Client Services / Securities / Public Companies

Public Companies

McDermott Will & Emery’s Public Companies Group efficiently provides public companies a broad array of significant, high-quality services.  Attorneys in various disciplines collaborate seamlessly to counsel public companies with regard to:

  • securities law compliance and offerings,
  • corporate responsibility and governance,
  • executive compensation and other employee benefits,
  • Sarbanes-Oxley requirements,
  • stock exchange listing standards, and
  • investor relations. 

We are primary outside counsel to public companies in many different industries, and we help them meet their business objectives while satisfying their obligations and commitments to regulators, security holders, employees, ratings agencies, the media and the public.  In addition to clients for whom we are primary outside counsel, we advise many other public companies on discrete compliance, finance, disclosure, policy, governance and other matters. 

Our Public Companies Group also frequently works with the Firm’s other departments and practice groups that regularly provide legal services to public companies and their directors and executives, such as our Employee Benefits, Private Client (i.e., estate planning), Tax and Trial departments and our corporate lawyers focused primarily on merger and other acquisition and disposition transactions. 

Our Public Companies Group represents public companies of all sizes, including a number of Fortune 100 and Fortune 500 companies.  We also advise SEC-reporting companies based outside the United States (including those referred to by the SEC as “foreign private issuers”) and other non-U.S. public companies.  

As a leading international law firm with a diversified business practice, we take pride in our outstanding client service, our broad expertise, our innovative and practical solutions to problems big and small, our ability to bring first-rate legal services to our clients no matter where they are located, and our access to the expertise of more than 1,100 McDermott Will & Emery lawyers in 15 offices around the world. 

Securities Law Compliance and Offerings
Our securities compliance attorneys assist clients in meeting their compliance obligations under federal and state law, as well as the rules of the various stock exchanges, the National Association of Securities Dealers, and other self-regulatory organizations.  Among the securities compliance services we provide are the following:

  • SEC periodic (e.g., Forms 10-K, 20-F, 40-F and 10-Q) and current (Forms 8-K and 6-K) reporting,
  • Proxy statement disclosure, proxy contests and shareholder proposals,
  • Informal corporate disclosures, press releases, website postings, and communications with analysts and investors,
  • Regulation FD (Fair Disclosure),
  • Non-GAAP financial information (Regulation G),
  • Forward-looking information and statutory safe harbors,
  • Section 16 reporting, transaction review and negotiations with “strike” lawyers,
  • Resales of restricted securities, including under Rule 144,
  • Insider trading and pre-clearance policies,
  • Rule 10b5-1 trading plans,
  • Offerings of debt, equity, and hybrid securities,
  • Shelf registration,
  • Dividend reinvestment plans,
  • Employee stock purchase plans,
  • Benefit plan securities registration on Form S-8 and annual reporting on Form 11-K,
  • Securities law aspects of estate planning, including with regard to family limited partnerships and trusts, and grantor retained annuity trust (GRATS),
  • Exemptions from Investment Company Act and Investment Advisors Act for hedge funds and family offices,
  • Private placement offerings of debt and equity securities,
  • Private investments in public entities (PIPEs), and
  • Stock repurchase programs.

Regarding securities offerings, our capital markets practice has more than 100 lawyers who advise clients on the full range of securities matters, including complex public and private offerings of equity, high-yield, speculative and investment-grade debt, convertible and hybrid securities.  We have significant experience advising corporate issuers in numerous and diverse industries, and we represent issuers and underwriters in all types of offerings, under U.S. and non-U.S. law.

Corporate Responsibility and Governance
Director and officer responsibilities have grown substantially in recent years, as the U.S. Congress, the Securities Exchange Commission and other regulators have imposed new rules that carry much greater potential liability.  We are sensitive to this new environment and have extensive experience guiding our clients through these regulatory regimes. 

Our governance and responsibility services include a broad range of compliance advice, guidelines, suggested best practices, and analyses of policies and procedures.  We advise boards and individual directors and officers on their fiduciary duties and provide compliance check-ups to detect and prevent violations. Our clients rely on our guidance to establish effective methods of monitoring policy implementation and communicating up-to-date company policies to all employees - a key defense against liability. We are also experienced at conducting internal corporate investigations into various types of alleged or suspected misconduct.

We have assisted the Board of Directors of public company clients in conducting annual board of director evaluations as mandated by the stock exchanges or suggested by best practices.  McDermott attorneys provide the evaluation tools required for these evaluations, interview each of the Board’s directors, and report back to the Board’s corporate governance committee on the results of the evaluations, all on a confidential basis.  We also assist in CEO evaluations and Board education processes.

Several of our attorneys have worked at the upper levels of corporate management, including holding positions as senior executives and general counsel at major corporations.  Others have served as senior federal prosecutors for a variety of U.S. Attorneys' Offices and as senior staff members of the SEC.  Our Public Companies Group includes lawyers who serve or have served as chairs of American Bar Association sections, securities bar association committees, and litigation and enforcement sub-committees.

We provide our clients with a range of services, from compliance advice to inquiry and investigation responses to enforcement proceedings defense.  Should any regulator allege any wrongdoing by any client, we can provide a vigorous defense and draw upon our extensive resources to resolve the matter, including, for example, the Firm’s well regarded White Collar Criminal Defense Group, which consists of more than 30 highly experienced trial lawyers in offices throughout the United States and abroad. This group provides exceptional service and representation during government investigations and trials, corporate internal investigations, congressional hearings and in defending whistleblower lawsuits.  Collectively our white-collar lawyers have tried hundreds of cases in federal and state courts throughout the United States. Frequently, our most appreciated work on behalf of our clients goes unnoticed by the public. By proactively addressing concerns raised by prosecutors and regulators, we routinely persuade the government not to proceed with costly and reputationally damaging criminal charges or a public lawsuit.

Our securities and white-collar defense lawyers represent various types of clients, including public companies and their officers and directors, broker-dealers, issuers and investment advisers, in numerous matters arising out of alleged lapses of corporate responsibilities, including formal and informal civil and criminal investigations and administrative proceedings. We have extensive experience with allegations of improper earnings management and revenue recognition, false financial statements, insider trading, fraud and disclosure failures.  We also have significant experience advising clients with respect to matters involving the Foreign Corrupt Practices Act.

We are knowledgeable about the SEC's rules, practices and customs, and regularly in contact with its Division of Enforcement, Division of Corporation Finance and Office of General Counsel. Our lawyers have had substantial success in deterring enforcement proceedings through the "Wells Submission" process, a process in which we have persuaded the SEC either not to take any action against our clients or to reduce the nature and scope of the charges, including the elimination of fraud-based charges.  We also represent companies and their officers and directors in class and derivative actions.  We offer broad experience in mediating and arbitrating private disputes and were among the first law firm members of the CPR Institute for Dispute Resolution.

Executive Compensation and Other Employee Benefits
McDermott Will & Emery provides sophisticated advice on all aspects of executive compensation.  We regularly represent clients before the Internal Revenue Service on executive compensation matters and advise on SEC disclosure regarding management compensation.  Services provided to clients include planning and preparing for change in control protection, director pay, executive employment and severance agreements, equity-based compensation, executive fringe benefits, incentive compensation, multinational compensation, nonqualified deferred compensation, rabbi trusts and other funding vehicles, and securities law disclosure of executive compensation arrangements. 

We also advise clients on fiduciary duties under corporate law and ERISA, including obligations with respect to employer stock, pension funding, delegation of fiduciary responsibility, bankruptcy-related matters and corporate opportunity issues.

We are experienced at identifying and helping to resolve financial accounting and tax issues including compliance with the $1 million tax limitation on deductibility set forth in Section 162(m) of the Internal Revenue Code and issues arising from the implementation of stock option expensing under FAS 123R.

Representative services we provide clients include the following:

  • Conducting privileged compliance reviews to assess “audit readiness” in light of the recent IRS Executive Compensation Audit Initiative,
  • Advising on plan design to comply with recent nonqualified deferred compensation plan legislation,
  • Representing compensation committees on executive pay proposals, proxy statement reports, Form 8-K disclosure and Sarbanes-Oxley compliance,
  • Designing long-term incentive programs in light of new exchange listing requirements, institutional shareholder guidelines and stock option accounting rules,
  • Representing clients before the IRS regarding audits and ruling requests on all aspects of executive compensation,
  • Designing compensation funding structures for executives of multinational companies both inside and outside the United States,
  • Evaluating the alternatives available to reduce costs for change in control payments following adoption of the golden parachute final regulations, and
  • Addressing tax, proxy statement disclosure, tax reporting, FAA and contract issues raised by executive corporate aircraft programs.

Sarbanes-Oxley and Stock Exchange Listing Standards Compliance
We routinely advise our clients on matters related to compliance with Sarbanes-Oxley, the most significant corporate governance and disclosure legislation in many years, as well as compliance with stock market listing standards.  We recognize that Sarbanes-Oxley affects different companies in different ways.  Consequently, we do not take a cookie-cutter approach; instead we focus on how Sarbanes-Oxley affects each client in its particular situation and tailor our legal guidance accordingly.

Examples of matters on which we advise clients on in this area include:

  • Internal control over financial reporting and disclosure controls and procedures,
  • Independent director requirements,
  • Audit committee member independence and qualification,
  • Outside auditor independence and regulation,
  • CEO/CFO certifications of annual and quarterly reports,
  • Codes of ethics and corporate governance guidelines,
  • Attorney conduct rules,
  • Prohibition on loans to executive officers and directors,
  • Compensation and nominating/corporate governance committee composition and charters,
  • Executive sessions of outside directors and shareholder communications with directors, and
  • Shareholder approval of equity plans.

Investor Relations
We advise companies and boards of directors on a range of matters related to managing relationships with their investors. 

In this area, we provide advice with regard to:

  • Proxy advisors and governance raters,
  • Shareholder proposals,
  • Institutional investor sentiment and voting guidelines,
  • The role of investor relations staff,
  • Board independence and operation, and
  • Shareholders communications with the board.

Foreign Private Issuers and other non-U.S. Public Companies
McDermott Will & Emery represents a significant number foreign private issuers with shares or American Depositary Receipts (ADRs) listed on U.S. securities exchanges with respect to their obligations under U.S. securities laws.  We assist these companies in both public offering and private placement (including PIPE) financing transactions, cross-border tender offer transactions, international debt tender and exchange transactions, preparation of annual and periodic reports, stock exchange compliance issues and corporate governance matters, as well as public and private merger and acquisition transactions.

In addition, our European offices represent a number of public companies in Belgium, the United Kingdom, Germany, Italy and other EU jurisdictions with regard to a full gamut of corporate, securities and other matters, including cross-border securities offerings and merger and acquisition transactions and compliance with increased scrutiny of corporate governance and responsibility similar to that currently prevailing in the United States.

Contacts

Securities Client Services

McDermott Will & Emery

McDermott Will and Emery