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press is more integral to the war strat- egy than ever before, agrees Barnes. "Computerization isn't working really well to get information into people's hands. If you're really having a proxy battle, you'll have most of it in the press. They're usually really interested and the only way to reach retail shareholders. The media will have a big role, and law- yers have to get themselves comfortable with that," he says. The new proxy battlefront and the technology combine to enable camps on both sides to engage the media very rapidly. "One of the first pieces of advice I give to clients is to hire a media specialist," says Koval. "You need tight, consistent messaging that can get out as quickly as possible. . . . Winning a proxy battle is all about winning the hearts and minds of your voters." Another central player in the fight: advisory votes. The issues are three- fold, says Makuch. "First you want to get the proxy advisory firms onside and depending on whether you are dissident or management, the way you approach the proxy advisers can be dif- ferent. Once you have their support, you should have some momentum from the votes they have direct voting authority over, but at the same time, with these proxy battles, many institutions will take a harder look at the circulars than just leaving their vote to their advisory firm and possibly vote them them- selves," he notes. "Finally," says Makuch, "the proxy adviser recommendation — when posi- tive for your side — can mean a bump in retail votes because you can tell retail shareholders that an 'independent third party who reviews proxy circulars for corporate governance issues' recom- mends shareholders vote your way." The firms can play a very significant role in the outcome of some proxy fights, says Allen. "A large percentage of insti- tutional shareholders subscribe to vote recommendation guidance from these firms. Discretionary vote authority for these firms to automatically vote their subscribers' shares are a much smaller percentage," he notes, "but they can still have an impact, especially if the issuer typically has low vote response." What is undoubtedly increasing is lawyers' interest in the field. "It's become a sexy area," says McCafferty. "A lot of corporate lawyers are figuring out this is just another meeting. But it isn't. There are so many tricks and traps and nuances and strategies. We've seen a lot of mis- takes over the last few years from people who are dabbling in this area." "The practical point for counsel is that this is a Byzantine area of the law," says Pasparakis. "There are lots of rules. You need to spend time to understand how this works. It's not taught in law school except at a theoretical level. Until you do it, you don't really understand how it works on the ground." And it is on the ground where the battle plays out. To the bitter end. In a Proxy fight for control of the Board... ...how do our clients measure success? 7wins 0losses The same way we do 2010 and counting North America's only independent, cross border Proxy Solicitation firm Reunited lost shareholders with over $50 million in assets to date Canada's most experienced & proven team Proxy Services Mergers & Acquisitions Corporate Governance Shareholder Asset Recovery Odd Lot Program Untitled-1 1 www.CANADIAN Lawyermag.com JUNE 2011 41 5/5/11 2:10:00 PM