Over 400 members participated in TechGC’s Board Governance Virtual Forum last month, making it the best attended forum of the year! The event, co-chaired by Claudia Regen and Yukio Morikubo, spanned five mainstages, over a dozen roundtable discussions, and two tracks with tailored information for private and public company general counsels (GCs).

What made the event so popular? Member feedback focused on the topical discussions, practical tips, and knowledgeable, engaging speakers. The most common answer to “what could we have done better?” was a written recap of the key takeaways for each session.

So that’s what we’re bringing you today!  Here were some of the key insights shared.

Compliance Agility: Adapting to Strong SEC Enforcement & A Rapidly Changing Rulebook

Patrick Schultheis of Wilson Sonsini was joined by Lisa Harrington and Jolene Marshall in a detailed discussion of how GCs can respond to the SEC’s new 10b-5(1) rules, cybersecurity rules, and recent enforcement actions. The group helped GCs understand how to proactively educate their boards about the new limitations on affirmative defenses under insider trading rules and ensure that such education is captured in the minutes at a high level in order to satisfy the duty of care. The panelists recommended including a CISO or CTO in board presentations to satisfy cybersecurity requirements and properly understand the risk of cyber incidents, which are 8-K events. The group did a deep dive into recent SEC enforcements, from FCPA activity to inappropriate relationships in the McDonald’s case and related party transactions in the Lyft case, advising GCs to rely on outside counsel in the boardroom if they need a neutral third party to deliver difficult news.

ESG and the Politicization of Corporate Governance

Amanda Carty of Diligent led Ann Bruder, Alon Rotem, and Jared Sine in an insightful discussion of how boards can navigate the pressure to be public on ESG topics. The panelists led attendees through conducting a materiality assessment that identifies which components of ESG are important to a company’s customers and partners in order to achieve brand- and business-aligned strategies accounting for differences in industry, location, and labor force composition. The group explored how GCs, the C-suite, and the board can set appropriate ESG goals, whether that includes science-based targets, takes place in the context of a proxy fight, or are developed with the assistance of an ESG consultant. The group identified long-term strategies to get shareholder alignment, and tactics to court more aligned investors, like joining the LTSE, appealing to certain quantitative trading firms, or getting buy-in from Gen Z, all of whom are likely to vote in favor of ESG policies. Finally the speakers shared a case study of thredUP’s ESG risk mitigation strategy session for its board of directors, which can be found in the CLE materials for the session.

Navigating M&A: Lessons Learned from the GC Perspective

Co-chairs Claudia Regen and Yukio Morikubo drew on their extensive M&A experience, with Claudia representing the private company and acquirer perspective and Yukio sharing the public company and target perspective. The pair explored the motivations, showstoppers, and risks involved in a transaction, including publicity, people, and culture. Investor considerations remained top of mind as companies sought to maximize shareholder value over an appropriate time horizon, and boards sought reasonable, long-term views of the intrinsic value of the deal that could withstand external scrutiny. The speakers shared how GCs can prioritize governance during acquisitions by supporting the board, forming and working with board subcommittees, managing deal teams composed of outside counsel, finance, legal, HR, and subject matter experts. Personnel remained a top concern, particularly for targets, where the GC wears multiple hats including chief litigator, negotiator, and therapist in order to get a deal successfully over the finish line.

Navigating Boardroom Disclosures: What to say (and not to say) to the Board of Directors

Matt Margolis of Lawtrades, Arezou Arefi-Afshar, and Meenakshi Lakhanpal led a lively discussion about communication between the general counsel and operating versus governing boards. The group explored strategies for educating and building trust with the CEO in advance of any board communication. To prevent conflict, the panelists discussed socializing contentious issues outside of the board room in order to align, and potentially bringing outside counsel into the discussion. The panelists urged general counsels to: 1) remember their job is not to make decisions but rather to educate and advise, and 2) align with the CEO and board members both inside and outside the board meetings for a smoother working relationship.

Reading the Room: The GC’s Role in Counseling the Board and C-Suite

Justin Schweisberger from Pramata led a thought-provoking discussion with Amy Sennett, Akin Adekeye, and Kathleen Patton on executing a board meeting for the different varieties of private company boards including those led by founders, venture capitalists and private equity firms. In preparing for a meeting, the group suggested that GCs approach governance by understanding the specific type of board, their purpose and individual roles, relationships, and styles. If the board does not already have a template for the agenda, GCs should understand the executive team’s point of view, and market standard on what should be shared with board members. The minutes remained lean, with a high level discussion of the key risks, management suggestions, and board opinion. Finally, the group suggested sending minutes promptly to one or two board allies immediately after the meeting and formally approving the minutes at the following meeting.

Members can access all session materials in the TechGC Braintrust.

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