Boards make decisions every quarter that someone may later second-guess: a financing on tough terms, a related-party contract, a response to a security breach, a decision to stay quiet about a deal still in negotiation. Good governance is mostly about process, a record showing directors were informed, independent where it counted, and acting in good faith. For public companies, that process feeds a disclosure system that never stops, from annual and quarterly reports to current reports due within days of a triggering event. We help companies get both halves right and defend them when shareholders or regulators disagree.
Board Duties And Business Judgment
Directors owe duties of care and loyalty, and under Delaware law, which governs most venture-backed and public companies, the business judgment rule protects informed, disinterested decisions from second-guessing. That protection falls away when a majority of the board is conflicted, when a controlling stockholder stands on both sides, or when directors fail to oversee mission-critical risks under the Caremark line of cases. Delaware's 2025 amendments to Section 144 of the General Corporation Law added statutory safe harbors for conflicted and controller transactions approved by independent directors or disinterested stockholders. We advise boards on when those procedures are worth using, how to staff special committees, and how to build minutes and materials that show the work.
Committees, Policies, And Records
Listed companies need an independent audit committee meeting Exchange Act Rule 10A-3, a compensation committee under the listing standards adopted after Rule 10C-1, and in most cases a nominating and governance committee, each with a charter that matches what the committee actually does. Around them sit the policies regulators and investors expect to see: an insider trading policy disclosed under Item 408(b) of Regulation S-K and filed with the 10-K, a clawback policy under Rule 10D-1, a code of ethics, and disclosure controls. Private companies have lighter rules but face similar discipline from investor rights agreements, protective provisions, and investor board seats. We draft and update charters, policies, and consents so they hold up when tested.
Periodic And Current Reporting
Reporting companies file an annual report on Form 10-K, quarterly reports on Form 10-Q, and current reports on Form 8-K, most of which are due within four business days of the triggering event. Executives certify the reports under Sarbanes-Oxley Sections 302 and 906, and Rule 10b-5 reaches any material misstatement or misleading omission. Regulation FD bars selective disclosure of material nonpublic information to analysts and investors, so earnings calls, investor meetings, and executive social media posts need a process behind them. We review filings and earnings materials, advise on whether an event triggers an 8-K or a duty to update, and prepare executives for the conversations that most often create FD problems.
Cybersecurity Incident Disclosure
Since December 2023, Item 1.05 of Form 8-K has required a public company to disclose a material cybersecurity incident within four business days after it determines the incident is material, and that determination must be made without unreasonable delay. Item 106 of Regulation S-K requires annual disclosure of cybersecurity risk management and board oversight in the 10-K. The legal question of materiality and the technical question of what happened move on the same clock, which is where our engineering background matters. We work with incident response teams and forensic firms to frame the materiality analysis, draft disclosures that are accurate without handing attackers a roadmap, and align the SEC filing with state breach notifications and customer contracts.
When Governance Becomes A Dispute
Governance decisions get tested in books-and-records demands under Section 220, fiduciary duty suits in the Court of Chancery, derivative claims, securities class actions after a stock drop, and SEC inquiries into disclosure. The record made at the time decides most of these cases. When a dispute starts, we work with our litigation practice to evaluate the record, respond to demands, preserve documents, and advise the board on special litigation committees and settlement. Mistakes we see before that point: minutes that recite conclusions without the information considered, disclosure committees that meet only on paper, trading windows left open during undisclosed negotiations, and 10b5-1 plans adopted or changed without honoring the cooling-off periods the SEC added in 2022.
