as a leading securities litigator by Legal 500 U.S. and Super Lawyers. Mr. Seidel is a published author and frequent speaker on matters of corporate governance, securities litigation, directors and officers insurance, and complex litigation.

Richard C. Pepperman II, Esq.

Managing Partner of Sullivan & Cromwell’s Litigation Group, Rick Pepperman has delivered winning results for clients in high-stakes matters that span securities, antitrust, M&A and intellectual property litigation. An exceptionally versatile litigator, he has represented clients across an array of industries, including insurance, communications, financial services, manufacturing, oil and gas, and technology. In recent years, Rick has defended BP in securities litigation arising out of the 2010 Deepwater Horizon explosion, successfully resolved litigation on behalf of Illinois Tool Works against a private equity firm and defended Goldman Sachs in numerous actions, including antitrust and securities lending matters. Rick was one of the lead trial lawyers who defended Microsoft in its landmark antitrust litigation, including the Department of Justice’s action against the company. Chambers notes that Rick is “a very strong lawyer who has very good control of the facts of a case" and "analytically strong…very smart and hard-working." He has been cited as a Star in securities litigation (National) from 2011-2018 by Euromoney’s Benchmark: America’s Leading Litigation Firms and Attorneys. Chambers USA has recognized him in New York Securities: Litigation (2016-2018) and Antitrust (2018).

William H. Paine, Esq.

Bill Paine represents public companies, financial services companies and financial institutions, and their officers and directors, with respect to securities, derivative and ERISA litigation in state and federal courts, internal investigations, and SEC investigations and civil enforcement actions. Litigation: Mr. Paine has defended more than 50 securities class actions brought in federal and state courts. Reported cases include the dismissal of securities class actions brought against numerous companies, including: The First Marblehead Corporation, Medtronic, Art Technology Group, Boston Scientific, Security Dynamics Technologies, Inc., Shiva Corporation, Boston Technology, and Chipcom Corporation. He has comparable experience defending derivative actions and ERISA class actions. Investigations: Mr. Paine represents technology and financial services companies, financial institutions and their officers and directors with respect to SEC investigations and internal investigations, including investigations concerning accounting matters (e.g., revenue recognition and stock option compensation), FCPA, corporate governance, internal controls and insider trading.

John C. Coffee Jr.

John C. Coffee Jr. is the Adolf A. Berle Professor of Law and director of the Center on Corporate Governance at Columbia Law School. He is a fellow at the American Academy of Arts & Sciences and has been repeatedly listed by the National Law Journal as among its “100 Most Influential Lawyers in America.” Coffee has served as a reporter to The American Law Institute for its Corporate Governance Project; has served on the Legal Advisory Board to the New York Stock Exchange; and as a member of the SEC’s advisory committee on the capital formation and regulatory processes. Coffee is the author or editor of several widely used casebooks on corporations and securities regulation, including Securities Regulation: Cases and Materials, (with Hillary Sale), 2015, (13th edition); Cases and Materials on Corporations (with Jesse H. Choper and Ronald J. Gilson), 2013, (8th edition); and Business Organizations and Finance, (with William Klein and Frank Partnoy), 2010, (11th edition). His scholarly books include Entrepreneurial Litigation: Its Rise, Fall, and Future, Harvard University Press, 2016; Gatekeepers: The Professions and Corporate Governance, Oxford University Press, 2006; Knights, Raiders, and Targets: The Impact of the Hostile Takeover, (with Louis Lowenstein and Susan Rose-Ackerman), Oxford University Press, 1988; and The Regulatory Aftermath of the Global Financial Crisis, (with Ellis Ferran, Niamh Moloney, and Jennifer G. Hill), Cambridge University Press, 2012. According to a recent survey of law review citations, Coffee is the most cited law professor in law reviews over the last 10 years in the combined corporate, commercial, and business law field. In 2015, Lawdragon listed him on its 100-member “Hall of Fame” list of influential lawyers in the U.S.

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