Episode Details

0:00 -- Intro. *reference to our episodes reviewing Succession Season 1: E98 of this podcast (May 22, 2023) and Season 2: E102 (June 26, 2023).

2:00 -- Start of interview. 

3:50 -- About Sean Berkowitz and the Enron Case: prosecuting Ken Lay and Jeff Skilling (2006).

7:05 -- On whistleblowers and avoiding retaliation. "Whistleblowers are one of the trickiest things you can deal with as counsel representing a corporation."

11:05 --  Kendall's whistleblower scenario. Conducting internal investigations.

15:02 -- On government relations and political interference with federal investigations. "It essentially doesn't work." "The discretion and judgment of a line prosecutor is always going to rule the day."

17:22 -- Cooperating with Federal investigations. 

21:12 -- The role of the board of a public company under federal investigation.

22:52 -- On "shifting to legals", internal investigations by outside counsel, and creating a special committee of the board to remove conflicts of interest.

29:16 -- Explaining joint defense agreements. The Archer-Daniels-Midland case (reference to movie The Informant).

33:34 -- On the link between good governance and how shareholders value the company, including activists (Josh Aronson scene) and the proxy battle.

43:36 -- On sexual harassment complaints (situation between Roman and Gerri involving explicit pictures). The factor of CEO succession and how the board should conduct their selection.

50:30 -- On potential GoJo red flags and need for due diligence, including leadership assessment and kicking the tires on their numbers. What could/should board be doing in this situation?

55:33 -- Dealing with moguls and founders like Lukas Matsson. "I think that one of the elements at the heart of corporate governance is personal integrity and character... and Matsson is not a good guy."

59:49 -- Family governance within public companies. "Ultimately it all comes down to the documents: who can vote what, who has control, who has the ability in a tie break, etc." The problem with "rubber stamping boards." Question: "would any of us invest in a company run by Kendall or Roman?"

01:06:11 -- Kendall's Unreliable Testimony to the DOJ ("Queen for a day" opportunity) and Preparation Failure.

Kate O'Leary is the Global Executive Litigation Counsel at General Electric Company.

Sean Berkowitz is a Partner at Latham & Watkins and the Global Chair of the Complex Commercial Litigation Practice. He represents clients in complex litigation and regulatory investigations.

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