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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Corporate Law

Date & Time
  • event Date

    Thursday, January 23, 2025

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.


  • Live Online


    On Demand

$297.00

This course is $0 with these passes:

CLE
ALL

This CLE course will advise corporate secretaries, in-house counsel, directors, and other governance professionals in implementing best practices for maintaining corporate books and records to protect privilege in anticipation of shareholder and other litigation. The panel will discuss the recent decision in Delaware on applying the Garner test to corporate records in shareholder litigation. The webinar will offer best practices and critical considerations for boards and their corporate secretaries when developing the agenda for board and committee meetings, compiling and distributing meeting materials, drafting and maintaining meeting minutes to retain privilege, and responding to shareholder requests for potentially privileged materials.

Faculty

Tyler J. Leavengood
Partner
Potter Anderson & Corroon LLP

Mr. Leavengood is a partner in the firm's Corporate Group. His practice focuses primarily on corporate and commercial litigation in the Delaware Court of Chancery, which includes experience in litigating stockholder class and derivative actions, as well as actions for appraisal, indemnification, and inspection of books and records. Mr. Leavengood also has experience in counseling boards of directors and special board committees of Delaware corporations with respect to issues of fiduciary duty and internal corporate governance.

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Rebecca E. Salko
Partner
Potter Anderson & Corroon LLP

Ms. Salko focuses her practice primarily on counseling Delaware corporations on corporate law and governance issues. She routinely counsels corporations and directors regarding transactions such as mergers, recapitalizations, reorganizations, asset sales, dividends, stock repurchases, charter and bylaw amendments, preferred stock designations, and dissolutions. Ms. Salko also authors opinion letters on a wide range of Delaware corporate law matters. In addition, she has substantial experience advising board committees in connection with various conflict transactions, including M&A transactions.

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Description

The routine minutes and records typically maintained by the corporate secretary form the foundation of corporate recordkeeping. Consider the following scenario: in anticipation of an upcoming board meeting, the company's general counsel prepares a report discussing the liability risks of pending litigation and potential exposure. The general counsel distributes the report to the members for their pre-meeting review, the board conducts the meeting, and the minutes reflect the discussion between the members and the lawyer. Months later, a stockholder serves a books-and-records demand or files litigation, culminating in a request for the production of the general counsel's board report and the board's meeting minutes.

The corporate attorney-client privilege protects from discovery confidential communications between the company and its lawyers made for legal advice purposes. With or without evidence, judges often hold that in-house lawyers engage in both legal and business roles in their day-to-day duties. For this reason, courts often scrutinize whether the in-house lawyer was providing legal or business advice. Thus, courts often require in-house counsel to clearly show, with evidentiary support, that the communication is primarily related to legal advice or the assessment of a legal issue.

A recent shareholder action brought against Facebook considered the extent of exceptions and limits of what the court will recognize as privileged among corporate records and helps identify what practices corporate counsel should adopt as best practices to maintain privilege in corporate records.

Listen as our expert panel discusses the limits of attorney-client privilege when a claim is brought against the company and best practices that corporate counsel should take when maintaining corporate books and records.

Outline

  1. General corporate board meeting minutes, agendas, and other written records practice
  2. Employees' Retirement Sys. of Rhode Island v. Facebook Inc.
  3. Garner test
  4. Best practices

Benefits

The panel will address these and other relevant topics:

  • How can detailed recordkeeping benefit corporate boards of directors? What potential harms arise from detailed records?
  • What are the implications of the decision in Employees' Retirement System of Rhode Island v. Facebook, Inc.?
  • What factors in the Garner test should corporate counsel consider in corporate records maintenance?
  • What are the essential document retention strategies to mitigate privilege liability?