Shareholder activism in United States

Akin Gump Strauss Hauer & Feld LLP

Based in New York, the experienced team at Akin Gump Strauss Hauer & Feld LLP assists high-profile investment funds and large companies with a wide range of matters, such as takeover preparedness, campaigns and activism-related litigation and investigations. Practitioners also handle activism defense for public companies. Kerry E Berchem leads the team, which includes key litigator Douglas A. Rappaport. Jeff Kochian and Gerald Brant joined Paul, Weiss, Rifkind, Wharton & Garrison LLP in late 2021.

Practice head(s):

Kerry E Berchem

Other key lawyers:

Douglas A. Rappaport

Key clients

Alden Global Capital LLC

Baker Bros. Advisors LP

Indaba Capital Management, LP

Scopia Capital

Starboard Value, LP

Inclusive Capital Partners

Ides Capital

Cadwalader, Wickersham & Taft LLP

Cadwalader, Wickersham & Taft LLP is one of a few full-service firms with vast experience of acting for both activists and boards. In 2020, highlights included acting for Senator Investment Group on its proposed unsolicited offer, along with Cannae Holdings, to take CoreLogic private; this matter represented the first large hostile takeover attempt worldwide during the coronavirus pandemic. In addition, the firm advised Sachem Head on the addition of managing partner Scott Ferguson to the company’s board. Richard Brand, who is ‘smart, flexible and always has inventive solutions‘, leads the practice with William Mills. Stephen Fraidin‘s work ranges from proxy contests to special committees. Areas of focus for the group include financial services and REITs. All named practitioners are based in New York.

Practice head(s):

William Mills; Richard Brand

Other key lawyers:

Stephen Fraidin

Testimonials

‘Richard Brand is one of the best attorneys I have ever worked with. He is smart, flexible and always has inventive solutions.’

Key clients

Senator Investment Group

D.E. Shaw & Co.

Mantle Ridge

Sachem Head Capital Management

Hudson Executive Capital

Ashford Hospitality Trust

40 North Management

Bow Street LLC

Vann Avedisian

Wheeler Real Estate Investment Trust, Inc.

Work highlights

  • Assisted Senator Investment Group LP with its proposed unsolicited offer, along with Cannae Holdings, to take CoreLogic private.
  • Advised D.E. Shaw & Co. on its efforts to encourage Exxon Mobil Corp. to reduce spending in order to improve performance and maintain its dividend, as well as efforts to improve its environmental reputation.
  • Advised Hudson Executive Capital on its proposed acquisition, along with funds managed by affiliates of Apollo Global Management, of Cardtronics plc, a leading non-bank ATM deployer, in a transaction valued at $2.3 billion.

Cleary Gottlieb Steen & Hamilton

In addition to being a major player in the US activism defense space, the New York-based team at Cleary Gottlieb Steen & Hamilton also acts for clients in Europe and Asia, which are increasingly seen as key areas for activists. The firm is prominent in high-profile mandates, as was evidenced by it advising Sony Corp on its defense against an activism campaign by Third Point, demonstrating its flexibility to adapt to a market affected by Covid-19. James Langston  jointly leads the team with Francesca Odell, whose cross-border practice concentrates on general corporate governance issues, including environmental, social and governance (ESG) matters. Langston focuses on M&A, corporate governance and contested situations.

Practice head(s):

James Langston; Francesca Odell

Other key lawyers:

Benet O’Reilly

Testimonials

‘They are a great team.’

‘Jim Langston is a smart lawyer. He is cerebral and thoughtful in his advice.’

Key clients

Assured Guaranty

GeoPark Limited

The Hartford

International Flavors & Fragrances

JELD-WEN

LivaNova

MDC Partners

Solvay

Work highlights

  • Representing The Hartford in connection with various enhancements to its existing governance profile and in connection with an unsolicited M&A campaign from Chubb.
  • Representing International Flavors & Fragrances in its defense against an activist campaign led by Sachem Head Capital Management.
  • Representing MDC Partners in addressing activism activities by different shareholder groups, including by Indaba Capital Partners, in connection with the business combination transaction with Stagwell Media LP.

Cravath, Swaine & Moore LLP

At Cravath, Swaine & Moore LLP, ESG matters have emerged as an increasingly important area of work for the multidisciplinary group, which works with all major activists and represents clients in the chemical, utilities, and logistics sectors. Robert Townsend III leads the M&A team for North America with corporate department head Mark Greene. They are supported by Keith Hallam, whose practice focuses on M&A and activist defense work. All named practitioners are based in New York.

Practice head(s):

Mark Greene; Robert Townsend III

Other key lawyers:

Keith Hallam

Key clients

Canadian National Railway

Corteva

Evergy

Forward Air

Southwest Gas

ViewRay

Work highlights

  • Represented Corteva, Inc. in its agreement with Starboard Value LP.
  • Representing Southwest Gas in connection with its interactions with Carl Icahn.
  • Representing Canadian National Railway Company in connection with its interactions with TCI Fund Management Limited.

Freshfields Bruckhaus Deringer LLP

Freshfields Bruckhaus Deringer LLP's global reach makes it well-positioned to advise clients from around the world on shareholder activism matters, particularly as US activists and US-style activism tactics spread across Europe and Asia. In the US, the firm fields a deep bench of experts in shareholder engagement and activism defense, who often advise public companies and their boards. The head of shareholder engagement and activism defense is Elizabeth Bieber, who works with M&A department head Ethan Klingsberg. Another key individual is Damien Zoubek, who joined the team in September 2021 from Cravath, Swaine & Moore LLP and is experienced in advising on transactions and shareholder activism defense scenarios across different industries.

Practice head(s):

Ethan Klingsberg; Elizabeth Bieber

Other key lawyers:

Damien Zoubek

Goodwin

Goodwin excels in devising defense strategies against activists of all sizes and from industries such as life sciences, technology and real estate. The 'solid, highly responsive and extremely hard-working' team has extensive experience of proxy contests and conducts annual board self-assessments and education sessions for clients. Practising from both Boston and New York, Andrew Goodman contributes to the team’s corporate governance offering in the life sciences and technology sectors. Joseph Johnson III  and Sean Donohue are also recommended.

Practice head(s):

Joseph Johnson III; Lisa Haddad; Deborah Birnbach; John Haggerty; Sean Donahue

Other key lawyers:

Andrew Goodman

Testimonials

‘The team was solid, highly responsive and extremely hard-working.’

‘The senior partner helped us navigate to a complicated activist situation into a difficult transaction. It was a complex situation fraught with risk. Without the partner’s aid, I don’t think we could have emerged from the situation.’

Key clients

Virtusa Corporation

AMAG Pharmaceuticals

Yatra Online, Inc.

Leaf Group Ltd.

LaSalle Hotel Properties

Monotype Imaging

Cedar Realty Trust, Inc.

Cognizant Technology Solutions Corporation

Board of Directors of PAREXEL International

TIER REIT

Brightcove, Inc.

Board of Eaton Vance Floating Rate Income Plus Fund

Work highlights

  • Assisted Leaf Group with its proposed acquisition by Graham Holdings Company, which has been contested by several activist investors.
  • Advised Cedar Realty Trust, Inc. with regards to numerous proxy contests.
  • Represented the Board of Eaton Vance Floating Rate Income Plus Fund in defense of the activism campaign by Saba Capital.

Hogan Lovells US LLP

Hogan Lovells US LLP has a dedicated shareholder activism taskforce, which is integral to the wider securities and corporate governance practice. It advises many of the world’s largest and best-known public companies on all aspects of types of activist scenarios. Joseph Gilligan, who is based in Washington DC, exemplifies the team’s ability to also work with privately held companies. Lillian Tsu departed the firm for Cleary Gottlieb Steen & Hamilton in September 2021.

Practice head(s):

Joseph Gilligan

Testimonials

‘Great experience in handling shareholder activism situations. Guided us through our own.’

Key clients

Papa John’s International

Rosetta Stone

Taronis Fuels

Work highlights

  • Advised Thomas Wetherald, Tobias Welo, Sergey Vasnetsov, Mary Pat Thompson and AndrewMcCormick on their successful campaign to reconstitute the Taronis Fuels, Inc. board ofdirectors.
  • Advised Rosetta Stone on its interactions with several activist investors, including VossCapital, before, during and after the announcement of its definitive agreement to be acquiredby Cambium Learning Group.
  • Advised dozens of public companies in handling shareholder proposals.

Kirkland & Ellis LLP

Kirkland & Ellis LLP has experience of defending several high profile M&A challenges, such as Bristol Myers-Celgene’s $90bn deal vs. Starboard/Wellington. Its team also has expertise in advising on takeover preparedness, typifying its holistic approach to activism defense. Of particular note, the group advised Nikola Corporation on a high profile activist short attack. Key contacts in the group are Shaun Mathew and Sarkis Jebejian. Mathew has led the defense in over 50 significant activism mandates since joining Kirkland in 2018. Corporate partner Jebejian counts Accenture and Bain Capital among key clients. Eric Schiele and Daniel Wolf are also noted for their work on proxy fights. All named practitioners are based in New York.

Other key lawyers:

Shaun Mathew; Edward Lee; Daniel Wolf; Sarkis Jebejian; Eric Schiele

Key clients

Nikola Corporation

KVH Industries, Inc.

Vista Equity Partners

Starwood Capital Group

EQT Infrastructure

Daseke, Inc.

Benefitfocus, Inc.

OnDeck Capital

Lee Enterprises

Nominating and Corporate Governance Committee of the Board of Directors of Taubman Centers, Inc.

Kleinberg, Kaplan, Wolff & Cohen, P.C.

Kleinberg, Kaplan, Wolff & Cohen, P.C. is noted for its long history of undertaking work in the funds industry and it has an excellent investor activism practice that advises all kinds of activists on shareholder engagements and proxy fights. Clients range from new activists to active, well-established players. Practice head Christopher Davis, who is based in New York, acts for both investors and boards of directors and has a strong track record of advising on activism-related matters. In 2021, he acted as lead counsel on a large number of high-profile activist matters, including representation of RC Ventures and The Sonic Fund II, L.P.

Practice head(s):

Christopher Davis

Key clients

Nierenberg Investment Management Company, Inc.

RC Ventures LLC and Ryan Cohen

MG Capital Management Ltd. and affiliates

The Sonic Fund II, L.P.

Dryden Capital Fund, LP

Whitefort Capital Master Fund

Mittleman Brothers, LLC

Percy Rockdale LLC

Kurt King

Keith Murphy

Jeff Gramm and Bandera Partners LLC

Madison Avenue Partners, LP

Work highlights

  • Advised RC Ventures LLC on its constructive engagement with GameStop Corp..
  • Represented Nierenberg Investment Management Company, Inc. with respect to its constructivist engagement with Houston, Wire & Cable Company..
  • Represented The Sonic Fund II, L.P. in its proxy contest to refresh the Board of Directors of Adverum Biotechnologies, Inc..

Latham & Watkins LLP

Latham & Watkins LLP's ‘incredibly talented and dedicated’ team has a strong track record advising public company boards and management teams on takeover planning and defence. The firm advises clients on prevention strategies against activist campaigns and vulnerability analysis, as well as the execution of their defense plans.  Former M&A group chair Mark Gerstein leads the activism task force out of the Chicago office and has achieved notable success in defeating active proxy solicitations and negotiating workable settlement arrangements. In Chicago, Chris Drewry's public company clients range in scope from Fortune 100 corporates to small-cap companies. Josh Dubofsky's recent work included defending QEP Resources against Glazer Capital's attack on the client's acquisition of Diamondback. He splits his time between New York and Silicon Valley.

Practice head(s):

Mark Gerstein; Josh Dubofsky; Chris Drewry

Testimonials

‘Incredibly talented and dedicated. Highly responsive. Strategic and creative. They worked very well with other advisors on the team (banks, PR/Comms, solicitor, etc.).’

‘Mark Gerstein was top-notch. Chris Drewry was incredibly helpful too.’

‘The team is both technically proficient and pragmatic. Latham displayed an ability to anticipate the tactics of the activists. The team is strong in the boardroom.’

‘Mark Gerstein is exceptional. He is particularly strong in the boardroom. He solves problems at the big picture level yet can also go deep, when needed. Mark was an excellent selection and we would strongly recommend him. Christopher Drewry is a master legal technician.’

Key clients

Switch, Inc.

OSI Systems, Inc.

Spok Holdings

Oatly Group

New Relic Inc.

QEP Resources, Inc.

FirstEnergy Corp

HollySys Automation Technologies

Iteris, Inc.

Kohl’s

Nevro Corp

AECOM

The Greenbrier Cos

Avery Dennison

Work highlights

  • Represented Switch Inc. in engagement by Elliott Management to gain board representation.
  • Represented New Relic in engagement by Engaged Capital to gain board representation and enhance corporate governance.

Olshan Frome Wolosky LLP

The 'thoughtful, creative, and extremely responsive' activist and equity investment team at Olshan Frome Wolosky LLP acts for the most prolific activist shareholders in the US. Kenneth Mantel  is noted for his involvement in activist campaigns on behalf of Elliott Management (of which the firm has been involved in ten to date). Building upon its history of success in proxy contests, and following on from its representation of Starboard Value in a significant proxy contest in 2020, the team represented Starboard in connection with its key proxy contest at Box, Inc in 2021.  Steve Wolosky is known as a pioneer in shareholder activism and is praised as 'one of the most knowledgeable, accessible, and helpful lawyers in the activist space'. He co-heads the team with Andrew Freedman, who has become the firm’s go-to advisor for newly launched activist investor firms. Elizabeth Gonzalez-Sussman is one of few women acting for hedge funds and other large investors in shareholder activist situations. Ryan Nebel advised a number of high-profile activists in 2021, including GameStop. All named practitioners are based in New York.

Practice head(s):

Andrew Freedman; Steve Wolosky

Other key lawyers:

Meagan Reda; Sebastian Alsheimer; Ryan Nebel; Kenneth Mantel; Elizabeth Gonzalez-Sussman

Testimonials

‘The Olshan team brings both deep and broad experience in the activist space. They are thoughtful, creative, and extremely responsive.’

‘Steve Wolosky is one of the most knowledgeable, accessible, and helpful lawyers in the activist space. Ryan Nebel is also an extremely valuable resource. He is available when you need him, extremely resourceful, and no question or job is beneath him. He is a great partner in everything we do.’

‘Very experienced, practical and commercial in their approach to complex issues. They put themselves in the client’s shoes and try to provide the best advice under the circumstances. They are state of the art in this legal area and always looking to learn and look for innovative and creative solutions.’

‘They get to the heart of the matter and try to understand the whole picture (business and legal).’

Key clients

Ancora Advisors, LLC

Barington Capital Group, L.P.

Browning West LP

Elliott Associates, L.P.

Engaged Capital LLC

Engine Capital LP

GAMCO Asset Management Inc.

Land & Buildings Investment Management, LLC

Legion Partners Asset Management, LLC

Lion Point Capital, LP

Marathon Partners Equity Management, LLC

MG Capital Management, Ltd

Outerbridge Capital Management, LLC

RC Ventures, LLC (Ryan Cohen)

Sherborne Investors Management LP

Starboard Value LP

Stilwell Value LLC

The Donerail Group LP

Third Point Management

Velan Capital, L.P.

Work highlights

  • Represented a group of clients consisting of Ancora, Macellum, Legion, and 4010 Capital in connection with its successful nomination of nine director candidates to the board, proxy campaign, and successful settlement for three board seats at Kohl’s.
  • Advised Elliott with its successful nomination of six director candidates to the board and its settlement agreement with Public Storage in which two new directors were appointed to the board and appointed them to a newly created committee.
  • Advised Starboard in all activist and governance related matters for its campaign at Corteva and Starboard’s ultimate agreement to add three new directors to Corteva’s Board.

Paul, Weiss, Rifkind, Wharton & Garrison LLP

Paul, Weiss, Rifkind, Wharton & Garrison LLP is a strong choice for advice on avoiding or mitigating the impact of activist campaigns. Its team acts for clients in a number of scenarios, including those where the investor’s goal concerns management or board changes, stock buybacks or a shift in strategy. The chairman of the corporate department in New York is Scott Barshay, who ‘uses his team well‘ to handle high volumes of work from prominent, well-known companies undertaking significant campaigns. In addition to Barshay, Robert Schumer is another name to note.

Practice head(s):

Scott Barshay

Other key lawyers:

Robert Schumer; Jeffrey Marell; Steven Williams

Testimonials

‘In my opinion, Scott Barshay is the best activist defense lawyer in the USA.’

‘There is tremendous experience in the team. They don’t give cookie-cutter advice. They are willing to be aggressive versus activists and are not afraid to fight.’

‘They have good business judgement. Barshay uses his team well.’

Key clients

ADP

Emerson Electric

Barnes & Noble

Honeywell

Chico’s FAS

Intel

Commvault

Red Robin Gourmet Burgers

Destination XL

Qualcomm

Ropes & Gray LLP

Ropes & Gray LLP is able to leverage strengths across a number of disciplines to handle a broad spectrum of work for international brands, such as Dunkin’ Brands and Planet Fitness; it draws upon the expertise of practitioners operating in areas such as M&A, litigation, capital markets and corporate governance. Led by Jeffrey Katz in Boston, the team advises on shareholder communications and activist engagement, as well as proxy contests and ESG benchmarking, compliance and reporting. Also notable is that the group is experienced in acting for investors on their engagement with management.

Practice head(s):

Jeffrey Katz

Key clients

Acceleron Pharma

Overseas Shipholding Group

Ironwood Pharmaceuticals

Eversource Energy

Dunkin’ Brands

Planet Fitness

HG Vora Capital

Nuveen Closed End Funds Board (and Demand Review Committee)

Domino’s Pizza

Sarepta Therapeutics

AMG Funds

Work highlights

  • Acted for Acceleron on its $11.5 billion sale to Merck, including with respect to its engagement with activist investors Darwin Global Management, Holocene Advisors and Avoro Capital.
  • Represented the Nuveen Demand Review Committee in its response to demand letters sent to five Nuveen funds by Saba Capital, and represented Nuveen’s full closed-end fund board in SDNY litigation filed by Saba Capital.
  • Represented AMG Funds in connection with a dispute involving its former subadvisor, Friess Associates, regarding subadvisor changes to two funds representing more than $1 billion of assets.

Schulte Roth & Zabel LLP

According to a client, Schulte Roth & Zabel LLP‘s team in New York is ‘the best legal team for shareholder activism in terms of providing corporate advice, along with the tax, fund formation, litigation and regulatory counsel that an investor would require.’ The firm advises on campaign strategies, corporate governance proxy rules, antitrust, securities, spin-offs and co-investments. In 2021, it was notably active representing large hedge funds in contentious proxy fights. Names to note include Michael Swartz, who is ‘one of the best litigators in the activist area.’ Leading the department are Marc Weingarten and ‘practical and pragmatic‘ attorney Eleazer Klein.

Practice head(s):

Eleazer Klein; Marc Weingarten

Other key lawyers:

Michael Swartz

Testimonials

‘Ele Klein is practical and pragmatic as a lawyer. He is also exceptionally smart and personable. Michael Swartz is one of the best litigators in the activist area.’

‘I believe that Schulte has the best legal team for shareholder activism in terms of providing corporate advice, along with the tax, fund formation, litigation and regulatory counsel that an investor would require.’

Key clients

Jana Partners

Cerberus Capital Management

Elliott Management

Eminence Capital

Engine No. 1

HG Vora

JANA Partners

Saba Capital Management

TCI Fund Management Ltd

Trian

Skadden, Arps, Slate, Meagher & Flom LLP

Skadden, Arps, Slate, Meagher & Flom LLP’s New York-based takeover defense practice regularly works on unsolicited takeover proposals. A notable highlight saw the firm advise CoreLogic on an unsolicited takeover proposal from two of its shareholders. Also notable is that it has an excellent reputation in the proxy fight space; in 2021, a highlight involved acting for Adverum Biotechnologies on a proxy fight with The Sonic Fund. Stephen Arcano leads the team, supported by proxy contest expert Richard Grossman.

Practice head(s):

Stephen Arcano

Other key lawyers:

Richard Grossman

Vinson & Elkins LLP

The team at Vinson & Elkins LLP is 'innovative in its thinking and seemingly available to its clients 24/7'. It defends boards of public companies against an increasing wave of activism. The work, which is often high-profile, includes proxy contests, vote no campaigns, hostile takeover attempts, merger contests, short attacks, and other activist challenges. The New York-based group is headed up by Lawrence Elbaum and Patrick Gadson. Elbaum has a 'pristine track record of success', due to his experience as a trial lawyer, as well as acting as a business advisor to counsel. Also unique is the group’s approach to D&O liability insurance as a funding mechanism in corporate defense, helping clients recover millions of dollars in fees annually.

Practice head(s):

Lawrence Elbaum; Patrick Gadson

Testimonials

‘The partners and associates are amazing, talented, and reliable. They have an unbelievable work ethic and give outstanding legal advice.’

‘Integrity, dedication, commitment. Outstanding in every respect.’

‘The V&E team, led by Lawrence and Patrick, is a top tier activism defense team. They are innovative in their thinking and seemingly available to their clients 24/7.’

‘Lawrence is incredibly smart and thinks outside the box. He is a great partner and very easy to partner with.’

‘Lawrence Elbaum’s calm, analytical demeanor coupled with astute business acumen makes him my preferred business confidant.’

‘Lawrence’s business judgment and deal-making prowess allows him to balance legal requirements with commercial objectives. With Lawrence, there is no start or stop time, he is constantly accessible. He humbly refers less familiar issues.’

‘I enthusiastically endorse Lawrence Elbaum for his pristine track record of success, ethical leadership, and tireless efforts to solve client problems.’

Key clients

comScore, Inc.

Adamis

Barrett Business Services, Inc.

First United Corporation

Watford

Tetra Technologies, Inc.

Noble Energy

eHealth

AGCO Corporation

Green Plains Inc.

MiMedx Group, Inc.

GameStop Corporation

Turtle Beach Corporation

Velodyne Lidar

Avery Dennison

Trecora Resources, Inc.

Codorus Valley Bancorp

1847 Goedeker

Community Bankers Trust

Evolent Health

Work highlights

  • Represented the board of Gamestop in the defense of a widely publicized short attack by a number of well-known short activist funds.
  • Represented the Board of eHealth, Inc. in the defense of the proxy fight by Starboard Value and the shareholder activism campaign by Hudson Executive.
  • Represented the Board of Directors of Velodyne Lidar in the defense of a proxy fight involving David and Marta Hall.

Willkie Farr & Gallagher LLP

Based in New York, the group at Willkie Farr & Gallagher LLP has experience of acting for activist shareholders, as well as boards of directors and special committees of large public companies; this makes it particularly well-placed to advise clients on activist campaigns and proxy contests. The group is led by Russell Leaf, litigation department chair Tariq Mundiya, and Robert B. Stebbins, former general counsel for the SEC, who rejoined the firm in 2021. Jared Fertman is also a key individual.

Practice head(s):

Robert B. Stebbins; Russell Leaf; Tariq Mundiya

Other key lawyers:

Jared Fertman

Key clients

Sarissa Capital Management

Third Point LLC

Innoviva

Xerox Holdings Corporation

Dong-A ST Co., Ltd.

New Mountain Vantage

Icahn Associates

Elliott Management