Impact of COVID-19 on Shareholder Activism and Unsolicited Offers: Considerations for U.S. Public Companies

Sullivan & Cromwell LLP - March 26, 2020

While public company boards and management are understandably focused on the unprecedented crisis affecting their employees, customers and communities, after these critical issues have been addressed, boards and management are likely to face a number of follow-on consequences of this crisis.  COVID-19 has caused significant volatility in the equity markets, with companies across different industries experiencing declines – some precipitous – in share prices as well as significant changes in share ownership.  Developments at many companies will likely attract the attention of shareholder activists.  These potential targets include both companies that already have significant activist representation in their stocks, and those facing new vulnerabilities.  In addition, the depressed equity values of these companies may also make them more vulnerable to unsolicited takeover offers.  Among the challenges, we expect that boards and management may be called upon to:

  • address short selling and vulnerability to unsolicited takeover bids;
  • prepare for proxy strategies, special meeting demands and written consent campaigns;
  • prepare for responses to activist demands;
  • engage with institutional shareholders (and potentially regulators and other stakeholders) amidst the crisis; and
  • respond to the changing legal and regulatory environment.