Board Special Committees and Investigations: Selecting Disinterested Members, Establishing Role in Bylaws, Charters

Recording of a 90-minute CLE webinar with Q&A

Conducted on Thursday, December 10, 2020

Recorded event now available

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Course Materials

This CLE course will address the role that special committees play in board governance and when committees are appropriate versus necessary, how to utilize a special committee, and the considerations for a board when appointing a special committee. The panel will provide guidance for when a board must consider a special investigation and what circumstances, including regulatory, legal, or reputational, that an inquiry must address.


Corporate boards can utilize special committees in certain circumstances. Special committees are recommended when a disputed transaction involves a controlling stockholder, a majority conflicted board, or there is the appearance of a conflict between a majority stockholder and the corporation. A special committee may also be warranted where federal regulatory investigations or whistleblower allegations implicate senior management in compliance and corporate culture failures.

There are no hard and fast rules for determining the directors that should serve on a committee other than being disinterested and independent. If the board of directors currently does not have enough independent directors to serve on the committee, it may add new independent directors to the board. At all times, the board should ensure it complies with the company's bylaws and all applicable state corporate laws. Successful committee members should be available and interested in serving, possess expertise in the subject matter of the investigation, and can work collaboratively and act decisively.

Legal counsel for a special committee must carefully consider the board resolutions granting the special committee its powers and ensure that the board has provided the special committee with sufficient power to carry out its role as arm's length negotiator. Although the authority to negotiate is critical, the special committee may need certain other powers of the board to increase the leverage that the special committee may bring to bear.

When a special committee conducts an internal investigation, the committee and committee counsel must understand their separate roles and responsibilities and how to perform document collection and review. The process may include witness interviews and examination of privileged documentation.

Listen as our authoritative panel provides best practices and procedural advice on establishing a board special committee and conducting an internal investigation when a board issue arises that requires an independent examination of the evidence and a determination on how to move a company forward.



  1. Board special committees
  2. Components of effective special committee process
    1. Independence of committee members
    2. Committee's role and process
    3. Selection of the committee's advisers
  3. Additional considerations
    1. What is best for the company
    2. Document the process
  4. Special committee interaction with conflicted persons
    1. Cooperation
    2. Meetings of the special committee
    3. Confidentiality
    4. Management interaction with special committee advisers
  5. Bylaws and charters
  6. Investigations
    1. Regulatory, legal, or reputational issues
    2. Conflict of interest for top management
    3. Potentially material occurrence or condition


This panel will review these and other topics:

  • What circumstances require a board to appoint a special committee?
  • How does a board appoint independent and disinterested members, and how is the committee's role defined?
  • What issues arise when the special committee interacts with a conflicted management member?
  • What should a company's bylaws or charter include regarding special committees?
  • How should a company address a special committee investigation related to regulatory, legal, or reputational issues?


Brownstein, Howard
Howard Brod Brownstein (Moderator), CTP

President and CEO
The Brownstein Corporation

Mr. Brownstein provides turnaround management and advisory services to companies and their stakeholders, as well as...  |  Read More

Burton, Emily
Emily V. Burton

Young Conaway Stargatt & Taylor

Ms. Burton litigates internal governance issues and complex commercial disputes, primarily in the Delaware Court of...  |  Read More

Krabill, Laura
Laura E. Krabill

Ballard Spahr

Ms. Krabill concentrates on complex commercial matters with an emphasis on securities and corporate governance...  |  Read More

Mirabella, Julia
Julia G. Mirabella

Sidley Austin

Ms. Mirabella advises clients on a broad range of issues in connection with government and internal investigations,...  |  Read More

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