Welcome to the Boardroom Governance Podcast. I’m your host, Evan Epstein. After popular demand, we cover Succession's third season, from a corporate governance perspective. We invited Sean Berkowitz, a partner at Latham & Watkins and former director of the special task force that investigated the Enron corporate scandal, and lead prosecutor in the criminal case against Ken Lay and Jeff Skilling. Kate O’Leary, the Global Executive Litigation Counsel at GE, comments from the perspective of an experienced in-house lawyer who deals with governance challenges in the real world. We covered the first season of Succession on E98 of this podcast (in May) and the second season on E102 (in June). If you have not heard those episodes, please feel free to check them out. If you like this show, please consider subscribing, leaving a review or sharing this podcast on social media. You can also now contribute as a Patron on the link patreon.com/BoardroomGovernancePod and subscribe to the Boardroom Governance Newsletter at evanepstein.substack.com
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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Music/Soundtrack (found via Free Music Archive): Seeing The Future by Dexter Britain is licensed under a Attribution-Noncommercial-Share Alike 3.0 United States License