Corporate Governance

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Kutak Rock provides governance counsel to boards of directors, senior management, general counsel and other fiduciaries who manage the business affairs, finances and legal rights and obligations of shareholders and other stakeholders. The radically new and complex environment of governance as a result of corporate scandals, executive breakdowns and worldwide economic turmoil has resulted in unprecedented scrutiny and significant risk for those who carry out governance responsibilities. Today, governance leaders are not just responsible for overseeing and managing the actual operations of their enterprises but they also must demonstrate adherence to rules and expectations which pertain to the proper process of governance.

A multitude of governmental and private entities, including the Department of Justice, Securities and Exchange Commission, Federal Deposit Insurance Corporation and banking regulatory agencies of the United States Treasury Department, Internal Revenue Service, Health and Human Services, State Attorneys Generals, bond rating agencies, private litigants, community groups and the media, are now heavily scrutinizing governing boards and their members. From this scrutiny, best practices have emerged from specific statutes such as the Sarbanes-Oxley Act of 2002, regulations of administrative agencies including the Securities and Exchange Commission and the Internal Revenue Service, case law and other developments, and we train our clients in those best practices.

The overriding strategy behind Kutak Rock’s governance representation is to assist our clients with the identification of their key fiduciary responsibilities and then help them organize their efforts to meet those responsibilities in compliance with all applicable law and best practices. A significant benefit of this strategy is that we are able to assist governance leaders in establishing an evidentiary trail so they can effectively demonstrate compliance with their fiduciary responsibilities in the event of future investigations or trials.

Our attorneys cooperate with other client advisers as necessary to tailor a program which is appropriate to the specific governance issues facing that client. We emphasize ways in which clients can be proactive in establishing preventative measures to eliminate or minimize risk down the line in advance of any subsequent challenge to their actions. We also assist corporate general counsel when appropriate to conduct independent internal investigations and governance practices reviews.

Kutak Rock attorneys provide counsel to publicly traded companies, private companies, nonprofit organizations and governmental and quasi-governmental entities on a variety of governance practice reviews and governance enhancement activities, such as:

  • Establishing compliance plans
  • Reviewing, assessing and updating corporate governance policies and procedures
  • Developing board charters, committee charters, conflict of interest policies, codes of conduct, director training and education and document retention policies
  • Representing independent directors and audit, litigation and special investigative committees
  • Advising on corporate officer doctrine issues
  • Designing executive compensation and benefit plans
  • Counseling on ERISA fiduciary duties
  • Assisting with enterprise risk management and asset protection
  • Advising on disclosure requirements of the SEC, Sarbanes-Oxley and relevant stock exchanges
  • Protecting the tax-exempt status of large charitable enterprises and avoiding the imposition of intermediate sanctions by the Internal Revenue Service
  • Assisting with whistleblower actions, including False Claims Act controversies
  • Conducting due diligence reviews
  • Training employees on ethics and compliance issues
  • Building relationships with auditors
  • Crafting CEO and senior management employment agreements

Kutak Rock’s governance practice also includes advising clients on the sufficiency and enforceability of available measures which can protect board members and other governance leaders who act in good faith in the discharge of their fiduciary duties. This includes assistance with directors' and officers' liability insurance policies, indemnification provisions in organizational documents, indemnification agreements between individuals and the organization itself, and compliance with statutory, regulatory and best practices standards which can diminish personal liability.