Board-side counsel for companies facing activist investors. We prepare the board in calm conditions, run a disciplined response once a position is built, and make sure the plan is executed rather than improvised.
An investor who takes more than five percent of a company's stock with a plan for it has five business days to file a Schedule 13D. Under the universal proxy rules in force since 2022, a dissident who gives notice 60 days before the anniversary of last year's meeting puts its nominees on the same card as the board's, and the contest is decided seat by seat.
Most of the defense is written before the 13D is filed. A typical advance-notice bylaw opens its nomination window 120 days before the anniversary and closes it at 90, and Delaware reviews a bylaw amended with a contest in view under enhanced scrutiny, so the year to tighten the bylaws is a quiet one.
We act for the board and management. We run the preparedness review, keep a record of the board's process that a court can read, and coordinate the other advisers once a position surfaces. Fighting every activist is rarely right; our job is to give directors the analysis to decide when to engage, when to settle, and when to hold.
An audit of where the company is exposed, across governance provisions, takeover defenses, the shareholder base, and the company's own performance narrative, conducted in calm conditions so a response can be planned in advance.
Review of bylaws, charter provisions, advance-notice requirements, and structural defenses, advising the board on which measures are appropriate, defensible, and consistent with directors' fiduciary duties before a threat materializes.
Counsel on whether, when, and how to engage once an activist surfaces, including framing the company's response, preparing directors and management for dialogue, and keeping the board in command of the conversation on its own terms.
Legal strategy for a threatened or active proxy contest, coordinated with the proxy solicitor and investor-relations team. We cover the disclosure obligations, the solicitation rules, and the defense of the board's slate, and we handle matters before the SEC where proxy rules are in play.
Negotiation and documentation of settlements with activists, covering board seats, standstills, voting commitments, and information rights, on terms the board can live with long after the campaign ends.
Advising directors so that decisions on defenses, engagement, and settlement are made on an informed, good-faith basis, and so the board's process withstands scrutiny as well as its conclusion.
A Schedule 13D is due five business days after an investor passes five percent, and a qualified institution's 13G can lag the quarter-end by 45 days. A stock-surveillance program reading settlement data usually spots the accumulation earlier than either, which is the moment the prepared board convenes.
A cooperation agreement usually trades one or two board seats for a standstill, a voting commitment, and a non-disparagement clause, and the standstill is drafted to expire shortly before the next nomination window opens. The agreement itself is filed on a Form 8-K within four business days, so its terms are public.
A defensive measure adopted once a threat is in view gets enhanced scrutiny: the board must show reasonable grounds to see a threat and a response proportionate to it. Minutes that record the advisers' analysis, the alternatives considered, and the independent directors' deliberation are what carry that burden later.
Once a contest is foreseeable, a press release or an investor letter is soliciting material under Rule 14a-12 and must be filed with the SEC no later than the day it is first used. Counsel, the proxy solicitor, and the communications team clear the same calendar, because an unfiled statement is the activist's easiest point.
Proxy advisers publish their recommendations roughly two weeks before the meeting, and the largest index holders vote on policies written months earlier. Under universal proxy a dissident need solicit holders of only 67 percent of the voting power, so the board's case has to be made to the top 20 holders, in writing, early.
An activist's deck often restates what the board's own review found a year earlier. When the thesis has merit, a negotiated seat and a public commitment cost less than a contest that consumes a proxy season and ends in a vote the board may lose. Directors decide that on the merits, on the record.
Before any filing, the company monitors its own register for stock-surveillance signals, unusual accumulation, and sector campaigns. The break-glass plan is already written: response team named, bylaws and advance-notice windows checked, the board rehearsed against the thesis an activist would run.
A Schedule 13D lands, or a private letter arrives first. The first seventy-two hours are triage. The activist's thesis is read against the company's own vulnerability review, the board convenes, and counsel, proxy solicitor, banker, and IR are aligned before anyone speaks publicly.
The board decides, on a documented record, whether to meet the activist privately or defend a slate. If a contest comes, the universal proxy card puts both sides' nominees on one ballot and the fight becomes seat-by-seat, with disclosure, solicitation rules, and the fiduciary record all running at once.
Most campaigns end in a cooperation agreement covering board seats, a standstill, and voting commitments, or at the annual meeting itself. Either way, the work closes by binding the terms, disclosing them properly, and folding the lessons back into next year's preparedness review.
An activist reads your company like a thesis; we make sure the board has read it first.
It is the work of preparing a board for an investor who wants to change the company's strategy, its capital allocation, or its directors, and of running the response when one arrives. The preparedness phase covers the bylaws, the rights plan kept on the shelf, and the company's answer to its likeliest critique. The active phase begins with a Schedule 13D or a private letter and ends in a settlement, a vote, or an activist who moves on.
Before, and on a calendar. The nomination window in most advance-notice bylaws opens 120 days before the anniversary of the last annual meeting and closes 30 days later, so the board knows to the day when a nominee can arrive. Bylaw changes, a rights plan kept on the shelf, and a refreshed answer to the likely thesis are all best adopted on a quiet day, because Delaware reviews defenses adopted in the face of a contest under enhanced scrutiny.
No. Engagement is how the board learns what the activist actually wants, which is often narrower than the public letter. Most situations end in a cooperation agreement rather than a vote, and its terms are the board's to negotiate: how many seats and whose nominees, how long the standstill runs, and what the activist may say in public. The agreement is disclosed on Form 8-K within four business days, so it is drafted knowing the market will read it.
A proxy contest is a campaign for shareholder votes, usually to seat dissident directors. Since 2022 the universal proxy card has listed both sides' nominees on one ballot, so a shareholder can split its vote and each seat is contested on its own. The dissident must give the company notice at least 60 days before the anniversary of the prior meeting and solicit holders of at least 67 percent of the voting power. We run the company's side with the proxy solicitor and the investor-relations team, and we keep a settlement path open until the votes are counted.
The duties of care and loyalty do not change, but the standard of review does. A decision to settle or to engage is ordinarily protected by the business judgment rule when made by informed, disinterested directors. A defensive measure, such as a rights plan or a bylaw amendment adopted with a threat in view, must survive enhanced scrutiny: reasonable grounds to perceive a threat and a response proportionate to it. We build the record for both standards as the decisions are made, not afterward.
Yes. Activism defense is a team effort. We coordinate legal strategy with the company's investor-relations team, proxy solicitor, financial advisor, and communications advisors, and we represent the company in matters before the SEC where disclosure and proxy rules are in play. One partner stays accountable for the legal strategy through the whole situation.
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Explore →Reviewed by Jonathan D. Herpy, Sr., Senior Partner · Last updated October 2026 · Educational overview · Not legal advice
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