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Special committees have evolved as a key corporate governance mechanism to assist boards of directors in discharging their fiduciary duties. Applicable securities laws mandate the use of special committees in connection with certain transactions and recommend the use of special committees for other transactions. Although the special committee mechanism is well known, corporations and directors often have limited exposure to transactions or investigations involving special committees. This guide addresses some of the frequently asked initial questions about special committees, their formation and administration
It is critical to obtain legal advice early and before a special committee is formed. Although the initial stages of a transaction or an investigation may appear routine or straightforward, regulators or other stakeholders may test this perception, including through litigation. The initial decisions made by the board in establishing its process for reviewing a transaction or conducting an investigation may ultimately prove to be the most critical.