Shareholder activism and engagement
June 2022 | ROUNDTABLE | BOARDROOM INTELLIGENCE
Financier Worldwide Magazine
June 2022 Issue
While the first year of coronavirus (COVID-19) saw a significant downturn in shareholder activism, activity in this space has rebounded over the past 12 months. Once again, activist shareholders are conducting public campaigns to pressurise boards to achieve their objectives in order to influence the company’s strategic approach. And with the continuing effects of the pandemic and the war in Ukraine causing major supply chain disruptions, the way is being paved for bigger and bolder shareholder activism.
FW: What do you consider to be the most significant developments in shareholder activism over the past 12 months or so?
Ulmer: The most significant development in shareholder activism over the last 12 months is that shareholder activism is back. In the first year of the pandemic, we saw no significant activity. Some activist shareholders even openly declared that they would not run campaigns and would let management teams focus on weathering the storm. Now that some degree of normality has returned, activist shareholders are back on the scene. The recent campaign regarding the takeover of Aareal Bank shows that when money can be made again, activist shareholders are back.
Mehrbrey: Much like the beginning of 2020, fewer public campaigns were launched during the first few months of 2021 because of the coronavirus (COVID-19) pandemic. However, shareholder activism increased throughout the year and reached similar levels as in pre-pandemic times. Among the significant developments that could be observed throughout the year was that the financial industry was a frequent target of activist campaigns. Also, changes to personnel in corporate decision-making bodies is a recurring demand of activist shareholders. As in past years, the environmental, social and governance (ESG) field remains a particularly interesting topic for activist shareholders.
Grossman: In the wake of Engine No. 1’s victory against Exxon, where Engine won three board seats, ESG activism is emerging as a popular tool for activists. In fact, we have already begun to see activists, both traditional and new, launch ‘double-sided’ campaigns this year, using an ESG thesis to appeal to institutional investors as a hook to garner support for their other proposals or nominees. For example, Carl Icahn is campaigning against McDonald’s and Kroger, seeking two board seats at each company, with the argument that the companies should improve their treatment of animals and workers. While this may not open the floodgates in terms of the number of campaigns we will see, it is likely to have a significant impact on the strategies activists employ in future campaigns. Companies must analyse their current position, begin or continue stockholder outreach to understand stockholders’ concerns, and regularly assess their activism preparedness profiles, including their current shareholder makeup, recent historical performance and progress on ESG initiatives and ratings.
Glover: After the pandemic struck, activists reacted to economic uncertainty and market volatility by becoming relatively quiet. But as market confidence grew, activism returned in full force. Both 2021 and the first quarter of 2022 saw the initiation of a significant number of campaigns. One of the most notable trends during this period has been the activists’ focus on M&A. They are pressuring companies to generate value by disposing of business units via spin offs and carve outs, or by engaging in change of control transactions. They are also entering the fray after a merger agreement has been signed, either to encourage a sweetened offer or to argue that the deal should be terminated. Another notable trend has been the increasing focus on environmental and other social investment issues. Engine No.1 surprised market observers when it succeeded in placing dissident directors on the Exxon board after arguing that Exxon should move more quickly to develop its renewables business. Other activists have also gotten traction with campaigns focused on environmental matters. In addition, activist funds continue to play the governance card, raising governance concerns as a secondary issue in a large percentage of their campaigns.
“Activists are becoming increasingly sophisticated and are likely to continue to blur the lines between activist campaigns and traditional M&A.”
FW: What are some of the common factors driving activist campaigns?
Mehrbrey: The main driver for activist shareholders, be it investment funds, hedge funds or private equity (PE) funds, is to make the company more profitable. Their goal is to get more return from their equity investments by changing the company’s strategy. There are different strategies for activist campaigns to achieve this goal. A distinction can be made between short-term and long-term investors. While short-term investors often try to yield higher dividend payments, long-term investors focus on strategic aims, such as divestment of certain business units, the expansion of business areas and the restructuring of group structures, among others. Non-financial aims focusing on environmental and social issues have become more relevant for shareholder activists.
Grossman: In line with previous years, M&A continues to be a major thesis for activist campaigns. M&A and activism are synergistic, and PE firms continue to sit on large amounts of dry powder. Increased activism often leads to an increase in M&A, as activists seek to capitalise on undervalued companies. In addition to M&A, scuttling or sweetening announced deals has also been a recurring theme in the past year, as evidenced by TCI Fund Management’s campaign against Canadian National Railway’s bid for Kansas City Southern and Jana Partners’ campaign against Zendesk’s acquisition of Momentive Global. We have also seen an uptick in breakup campaigns with Elliott and Duke Energy, Third Point and Shell and Carl Icahn and Southwest Gas, to name a few. Finally, we may continue to see activists target companies that lag behind their peers on ESG disclosures or even individual directors they feel are over-tenured, over-boarded or underqualified once the universal proxy rule goes into effect after 31 August 2022.
Glover: The typical target company has significant vulnerabilities that activists can exploit to generate value. These vulnerabilities might include operational issues or apparent flaws in strategic plans. Is the company underperforming relative to its peers? Could the company take steps to improve margins? Does it have business units that do not fit well with its core business and that could be sold in an M&A transaction? The activist can point to these issues and make a good case for value-generating changes. A second area of vulnerability relates to capital allocation. Does the company’s capital structure offer opportunities for recapitalisations or restructuring? Is the company under-levered? Does it have the resources to engage in stock repurchases or dividends that would put cash in shareholders’ pockets? If the answer to any of these questions is yes, the activist will be in a good position to lobby for adjustments to the capital allocation strategy. A third area of vulnerability relates to governance. Does the board include directors who have served well beyond the average tenure for directors at peer companies? Does the board lack certain expertise and skills that the company needs? Is the board generally perceived as being ineffective? If so, the activist may be able to make good arguments that the board should be refreshed. A fourth and newly emerging area of vulnerability that may draw activist attention relates to environmental and social issues. If an activist can argue that the company should be taking more meaningful steps to delay climate change or ensure sustainability, its campaign may gain traction with the growing number of socially focused investors.
Ulmer: Previously, the most common factor driving activist campaigns was creating direct economic advantages for the activist or at least creating value the activist shareholder could share in. In the case of short-seller campaigns, this is obvious. Also, activist shareholders making use of minority rights which allow for price arbitrage in the context of transactions strictly follow this path; here, other shareholders are also benefitting from the higher price paid for a target’s shares. Campaigns pushing for companies to run a better business have a more long-term perspective. The value of the company is increased over time by better management, resulting from better governance structures, for example. Some recent campaigns aim at changes within the company’s business that influence how the company is contributing to more general, external goals, like fighting climate change. Running a climate-friendly business does not necessarily increase the value of the company.
“In many cases, from an activist shareholder’s perspective, public campaigns have proven to be more efficient than exercising statutory minority rights.”
FW: Have any recent campaigns caught your eye? What insights can we draw from their outcome?
Grossman: Activists are starting to more frequently target regulated industries, such as utility companies and insurance companies, which have historically been left alone by activists, in part due to the heavily regulated nature of the industries. Activists are increasingly finding themselves attracted to the combination of stable cash flow and the minimal downside offered by such industries, as evidenced by Elliott’s campaigns against Principal and Duke Energy. Although many states have fairly low caps on ownership of regulated companies – 10 percent, for example – such caps do not appear to be an effective deterrent to activists seeking to target such companies. Indeed, many activists do not make initial investments in excess of these caps, rendering them largely ineffective outside the context of a hostile takeover.
Ulmer: Campaigns run by so-called ‘impact investors’ are increasingly different from what we have seen previously. Impact investors have a specific goal which is not directly related to the business of the respective company – fighting climate change. These activist shareholders aim to lead the company in a more climate-friendly direction. Often, they hold a relatively small stake in the company and use tools such as the media for leverage. Institutional investors that have committed to certain climate goals view joining such campaigns as an opportunity to realise such commitments. Recently, impact investors tried to force VW to make its lobbying efforts in the context of climate-related regulation public. Others intended to force RWE to accelerate its exit from coal mining, and put pressure on BMW’s board to take a more disruptive approach to new mobility concepts. It will be interesting to see whether the focus of impact campaigns will move into areas beyond climate change.
Glover: Engine No.1 Capital’s successful effort to win board seats at Exxon on the basis of a climate change-focused campaign was a surprise. Other environmentally focused campaigns are also notable. Third Point has been battling with Shell, seeking to persuade Shell’s board that it should separate the company’s renewables and refining businesses. Carl Icahn has begun to initiate campaigns focused on social issues. These efforts suggest that other similar campaigns will likely follow in the future. Icahn’s effort to scuttle Southwest Gas’ acquisition of Questar Pipeline serves as a good reminder that transaction planners should have an activism response plan whenever they announce an acquisition. And Toshiba’s decision to consider breaking up in response to persistent activist pressure demonstrates that even companies in markets that have historically been less receptive to activist campaigns must now be on alert if activists appear.
Mehrbrey: Although the influence of shareholder activist campaigns has increased, not every approach leads to success for the activists. This could be seen recently when the activities of an international hedge fund did not bring about the intended comprehensive management changes to a German financial institution. Although some members of the banks’ supervisory board were removed because of the activities, no majority could be achieved regarding the activist’s own candidates. Moreover, a German company in the energy sector has been confronted with a shareholder pressuring the company to leave its traditional business behind and to focus on renewable energies. Although the shareholder only holds a small amount of shares, his proposal was made subject to a vote at the annual general meeting (AGM). These examples show that recent activist shareholder campaigns in Germany have become increasingly assertive. Public campaigns aimed at highlighting mismanagement are still prevalent. In many cases, from an activist shareholder’s perspective, public campaigns have proven to be more efficient than exercising statutory minority rights. Given the lack of opportunities to spontaneously challenge management during virtual AGMs, as well as legislation making it harder for shareholders to ask follow-up questions and challenge shareholder resolutions, these means of promoting change have become more important. Thus, it has become essential for companies to develop and implement a sophisticated public relations strategy. In many recent cases, activist shareholders succeeded in achieving their goals, either by bringing about a change of business strategy or achieving change in the composition of the boards.
FW: How have activist tactics evolved in recent years? What are some of the approaches they are taking to exert their influence and effect change?
Glover: The focus on encouraging M&A transactions is a hallmark of recent campaigns, as is the increasing number of campaigns designed to disrupt announced deals. To a certain extent, this focus on M&A is the product of a hot M&A market, in which there have been plenty of buyers willing to pay premium prices for corporate assets. But the activist campaigns have also helped encourage M&A activity by triggering sale processes. In fact, a number of large activists are making offers to buy their targets, which puts significant pressure on the target boards. In some cases, these activists have formed PE funds that they can tap to back up their offers. Activist campaigns that focus on encouraging stock repurchases or the payment of extraordinary dividends have become less common, in part because there have been fewer companies that are obvious targets for a campaign of this kind. In addition, larger funds are less likely than was once the case to engage in aggressive social media campaigns or efforts to elect dissident directors. They often have sufficient leverage to force change without engaging in these tactics. That is not to say, however, that social media campaigns and dissident slates will become a thing of the past. Many smaller funds continue to use these tactics. When activists do propose dissident slates, they have become much savvier about selecting attractive candidates. They identify prospective directors who have impressive resumes, relevant industry experience and other useful skillsets.
Mehrbrey: The main forum for shareholders in Germany to exert influence is usually the AGM. Under German law, the AGM is the only forum where shareholders of a publicly listed company can exercise their shareholder rights. Apart from challenging management during the AGM, there are several other options available to activists. Activist investors interfere in the business and strategies of companies and make demands. They do this predominantly in confidential discussions, but in many cases, they also seek the public’s attention. For example, activist shareholders often put pressure on management by other means, such as writing letters that are leaked to the media and launching increasingly professional media campaigns. Commissioning inquiries, often into allegations of compliance issues or other breaches of duty by management, has also become a popular activist technique in recent years.
Ulmer: Activist shareholders have recognised that mobilising the clout of institutional investors that have previously remained passive creates a win-win situation. Structuring campaigns and eventually shareholder votes in a way that allows for institutional investors to join, be it only with respect to certain elements of the campaign, adds significant leverage. This goes well beyond the votes such institutional investors bring to the table. A big mutual fund endorsing certain elements of an activist campaign provides a reputational win for the activist that also attracts support from other shareholders. For institutional investors, backing certain elements of such campaigns can be an easy way to prove that they follow through on respective commitments made to their investors. Finally, company management, when realising that institutional investors support an element of an activist campaign, will often address such topics in a proactive manner.
Grossman: Activists are becoming increasingly sophisticated and are likely to continue to blur the lines between activist campaigns and traditional M&A. Activists are more frequently partnering with third-party shareholders that they established relationships with through other campaigns and a few of the larger activists have even begun to engage in traditional PE transactions, either outright acquisitions of companies or providing private investment in public equity (PIPE) investments in companies. Some traditional PE firms have also begun to implement more activist-like strategies, and activists continue to team up with strategic acquirers or PE firms interested in shared targets. For example, Elliott’s PE arm recently signed agreements to acquire Nielsen and Citrix, in each case, together with a partner, and Carl Icahn made an unsolicited tender offer to purchase all shares of Southwest Gas common stock.
“The focus on encouraging M&A transactions is a hallmark of recent campaigns, as is the increasing number of campaigns designed to disrupt announced deals.”
FW: How are legal and regulatory developments affecting this space? To what extent do shareholder-friendly laws, for example, facilitate activism and make campaigns more likely to succeed?
Mehrbrey: The legal framework under German law for exercising shareholder rights is largely confined to the AGM. Since the legislation on virtual AGMs has been extended to 31 August 2022, it is still possible for investors from around the world to attend the virtual AGM without having to travel. However, participating in a virtual AGM is usually more restricted than attending in person. Virtual AGMs could become even more common, as a draft law that regulates virtual AGMs as the future standard has been adopted recently by the German Federal Cabinet. If this legal draft becomes effective, it would significantly strengthen shareholders’ rights during virtual AGMs. In particular, this applies to the shareholders’ right to ask questions and submit motions remotely. This would likely boost shareholder activism. Even now shareholders have extensive rights and a variety of options to exert influence during the AGM. They can give speeches, vote on resolutions, make counterproposals and request information. The legal framework is quite formal. It is not unusual for German courts to declare resolutions void because of a violation of minority rights. The legislator attempts to restrict the ability to abuse formal rights as a means of exerting undue pressure on companies. However, professional advisers are constantly looking for loopholes in the legal framework. On the other hand, there are rules that make shareholder activism more difficult. For example, while activist shareholders often request additional information, the prohibition of insider information pursuant to the European Market Abuse Regulation leaves little room for disclosing information to only a certain group of shareholders.
Ulmer: The legal and regulatory landscape provides the playing field on which activist campaigns are structured and run. It essentially dictates the success of a campaign. The more minority rights the legal landscape provides, the better for an activist shareholder. Each minority right conveys influence within the company and a tool for exerting pressure on management. Transparency rules, on the other hand, provide a company’s management with important information on emerging stakes and looming engagement. Germany has found a sustainable equilibrium in this regard. Although company law affords shareholders significant minority rights – even the German Takeover Act is designed mainly to protect minorities – transparency and procedural rules in combination with securities regulation guarantee a level playing field, with the market having the last call.
Grossman: While it remains to be seen if the universal proxy rules will result in increased activist campaigns, it is possible that the new rules will lead activists to believe they have a better chance to win at least some seats in contested elections, with an increased focus on the quality of each individual candidate. This could translate to activists demanding more board seats during settlement and cooperation negotiations, making settlements more difficult or costly for companies. Conversely, the new Securities and Exchange Commission (SEC) ESG disclosure mandate may actually detract from an activist’s arsenal, as insufficient ESG disclosure by companies has been a source of criticism from activists in the past. However, companies may still be vulnerable to criticism from activists if their newly mandated ESG-related disclosures are not on par with the disclosures of their peers or if their ESG scores are sub-par.
Glover: Some recent regulatory changes will help activists, while others will make their lives more difficult. The SEC’s decision to adopt the universal proxy card, which will require companies to list not only the company’s proposed candidates but also the dissident slate proposed by an activist on a single proxy card, will likely make it easier for activists to promote their dissident slate. Shareholders will not have to deal with the cumbersome task of managing several proxy cards, and can pick and choose among the candidates presented on a single card. On the other side of the ledger, the SEC has proposed new Schedule 13D and 13G rules that would impose new burdens on activists. Funds would be required to make 13D filings more quickly, within five days rather than 10 days after they cross the 5 percent beneficial ownership threshold. Activists who are relying on 13G when they establish their positions would also have to file more quickly. In addition, the funds would have to include cash-settled derivative positions in determining the number of shares they beneficially own. These derivative positions, which are often a significant part of the activists’ holdings, are not considered under current rules. Finally, the proposed rules would expand the concept of what constitutes a 13D group, increasing the likelihood that activists engaging in ‘wolf pack’ behaviour would have to file a 13D jointly. At the end of the day, these changes may not have a huge impact on the management of activist campaigns. In many cases, activists launch successful campaigns even though their ownership positions are well below the 5 percent 13D threshold.
FW: What strategies should companies consider to reduce the likelihood of becoming embroiled in an activist campaign? What shareholder engagement methods might be deployed, for example?
Glover: Companies should review their vulnerabilities on an ongoing basis and develop a plan for responding to an activist who focuses on these weaknesses in a campaign. They should also engage with their shareholders proactively so that they can understand and address shareholder concerns. If shareholders are comfortable that the management team and the board are listening to them, they are more likely to support the company if an activist appears. Similarly, companies should keep a close watch on trading in their stock, to increase the likelihood that they can identify and prepare for new shareholders with activist inclinations. Once an activist surfaces, the company should engage in as constructive a way as possible, and at least in the early stages, avoid stoking the fires by making combative responses in the press or social media.
Grossman: Companies should maintain current activism preparedness and monitor their current shareholder profile. Companies should be acutely aware of their recent historical performance and exposure to ESG and diversity, equity and inclusion (DE&I) criticism. Activists are likely to scrutinise companies’ disclosures on such risks and use them to create an opening to get other, unrelated, proposals approved by a company’s stockholders. Boards and management should also be proactive about regularly engaging with stockholders and other key stakeholders. Finally, every company should work with its legal counsel and financial and public relations advisers to prepare a ‘break glass’ plan, containing potential responses and a plan of action in the event an activist surfaces to ensure the company is best prepared to respond quickly and effectively to the situation at hand.
Ulmer: The best protection against activist shareholders is still running a good business, particularly with good governance, appropriate management remuneration systems and effective stakeholder communication. Having a defence manual at hand, doing white board exercises from time to time and monitoring the market for rumours and other developments completes the picture. Even with all this in place, companies are not likely to be protected against campaigns run by impact investors. Impact investors follow specific goals not directly related to the respective company. Not knowing what might become the next goal of an impact investor renders preparation and protection a futile endeavour. Campaigns that focus on climate change might be followed by campaigns concerned with global famine or workers’ rights in emerging markets. Companies have committed to their role in society. Thus, running a good business must be considered from a broader perspective. Drawing a line on how far a company could and should go in this respect will become increasingly difficult.
Mehrbrey: Monitoring their shareholder structure is very important for companies. They should encourage higher shareholder participation, particularly via virtual AGMs. By doing so, corporations reduce the risk of overrepresentation of activist shareholders. Requesting shareholders send in questions before the virtual AGM and not permitting spontaneous or follow-up questions during the meeting can increase the divide between stockholders and management, which can then increase the likelihood of activist campaigns. This should be considered when planning the stockholders’ means of participation. Overall, the general meeting should be carefully prepared to avoid procedural mistakes that activist shareholders can take advantage of. Additionally, corporations should also monitor the shareholder activism scene and new developments closely to be aware of new trends. They should also critically examine their value enhancement strategy to identify potential pitfalls and to avoid having certain issues raised in the course of a campaign. Finally, it is important to coordinate communication with the public in a professional manner. Thereby, companies should always seek an open dialogue with activist shareholders to resolve disputes in advance. And sometimes the biggest threat is within the company, such as board members who cooperate with activist shareholders.
“Management teams now analyse their company from an activist shareholder’s perspective and try to identify weaknesses that will be addressed proactively.”
FW: Looking ahead, how do you expect shareholder activism to evolve? Are campaigns set to ramp up the pressure on boards, challenge corporate strategy and transform company culture?
Grossman: While companies that underperform financially or are trading below that of their peers will remain ripe for shareholder activism, we will likely see the continued rise of ESG campaigns, single issue campaigns and campaigns against special purpose acquisition companies (SPACs). Companies that meet or exceed their financial goals will no longer be as insulated from shareholder campaigns if they are perceived to be lagging behind their industry and peers on ESG issues. In addition, single issue campaigns have been increasingly popular, such as Carl Icahn nominating two directors on each of McDonald’s and Kroger’s boards due to their treatment of animals, and this trend may increase once the universal proxy rules come into effect, as it may be easier to win individual board seats. Additionally, the significant number of newly public companies resulting from the SPAC boom may be attractive targets for activists in light of the general underperformance of de-SPACed companies relative to the broader markets and especially as lock-ups expire and a more conventional shareholder base materialises.
Ulmer: With their numerous campaigns, activist shareholders have already changed the corporate landscape and transformed company culture. Management teams now analyse their company from an activist shareholder’s perspective and try to identify weaknesses that will be addressed proactively. Communication of business strategy, as well as general shareholder and stakeholder engagement, have improved significantly. What I would expect to see though, is ongoing activity in the field of transaction-related arbitrage, as well as short-seller campaigns. With respect to the more general goals followed by activist campaigns, I would not be surprised if we saw more attacks on business models that are not compatible with sustainability goals or that are perceived as not disruptive enough for the transformation processes required by current circumstances. I would hope though that the campaigns will focus on increasing the value of the company and its business rather than merely being driven by political goals.
Mehrbrey: We will probably see more shareholder activism in the coming years. Activist shareholders will continue to conduct public campaigns to pressurise boards to achieve their objectives in order to influence the company’s strategic approach. Moreover, we expect the effects of the COVID-19 pandemic and the extended legislation on this topic to be a major driver for shareholder activism in the coming years, along with supply chain disruptions which have gained importance due to the Ukraine crisis. So far, courts in Germany have been rather lenient toward corporations limiting stockholders’ rights in virtual AGMs because of the pandemic. As the crisis continues, dealing with new means of exercising stockholder rights during virtual AGMs will become a growing concern. This is supported by the recently adopted legal draft regarding the continuation of virtual AGMs. Consequently, the virtual AGM in one form or another is here to stay. Hence, not only is there increased economic pressure on companies due to the pandemic, there is also increased pressure on shareholder activists as well. They will now, more than ever, feel the need to do everything they can to make their investment more profitable. On top of that, companies should expect an increasing number of activist shareholders to pursue non-financial objectives, like ESG goals, in the future.
Glover: There is likely to be increasing emphasis on environmental and social issues. If the M&A markets cool down, the focus on M&A may become somewhat less intense, and capital allocation questions may receive renewed attention. Small funds may be increasingly willing to launch dissident director slates because of the advantages offered by the universal proxy card. In general, as time goes by and activism becomes an ever more accepted feature of the corporate environment, companies’ vulnerabilities to well-orchestrated campaigns may increase. Shareholders that do not have a history of engaging in activism themselves may be increasingly willing to support the activists’ campaigns.
Michael J. Ulmer’s practice focuses on domestic and international private and public M&A transactions, joint ventures, general corporate advice and private equity transactions. His work extends to a broad range of industries and clients, including leading German corporates, Mittelstand companies, and domestic and international financial and strategic investors. He has vast experience in assisting clients from the Middle East with outbound investments. Mr Ulmer joined Cleary as a partner in 2016. He can be contacted on +49 69 97103 180 or by email: mulmer@cgsh.com.
Stephen I. Glover is a partner in the Washington, DC office of Gibson, Dunn & Crutcher and has served as co-chair of the firm’s global M&A practice. He represents public and private companies in complex mergers and acquisitions, joint ventures, equity and debt offerings and corporate governance matters. Mr Glover’s clients include large public corporations, emerging growth companies and middle market companies in a wide range of industries. He also advises private equity firms, individual investors and others. He can be contacted on +1 (202) 955 8593 or by email: siglover@gibsondunn.com.
Dr Kim Lars Mehrbrey combines the experience and knowledge of being a former corporate and M&A lawyer with the skills of a professional litigator and arbitration counsel and has more than 20 years of relevant work experience in this field. He is very experienced in pursuing shareholder rights and advising companies and international investors in all kinds of shareholder disputes in the German market. He can be contacted on +49 211 13 68 473 or by email: mehrbrey@hoganlovells.com.
Richard Grossman has advised many companies with respect to corporate governance issues and responses to shareholder proposals. He also has represented companies in contested proxy solicitations and other contests for corporate control as well as unsolicited acquisition proposals. In addition, he has advised clients in designing and implementing shareholder rights plans and other corporate protective measures. He can be contacted on +1 (212) 735 2116 or by email: richard.grossman@skadden.com.
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