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The Significance of Recent Developments in Delaware Corporate Governance Law and What Practitioners Need to Know

Total Credits
2 - 2.5
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Panel 1: Important Recent Cases and Upcoming Issues

Gregory Markel, Cadwalader, Wickersham & Taft LLP, Chairman of the Center, will moderate an “easy chair” discussion between Myron Steele, former Chief Justice of the Delaware Supreme Court, and Jack Jacobs, former Justice of the Delaware Supreme Court. They will discuss important recent cases and upcoming issues, with a focus on the implications of the decisions and what significant issues are likely to come up in the next year.

Panel 2: Significant Recent Developments – The Attorneys’ Perspective

Picking up on the prior panel discussion, Gordon Eng, General Counsel and Chief Compliance Officer at SKY Harbor Capital Management, LLC, will moderate a discussion of compelling recent developments. The panel will discuss their own views, identify additional relevant issues and the importance of good corporate governance.

Lecturer Bios

Gordon Eng, Esq.

Gordon Eng is General Counsel and Chief Compliance Officer of SKY Harbor Capital Management, LLC. The Firm, based in Greenwich, Connecticut, is an independent SEC-registered investment adviser focusing on broad high yield and short duration high yield strategies for institutional investors and global wealth advisers. In addition to its separately managed account mandates and management of private Delaware limited partnerships, the Firm sub-advises the Westwood Short Duration High Yield Fund and the Westwood Opportunistic High Yield Fund, two mutual funds established under the Investment Company Act of 1940. The Firm is also the Investment Manager for SKY Harbor Global Funds, an open end investment company established in April 2012 under the laws of Luxembourg (a UCITS SICAV) and registered for public distribution in a number of jurisdictions in the EU, Norway, and Switzerland. Before joining SKY Harbor Capital Management at its founding in August 2011, Mr. Eng was a litigator associated with the law firms of Debevoise & Plimpton LLP and Fried Frank Harris Shriver & Jacobson LLP where his practice focused on matters in white collar, internal investigations, and litigation of complex financial instrument concerning derivatives, subprime structured finance products, and breach of fiduciary duty under the Employee Retirement Income Security Act (“ERISA”). Mr. Eng began his career in banking first as an international commercial lending officer and then as a foreign currency trader, market-maker, chief dealer, and proprietary trader with a number of money center banks. A graduate of Fordham University School of Law, Mr. Eng received his J.D. in 2005, magna cum laude, and was elected to membership in the Order of the Coif. He received his M.B.A. from New York University Stern School of Business with Distinction and is a graduate of the Wharton School of the University of Pennsylvania, B.S. Economics. In 2003-2004, Mr. Eng was a student intern at the US Attorney’s Office for the Southern District of New York, criminal division. He is a recipient of the New York Legal Aid Society 2010 Pro Bono Publico Award for his pro bono representation of indigent defendants in arraignment proceedings, bail hearings, plea negotiations, and trial in Manhattan criminal court. He has also appeared before the Supreme Court of New York Appellate Division Second Department as a Special Assistant District Attorney, on behalf of the District Attorney of Kings County. Mr. Eng is a member of the bars in New York and Connecticut and is also admitted to the U.S. Court of Appeals for the Second Circuit and the U.S. District Courts for the Southern and Eastern Districts of New York. His professional affiliations include the International Bar Association; American Bar Association; New York State Bar Association (where he serves as a member of the House of Delegates and the Committee on Standards of Attorney Conduct); New York County Lawyers’ Association (a member of the Board of Directors and Chair of the Audit Committee); and the Asian American Bar Association of New York. As a faculty member of the Practising Law Institute (PLI), he regularly speaks at PLI Continuing Legal Education programs for newly admitted attorneys on the subjects of attorney ethics and financial regulatory reform concerning developments in Dodd Frank Act and securities enforcement and litigation.

Myron T. Steele, Esq.

Myron T. Steele is a partner in the firm's Corporate Group. He is the former Chief Justice of the Supreme Court of Delaware. Previously, he served as a Judge of the Superior Court and a Vice Chancellor of the Delaware Court of Chancery after eighteen years in private litigation practice. He has presided over major corporate litigation and LLC and limited partner governance disputes, and writes frequently on issues of corporate document interpretation and corporate governance. Chief Justice Steele has published over 400 opinions resolving disputes among members of limited liability companies, and limited partnerships, and between shareholders and management of both publicly traded and close corporations. He speaks and writes frequently on issues of corporate document interpretation and corporate governance. His thesis for the LL.M. degree, Judicial Scrutiny of Fiduciary Duties in Delaware Limited Partnerships and Limited Liability Companies, focused on the application of common law fiduciary duties within the contractual framework of alternative business organizations. It was published in the Delaware Journal of Corporate Law (32 Del. J. Corp. L. 1 (2007)). The November 2005 issue of The Business Lawyer included an article he co-authored with Sean J. Griffith entitled On Corporate Law Federalism: Threatening the Thaumatrope (61 Bus. Law. 1 (2005)). He co-authored an article with J.W. Verret entitled Delaware’s Guidance: Ensuring Equity for the Modern Witenagemot published in the Fall 2007 issue of the Virginia Law & Business Review (2 Va. L. & Bus. Rev. 188 (2007)). That article formed the basis for a keynote speech to the Business Law Section at the 2007 ABA Annual Meeting. For the last ten years he served as judicial advisor to the Mergers and Acquisitions Committee of the ABA Business Law Section. He also co-authored an article entitled “Freedom of Contract and Default Contractual Duties in Delaware Limited Partnerships and Limited Liability Companies” (46 Am. Bus. L.J. 221 (Summer 2009)) and an essay entitled “The Moral Underpinning of Delaware’s Modern Corporate Fiduciary Duties” (26 Notre Dame J.L. Ethics & Pub. Pol’y 3 (2012)). Chief Justice Steele serves as Adjunct Professor of Law at University of Pennsylvania Law School, University of Virginia Law School, and Pepperdine University Law School.

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.

H. Rodgin Cohen, Esq.

The primary focus of Rodgin Cohen’s practice is acquisition, regulatory, enforcement and securities law matters for U.S. and non-U.S. banking and other financial institutions and their trade associations, and corporate governance matters for a wide variety of organizations. Mr. Cohen and S&C are at the vanguard of critical issues and developments affecting financial institutions, and S&C has long been the firm of choice for leading global financial institutions. Recent press stories attest to the preeminent stature of Mr. Cohen in the financial institutions sector: “Rodgin Cohen is a preeminent figure in the financial services industry and continues to be recognized by peers and clients alike as ‘a legend in the field.’ His excellence spans the full range of regulatory issues experienced by banking clients, including compliance, enforcement and M&A matters. Cohen is ‘a true gentleman and a practitioner of the highest caliber. The man is just incredible,’ says one interviewee, while another suggests that ‘he walks on water.’” (Chambers USA, 2014) “Rodgin Cohen has a stellar reputation in the New York corporate and M&A market, with clients identifying him as ‘simply the most commercially aware, proactive and connected of the outside counsel,’ and highlighting his ability to ‘put himself in his clients’ shoes.’” (Chambers USA, 2014) “Rodgin Cohen retains his legendary status as trusted counsel and industry ‘standard-bearer,’ and ‘continues to be spectacular’ at the forefront of the ongoing reform of banking industry regulations. His ability to ‘cut through issues that may hang up others’ and find creative solutions cements his position as arguably the preeminent attorney in the field.” (Chambers USA, 2013) “Rodgin Cohen is repeatedly referred to as ‘a force of nature,’ and as ‘arguably the best banking lawyer in America.’ He is a legendary transactional lawyer, and is also extremely highly regarded for his enforcement and regulatory expertise. He has played a pivotal role in many of the highest-profile matters in the industry, including leading the team that acted as counsel in all ten of the largest FDIC purchases last year.” (Chambers Global, 2012) “The iconic Rodgin Cohen is widely considered to stand head and shoulders above other lawyers in the financial services arena, and has achieved near-legendary status for his M&A, enforcement and compliance work: ‘He has done more deals than anyone, ever. He has a thoughtful, even-handed, no-nonsense approach and the courage to say what he thinks without screaming or pounding the table. He has a long history of results because people trust him.’” (Chambers USA, 2012) “‘Simply the best’, Rodgin Cohen is ‘very approachable and grounded’ and is recognized as ‘the bank regulatory authority’. At the forefront of some of the most important and cutting-edge mandates at the heart of the economic crisis, as well as his well-known expertise for handling banking M&A mandates, he is also frequently the first name on the list of bank bosses regarding Dodd Frank-related compliance issues.” (The Legal 500, 2012) “Sullivan & Cromwell is the practice of choice for critical and often unprecedented issues in the financial institutions sector. . . . Paramount to the success of the practice is the venerated Rodgin Cohen. He is ‘the guru of financial services regulation – no one can touch him in terms of his reputation, experience and clout.’” (Chambers Global, 2010) “Under the leadership of chairman H. Rodgin Cohen, Sullivan & Cromwell has become synonymous with the cutting-edge regulatory work being done as a result of the financial crisis. AIG, Barclays, Bear Stearns, Fannie Mae, Goldman Sachs – the firm’s high-profile client list reads like a who’s who of the financial sector. In the words of one rival partner, ‘You can stand Sullivan & Cromwell in a corner all by themselves.’” (IFLR1000, 2010) “Rodgin Cohen has played a pivotal role in the recovery of the financial markets, not only for clients but on a wider legislative level as well. ‘He has an incredible understanding of what regulators desire and how boards of directors need to act to optimize situations,’ notes one client. In addition to his phenomenal reputation on the regulatory compliance side, he is equally praised for his enforcement and transactional practice.” (Chambers USA, 2010) “Mr. Cohen’s influence over Wall Street is both legendary and pervasive, reaching back to the 1980s, when he helped to consolidate the industry, and then to the 1990s, to shape the regulatory scheme that permitted last year’s unprecedented outlay of federal dollars.” (The New York Times, November 15, 2009) “With virtually all of Wall Street as his client, [Mr. Cohen] has solidified his role as one of the most influential private-sector players in the financial crisis. Over the past five weeks alone, Mr. Cohen and his team have advised Fannie Mae, Lehman Brothers Holdings Inc., Wachovia, Barclays PLC, American International Group Inc., J.P. Morgan Chase & Co. and Goldman Sachs Group Inc. in a blitz of mergers, rescues and cash infusions.” (The Wall Street Journal, October 9, 2008) “For Mr. Cohen, virtually every day in September was a workday, including the weekends. Long regarded as one of the top counselors to major financial firms, Mr. Cohen has, in the past 30 days alone, advised Fannie Mae; A.I.G.; Lehman Brothers; and JPMorgan Chase & Company in its government-brokered purchase of Washington Mutual.” (The New York Times, October 7, 2008) “During the chaos of the post-credit crunch financial world, Rodgin Cohen has popped up everywhere. Over the past two weeks of historic, market-reshaping events, he has been ubiquitous.” (The Lawyer, September 29, 2008) In the acquisitions area, Mr. Cohen has been engaged in most of the major bank acquisitions in the United States, including Royal Bank of Canada-City National, CIT-OneWest, Hudson City-M&T, Wells Fargo-Wachovia, PNC-National City, Toronto Dominion-Commerce, Bank of New York-Mellon Financial, Regions-AmSouth, Wachovia-SouthTrust, Chase-Bank One, First Union-Wachovia, U.S. Bancorp-Firstar, Wells Fargo-Norwest, Wells Fargo-First Interstate, Chemical-Chase, First Union-First Fidelity, Key-Society, NationsBank-C&S and Bank of New York-Irving. In major global transactions, Mr. Cohen is engaged in ACE’s acquisition of Chubb and GE’s sale of GE Capital assets and was engaged in Ally Financial’s disposition of its international business, CITIC Securities-CLSA B.V., ICE-NYSE Euronext, Bank of Montreal-M&I, BlackRock-Barclays Global Investors, Banco Santander-Sovereign, Mitsubishi UFG-Morgan Stanley, Barclays-Lehman, MUFG-UnionBanCal, Standard Chartered-American Express Bank, Goldman Sachs-Sumitomo, Allianz-Dresdner, UBS-PaineWebber, Credit Suisse-DLJ, Société Générale-Paribas, Dexia-FSA, Mitsubishi-Bank of Tokyo, Credit Suisse-First Boston and Royal Bank of Canada-Bank of Montreal, and acquisitions or divestitures by Barclays Bank, National Westminster, Midland Bank, Lloyds Bank, Bank of Ireland and Istituto Bancario San Paolo di Torino. He has also worked on a number of major cross-industry and private equity acquisitions, including JPMorgan Chase-Bear Stearns, Merrill Lynch-BlackRock, J.C. Flowers-Sallie Mae, Mellon-Dreyfus and NationsBank-Montgomery, as well as acquisitions in the insurance industry, including Anthem-WellPoint and Manulife-Hancock. In addition, Mr. Cohen has advised a number of major foreign banks in connection with the establishment of offices in the U.S., including China Merchants Bank Co., Ltd., the first Chinese bank to receive the Federal Reserve’s approval to establish a branch in the United States since the adoption of the Foreign Bank Supervision Enhancement Act of 1991. Mr. Cohen also advised the Bank of East Asia in its sale of an 80 percent interest in its U.S. bank to CIBC. The approval was the first of its kind for a Chinese bank and paves the way for other leading Chinese banks to acquire control of depository institutions in the United States. Mr. Cohen provides corporate governance and cybersecurity advice to a large number of financial and non-financial institutions, both regular clients and as special assignments. Mr. Cohen has worked on a wide variety of bank regulatory matters with the banking regulatory agencies, as well as other governmental agencies, on behalf of many of the largest U.S. and non-U.S. financial institutions and trade associations. Key recent matters include the Volcker Rule, numerous other provisions of the Dodd-Frank Act and international capital and liquidity standards. In the securities area, Mr. Cohen worked on the first public offering in the United States by a non-U.S. bank (Barclays) and on a number of other offerings in the United States by non-U.S. banks. He has also worked on public offerings by BancOne, Bank of New York, Chase, Chemical, Citicorp, Continental Illinois, First Bank System, First Fidelity, First Interstate, First Union, KeyCorp, MBNA, Mellon, Morgan Guaranty, Norwest, Republic New York, Security Pacific, Shawmut and Wachovia. He also worked on major capital-raising activities by a number of major financial institutions, preceding and following the financial crisis. He has also participated in the resolution of most major bank failures, including Washington Mutual, Continental Illinois, First City, Southeast, Franklin National and Bank of New England and, at the recommendation of the Federal Reserve, the Ohio thrift crisis. During the past several years, Mr. Cohen has devoted substantial time to regulatory, law enforcement and internal investigations of financial institutions. Publicly disclosed matters involve ABN AMRO, Bank of Montreal, Banco Popular, Bank of New York, Barclays, BNPP, Fifth Third, First Horizon, IDB, ING, JPMorgan Chase, KeyCorp, Lloyds, Mellon, Mitsubishi UFG, Royal Bank of Canada, Standard Chartered, SunTrust, Toronto-Dominion, Wachovia and Wells Fargo.

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.

Jill E. Fisch

Jill Fisch is an internationally known scholar, whose work focuses on the intersection of business and law, including the role of regulation and litigation in addressing limitations in the disciplinary power of the capital markets. Her scholarship has appeared in a variety of publications including the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the University of Pennsylvania Law Review, and the Texas Law Review. Recent research focuses on corporate governance and securities litigation. Professor Fisch is also engaged in a series of experimental projects that analyze retail investor decision-making and financial literacy. She has lectured on corporate and securities law in China, Japan, Norway, France, Germany, and the United Kingdom

David R. Marriott, Esq.

David R. Marriott is a partner in Cravath’s Litigation Department. His practice focuses on litigation and alternative dispute resolution, generally concerning business disputes and matters in the areas of intellectual property, employment, securities and antitrust. Mr. Marriott has tried, argued and litigated cases in both state and federal courts, and has been involved with numerous forms of alternative dispute resolution. His clients have included CSX Corporation, Delta Air Lines, IBM, Mylan, NCR Corporation, Novartis, Alcon Laboratories, Qualcomm, Bristol-Myers Squibb, Lazard Frères & Co., AT&T, Bank of America, Eli Lilly, the Massachusetts Institute of Technology and the President and Fellows of Harvard College.

Patrick McGurn

Patrick McGurn is Special Counsel and the Head of Strategic Research and Analysis at ISS. Considered by industry constituents to be one of the leading experts on corporate governance issues, he is active on the nationwide speaking circuit and plays an integral role in ISS’s policy development. Prior to joining ISS in 1996, Pat was director of the Corporate Governance Service at the Investor Responsibility Research Center (IRRC), a not-for-profit firm that provided governance research to investors. He also served as a private attorney, a congressional staff member and a department head at the Republican National Committee. He is a graduate of Duke University and the Georgetown University Law Center. He is a member of the bar in California, the District of Columbia, Maryland and the U.S. Virgin Islands. Pat serves on the advisory boards of the University of Delaware’s Weinberg Corporate Governance Center and the National Association of Corporate Directors. He is a member of the Council of Institutional Investors’ Markets Advisory Council.

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