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  • 1.

    What are the primary sources of laws and regulations relating to shareholder activism and engagement? Who makes and enforces them?

  • 2.

    How frequent are activist campaigns in your jurisdiction and what are the chances of success?

  • 3.

    How is shareholder activism generally viewed in your jurisdiction by the legislature, regulators, institutional and retail shareholders and the general public? Are some industries more or less prone to shareholder activism? Why?

  • 4.

    What are the typical characteristics of shareholder activists in your jurisdiction?

  • 5.

    What are the main operational governance and sociopolitical areas that shareholder activism focuses on? Do any factors tend to attract shareholder activist attention?

  • 6.

    What common strategies do activist shareholders use to pursue their objectives?

  • 7.

    What are the general processes and guidelines for shareholders’ proposals?

  • 8.

    May shareholders nominate directors for election to the board and use the company’s proxy or shareholder circular infrastructure, at the company’s expense, to do so?

  • 9.

    May shareholders call a special shareholders’ meeting? What are the requirements? May shareholders act by written consent in lieu of a meeting?

  • 10.

    What are the main types of litigation shareholders in your jurisdiction may initiate against corporations and directors? May shareholders bring derivative actions on behalf of the corporation or class actions on behalf of all shareholders? Are there methods of obtaining access to company information?

  • 11.

    Do shareholder activists owe fiduciary duties to the company?

  • 12.

    May directors accept compensation from shareholders who appoint them?

  • 13.

    Are shareholders acting in concert subject to any mandatory bid requirements in your jurisdiction? When are shareholders deemed to be acting in concert?

  • 14.

    Must shareholders disclose significant shareholdings? If so, when? Must such disclosure include the shareholder’s intentions?

  • 15.

    Do the disclosure requirements apply to derivative instruments, acting in concert or short positions?

  • 16.

    Do insider trading rules apply to activist activity?

  • 17.

    What are the fiduciary duties of directors in the context of an activist proposal? Is there a different standard for considering an activist proposal compared to other board decisions?

  • 18.

    What advice do you give companies to prepare for shareholder activism? Is shareholder activism and engagement a matter of heightened concern in the boardroom?

  • 19.

    What defences are available to companies to avoid being the target of shareholder activism or respond to shareholder activism?

  • 20.

    Do companies receive daily or periodic reports of proxy votes during the voting period?

  • 21.

    Is it common for companies in your jurisdiction to enter into a private settlement with activists? If so, what types of arrangements are typically agreed?

  • 22.

    Is it common to have organised shareholder engagement efforts as a matter of course? What do outreach efforts typically entail?

  • 23.

    Are directors commonly involved in shareholder engagement efforts?

  • 24.

    Must companies disclose shareholder engagement efforts or how shareholders may communicate directly with the board? Must companies avoid selective or unequal disclosure? When companies disclose shareholder engagement efforts, what form does the disclosure take?

  • 25.

    What are the primary rules relating to communications to obtain support from other shareholders? How do companies solicit votes from shareholders? Are there systems enabling the company to identify or facilitating direct communication with its shareholders?

  • 26.

    Must companies, generally or at a shareholder’s request, provide a list of registered shareholders or a list of beneficial ownership, or submit to their shareholders information prepared by a requesting shareholder? How may this request be resisted?

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Gleiss Lutz is one of Germany’s leading full service law firms. We have over 300 lawyers, including 88 partners with offices in Berlin, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and Brussels.

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