On November 8 and 9, Cooley and the Berkeley Center for Law and Business presented the 2022 Berkeley Fall Forum on Corporate Governance. The two-day event featured panel discussions on a range of topics, including emerging trends in M&A and capital markets, Delaware corporate jurisprudence, key boardroom strategy and governance best practices.
Cooley partners Jamie Leigh and Steve Tonsfeldt co-hosted the event with professor Stavros Gadinis of Berkeley Law. They were joined on stage by leading regulators, practitioners, authors, academics and jurists, including Chancellor Kathaleen St. J. McCormick and Vice Chancellor Sam Glasscock III from the Delaware Court of Chancery, as well as Cooley partners Dave Peinsipp, Rachel Proffitt and Sarah Lightdale.
Discussions covered trends and lessons from financial transactions and corporate strategy in the volatile 2022 environment and insights into the year ahead.
Recordings of these sessions are available to view on demand here.
Key takeaways include:
- Following a discussion featuring Chancellor McCormick and Vice Chancellor Glasscock, a panel of Delaware lawyers and professors flagged key issues of concern when advising clients on fiduciary duties, structuring conflicted transactions to survive judicial scrutiny under an entire fairness review standard and the analysis of fair price and fair process in recent Delaware cases.
- Panelists also observed a trend of increased books and records demands in M&A transactions in Delaware court. Chancellor McCormick and Vice Chancellor Glasscock addressed best practices in responding to such demands, highlighting the benefits of contemporaneously preparing long-form minutes as a means of defense against intrusive inspection by stockholders.
- Wars 2.0 segment, panelists discussed the importance of return to engagement, retention and organizational challenges in building talent teams in today’s environment. Panelists also addressed current employee expectations regarding employer positions on political and social movements, as well as parallel challenges to related corporate decision-making.
- Looking ahead to 2023, panelists expect an uptick in M&A well before any reopening of the capital markets, but they anticipate continued execution challenges until regulatory clearance is more predictable and consensus on valuation is easier to achieve. There also may be greater opportunity for companies to seek cross-border targets given the relative strength of the US dollar. Strategic buyers may be putting off acquisitions given their focus on internal budgets and revenue, but there will be opportunities to take advantage of lower valuations and identify tuck-in deals to fuel inorganic growth.