Experience
Richards, Layton & Finger’s corporate litigation practice is considered “the gold standard in Delaware” (Chambers USA) for its extensive breadth and depth of experience and high-level insight into the procedures and practices of the Court of Chancery. Delaware corporations, ranging from the largest publicly traded companies to private or family-held corporations, turn to our corporate and Chancery litigation team for representation in high-stakes and complex corporate disputes involving fiduciary duty claims, mergers and acquisition disputes, corporate governance and control disputes, and statutory appraisals, among others. Clients have praised Richards Layton’s Chancery litigation team for its “depth of knowledge as to the nuances of Delaware law,” “great oral and written advocacy,” and “impeccable reliability and strategic judgment” (Chambers USA).
The firm’s corporate and Chancery litigators have established a record of success and been involved in many of the landmark corporate cases in the Court of Chancery and Delaware Supreme Court. These landmark representations include well-known cases such as the Dell and Petsmart appraisals, Salzburg, Bluebell, Corwin, Trulia, Trados, Lyondell, Disney, Mentor Graphics, Caremark, Pure Resources, Paramount/QVC, Paramount/Time, Frontier, Unocal, Moran v. Household, Siliconix, Barkan, and Kahn v. Lynch.
Attorneys
Related Practices
Publications
The Corporate Governance Advisor | May/June 2025
Recently, corporations and fiduciaries have faced enhanced litigation risk arising from entire fairness claims challenging related-party transactions and other transactions implicating unique interests of corporate fiduciaries. This risk is most pertinent for controlled public corporations, although it has also affected public and private corporations with significant non-majority holders.…
Delaware Court of Chancery Dismisses Challenge to Advance Notice Bylaws as Unripe
April 15, 2025
In Siegel v. Morse, C.A. No. 2024-0628-NAC (Del. Ch. Apr. 14, 2025), the Delaware Court of Chancery dismissed as unripe a challenge to amendments to a corporation’s advance notice bylaws. The court’s ruling makes clear that the Delaware courts will not undertake an equitable review of a corporation’s bylaws without a ripe controversy. In August 2023,…
Overview of the DGCL’s Newly-Enacted Safe Harbor Procedures and Books and Records Regime
April 2, 2025
On March 25, 2025, Delaware’s governor, Matt Meyer, signed Senate Substitute 1 to Senate Bill 21, enacting significant changes to the Delaware General Corporation Law (the “DGCL”). The bill, as enacted, reflects the basic principles set forth in the original legislation introduced on February 17, 2025, but includes the recommendations made by the Council of the…
Delaware Enacts Landmark Amendments to the General Corporation Law
March 26, 2025
Overview of the DGCL’s Newly-Enacted Safe Harbor Procedures and Books and Records Regime – published April 2, 2025 On March 25, 2025, Governor Matt Meyer signed bipartisan legislation effecting important changes to the Delaware General Corporation Law (“DGCL”). This landmark legislation, widely endorsed by business groups and leading national law firms, is designed to reduce excessive…
The Standing Demand Committee as a Response to Entire Fairness Litigation
Delaware Business Court Insider | February 25, 2025
The prospect of costly entire fairness litigation is not limited to the M&A transactions that have historically been the focus of stockholder litigation and can encompass, for example, insider-led financings and compensation awards to influential founders. And when it arises, the risk of entire fairness litigation can alone supply plaintiffs with considerable settlement leverage.…
Recent Developments in Delaware Corporate Law
Spring 2025
Over 125 Years of Helping Clients Navigate the Intricacies of Delaware Corporate Law Richards, Layton & Finger has been defining Delaware law since 1899. Continuing our long tradition of providing insight into the evolution of our state’s influential laws, this publication highlights recent Delaware corporate and alternative entity cases as well as statutory developments in our…
Richards Layton Discusses the Standing Demand Committee in Derivative Litigation
The CLS Blue Sky Blog | February 18, 2025
Recently, corporations and fiduciaries have faced enhanced litigation risk arising from entire fairness claims challenging related-party transactions and other transactions implicating unique interests of corporate fiduciaries. This risk is most pertinent for controlled public corporations, although it has also affected public and private corporations with significant non-majority holders. The prospect of costly entire fairness litigation has…
Proposed Legislation to Amend the Delaware Corporation Law
February 18, 2025
On February 17, 2025, legislation to amend the Delaware General Corporation Law (the “DGCL”) was introduced to the Delaware General Assembly. If enacted, the legislation would, among other things: Amend Section 144 of the DGCL to provide a safe harbor for transactions in which a director or officer or a controlling stockholder may have a conflict…
Alcon Research LLC v. Aurion Biotech, Inc.
February 12, 2025
Please click above to view Delaware Supreme Court footage of Richards Layton director Rich Rollo’s oral argument in Alcon Research LLC v. Aurion Biotech, Inc. on February 12, 2025.…
February 10, 2025
Trends and Risks in Entire Fairness Litigation Recently, corporations and fiduciaries have faced enhanced litigation risk arising from entire fairness claims challenging related-party transactions and other transactions implicating unique interests of corporate fiduciaries. This risk is most pertinent for controlled public corporations, although it has also affected public and private corporations with significant non-majority holders. …
A Corporate Governance Solution to the Inefficiencies of Entire Fairness
The Business Lawyer | Fall 2024
In In re Match Group, Inc. Derivative Litigation, the Delaware Supreme Court confirmed that non-ratable transactions between corporations and their controlling stockholders are subject to review under the onerous entire fairness standard unless the transaction is approved by both a fully empowered committee of independent directors and a fully informed and uncoerced vote of the disinterested…
Trulia 2.0? The Case for a ‘Plainly Beneficial’ Standard
Delaware Business Court Insider | November 11, 2024
In 2016, the Delaware Court of Chancery held in In re Trulia Inc. Stockholder Litigation that what it called “disclosure settlements”—settlements in which a class of stockholders solely received supplemental proxy disclosures in exchange for a classwide release of claims—“would be met with continued disfavor unless the supplemental disclosures address a plainly material misrepresentation or…
Delaware Journal of Corporate Law | 2024
In early 2023, the Delaware Court of Chancery was inundated with petitions under Section 205 of the DGCL filed by former SPACs seeking to have their capital structures validated after the Court. The petitions followed a ruling granting a fee award in Garfield v. Boxed, Inc., in which the Court found a challenge to the…
‘MFW’ Just Turned 10, but Is It Worth the Candle?
Delaware Business Court Insider | July 3, 2024
In 2014, the Delaware Supreme Court held in Kahn v. M&F Worldwide (MFW) that the business judgment rule applies to a transaction that would otherwise be subject to the exacting entire fairness standard of review due to the presence of a conflicted controlling stockholder so long as the parties condition the transaction at the outset…
2024 Proposed Amendments to the General Corporation Law of the State of Delaware
March 28, 2024
Legislation proposing to amend the General Corporation Law of the State of Delaware (the “DGCL”) has been approved by the Council of the Corporation Law Section of the Delaware State Bar Association and is expected to be introduced to the Delaware General Assembly for consideration during its 2024 regular session. If enacted, the 2024 amendments will,…
Baldwin v. New Wood Resources LLC, No. 334, 2023 (Del.)
March 19, 2024
Please click above to view Delaware State Court footage of Richards Layton director Rich Rollo’s oral argument in Baldwin v. New Wood Resources LLC on March 19, 2024.…
Recent Developments in Delaware Corporate Law
Spring 2024
125 Years of Helping Clients Navigate the Intricacies of Delaware Corporate Law Richards, Layton & Finger has been defining Delaware law since 1899. Continuing our long tradition of providing insight into the evolution of our state’s influential laws, this publication highlights recent Delaware corporate and alternative entity cases as well as statutory developments in our state.Our…
Delaware Business Court Insider | February 14, 2024
In Grabski v. Andreessen, C.A. No. 2023-0464-KSJM (Del. Ch. Feb. 1, 2024), the Delaware Court of Chancery declined to dismiss fiduciary claims against officers and directors of Coinbase Global, Inc. who sold shares in a going-public transaction. In the opinion, the court, which has in recent years decided a number of cases involving companies going public…
Delaware Laws & Programs Affecting Business – 2024 Edition
2024
Delaware Laws & Programs Affecting Business presents an introduction to Delaware and an overview of the laws and programs relating to doing business in the state. Our economy is diverse, and our legal framework is intentionally crafted to foster robust business activity. Our widely copied business laws lead the nation in clarity and predictability. Government…
January 2, 2024
In Kellner v. AIM ImmunoTech Inc., C.A. 2023-0879-LWW (Del. Ch. Dec. 28, 2023), the Delaware Court of Chancery upheld an incumbent board’s rejection of a group of dissidents’ nominees for a corporation’s 2023 annual meeting, finding that the dissidents failed to comply with the requirements of the corporation’s advance notice bylaws. Despite upholding the rejection of…
Court of Chancery Clarifies the Scope of Disclosure Liability in Novel Contexts
Delaware Business Court Insider | November 15, 2023
Under Delaware law, corporate fiduciaries owe an affirmative duty of disclosure when seeking stockholder action—including, for example, presenting a matter for stockholder approval or proposing a transaction that otherwise requires stockholders to make an investment decision, such as whether to seek appraisal or participate in a corporation’s self-tender. In these circumstances, directors owe an affirmative duty…
Court of Chancery Addresses Enforceability of “ConEd Provisions” Under Delaware Law
November 2, 2023
In what may be the last opinion from the Delaware Court of Chancery relating to Elon Musk’s acquisition of the company formerly known as Twitter, Crispo v. Musk, C.A. No. 2022- 0666-KSJM (Del. Ch. Oct. 31, 2023), the Court rejected a mootness fee petition brought by a former Twitter stockholder. The former stockholder, who brought suit…
Richards Layton and Cyrulnik Fattaruso Team Secures Post-Trial Entire Fairness Victory
October 3, 2023
WILMINGTON, Delaware (October 03, 2023) – Richards, Layton & Finger, P.A. along with co-counsel Cyrulnik Fattaruso LLP achieved a significant victory in the Delaware Court of Chancery today for clients IDT Corporation, Howard Jonas, and the Patrick Henry Trust, with the Court rejecting class action claims asserted by a former stockholder of Straight Path Communications Inc. seeking…
Recent Complaint Unsuccessfully Challenged ‘Standard Plain Vanilla’ Rights Plan
Delaware Business Court Insider | August 16, 2023
In Building Trades Pension Fund of Western Pennsylvania v. Desktop Metal, a stockholder plaintiff brought derivative claims against Desktop Metal, Inc., alleging that a provision of the company’s rights plan, which was adopted in connection with a proposed merger transaction, impermissibly chilled the free exercise of stockholder voting with respect to the merger agreement at an…
2023 Proposed Amendments to the General Corporation Law of the State of Delaware
May 1, 2023
Legislation proposing to amend the General Corporation Law of the State of Delaware (the “DGCL”) is expected to be introduced to the Delaware General Assembly for consideration during its 2023 regular session. If enacted, the 2023 amendments to the DGCL will, among other things, make the following changes: Sections 152, 153 and 157 (as well as…
Business Law Today | March 9, 2023
The fiduciary duty of oversight has been one of the hottest topics of discussion among practitioners and boards of directors since it was thrust back into the limelight by the Delaware Supreme Court’s decision in Marchand v. Barnhill. In Marchand, the Delaware Supreme Court reversed a decision by the Delaware Court of Chancery to dismiss,…
‘In re Lordstown Motors’: Providing Relief From ‘Untold Chaos’
Delaware Business Court Insider | March 1, 2023
In In re Lordstown Motors, the Delaware Court of Chancery provides a roadmap for former special purpose acquisition companies (SPACs) to validate capital structure uncertainties stemming from the same court’s recent decision in Garfield v. Boxed. In Lordstown, the court makes clear that Section 205 of the Delaware General Corporation Law (the DGCL) is available as…
Recent Developments in Delaware Corporate Law
Spring 2023
This publication, which highlights recent corporate and alternative entity cases and statutory developments in Delaware, continues our long tradition of providing insight into the evolution of Delaware law. Our corporate and alternative entities teams, the largest and most recognized in the state, play a crucial role in Delaware. For decades we have contributed to the development…
Three Lessons From Three Years of Post-‘Marchand’ Caselaw
Delaware Business Court Insider | November 16, 2022
Just over three years ago, the Delaware Supreme Court held in Marchand v. Barnhill that the failure to maintain an internal monitoring system that could have prevented a deadly listeria outbreak gave rise to an actionable oversight claim against the board of directors under In re Caremark International Inc. Derivative Litigation. Although the Delaware Supreme Court…
The Failure of the ‘Failing Business’ Exception Under Delaware Law
Delaware Business Court Insider | June 22, 2022
In Stream TV Networks v. SeeCubic, the Delaware Supreme Court vacated a permanent injunction imposed by the Delaware Court of Chancery that prohibited Stream TV Networks, Inc. and the Rajan brothers, who collectively held a majority of the company’s stock, from blocking a negotiated transfer of all of Stream’s assets to satisfy its secured creditors. In…
Baldwin v. New Wood Resources LLC, No. 303, 2021 (Del.)
June 9, 2022
Please click above to view Delaware State Court footage of Richards Layton director Rich Rollo’s oral argument in Baldwin v. New Wood Resources LLC on June 8, 2022.…
2022 Proposed Amendments to the General Corporation Law of the State of Delaware
April 21, 2022
Legislation proposing to amend the General Corporation Law of the State of Delaware (the “DGCL”) is expected to be introduced to the Delaware General Assembly for consideration during its 2022 regular session. If enacted, the 2022 amendments to the DGCL will, among other things, (i) enable corporations to include in their certificates of incorporation provisions exculpating…
Realigning Stockholder Inspection Rights
Stanford Journal of Law, Business, and Finance | Spring 2022
Access to corporate information plays a pivotal role in stockholder litigation. One key to that access is stockholders’ statutory right to inspect a corporation’s books and records prior to filing litigation, enshrined in the Delaware General Corporation Law’s Section 220. In the context of derivative actions brought by a stockholder on behalf of a company, Section…
Delaware Custodians, Receivers and Trustees (Oh My!)
Delaware Business Court Insider | March 9, 2022
Under Delaware law, the board of directors is generally responsible for overseeing the business and affairs of the corporation. However, where the board is incapable or unwilling to act and in other unique circumstances described below, the Delaware General Corporation Law allows stockholders, directors, creditors and other interested parties to attempt to displace the board’s decision-making…
Recent Developments in Delaware Corporate Law
Spring 2022
This publication, which highlights recent corporate and alternative entity cases and statutory developments in Delaware, continues our long tradition of providing insight into the evolution of Delaware law. Our corporate and alternative entities teams, the largest and most recognized in the state, play a crucial role in Delaware. For decades we have contributed to the development…
Amendments to the DGCL Permit Captive D&O Insurance
January 28, 2022
The Delaware General Assembly has approved legislation amending Section 145 of the Delaware General Corporation Law (the “DGCL”) to authorize a Delaware corporation to use captive insurance, which is generally defined as insurance provided by or through a wholly-owned subsidiary funded by the corporation, to protect its current and former directors, officers and other indemnifiable persons…
SPAC Mergers Challenged for an Alleged Statutory Foot-Fault
Delaware Business Court Insider | November 17, 2021
Stockholder-plaintiffs have filed a number of complaints in the Delaware Court of Chancery challenging at least five mergers involving Delaware special purpose acquisition companies (SPACs) in the last four months alleging that the SPAC’s failure to solicit a “class vote” of the SPAC’s Class A Common stockholders in connection with certain amendments to the SPAC’s certificate…
Three Opinions on Fraud on the Board
Harvard Law School Forum on Corporate Governance | September 8, 2021
In a footnote in a two-page order issued in 2018, the Delaware Supreme Court quietly reminded corporate law practitioners that, per the 1989 case of Mills Acquisition v. Macmillan, a complaint seeking post-closing Revlon damages can survive a motion to dismiss without pleading nonexculpated breaches of fiduciary duty by a majority of directors so long as…
What Is Fraud on the Board? 3 Opinions Seek to Answer That Question
Delaware Business Court Insider | August 18, 2021
In a footnote in a two-page order issued in 2018, the Delaware Supreme Court quietly reminded corporate law practitioners that, per the 1989 case of Mills Acquisition v. Macmillan, a complaint seeking post-closing Revlon damages can survive a motion to dismiss without pleading nonexculpated breaches of fiduciary duty by a majority of directors so long…
Elimination of Statutory Barriers May Lead to New Wave of Public Benefit Corporations
Delaware Business Court Insider | February 24, 2021
On August 1, 2013, a new subchapter of the General Corporation Law of the State of Delaware (the “DGCL”) was added to enable Delaware for-profit corporations to be incorporated as or to become a Delaware public benefit corporation, or “PBC.” Rather than being operated solely to maximize value for stockholders, like traditional corporations, PBCs are required…
Delaware Laws & Programs Affecting Business – 2020 Edition
2020
Delaware Laws & Programs Affecting Business presents an introduction to Delaware and an overview of the laws and programs relating to doing business in the State. Our economy is diverse, and our legal framework is intentionally crafted to foster robust business activity. Our widely copied business laws lead the nation in clarity and predictability. Government…
Recent Developments Regarding ‘Wolf Pack’ Provisions in Rights Plans
Delaware Business Court Insider | November 11, 2020
A traditional stockholder rights plan remains one of the most effective tools a board of directors may use to protect the corporation’s stockholders from the threat of a hostile or abusive takeover. Rights plans often include specific provisions designed to address unique threats or issues facing the corporation. One such provision is an “acting in concert”—or…
Court of Chancery Permits $4.3 Billion Interim Distribution in Altaba Dissolution
Delaware Business Court Insider | November 4, 2020
In In re Altaba, the Delaware Court of Chancery, ruling at a preliminary stage of the dissolution process, authorized Altaba Inc. to make an interim liquidating distribution of up to $4.3 billion to its stockholders. Vice Chancellor J. Travis Laster’s opinion is noteworthy because it is one of the few opinions to authorize an interim distribution…
September 4, 2020
In In re Anthem-Cigna Merger Litigation, 2020 WL 5106556 (Del. Ch. Aug 31, 2020), the Delaware Court of Chancery found that neither Anthem, Inc. nor Cigna Corporation were entitled to recover damages in connection with the parties’ 2015 merger agreement (the “Merger Agreement”) providing for their proposed $54 billion merger (the “Merger”) that was terminated in…
Delaware Supreme Court Clarifies Standard for Liability for Disclosure Violations
Insights | August 2020
In Dohmen v. Goodman, the Delaware Supreme Court, in response to a certified question of law from the US Court of Appeals for the Ninth Circuit, provided significant guidance regarding the showing required for a plaintiff to seek compensatory damages for claims arising out of alleged disclosure violations. The Court distinguished between claims for a breach…
July 20, 2020
On July 16, 2020, the Governor of the State of Delaware signed House Bill 341, an act to amend the General Corporation Law of the State of Delaware (the “DGCL”). A link to our previously distributed summary of the 2020 amendments to the DGCL can be found here, and a link to the text of House Bill…
2020 Amendments to the General Corporation Law of the State of Delaware
Insights | July 2020
The 2020 amendments to the Delaware General Corporation Law make several important changes, including clarifying the circumstances under which emergency bylaws may be invoked, providing safe harbors for specified corporate actions taken during an emergency condition, reducing the statutory hurdles to become a public benefit corporation, providing further definition around mandatory indemnification for officers and effecting…
2020 Proposed Amendments to the General Corporation Law of the State of Delaware
June 16, 2020
House Bill 341, an act to amend the General Corporation Law of the State of Delaware (“DGCL”), has been introduced to the Delaware General Assembly. The amendments make several important changes to the DGCL, including clarifying the circumstances under which emergency bylaws may be invoked, providing safe harbors for specified corporate actions taken during the pendency…
Recent Developments in Rights Plans in Light of the COVID-19 Pandemic
Delaware Business Court Insider | April 29, 2020
The COVID-19 pandemic has caused significant worldwide disruptions of business operations and has negatively impacted stock prices globally. As a result, many corporations find themselves potentially vulnerable to abusive takeover tactics, such as inadequate or coercive takeover proposals and market accumulations by investors seeking to profit from depressed stock prices that may not accurately reflect a…
April 7, 2020
On April 6, 2020, John C. Carney, the Governor of the State of Delaware, issued the Tenth Modification of the Declaration of a State of Emergency for the State of Delaware Due to a Public Health Threat (the “Order”), stemming from the COVID-19 pandemic. Among other things, the Order promotes the safety of participants of public…
Guidelines for Payment of Dividends during the COVID-19 Pandemic
March 18, 2020
In light of the fact that boards of Delaware corporations may have declared dividends before the current crisis arose, we understand that they may be reassessing whether to proceed with payment. While there are many cases indicating that the declaration of a dividend generally creates a debtor-creditor relationship between the corporation and its stockholders that cannot…
Delaware Supreme Court Validates Federal Forum Provisions
March 18, 2020
In the highly anticipated decision of Salzberg v. Sciabacucchi, No. 346, 2019 (Del. Mar. 18, 2020), the Delaware Supreme Court, reversing the Delaware Court of Chancery’s decision, confirmed the facial validity of provisions in the certificates of incorporation of Blue Apron Holdings, Inc., Stitch Fix, Inc., and Roku, Inc. requiring all claims under the Securities Act…
Takeaways from “Hot Topics in M&A Practice”
March 5, 2020
Nate Stuhlmiller discusses takeaways from “Hot Topics in M&A Practice” at the 32nd Annual Tulane Corporate Law Institute.
Recent Developments in Delaware Corporate Law
Spring 2020
This publication, which highlights recent corporate and alternative entity cases and statutory developments in Delaware, continues our long tradition of providing insight into the development of Delaware law.
Takeaways from ABS East – 25 Year Anniversary
September 23, 2019
Eric Mazie discusses a session at ABS East entitled “Celebrating 25 Years of ABS East and Looking Towards the Future for the U.S. Securitization Market”
May 30, 2019
In Shareholder Representative Services LLC v. RSI Holdco, LLC, C.A. No. 2018-0517-KSJM (Del. Ch. May 29, 2019), the Delaware Court of Chancery upheld a provision in a private-company merger agreement precluding a buyer from using the seller’s privileged emails against the seller in post-closing litigation. Following the guidance from the decision in Great Hill Equity Partners…
2019 Proposed Amendments to the General Corporation Law of the State of Delaware
March 27, 2019
Legislation proposing to amend the General Corporation Law of the State of Delaware (the “General Corporation Law”) has been released by the Corporate Council of the Corporation Law Section of the Delaware State Bar Association and, if approved by the Corporation Law Section, is expected to be introduced to the Delaware General Assembly. If enacted, the…
Takeaways from “The ‘Ins’ and ‘Outs’ of Dealing with Activists”
March 15, 2019
Mark Gentile discusses takeaways from “The ‘Ins’ and ‘Outs’ of Dealing with Activists” at the 31st Annual Tulane Corporate Law Institute.
Takeaways from “Delaware Developments”
March 15, 2019
John Mark Zeberkiewicz discusses takeaways from “Delaware Developments” at the 31st Annual Tulane Corporate Law Institute.
Takeaways from “Hot Topics in M&A Practice”
March 14, 2019
Gregory P. Williams discusses takeaways from “Hot Topics in M&A Practice” at the 31st Annual Tulane Corporate Law Institute.
Recent Developments in Delaware Corporate Law
Spring 2019
This publication, which highlights recent corporate and alternative entity cases and statutory developments in Delaware, continues our long tradition of providing insight into the development of Delaware law.
Takeaways from “Women in Securitization Keynote Address, Featuring Arianna Huffington”
February 25, 2019
Marisa A. Terranova Fissel discusses takeaways from the “Women in Securitization Keynote Address, Featuring Arianna Huffington” at
Takeaways from “Fireside Chat – Michael Lewis & Barrett Burns, VantageScore”
February 25, 2019
Eric A. Mazie discusses takeaways from the “Fireside Chat– Michael Lewis & Barrett Burns, VantageScore” at
Sciabacucchi v. Salzberg: Court of Chancery Declares Federal Forum Provisions Ineffective
December 19, 2018
The Delaware Court of Chancery, in Sciabacucchi v. Salzberg, C.A. No. 2017-0931-JTL (Del. Ch. Dec. 19, 2018), has declared “ineffective and invalid” provisions in three corporations’ certificates of incorporation that purported “to require any claim under the Securities Act of 1933 to be brought in federal court” (the “Federal Forum Provisions”). Ruling on cross-motions for summary…
October 2, 2018
In Akorn, Inc. v. Fresenius Kabi AG, C.A. No. 2018-0300-JTL (Del. Ch. Oct. 1, 2018), the Court of Chancery issued what is believed to be the first decision of a Delaware court allowing a buyer to terminate a merger agreement due to the occurrence of a material adverse effect. The dispute arose from Fresenius Kabi AG’s…
Business Law Today | June 15, 2018
In Goggin, a member of East Coast Miner LLC (ECM) brought suit against ECM’s manager and his associates challenging several allegedly self-dealing transactions. The plaintiff alleged, among other things, that ECM’s manager had caused ECM’s part ownership of specified assets to be diverted to different entities that the manager and his associates owned and controlled. The…
2018 Proposed Amendments to the General Corporation Law of the State of Delaware
Insights | April 2018
Legislation proposing to amend the GeneralCorporation Law of the State of Delaware(DGCL) has been released by the CorporateCouncil of the Corporation Law Section ofthe Delaware State Bar Association and, ifapproved by the Corporation Law Section,is expected to be introduced to the DelawareGeneral Assembly. If enacted, the amendmentswould, among other things: (1) amendSection 262 to apply the…
The Delaware Supreme Court Provides Guidance on Directors’ Fiduciary Duty of Disclosure
Insights | April 2018
In Appel v. Berkman, the DelawareSupreme Court reversed the Delaware Courtof Chancery’sdismissal of claims relating to themerger of Diamond Resorts International,Inc. (“Diamond”), finding that the stockholdersof Diamond were not fully informedwhen they tendered their shares in a first-step tender offer followed by a back-end mergerunder Section 251(h) of the DelawareGeneral Corporation Law (DGCL). Inreversing the…
2018 Proposed Amendments to the General Corporation Law of the State of Delaware
March 29, 2018
Legislation proposing to amend the General Corporation Law of the State of Delaware (the “General Corporation Law”) has been released by the Corporate Council of the Corporation Law Section of the Delaware State Bar Association and, if approved by the Corporation Law Section, is expected to be introduced to the Delaware General Assembly. If enacted, the…
Recent Developments in Delaware Corporate Law
Spring 2018
This publication, which highlights recent corporate and alternative entity cases and statutory developments in Delaware, continues our long tradition of providing insight into the development of Delaware law.
Takeaways from ‘Delaware Developments’
March 16, 2018
Robert L. Burns and panel moderator Gregory P. Williams discuss takeaways from the “Delaware Developments” panel at Tulane Law School’s 30th Annual Corporate Law Institute.
Takeaways from “All this Confusion around Fraud Claims!”
March 16, 2018
Matthew D. Perri discusses takeaways from the “All this Confusion around Fraud Claims!” panel at Tulane Law School’s 30th Annual Corporate Law Institute.
Takeaways from “The `Ins’ and `Outs’ of Dealing with Activists”
March 16, 2018
Mark J. Gentile discusses takeaways from the “The ‘Ins’ and ‘Outs’ of Dealing with Activists” panel at Tulane Law School’s 30th Annual Corporate Law Institute.
March 15, 2018
Nathaniel J. Stuhlmiller discusses takeaways from the “Current Best Practices in Considering and Approving Transactions in Target and Buyer Company Board Rooms” panel at Tulane Law School’s 30th Annual Corporate Law Institute
Takeaways from “Practice after Corwin”
March 15, 2018
John Mark Zeberkiewicz discusses takeaways from the “Practice after Corwin” panel at Tulane Law School’s 30th Annual Corporate Law Institute.
Takeaways from “M&A Practice: 2018”
March 15, 2018
Jennifer V. Barrett discusses takeaways from the “M&A Practice: 2018” panel at Tulane University Law School’s 30th Annual Corporate Law Institute.
Developments in Statutory Appraisal: DFC Global, Dell and More
March 8, 2018
The Delaware courts have decided a number of statutory appraisal cases recently. Most prominently, the Delaware Supreme Court reversed two post-trial appraisal decisions of the Court of Chancery, in DFC Global Corp. v. Muirfield Value Partners, L.P., 172 A.3d 346 (Del. Aug. 1, 2017), and Dell Inc. v. Magnetar Global Event Driven Master Fund Ltd.…
Recent Delaware Corporate Law Updates
March 8, 2018
Developments in Statutory Appraisal: DFC Global, Dell and MoreThe Delaware courts have decided a number of statutory appraisal cases recently. Most prominently, the Delaware Supreme Court reversed two post-trial appraisal decisions of the Court of Chancery, in DFC Global Corp. v. Muirfield Value Partners, L.P., 172 A.3d 346 (Del. Aug. 1, 2017), and Dell Inc.…
March 8, 2018
In Nguyen v. View, Inc., 2017 WL 2439074 (Del. Ch. June 6, 2017), the Delaware Court of Chancery held in a proceeding brought under Section 205 of the General Corporation Law of the State of Delaware (the “DGCL”) that Section 204 of the DGCL (“Section 204”) may not be used to ratify a “deliberately unauthorized corporate…
March 8, 2018
In Sarissa Capital Domestic Fund LP v. Innoviva, Inc., 2017 WL 6209597 (Del. Ch. Dec. 8, 2017), the Delaware Court of Chancery, in a fact-intensive, post-trial memorandum opinion, specifically enforced an oral agreement to settle a proxy contest between Innoviva, Inc. (“Innoviva”) and Sarissa Capital Domestic Fund LP (“Sarissa”). In so doing, the Court ordered Innoviva…
March 8, 2018
In IRA Trust FBO Bobbie Ahmed Ex rel. Class A Stockholders of NRG Yield, Inc. v. Crane, 2017 WL 6335912 (Del. Ch. Dec. 11, 2017), as revised (Jan. 26, 2018), the Court of Chancery granted the defendants’ motion to dismiss breach of fiduciary duty claims against NRG Energy, Inc. (“NRG”), the controlling stockholder of NRG…
March 8, 2018
In In re Investors Bancorp, Inc. Shareholder Litigation, 2017 WL 6374741 (Del. Dec. 13, 2017, revised Dec. 19, 2017), the Delaware Supreme Court recently considered “the limits of the stockholder ratification defense” in actions challenging directors’ compensation where stockholders have approved the compensation plan, and the Court provided guidance regarding when that defense may apply…
March 8, 2018
Since the Delaware Supreme Court decision in Corwin v. KKR Financial Holdings LLC, 125 A.3d 304 (Del. 2015), the Delaware courts have grappled with the effect of the so-called Corwin defense (i.e., that fully informed, uncoerced approval of a transaction by the disinterested stockholders will restore business judgment review) in a variety of different circumstances.…
March 8, 2018
In Oklahoma Firefighters Pension & Retirement System v. Corbat, 2017 WL 5484125 (Del. Ch. Nov. 15, 2017), the Delaware Court of Chancery dismissed a claim against current and former directors of Citigroup, Inc. for failing to exercise appropriate oversight with regard to the corporation’s operations, which allegedly resulted in violations of law by employees and large…
March 8, 2018
In Chicago Bridge & Iron Co. N.V. v. Westinghouse Electric Co., 166 A.3d 912 (Del. 2017), the Delaware Supreme Court reversed the Delaware Court of Chancery’s grant of judgment on the pleadings. The Court of Chancery had held that a dispute over a post-closing purchase price adjustment under the terms of a purchase agreement was to…
March 8, 2018
In California State Teachers’ Retirement System v. Alvarez, — A.3d —, 2018 WL 547768 (Del. Jan. 25, 2018), the Delaware Supreme Court declined to adopt a proposed rule from the Court of Chancery that, as a matter of due process, a judgment in a derivative action cannot bind a corporation or other stockholders until the suit…
Void-Voidable Distinction Revisited by Delaware Court of Chancery
Delaware Business Court Insider | February 28, 2018
In three recent memorandum opinions, Southpaw Credit Opportunity Master Fund v. Roma Restaurant Holdings (Del. Ch. Feb. 1, 2018), CompoSecure v. CardUX (Del. Ch. Feb. 1, 2018, revised Feb. 12, 2018), and In re Oxbow Carbon Unitholder Litigation (Del. Ch. Feb. 12, 2018), the Delaware Court of Chancery revisited the distinction between void…
Insights | January 2018
Two recent rulings of the Delaware Court ofChancery highlight the need to examine a stockholderplaintiff ’s objectives in seeking to inspect thecorporation’s books and records under Section 220of the Delaware General Corporation Law (DGCL).As is well known, a stockholder seeking to compelan inspection of books and records under Section220 must demonstrate a “proper purpose” for theinspection…
The Limits of Ratification: Delaware Supreme Court and Director Equity Incentive Awards
Insights | January 2018
The Delaware Supreme Court recently overturned anopinion of the Delaware Court of Chancery holdingthat stockholder approval of an equity incentive planwith broad sub-limits on the number of shares availablefor grant to non-employee directors resulted inthe stockholders’ ratification of subsequent awards tothe directors. In essence, the Supreme Court held thatstockholders’ approval of an equity incentive plan willprovide…
December 14, 2017
The Delaware Supreme Court has reversed and remanded the Court of Chancery’s appraisal valuation of Dell Inc. and remanded for reconsideration in light of market data and the transaction price following a robust sale process. In its post-trial decision, the Court of Chancery had determined, based exclusively on its own discounted cash flow analysis, that the…
May 25, 2017
In In re Saba Software, Inc. Stockholder Litigation, 2017 WL 1201108 (Del. Ch. Mar. 31, 2017), the Court of Chancery refused for the first time to apply the cleansing effect available under Corwin v. KKR Fin. Holdings LLC, 125 A.3d 304 (Del. 2015), to a stockholder vote approving a merger, finding that plaintiff pled sufficient facts…
May 25, 2017
In The Frederick Hsu Living Trust v. ODN Holding Corp., 2017 WL 1437308 (Del. Ch. Apr. 25, 2017), the Court of Chancery dismissed claims of unlawful redemption of preferred stock by ODN Holding Corporation (“ODN” or the “Company”), but denied a motion to dismiss claims that ODN’s directors and officers improperly favored the interest of the…
Recent Delaware Corporate Law Updates
May 25, 2017
In re Saba Software, Inc. S’holder Litig.: Court of Chancery Declines to Find Stockholder Ratification under CorwinIn In re Saba Software, Inc. Stockholder Litigation, 2017 WL 1201108 (Del. Ch. Mar. 31, 2017), the Court of Chancery refused for the first time to apply the cleansing effect available under Corwin v. KKR Fin. Holdings LLC…
May 25, 2017
In IAC Search, LLC v. Conversant LLC, 2016 WL 6995363 (Del. Ch. Nov. 30, 2016), the Court of Chancery held that certain provisions in an asset purchase agreement collectively constituted a “clear disclaimer of reliance on extra-contractual statements” and barred plaintiff’s claim that defendant had fraudulently induced plaintiff to purchase one of its subsidiaries. In…
May 25, 2017
In Chicago Bridge & Iron Company N.V. v. Westinghouse Electric Company LLC, 2016 WL 7048031 (Del. Ch. Dec. 5, 2016), the Court of Chancery held, pursuant to the language of a purchase agreement between Chicago Bridge & Iron Company N.V. (“Seller” or the “Company”) and Westinghouse Electric Company LLC (“Buyer”), that a dispute over the…
May 25, 2017
In Frechter v. Zier, 2017 WL 345142 (Del. Ch. Jan. 24, 2017), the Court of Chancery denied defendants’ motion to dismiss plaintiff’s declaratory judgment and breach of fiduciary duty action challenging a bylaw of Nutrisystem, Inc. (“Nutrisystem” or the “Company”) that required a supermajority vote of the Company’s stockholders to remove directors. Also granting plaintiff’s motion…
May 25, 2017
In Vento v. Curry, 2017 WL 1076725 (Del. Ch. Mar. 22, 2017), the Court of Chancery preliminarily enjoined a special meeting of stockholders of Consolidated Communications Holdings, Inc. (“Consolidated” or the “Company”) to vote on a proposed issuance of the Company’s common stock in connection with a proposed merger. Finding information concerning the compensation to be…
May 25, 2017
In In re Investors Bancorp, Inc. Stockholder Litigation, 2017 WL 1277672 (Del. Ch. Apr. 5, 2017), the Court of Chancery granted defendants’ motion to dismiss claims challenging the adoption of an equity compensation plan by the board of directors of Investors Bancorp, Inc. (“Investors Bancorp” or the “Company”). The Court held that because the plan contained…
The Delaware Court of Chancery Revisits Director Equity Awards
Insights | May 24, 2017
The Delaware Court of Chancery recently held thatstockholder approval of an equity incentive plan thatincluded relatively broad sub-limits on the number ofshares available specifically for awards to non-employeedirectors provided “advance ratification” of subsequentawards to the non-employee directors. The Court’sopinion provides significant guidance to corporationsand practitioners in drafting and seeking stockholderapproval of equity incentive plans, and in…
2017 Proposed Amendments to the Delaware General Corporation Law
Insights | April 30, 2017
Proposed amendments to the General Corporation Lawof the State of Delaware have been approved by theCorporation Law Section of the Delaware State BarAssociation and are expected to be introduced to theDelaware General Assembly. The amendments addressblockchain technology, stockholder consents, mergersand consolidations, and annual reporting.…
Frechter v. Zier: Delaware Court of Chancery Provides Guidance on Supermajority Voting Provisions
Insights | March 31, 2017
In Frechter v. Zier, the Delaware Court of Chancery invalidated a bylaw that, on its own, purported to require a vote of two-thirds of the corporation’s outstanding voting stock to remove directors. The Court’s opinion provides guidance as to the implementation of supermajority voting provisions under the Delaware General Corporation Law (DGCL), including when such provisions…
2017 Proposed Amendments to the General Corporation Law of the State of Delaware
March 14, 2017
Legislation proposing to amend the General Corporation Law of the State of Delaware (the “DGCL”) has been released by the Corporate Council of the Corporation Law Section of the Delaware State Bar Association and, if approved by the Corporation Law Section, is expected to be introduced to the Delaware General Assembly.
Recent Developments in Delaware Corporate Law
Spring 2017
This publication contains recent court decisions affecting Delaware corporations and other business entities, as well as the 2016 amendments to Delaware’s corporate and alternative entity law.
Delaware Proposes Escheat Reform Legislation
January 13, 2017
On January 12, 2017, Delaware SB 13 was introduced in the Delaware General Assembly, proposing comprehensive Delaware unclaimed property legislative reform. The administration-drafted bill addresses many aspects of Delaware’s unclaimed property audit program and compliance regime. Over the past decade, the receipt of unclaimed property has consistently been Delaware’s third-largest source of revenue, accounting for nearly…
January 12, 2017
Following the Delaware Supreme Court decision in Corwin v. KKR Financial Holdings LLC, 125 A.3d 304 (Del. 2015), the Delaware courts have clarified and extended the application of the decision. In Corwin, the Delaware Supreme Court affirmed the Court of Chancery’s ruling that the business judgment rule is the appropriate standard of review for a merger…
January 12, 2017
In Pell v. Kill, 135 A.3d 764 (Del. Ch. 2016), the Court of Chancery granted a preliminary injunction enjoining the implementation of a plan to reduce the size of a classified board and to reduce the number of directors in the class of directors standing for election at the next annual meeting that was adopted to…
January 12, 2017
In The Huff Energy Fund, L.P. v. Gershen, 2016 WL 5462958 (Del. Ch. Sept. 29, 2016), the Court of Chancery rejected a significant stockholder’s claim that the implementation and adoption of a plan of dissolution was subject to enhanced scrutiny under Revlon and Unocal. Furthermore, finding that the adoption of the plan of dissolution…
January 12, 2017
In In re Wal-Mart Stores, Inc. Delaware Derivative Litigation, 2016 WL 2908344 (Del. Ch. May 13, 2016), the Court of Chancery, applying Arkansas law, held that plaintiff stockholders were precluded from arguing demand futility in a derivative action filed in Delaware because the same issue had already been fully litigated and decided in an Arkansas court…
Recent Delaware Corporate Law Updates
January 12, 2017
Post-Corwin: Delaware Courts, Consistently Applying Corwin, Reinforce Long-Standing Policy of Delaware Law to Avoid Uncertainties and Costs of Judicial Second-Guessing in Merger TransactionsFollowing the Delaware Supreme Court decision in Corwin v. KKR Financial Holdings LLC, 125 A.3d 304 (Del. 2015), the Delaware courts have clarified and extended the application of the decision. In Corwin…
January 12, 2017
In CDX Holdings, Inc. v. Fox, 141 A.3d 1037 (2016), the Delaware Supreme Court, applying a “clearly erroneous” standard of review, deferred to the Court of Chancery’s findings of fact and upheld the Court of Chancery’s determination that a corporation breached its stock option plan in connection with a spinoff and merger transaction. Caris Life Sciences,…
January 12, 2017
In Sandys v. Pincus, — A.3d —-, 2016 WL 7094027 (Del. Dec. 5, 2016), the Delaware Supreme Court reversed the Court of Chancery’s dismissal of a derivative suit for failure to plead demand excusal, holding that plaintiff had pled facts, including co-ownership of an airplane and interlocking business relationships, that created a pleading-stage reasonable doubt as…
January 12, 2017
In Solak v. Sarowitz, 2016 WL 7468070 (Del. Ch. Dec. 27, 2016), the Court of Chancery denied in part a motion to dismiss a declaratory judgment and breach of fiduciary duty action challenging a fee-shifting bylaw adopted by the board of directors of Paylocity Holding Corporation (“Paylocity” or the “Company”). The Court rejected a ripeness challenge…
January 12, 2017
Cases addressed include Corwin v. KKR Financial Holdings LLC, Pell v. Kill, Sandys v. Pincus, In re Wal-Mart Stores, Inc. Delaware Derivative Litigation, and Solak v. Sarowitz.
July 6, 2016
The State of Delaware regularly audits Delaware corporations with regard to unclaimed property liability. As part of such audits, for periods when such corporations did not have the necessary books and records, Delaware would estimate such corporation’s unclaimed property liability to Delaware and assess that amount. However, on June 28, 2016, the U.S. District Court for…
Chancery Court Decision Provides Guidance on Multiforum Litigation
Delaware Business Court Insider | May 25, 2016
In In re Wal-Mart Stores Delaware Derivative Litigation, C.A. No. 7455-CB (Del. Ch. May 13, 2016), the DelawareCourt of Chancery held that an order of the U.S. District Court for the Western District of Arkansas dismissing anArkansas complaint precluded Delaware plaintiffs from litigating demand futility in a Delaware derivative actionchallenging the same underlying conduct. Although the…
May 12, 2016
In In re Appraisal of Dell Inc., C.A. No. 9322-VCL (Del. Ch. May 11, 2016), the Court held that fourteen mutual funds sponsored by T. Rowe Price & Associates, Inc. (“T. Rowe”) as well as institutions that relied on T. Rowe to direct the voting of their shares (the “T. Rowe Petitioners”) were not entitled to…
Disclaiming Reliance on Extra-Contractual Representations under Delaware Law
Insights | April 2016
In FdG Logistics LLC v. A&R Logistics Holdings,Inc.,the Delaware Court of Chancery clarifi ed thetype of language that must be included in an acquisitionagreement for a party to demonstrate that theother party has eff ectively disclaimed reliance onextra-contractual representations. In sum, the FdGLogistics Court held that the anti-reliance languageat issue, which was merely a…
2016 Proposed Amendments to the General Corporation Law of the State of Delaware
Insights | April 2016
Legislation setting forth the 2016 proposedamendments to the General Corporation Law ofthe State of Delaware (DGCL) has been approvedby the Corporation Law Section of the DelawareState Bar Association and is expected to be introducedto the Delaware General Assembly. If theamendments become effective, they would resultin several important changes to the DGCL.Among other things, the proposed amendmentswould…
2016 Amendments to the General Corporation Law of the State of Delaware
March 16, 2016
Legislation proposing to amend the General Corporation Law of the State of Delaware (the “DGCL”) has been released by the Corporate Council of the Corporation Law Section of the Delaware State Bar Association and, if approved by the Corporation Law Section, is expected to be introduced to the Delaware General Assembly. If the amendments become effective,…
March 10, 2016
Cases addressed include In re Trulia, Inc. Stockholder Litigation, In re Genelux Corporation, In re Baxter International Inc., Knoll Capital Management L.P. v. Advaxis, Inc., and FdG Logistics LLC v. A & R Logistics
Recent Developments in Delaware Corporate Law
Spring 2016
We are pleased to provide Richards Layton clients and friends with this publication, which highlights recent corporate and alternative entity cases and statutory developments in Delaware. This publication continues our long tradition of providing insight into the development of Delaware law. Our attorneys have provided our clients with a concise quarterly update on Delaware law for…
Recent Delaware Corporate Law Updates
February 25, 2016
Amalgamated Bank v. Yahoo! Inc.: Court of Chancery Orders Production of Emails and Other Electronically Stored Documents in Response to Section 220 Demand Relating to Hiring and Termination of ExecutiveIn a post-trial decision, the Court of Chancery ordered respondent Yahoo! Inc. to produce additional documents in response to plaintiff Amalgamated Bank’s demand to inspect Yahoo’s books…
February 25, 2016
In RBC Capital Markets, LLC v. Jervis, __ A.3d ___, 2015 WL 7721882 (Del. Nov. 30, 2015), the Delaware Supreme Court affirmed a post-trial decision by the Court of Chancery holding that a financial advisor was liable for aiding and abetting breaches of fiduciary duty by directors of a corporation during a sale of control transaction.…
February 25, 2016
Two recent decisions by the Delaware Court of Chancery have helped to define the contours of the Court’s authority in proceedings under Section 205 (“Section 205”) of the General Corporation Law of the State of Delaware (the “DGCL”). In In re Genelux Corporation, 126 A.3d 644 (Del. Ch. 2015), the Court of Chancery held that a…
February 25, 2016
In In re EZCorp Inc. Consulting Agreement Derivative Litigation, 2016 WL 301245 (Del. Ch. Jan. 25, 2016), the Court of Chancery denied a motion to dismiss derivative claims challenging a series of payments between a corporation and its controlling stockholder, even though those payments had been approved by the Audit Committee of the corporation’s board. After…
February 25, 2016
In Corwin v. KKR Financial Holdings LLC, 125 A.3d 304 (Del. 2015), the Delaware Supreme Court affirmed a ruling by the Court of Chancery granting the defendants’ motions to dismiss a suit challenging the acquisition of KKR Financial Holdings LLC (“KFN”) by KKR & Co. L.P. (“KKR”). The Court held that the business judgment rule is…
February 25, 2016
In In re Vaalco Energy, Inc. Stockholder Litigation, C.A. No. 11775-VCL (Dec. 21, 2015) (TRANSCRIPT), the Court of Chancery granted the plaintiffs’ motion for summary judgment and invalidated certain provisions of Vaalco’s certificate of incorporation and bylaws, which provided that members of its board of directors could only be removed for cause. The Court held that…
February 25, 2016
In In re El Paso Pipeline Partners, L.P. Deriv. Litig., 2015 WL 7758609 (Del. Ch. Dec. 2, 2015), the Court of Chancery denied a motion to dismiss a suit, in which the Court had already entered a $171 million damages award against the defendants, on the grounds that the plaintiff had lost standing as a result…
February 25, 2016
In In re Trulia, Inc. Stockholder Litigation, C.A. No. 10020-CB (Del. Ch. Jan. 22, 2016), the Delaware Court of Chancery refused to approve a class action settlement that called for marginal disclosures in exchange for a broad release of stockholder claims. In so doing, the Court announced that moving forward it would review such “disclosure…
February 25, 2016
In a post-trial decision, the Court of Chancery ordered respondent Yahoo! Inc. to produce additional documents in response to plaintiff Amalgamated Bank’s demand to inspect Yahoo’s books and records pursuant to 8 Del. C. § 220. Amalgamated Bank v. Yahoo! Inc., 2016 WL 402540 (Del. Ch. Feb. 2, 2016). In doing so, the Court interpreted…
The New Paradigm (Burden) Shift: The Business Judgment Rule After KKR
Insights | December 2015
The Delaware Supreme Court recently held thatan uncoerced, fully informed vote of a majority ofthe disinterested stockholders adopting a mergeragreement invoked the business judgment rule standardof review, even though the vote was statutorilyrequired. The opinion left unanswered the questionas to whether the business judgment rule invokedin that context was a rebuttable presumption ora substantive rule of…
In re Numoda Corporation, C.A. No. 9163-VCN (Del. Ch.)
October 14, 2015
Please click below to view Delaware State Court footage of Richards Layton director Rich Rollo’s oral argument in In re Numoda Corporation on October 14, 2015.…
October 2, 2015
In Corwin v. KKR Financial Holdings LLC, No. 629, 2014 (Del. Oct. 2, 2015), the Delaware Supreme Court affirmed the Court of Chancery’s grant of defendants’ motions to dismiss with prejudice a suit challenging the acquisition of KKR Financial Holdings LLC (“KFN”) by KKR & Co. L.P. (“KKR”).
Recent Delaware Court of Chancery Opinion Provides Guidance on Advancement and Indemnification
Insights | October 2015
A recent opinion of the Delaware Court ofChancery provides guidance on drafting indemnification and advancement provisions, and clarifiesthe circumstances under which a director or officer may or may not be entitled to advancement “byreason of the fact” of his or her service as such. TheCourt held, among other things, that a provision ofa certificate of incorporation…
September 30, 2015
Topics and cases addressed include In re Numoda Corporation Shareholder Litigation,In re Riverbed Technology, Inc. Stockholders Litigation, In re Trulia, Inc. Stockholder Litigation, Charney v. American Apparel, Inc. and the 2015 Amendments to the General Corporation Law of the State of Delaware
Recent Delaware Corporate Law Updates
August 6, 2015
Gorman v. Salamone: Court of Chancery Invalidates Bylaw Granting Stockholders the Power to Remove and Replace OfficersIn Gorman v. Salamone, C.A. No. 10183-VCN (Del. Ch. July 31, 2015), the Delaware Court of Chancery held that a stockholder-adopted bylaw amendment that purported to grant stockholders the authority to remove corporate officers over the objection of the corporation’s…
August 6, 2015
In Quadrant Structured Products Company, Ltd. v. Vertin, 115 A.3d 535 (Del. Ch. May 4, 2015), the Delaware Court of Chancery denied defendants’ motion for summary judgment, held that Delaware law imposes neither a continuous insolvency nor an irretrievable insolvency requirement, and found sufficient evidence in the record to support a reasonable inference that the debtor…
August 6, 2015
In In re Molycorp, Inc. Shareholder Derivative Litigation, 2015 WL 3454925 (Del. Ch. May 27, 2015), the Court of Chancery granted under Rule 12(b)(6) defendants’ motions to dismiss a derivative complaint that alleged breaches of fiduciary duties, among other claims, in connection with a secondary stock offering that was initiated at the request of Molycorp, Inc.’s…
August 6, 2015
In two recent post-trial opinions in appraisal cases under 8 Del. C. § 262, the Court of Chancery addressed the importance of merger price and process as well as the reliability of discounted cash flow (DCF) analyses in determining fair value. In Merlin Partners LP v. AutoInfo, Inc., 2015 WL 2069417 (Del. Ch. Apr. 30,…
August 6, 2015
In Lazard Technology P’rs, LLC v. QinetiQ North America Operations LLC, 114 A.3d 193 (Del. Apr. 23, 2015), the Delaware Supreme Court affirmed the Court of Chancery’s post-trial bench ruling and held that defendant-below did not breach an earn-out provision in a merger agreement or the implied covenant of good faith and fair dealing. In 2009,…
August 6, 2015
In Gorman v. Salamone, C.A. No. 10183-VCN (Del. Ch. July 31, 2015), the Delaware Court of Chancery held that a stockholder-adopted bylaw amendment that purported to grant stockholders the authority to remove corporate officers over the objection of the corporation’s board of directors was invalid under Delaware law. In so holding, the Court found that the…
July 6, 2015
In Hill International, Inc. v. Opportunity Partners L.P., the Delaware Supreme Court affirmed the Court of Chancery’s grant of mandatory injunctive relief enjoining Hill International, Inc. from conducting any business at its 2015 annual meeting, other than convening the meeting for the sole purpose of adjourning it for a minimum time period, in order to permit Opportunity Partners, the stockholder-plaintiff, to present certain items of business and director nominations at Hill’s 2015 annual meeting.
Delaware Supreme Court Provides Guidance on Drafting Advance Notice Bylaws
Insights | July 2015
On July 2, 2015, the Delaware Supreme Courtin Hill International, Inc. v. Opportunity PartnersL.P., affirmed the Court of Chancery’s orderenjoining Hill International, Inc. (Hill) from conductingany business at its 2015 annual meeting,other than convening the meeting for the solepurpose of adjourning it for a minimum timeperiod necessary to allow Opportunity PartnersL.P. (Opportunity), the stockholder-plaintiff, topresent items…
Delaware Governor Jack Markell Signs Legislation Amending the Delaware General Corporation Law
June 24, 2015
Senate Bill 75, which contains several important amendments to the General Corporation Law of the State of Delaware, was signed by Delaware Governor Jack Markell on June 24, 2015.
New Delaware Court of Chancery Opinion Provides Guidance for Director Compensation Practices
Insights | June 2015
A recent opinion of the Delaware Court ofChancery, Calma v. Templeton, has broughtrenewed attention to the issue of directorcompensation. The opinion holds that directorcompensation decisions may not be subject tothe presumption of the business judgment rule,but may instead be reviewed under the entirefairness standard. However, it also addresses thecircumstances under which stockholder ratification of director compensation…
The Business Lawyer | Summer 2015
In October 2014, leading corporate governance practitioners from around the UnitedStates convened at the biennial Delaware Business Law Forum, along with current andformer jurists of the Delaware Supreme Court and Court of Chancery, to discuss and debatedeveloping topics in corporate governance. Participants also included representativesof “activist” investors, institutional investors, public company directors and those who advisethem,…
May 14, 2015
In In re Cornerstone Therapeutics Inc. Stockholder Litigation, the Delaware Supreme Court resolved two consolidated interlocutory appeals.
April 20, 2015
Delaware courts have consistently held, in the context of Delaware limited partnerships, that clear, express and unambiguous language modifying default fiduciary duties will be enforced.
2015 Amendments to the General Corporation Law of the State of Delaware
April 13, 2015
Legislation proposing to amend the General Corporation Law of the State of Delaware has been approved by the Corporation Law Section of the Delaware State Bar Association and is expected to be introduced to the Delaware General Assembly.
Delaware Adopts Rapid Arbitration Act
April 13, 2015
On April 2, 2015, Delaware Governor Jack Markell signed a highly specialized arbitration statute into law: the Delaware Rapid Arbitration Act.
Insights | March 2015
In United Technologies Corp. v. Treppel, theDelaware Supreme Court unanimously reversedthe Court of Chancery’s ruling denying thedefendant’s request to restrict the use of informationobtained in plaintiff’s inspection ofbooks and records to actions in the Delawarecourts.
Delaware Innovates to Create a World-Class Arbitration Regime
The Harvard Law School Forum on Corporate Governance and Financial Regulation | March 19, 2015
On March 11, 2015, the Delaware State Bar Association gave its formal approval to HB 49, which was filed yesterday in the Delaware Legislature. If passed by the Legislature, the bill, which bears the title the Delaware Rapid Arbitration Act, will establish Delaware as a cutting-edge seat for business arbitrations.
The Current State of Fee-Shifting Provisions
March 17, 2015
On March 6, 2015, the Council of the Corporation Law Section of the Delaware State Bar Association released proposed legislation that would amend the Delaware General Corporation Law to invalidate fee-shifting provisions in the certificate of incorporation or bylaws of a stock corporation.
Business Law Today | March 2015
Delaware courts are frequently called upon to address disputes arising under contracts governed by the laws of other states. While Delaware courts will apply the substantive law of the chosen jurisdiction in interpreting the contract unless the Restatement of Conflicts of Laws would require it to apply the law of some other jurisdiction, Delaware statute of…
Recent Developments in Delaware Corporate Law
Spring 2015
This publication contains recent court decisions affecting Delaware corporations and other business entities, as well as the 2014 amendments to Delaware’s corporate and alternative entity law.
Chancery Court Addresses Aiding and Abetting Claims
Delaware Business Court Insider | February 24, 2015
In Virtus Capital v. Eastman Chemical, C.A. No. 9808-VCL (Del. Ch. Feb. 11, 2015), the Delaware Court of Chancery denied a motion to dismiss a complaint for lack of personal jurisdiction in a suit related to the 2011 sale of Sterling Chemicals Inc. to Eastman Chemical Co. that was allegedly orchestrated by Sterling’s controlling stockholder, Martin…
Recent Delaware Corporate Law Updates
February 17, 2015
In recent months, Delaware courts have addressed a number of issues important to Delaware corporations and their advisors.
February 17, 2015
In four opinions issued within three months of one another, four different members of the Delaware Court of Chancery have considered, at the motion to dismiss procedural stage, whether allegations in a complaint were sufficient to establish that a minority stockholder constituted a controlling stockholder under Delaware law.
February 17, 2015
In Orckit Communications Ltd. v. Networks3 Inc. et al., the Delaware Court of Chancery granted defendant Networks3‘s motion to dismiss a claim that it had wrongfully terminated an agreement to purchase patents from plaintiff Orckit.
February 17, 2015
In two opinions issued the same day, the Delaware Court of Chancery addressed standing requirements under Delaware’s appraisal statute, Section 262 of the General Corporation Law of the State of Delaware.
February 17, 2015
In In re Comverge, Inc. Shareholders Litigation, the Delaware Court of Chancery granted in part the defendants’ motion to dismiss a post-closing stockholder challenge to the acquisition of Comverge, Inc. by H.I.G. Capital, L.L.C., which acquisition the Court had previously declined to enjoin.
February 17, 2015
In Quadrant Structured Products Company, Ltd. v. Vertin, the Delaware Court of Chancery held that the contemporaneous ownership requirement of Section 327 of the General Corporation Law of the State of Delaware does not apply to corporate creditors for purposes of determining whether a creditor has standing to bring derivative claims against the board of directors of an insolvent corporation.
February 17, 2015
In Cooper Tire & Rubber Company v. Apollo (Mauritius) Holdings Pvt. Ltd, the Delaware Court of Chancery found that Cooper Tire & Rubber Company had not satisfied all of the conditions to closing its merger with Apollo (Mauritius) Holdings Pvt. Ltd as of the trial date, and thus was likely barred from seeking a $112 million reverse termination fee under the merger agreement.
February 17, 2015
In Cigna Health & Life Insurance Company v. Audax Health Solutions, Inc., the Delaware Court of Chancery found invalid features of a private company merger agreement that required stockholders, as a condition to receiving their merger consideration, to submit a letter of transmittal agreeing to provide a release of all claims against the acquirer and that further required stockholders to indemnify, for an indefinite period of time, the acquirer for claims arising from the seller’s breach of representations and warranties.
Documenting the Deal: What is the State of the Art and Does it Make Sense?
February 3, 2015
Panelists for this Penn Law program, including Greg Varallo, will provide their perspective on topics from their varied standpoints.…
42nd Annual Securities Regulation Institute
January 26, 2015
https://www.law.northwestern.edu/academics/professionaled/sri/schedulesri.html…
December 19, 2014
In In re Family Dollar Stores, Inc. Stockholder Litigation, the Court of Chancery declined to preliminarily enjoin the stockholder vote on the merger of Family Dollar Stores, Inc. and Dollar Tree, Inc., pursuant to which Dollar Tree would acquire Family Dollar for a combination of cash and Dollar Tree stock.
December 19, 2014
In C&J Energy Services, Inc. v. City of Miami General Employees’ and Sanitation Employees’ Retirement Trust, the Delaware Supreme Court reversed the Court of Chancery’s decision to grant an “unusual” 30-day preliminary injunction of the merger between C&J Energy Services, Inc., a Delaware corporation, and a division of Nabors Industries Ltd., a Bermuda company.
Recent Chancery Court Opinions on Ripeness
Delaware Business Court Insider | December 10, 2014
The Delaware Court of Chancery’s ruling in Pontiac General Employees Retirement System v. Ballantine, is the most recent statement on so-called “dead hand” proxy puts—the provisions in credit agreements that trigger an acceleration of the borrower’s indebtedness upon a change in amajority of its board within a specified timeframe.
December 1, 2014
In a fact-intensive, 76-page motion to dismiss opinion, the Delaware Court of Chancery largely denied the defendants’ motions to dismiss fraud claims arising out of the sale of Plimus, a private Delaware corporation, to Great Hill, a private equity fund.
Second Annual Delaware Law Issues Update Conference
November 19, 2014
The second annual Delaware Law Issues Update Conference will focus on Delaware corporate law and governance issues essential to corporate secretaries, in-house counsel, outside counsel and gover-nance professionals who advise boards. Covering recent developments and emerging issues in Delaware law, presenters will provide best practice advice and proactive steps that should be taken by those who regularly…
Harvard Law School’s Program on Corporate Governance
October 28, 2014
Harvard Law School’s Program on Corporate Governance supports and facilitates a series of talks and presentations on corporate governance by both academics and prominent practitioners. Greg Varallo was a speaker at this highly regarded program.…
10th Annual Mergers and Acquisitions Institute – The University of Texas at Austin
October 16, 2014
One of the leading private M&A conferences of its kind in the U.S., UT Law’s Mergers and Acquisitions Institute examines the latest trends, structures, pitfalls and opportunities in M&A, features nationally and internationally recognized speakers, and provides invaluable opportunities to network with leading M&A lawyers and corporate development officers in Texas and the Southwest. Srini Raju…
October 14, 2014
In In re KKR Financial Holdings LLC Shareholder Litigation, the Court of Chancery granted defendants’ motions to dismiss with prejudice a suit challenging the acquisition of KKR Financial Holdings LLC by KKR & Co. L.P.
October 11, 2014
In an opinion assessing damages in In re Rural/Metro Corp. S’holders Litig., the Court of Chancery held that a financial advisor, which had been held liable in an earlier opinion for aiding and abetting breaches of fiduciary duty by a board of directors in connection with approving a merger and related disclosures, would be required to pay 83% of the damages to the stockholder class.
2014 ABA Business Law Section Annual Meeting
September 11, 2014
At the inaugural ABA Business Law Section Annual Meeting, Cathy Dearlove acted as a co-chair and moderator of the “Governance of Private and Family-Controlled Companies & Governance of Non-Corporate Entities” meeting. This meeting included discussions of recent developments involving limits of contractual governance provisions, and governance considerations in venture capital transactions when investing in a corporation versus investing…
Boris v. Schaheen, C.A. No. 8160-VCN (Del. Ch.)
September 10, 2014
Please click below to view Delaware State Court footage of Richards Layton director Rich Rollo’s oral argument in Boris v. Schaheen on September 10, 2014.…
September 8, 2014
In City of Providence v. First Citizens Bancshares, Inc., et al., the Court of Chancery granted a motion to dismiss a challenge to a bylaw, adopted by the board of directors of First Citizens Bancshares, Inc., that requires, to the extent permitted by law, certain intra-corporate claims to be brought exclusively in the United States District Court for the Eastern District of North Carolina, or, if that court lacks jurisdiction, then in any North Carolina state court that possesses jurisdiction.
Delaware: The “Go-to” Forum for Global Business
September 7, 2014
Delaware has long been a global hub for company formation. More than one million companies are incorporated in Delaware, including 50% of all publicly-traded companies in the U.S. and 64% of the Fortune 500. Bun incorporating in Delaware is not just for American entities. Companies from around the world take advantage of all Delaware has to…
Strategic Adoption of Forum-Selection Bylaws
Delaware Business Court Insider | September 3, 2014
The suggestion in In re Revlon Shareholders Litigation, that forum-selection bylaws may be enforceable and the subsequent enforcement of such bylaws in Boilermakers Local 154 Retirement Fund v. Chevron, has resulted in the strategic adoption of forum-selection bylaws in connection with major transactions, such as mergers.
Chancery Appoints Liquidating Trustee to Assist With Windup
Delaware Business Court Insider | August 27, 2014
In Comerica Bank v. Global Payments Direct, the Delaware Court ofChancery appointed a liquidating trustee to assist with and oversee the winding up of Global Payments ComericaAlliance LLC pursuant to Section 18-803(a) of the Delaware Limited Liability Company Act.
Chancery Dismisses Stockholder Suit Over Expedia CEO Award
Delaware Business Court Insider | July 30, 2014
In Friedman v. Khosrowshahi, the Court of Chancery dismissed the plaintiff’s claims challenging the decision by the compensation committee of Expedia Inc. to accelerate the vesting of a restricted stock unit award.
July 14, 2014
As a result of the passage of 79 Del. Laws, c. 278, the deadlines to enter the SOS VDA Program and to resolve all unclaimed property liability under that program have been extended.
June 26, 2014
PLI has assembled distinguished M&A litigators and judges from the Delaware Supreme Court and Court of Chancery—the most experienced and respected courts on M&A matters—to give attendees their perspectives on the best ways to handle corporate M&A disputes. This stellar faculty will provide attendees with proven strategies and tips to successfully handle every phase of a…
Special Committees: Law and Practice (2nd edition)
2014
Written by knowledgeable practitioners in corporate law and special committee practice, this comprehensive book provides in-depth explanations on the uses, benefits and disadvantages of special committees.
Law360: ATP Tour, Inc. v. Deutscher Tennis Bund
June 24, 2014
Corporate Counsel Weekly | June 18, 2014
In ATP Tour, Inc. v. Deutscher Tennis Bund, the Delaware Supreme Court, held that a fee-shifting provision of a Delaware nonstock corporation’s bylaws applicable to intra-corporate disputes could be valid and enforceable.
June 12, 2014
In In re Orchard Enterprises, Inc., the Court of Chancery, by Vice Chancellor Laster, on cross motions for summary judgment, held, among other things, that the entire fairness standard of review will apply at trial to fiduciary duty claims challenging a squeeze-out merger, with the burden of persuasion on the defendants, notwithstanding that the merger was negotiated by a special committee and approved by a majority of the minority stockholders.
June 12, 2014
In Chen v. Howard-Anderson, the Court of Chancery, by Vice Chancellor Laster, ruling on a motion for summary judgment, held that, in a change of control case where the standard of review is enhanced scrutiny, directors and officers could be found liable for acting in bad faith (and thus breach their fiduciary duty of loyalty) if plaintiffs cite evidence sufficient to support an inference that the directors and officers acted unreasonably in conducting the sale process and allowed interests other than the pursuit of obtaining the best price reasonably available to influence their actions. In so holding, the Court distinguished the Delaware Supreme Court’s decision in Lyondell Chemical Co. v. Ryan.
June 12, 2014
In Houseman v. Sagerman, the Court of Chancery, by Vice Chancellor Glasscock, in addressing defendants’ motion to dismiss claims related to the 2011 acquisition of Universata, Inc. by HealthPort Technologies, LLC, held that the failure to obtain a fairness opinion in connection with the acquisition did not rise to the level of bad faith on the part of the board of directors of Universata and did not support an aiding and abetting claim against the Board’s financial advisor.
June 12, 2014
In Hamilton Partners, L.P. v. Highland Capital Management, L.P., the Court of Chancery, by Vice Chancellor Noble, in connection with a challenge to a going-private transaction whereby American HomePatient, Inc. was acquired by an affiliate of one of its stockholders, Highland Capital Management, L.P., refused to dismiss breach of fiduciary duty claims against Highland.
Recent Delaware Corporate Law Updates
June 12, 2014
In recent months, Delaware courts have addressed a number of issues important to Delaware corporations and their advisors.
June 12, 2014
In In re Answers Corporation Shareholders Litigation, the Court of Chancery, by Vice Chancellor Noble, granted summary judgment in favor of defendants in an action brought by stockholder plaintiffs challenging the merger by which Answers Corporation was acquired by AFCV Holdings, LLC, a portfolio company of private equity firm Summit Partners, L.P., for $10.50 per share.
June 12, 2014
In ATP Tour, Inc. v. Deutscher Tennis Bund, the Delaware Supreme Court, by Justice Berger, in responding to certified questions of law from the United States District Court for the District of Delaware, held that a provision of a Delaware nonstock corporation’s bylaws that shifted litigation expenses to the losing party in intra-corporate litigation was facially valid under Delaware law and may be enforced if the provision was adopted through appropriate corporate procedures and for a proper corporate purpose.
Delaware Law Developments 2014: What All Business Lawyers Need to Know
May 28, 2014
Delaware law continues to play a critical role in U.S. corporate and securities law, particularly in today’s challenging and changing business environment. This unique annual program focuses on the important Delaware corporate law developments over the past year and their practical impact on corporate and legal practice. Top Delaware corporate law experts from the Delaware judiciary, leading…
Chancery Court Decides First Action Under New Section 205
Delaware Business Court Insider | May 7, 2014
On April 1, Trupanion Inc. and its chief executive officer filed what is believed to be the first petition seeking relief in the Delaware Court of Chancery pursuant to Section 205 of the Delaware General Corporation Law. In less than a month, the Chancery Court issued a final order in the action, resolving multiple questions relating…
May 5, 2014
In Third Point LLC v. Ruprecht, et al., C.A. No. 9469-VCP (Del. Ch. May 2, 2014), the Delaware Court of Chancery denied preliminary injunctive relief against Sotheby’s annual meeting, scheduled for May 6, 2014. Plaintiffs, including Third Point LLC and other stockholders, claimed that the board had violated its fiduciary duties by (1) adopting a stockholder…
2014 Proposed Amendments to the General Corporation Law of the State of Delaware
Insights | May 2014
The 2014 proposed amendments to the DGCL would give corporations and their counsel increased flexibility in structuring transactions and in effecting various corporate acts.
34rd Annual Ray Garrett Jr. Corporate and Securities Law Institute
May 1, 2014
The Ray Garrett Jr. Corporate and Securities Law Institute is the preeminent securities law conference in the Midwest. It is the only Midwest conference that brings together senior officials from the Securities and Exchange Commission and leading securities practitioners. Steve Bigler will participate on a panel entitled “Delaware Law Pitfalls for Deal Lawyers and In-house Counsel,”…
Proposed Amendments to the General Corporation Law of the State of Delaware in 2014
April 15, 2014
Legislation proposing to amend the General Corporation Law of the State of Delaware has been submitted to the Corporation Law Section of the Delaware State Bar Association for approval. If enacted, the proposed amendments would become effective on August 1, 2014
2014 ABA Business Law Section Spring Meeting
April 10, 2014
Nearly 2,000 business law thought leaders, practitioners and policy influencers will convene at the Business Law Section Spring Meeting taking place April 10-12, 2014 in Los Angeles. Attendees will delve into current business law topics at CLE programs, substantive meetings and topical sessions, while enjoying dozens of social events scheduled throughout the meeting. Richards Layton attorneys…
Recent Developments in Delaware Corporate and LLC Law
April 3, 2014
This presentation, featuring Bill Haubert and Rudy Koch, will focus on recent developments in Delaware corporate and LLC law.
Rural Metro and Claims for Aiding & Abetting Breaches of Fiduciary Duty
April 2, 2014
The Rural Metro decision is expected to have a dramatic impact on the viability of claims for aiding and abetting breaches of fiduciary duty in connection with M&A transactions. The panel, which includes C. Stephen Bigler, will discuss these implications as well as the potentially broader implications regarding the Revlon rules and enhanced scrutiny…
Considerations in Drafting Board Observer Arrangements
Business Law Today | April 2014
Although board observer arrangements are not uncommon, there is little case law squarely addressing the rights, duties, and potential liabilities of board observers. Reference to basic principles of corporate law, however, should provide corporations and investors sufficient guidance in structuring board observer arrangements. These arrangements may offer several advantages over a traditional designated board seat. From…
26th Tulane Corporate Law Institute
March 27, 2014
Since the first Institute in 1988, the best and brightest M&A and securities practitioners, Delaware Supreme Court and Court of Chancery judges, leading corporate counsel and Wall Street investment bankers have gathered in New Orleans every spring for the Tulane Corporate Law Institute. Now recognized as one of the premier M&A, corporate and securities law conferences…
March 14, 2014
In Kahn, et al. v. M&F Worldwide Corp., et al., the Delaware Supreme Court affirmed the Court of Chancery’s decision in In re MFW Shareholders Litigation.
March 8, 2014
In In re Rural Metro Corporation Stockholders Litigation, the Delaware Court of Chancery held RBC Capital Markets, LLC liable for aiding and abetting breaches of fiduciary duty by the board of directors of Rural/Metro Corporation in connection with Rural’s acquisition by Warburg Pincus LLC.
Recent Developments in Delaware Corporate Law
Spring 2014
This publication contains recent court decisions affecting Delaware corporations and other business entities, as well as the 2013 amendments to Delaware’s corporate and alternative entity law.…
32nd Annual Federal Securities Institute
February 6, 2014
The 32nd Annual Federal Securities Institute, presented by the Business Law Section of the Florida Bar and Thomson Reuters, is the leading corporate and securities law event in the Southeast. Attendees will hear and meet national and regional thought-leaders in the securities industry as they address issues of concern to industry professionals and their clients. Seminar…
The Business Lawyer | February 2014
The Delaware legislature has adopted amendments to the General Corporation Law of the State of Delaware, which amendments will become effective on April 1, 2014, that are designed to overrule the existing precedents requiring that defective stock and acts be found void.
Preserving a Seller’s Attorney-Client Privilege After Great Hill
Delaware Business Court Insider | January 2, 2014
In Great Hill Equity Partners IV v. SIG Growth Equity Fund I, a lawsuit arising from a private-company merger, the buyer discovered certain of the seller’s privileged communications, including privileged communications concerning the merger negotiation, in computer files that had been delivered to the buyer in the merger.
Klaassen v. Allegro: Implementing the Stockholders’ Agreement
Delaware Business Court Insider | December 4, 2013
In Klaassen v. Allegro Development, the Delaware Court of Chancery indicated that governance provisions included in stockholders’ agreements may be enforceable against the parties to those agreements, even if the provisions conflict with the certificate of incorporation or the DGCL.
December 2, 2013
In Klaassen v. Allegro Development Corporation, Eldon Klaassen, the former CEO of Allegro Development Corporation, brought an action under Section 225 of the Delaware General Corporation Law, requesting that the Court of Chancery declare that he: (1) was still the CEO of Allegro, (2) had validly removed two of Allegro’s directors and appointed their replacements, and (3) had validly filled a preexisting director vacancy.
December 2, 2013
In June 2013, the Court of Chancery held in Boilermakers Local 154 Retirement Fund, et al. v. Chevron Corp., et al., and IClub Inv. P’ship v. FedEx Corp., et al., 73 A.3d 934 (Del. Ch. 2013), that a board of directors, if granted authority by the certificate of incorporation to adopt bylaws, has the power under…
Recent Delaware Corporate Law Updates
December 2, 2013
In recent months, Delaware courts have addressed a number of issues important to Delaware corporations and their advisors.
December 2, 2013
In In re BioClinica, Inc. Shareholder Litigation, Vice Chancellor Glasscock of the Delaware Court of Chancery held that plaintiffs’ amended complaint failed to state a claim against the directors of BioClinica, Inc. for breaches of fiduciary duty, and against JLL Partners, Inc., BioCore Holdings, Inc. and BC Acquisition Corp. for aiding and abetting.
December 2, 2013
In Viacom International, Inc. v. Winshall, the Delaware Supreme Court affirmed the Court of Chancery’s decision to uphold an arbitration determination resolving a dispute between Viacom International, Inc. and the stockholders of Harmonix Music Systems, Inc.
December 2, 2013
In In re Morton’s Restaurant Group, Inc. Shareholders Litigation, the Court of Chancery granted the director defendants’ motion to dismiss, reasoning that the plaintiffs’ complaint was “devoid of . . . well-pled facts compromising the independence of a supermajority of the board, challenging the adequacy of the board’s market check, or suggesting that any bidder received favoritism,” and also failed to “plead any facts supporting a rational inference of a conflict of interest” on the part of Morton’s largest stockholder or any director.
December 2, 2013
In Delaware Coalition for Open Government v. Strine, et al., the United States Court of Appeals for the Third Circuit considered whether the District Court for the District of Delaware correctly ruled that confidential arbitration proceedings conducted by members of the Delaware Court of Chancery under 10 Del. C. § 349 must be open to the public under the First Amendment to the Constitution of the United States.
December 2, 2013
In Activision Blizzard, Inc. v. Hayes, the Delaware Supreme Court addressed the question of whether the purchase by Activision Blizzard, Inc. of shares of its own stock, as well as net operating loss carryforwards, from Vivendi, S.A. constituted a “merger, business combination or similar transaction” under Activision amended certificate of incorporation.
November 20, 2013
Anne Foster, co-chair of this inaugural conference, will speak at this Society of Corporate Secretaries & Governance Professionals event being held at the University of Delaware.
November 15, 2013
In Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, The Court of Chancery interpreted Section 259 of the General Corporation Law of the State of Delaware to hold that all privileges—including the attorney-client privilege—pass in a merger from the acquired corporation to the surviving corporation.
Key Updates for Oregon Business Law Practitioners
November 7, 2013
This CLE-accredited event in Portland, Oregon, will provide attendees with vital updates and information for their business clients. Mike Allen will present on “Recent Developments in Delaware Corporate Law.”…
Proxy Access by Private Ordering: A Review of the 2012 and 2013 Proxy Seasons
The Business Lawyer | November 2013
Although the process of selecting corporate directors is described in terms that track the political election process—director “candidates” are “nominated” and “elected,” just as political representatives are—there have always been significant differences between political and corporate elections.
31st Annual Business & Securities Law Conference 2013
October 24, 2013
This annual CLE-accredited MCLE program features a wide variety of panels covering new legal developments and practice trends for both private and public companies—focusing on the issues that business and securities lawyers encounter daily in counseling clients and structuring transactions. John Mark Zeberkiewicz spoke on “Recent Developments in Delaware Corporate Law,” which focused on changes in statutes…
22nd Annual Corporate and Securities Law Seminar
October 18, 2013
Greg Williams will speak at this CLE-accredited seminar sponsored by the Society of Corporate Secretaries & Governance Professionals in Milwaukee, WI.
Hot Topics in Mergers & Acquisitions 2013
September 19, 2013
Raymond DiCamillo will speak at this CLE-accredited seminar in Chicago.
Mitigating Financial Adviser Conflicts With Second Adviser
Delaware Business Court Insider | August 28, 2013
Financial adviser conflicts, whether arising from prior relationships or from the financial adviser’s interest in providing buy-side financing, have been a focus in M&A litigation for several years.
August 16, 2013
In a 115-page post-trial opinion in In re Trados Inc. Shareholder Litigation, the Court of Chancery found entirely fair the decision to approve a merger in which common stockholders received no consideration.
Conclusive Presumption of Good Faith in MLP Agreements
Delaware Business Court Insider | July 3, 2013
The Delaware Supreme Court provided helpful guidance on the operation of the conclusive presumption of good faith in master limited partnership agreements in three recent decisions: Brinckerhoff v. Enbridge Energy, Norton v. K-Sea Transportation Partners L.P., and Gerber v. Enterprise Products Holdings LLC.
June 27, 2013
Anne Foster will speak at this CLE-accredited PLI seminar in New York City.
June 25, 2013
The Court of Chancery has rejected statutory and contractual challenges to forum-selection bylaws adopted unilaterally by the boards of directors of Chevron Corporation and FedEx Corporation.
Delaware Corporate Law Video Update
June 25, 2013
Cases addressed include: In re MFW Shareholders Litigation, Gerber v. Enterprise Products, Koehler v. NetSpend Holdings, Inc., Pyott v. Louisiana, and Municipal Police Employees’ Retirement System
June 18, 2013
In In re Primedia, Inc. Shareholders Litigation, Vice Chancellor Laster of the Court of Chancery held that plaintiffs whose standing to pursue derivative insider trading claims had been extinguished by merger had standing to challenge directly the entire fairness of that merger based on a claim that the target board of directors failed to obtain sufficient value in the merger for the pending derivative claims.
June 18, 2013
In In re NYSE Euronext Shareholders Litigation, Chancellor Strine of the Court of Chancery, ruling from the bench following oral argument, declined to enjoin preliminarily a stockholder vote on the proposed merger between NYSE Euronext and IntercontinentalExchange, Inc.
Recent Delaware Corporate Law Updates
June 18, 2013
In recent months, Delaware courts have addressed a number of issues important to Delaware corporations and their advisors.
June 18, 2013
In Carsanaro v. Bloodhound Technologies, Inc., Vice Chancellor Laster of the Court of Chancery denied defendants’ motion to dismiss a complaint alleging breaches of fiduciary duties and statutory violations, among other things, in connection with several rounds of venture capital financings for a start-up healthcare technology company.
June 18, 2013
In Pyott v. Louisiana Municipal Police Employees’ Retirement System, the Delaware Supreme Court reversed a decision in which the Court of Chancery declined to dismiss a derivative suit after a federal court in California dismissed a parallel derivative suit with prejudice.
June 18, 2013
In a post-trial opinion, In re Wayport, Inc. Litigation, Vice Chancellor Laster of the Court of Chancery held that corporate fiduciaries do not have a duty to disclose information about the corporation in connection with direct stock purchases from stockholders absent knowledge of “special facts.”
June 18, 2013
In Koehler v. NetSpend Holdings, Inc., Vice Chancellor Glasscock of the Court of Chancery denied plaintiff’s motion for preliminary injunction despite finding that a majority independent and disinterested board of directors likely breached its fiduciary duties by approving a $1.4 billion merger with a third party.
Significant Proposed Amendments to the General Corporation Law of the State of Delaware
Insights | June 2013
The 2013 proposed amendments to the DGCL include some of the most substantial and groundbreaking developments in statutory law in Delaware in years.
May 29, 2013
Chancellor Strine granted summary judgment in a stockholder class action brought to challenge a merger of M&F Worldwide Corp. with its controlling stockholder, MacAndrews & Forbes Holdings Inc.
Delaware Law Developments 2013: What All Business Lawyers Need to Know
May 29, 2013
Gregory Williams and Srinivas Raju will speak during this CLE-accredited PLI seminar.
Disclosure of Management Projections Under Delaware Law
The Review of Securities & Commodities Regulation | May 22, 2013
The Delaware courts have issued a variety of opinions, seemingly pointing in different directions, on the required disclosure of management projections in M & A transactions.
Minnesota CLE and MSBA Business Law Section 2013 Business Law Institute
May 7, 2013
William Haubert will speak at this CLE-accredited event in Minneapolis, Minnesota.
33rd Annual Ray Garrett Jr. Corporate and Securities Law Institute
May 2, 2013
Director Gregory P. Williams will speak at this CLE-accredited conference in Chicago.
Recent Developments in Delaware Corporate Law
Summer 2013
This publication contains recent court decisions affecting Delaware corporations and other business entities, as well as the 2012 amendments to Delaware’s corporate and alternative entity law.…
Streamlining Two-Step Mergers With Proposed Amendment to DGCL
Delaware Business Court Insider | April 24, 2013
Recent proposed amendments to the Delaware General Corporation Law contain an important addition to Section 251, which governs mergers between Delaware corporations, that would effectively allow the parties to dispense with the need for a back-end stockholder vote on a merger in certain cases where the buyer has acquired a sufficient number of shares in a front-end tender offer.
‘Don’t Ask, Don’t Waive’ Provisions Questioned in Pair of Del. Decisions
Bloomberg BNA Mergers & Acquisitions Law Report | April 15, 2013
A pair of recent decisions by the Delaware Court of Chancery scrutinize the use of ‘‘don’t ask, don’t waive’’ provisions in standstill agreements, suggesting that boards be fully informed of the impact of using such a tool in mergers.
The Equitable Case for Ratification
Delaware Business Court Insider | March 27, 2013
Among the many significant proposed changes to Delaware’s General Corporation Law that were submitted to the corporation law section of the Delaware State Bar Association this March for approval, the sections dealing with ratification of defective corporate acts stand out as particularly noteworthy.
Tulane University Law School’s 25th Annual Corporate Law Institute
March 21, 2013
Director Mark Gentile will speak during this premier M&A, corporate and securities law conference in New Orleans.
March 20, 2013
Legislation proposing to amend the General Corporation Law of the State of Delaware (the “DGCL”) and related sections of title 8 of the Delaware Code has been submitted to the Corporation Law Section of the Delaware State Bar Association for approval. If the amendments become effective, they would result in several significant changes to the DGCL.
Delaware Corporate Law Video Update
March 14, 2013
Cases addressed include: In re Novell, Inc. S’holder Litig., In re BJ’s Wholesale Club, Inc., In re Complete Genomics, Inc., In re Ancestry.com Inc., Meso Scale Diagnostics LLC vs Roche Diagnostics GmbH, Dent v. Ramtron, In re Bioclinica, Inc., and In re Puda Coal Inc.
March 11, 2013
In In re BJ’s Wholesale Club Shareholders Litigation, Vice Chancellor Noble of the Court of Chancery dismissed claims that the board of directors of BJ’s Wholesale Club, Inc. breached its fiduciary duties in a going-private transaction by consciously disregarding its so-called Revlon duties, and that acquirors Leonard Green & Partners, L.P. and CVC Capital Partners aided and abetted those breaches.
March 11, 2013
In In re Novell, Inc. Shareholder Litigation, Vice Chancellor Noble of the Court of Chancery declined to dismiss breach of fiduciary duty claims against the board of directors of Novell, Inc., concluding that the plaintiffs’ allegations that the Board had treated a serious bidder in a materially different manner than Novell’s eventual acquiror supported a reasonable inference that the Board had acted in bad faith.
March 11, 2013
In Meso Scale Diagnostics, LLC v. Roche Diagnostics GMBH, Vice Chancellor Parsons of the Court of Chancery, ruling on a motion for summary judgment, held that a reverse triangular merger did not constitute an assignment by operation of law on the part of the surviving corporation.
March 11, 2013
In Kallick v. SandRidge Energy, Inc., Chancellor Strine of the Court of Chancery enjoined the board of directors of SandRidge Energy, Inc. from soliciting consent revocations in connection with the consent solicitation launched by a stockholder to install its own slate of directors on the Company’s board, until the incumbent board of the Company approves the members of the opposing slate for purposes of a change in control provision in the Company’s credit agreement.
Recent Delaware Corporate Law Updates
March 11, 2013
In recent months, Delaware courts have addressed a number of issues important to Delaware corporations and their advisors.
March 11, 2013
In a bench ruling in Dent v. Ramtron International Corporation, Vice Chancellor Parsons of the Court of Chancery declined to preliminarily enjoin a stockholder vote on a proposed merger between Cypress Semiconductor Corporation and Ramtron International Corporation.
March 11, 2013
In Metropolitan Life Insurance Company v. Tremont Group Holdings, Inc., Vice Chancellor Parsons of the Court of Chancery further clarified Delaware law with respect to the distinction between direct and derivative claims in litigation involving Delaware limited partnerships.
South v. Baker: Court of Chancery Dismisses Caremark Claim with Prejudice to Named Plaintiffs Only
March 11, 2013
In South v. Baker, Vice Chancellor Laster of the Court of Chancery dismissed a derivative claim for breach of fiduciary duty based on the Caremark theory of liability, finding that because the plaintiffs failed adequately to represent the company, dismissal of their complaint would be with prejudice to the named plaintiffs only and would not preclude the litigation efforts of other stockholders.
March 11, 2013
In In re Complete Genomics, Inc. Shareholder Litigation, Vice Chancellor Laster questioned the validity under Delaware law of a “don’t ask, don’t waive” provision prohibiting private requests for waiver of a standstill agreement, and enjoined enforcement of the provision in that case. Several weeks later, in In re Ancestry.com Inc. Shareholder Litigation, Chancellor Strine stated that Delaware has no per se rule against “don’t ask, don’t waive” provisions, but made clear that such provisions will be subject to close scrutiny.
Trends in Merger Litigation 2013: Corporate, Litigation, and Judicial Perspectives
March 5, 2013
Director Catherine Dearlove will speak during this CLE-accredited PLI seminar.
Recent Developments in Delaware Corporate Law
Spring 2013
This publication contains recent court decisions affecting Delaware corporations and other business entities, as well as the 2012 amendments to Delaware’s corporate and alternative entity law.…
Delaware Insider: Executive Compensation Lessons from Freedman v. Adams
Business Law Today | March 2013
On January 14, 2013, in Freedman v. Adams, the Delaware Supreme Court reaffirmed that executive compensation decisions are business judgments vested in the board of directors that will rarely be second-guessed absent a showing that the board acted on an ill-informed basis or in bad faith.
The Battle over Confidential Arbitration
ABA | February 27, 2013
The Delaware Court of Chancery’s business arbitration program was barely underway when the Delaware Coalition for Open Government, a state affiliate of the National Freedom of Information Coalition, brought suit to nullify one of its central features: confidentiality of proceedings. The coalition alleged that the confidentiality provisions of the arbitration statute and the corresponding Court of…
31st Annual Federal Securities Institute
February 14, 2013
Richards Layton directors Gregory P. Williams, Institute co-chair, and Lisa Schmidt will speak at this event in Miami, Florida.
R&R Capital v. Merritt, C.A. No. 3989-CC (Del. Ch.)
January 10, 2013
Please click below to view Delaware State Court footage of Richards Layton director Rich Rollo’s oral argument in R&R Capital v. Merritt on January 10, 2013.…
December 27, 2012
In In re Celera Corporation Shareholder Litigation, the Delaware Supreme Court upheld the Court of Chancery’s decision to certify as class representative a plaintiff that had sold its stock prior to the challenged merger, but held that, under the facts and circumstances of the case, the Court of Chancery had abused its discretion by failing to provide a significant stockholder with the right to opt out of the class.
Court of Chancery Preliminarily Enjoins Complete Genomics Acquisition
Delaware Business Court Insider | November 28, 2012
In In re Complete Genomics Shareholder Litigation, a recent decision by Vice Chancellor J. Travis Laster, the Court of Chancery preliminarily enjoined BGI-Shenzhen’s acquisition of Complete Genomics Inc. pending supplemental disclosures concerning (1) discussions between the company’s CEO and BGI’s CEO regarding post-transaction employment and (2) clarification of inaccurately described and ambiguous provisions of the merger agreement.
Section 162(m) Litigation: What We Know So Far
The Review of Securities & Commodities Regulation | November 21, 2012
This article sets forth some typical allegations found in complaints challenging Section 162(m) plans, discusses the courts’ treatment of various arguments that have been raised in motions to dismiss, describes what typical settlements look like, and provides practical advice to mitigate the risk of becoming the target of one of these lawsuits.
PLI’s 44th Annual Securities Regulation Institute
November 7, 2012
Director Greg Varallo will be a speaker at this annual PLI-sponsored seminar in New York City.
Court of Chancery Addresses Validity of Entity Action
Delaware Business Court Insider | October 24, 2012
In Feeley v. NHAOCG, the Delaware Court of Chancery addressed several important issues regarding the validity of actions taken in violation of a Delaware limited liability company’s operating agreement.
30th Annual Business & Securities Law Conference 2012
October 18, 2012
John Mark Zeberkiewicz will speak at this CLE-accredited program in Boston.
The University of Texas at Austin School of Law’s 8th Annual Mergers and Acquisitions Institute
October 18, 2012
Blake Rohrbacher will speak at this annual event in Dallas, Texas.
Hot Issues in Executive Compensation 2012
October 4, 2012
Steve Bigler will speak during this CLE-accredited PLI seminar/webcast in New York City.
International Bar Association’s 2012 Annual Conference
September 30, 2012
Sam Nolen will speak at this annual international conference in Dublin, Ireland.
Delaware Corporate Law Webinar
September 13, 2012
Cases addressed include: In re Appraisal of Orchard Enterprises, In re Synthes, Inc. Shareholder Litigation, and Americas Mining Corp. v. Theriault (“Southern Peru”)
2012 Amendments to the General Corporation Law of the State of Delaware
September 5, 2012
Legislation amending the General Corporation Law of the State of Delaware was adopted by the Delaware General Assembly and was signed by the Governor of the State of Delaware on June 29, 2012.
Recent Delaware Corporate Law Decisions and Amendments to Delaware’s General Corporation Law
September 5, 2012
In recent months, Delaware courts have addressed a number of issues important to Delaware corporations and their advisors.
September 5, 2012
In In re Synthes, Inc. Shareholder Litigation, the Court of Chancery dismissed an amended class action complaint alleging that Synthes, Inc.’s chairman and controlling shareholder Hansjoerg Wyss and its board of directors breached their fiduciary duties by approving a merger with Johnson & Johnson.
September 5, 2012
In a summary proceeding under Section 225 of the Delaware General Corporation Law, the Court of Chancery in Keyser v. Curtis, applied the entire fairness test to a sole director’s effort to prevent stockholders from electing a new board by issuing a new series of preferred stock with powerful voting rights to himself for one cent per share, held that the issuance was not entirely fair, and determined that the newly issued stock could not be counted in determining whether the plaintiff-stockholders had delivered sufficient written consents to elect a new board.
September 5, 2012
In In re Appraisal of Orchard Enterprises, Inc., the Court of Chancery, in a post-trial decision, determined that the petitioners, certain common stockholders of The Orchard Enterprises, Inc., were entitled to $4.67 per share, rather than the $2.05 per share they received in a going-private transaction.
September 5, 2012
In Martin Marietta Materials, Inc. v. Vulcan Materials Co., the Delaware Supreme Court affirmed the Court of Chancery’s decision enjoining Martin Marietta Materials, Inc. from taking any action in connection with its hostile takeover bid for Vulcan Materials Co., including proceeding with its exchange offer and prosecuting its proxy contest, for a period of four months, in order to remedy Martin’s breach of two confidentiality agreements between the companies.
September 5, 2012
In Zucker v. Andreessen, the Court of Chancery applied the heightened pleading burden under Court of Chancery Rule 23.1 and dismissed a derivative complaint for failure properly to allege demand futility.
September 5, 2012
In Louisiana Municipal Police Employees’ Ret. Sys. v. Pyott, the Court of Chancery held that a federal court’s decision to dismiss derivative litigation for failure to plead demand futility adequately under Rule 23.1 did not preclude relitigation of that same issue in another case involving a different stockholder plaintiff.
Chancery Court Discusses Continued Viability of Blasius Standard
Delaware Business Court Insider | August 29, 2012
Recently, in Keyser v. Curtis, the Court of Chancery applied the entire fairness standard when considering a challenge to the issuance of super-voting preferred stock.
Supreme Court Affirms Damages and Fee Award in Southern Peru
August 27, 2012
In Americas Mining Corp. v. Theriault, the Delaware Supreme Court affirmed the Court of Chancery’s post-trial decision and final judgment awarding more than $2 billion in damages (including interest) and $304 million in attorneys’ fees in In re Southern Peru Copper Corp. Shareholder Derivative Litigation, revised Dec. 20, 2011).
Chancery Arbitrations after Year One: Annotated New Form
ABA | August 16, 2012
On January 5, 2010, the Delaware Court of Chancery adopted a set of rules providing for arbitration in the court, giving life to a recently adopted statute permitting Delaware’s Chancery judges to act as private arbitrators.
2012 Amendments to the General Corporation Law of the State of Delaware
Insights | August 2012
Legislation amending the General Corporation Law of the State of Delaware was adopted by the Delaware General Assembly and was signed by the Governor of the State of Delaware on June 29, 2012.
The Society of Corporate Secretaries & Governance Professionals 2012 Annual Conference
July 11, 2012
Anne Foster will speak at this 66th annual national conference in Washington, D.C.
Delaware Chancery Court Questions Use of Advance Notice Bylaw
Delaware Business Court Insider | June 27, 2012
In HealthCor Management v. Allscripts Healthcare Solutions, the Court of Chancery made a few noteworthy observations regarding the use — and potential limitations — of advance notice bylaws.
Executive Compensation: Strategy, Design, and Implementation
June 14, 2012
Mark Gentile and Rudy Koch will speak during this CLE-accredited ALI-ABA seminar in New York City.
Delaware Law Developments 2012: What All Business Lawyers Need to Know
June 12, 2012
Anne Foster, Melissa Stubenberg and Gregory Williams will speak during this CLE-accredited PLI seminar.
Delaware Corporate Law Webinar
June 12, 2012
Cases addressed include: Martin Marietta Materials, Inc. v. Vulcan Materials Co., Gearreald v. Just Care, Inc., In re Comverge Inc. Shareholders Litigation, Forsythe v. ESC Fund Management Co. (U.S.), Inc., and In re Answers Corporation Shareholders Litigation.
Recent Delaware Corporate Law Decisions
June 5, 2012
In recent months, Delaware courts have addressed a number of issues important to Delaware corporations and their advisors.
June 5, 2012
In Central Laborers Pension Fund v. News Corp., the Delaware Supreme Court affirmed the Court of Chancery’s dismissal of an action seeking to enforce a Section 220 books and records demand on the grounds that the plaintiff’s demand had not strictly complied with the statute’s “form and manner” requirements.
June 5, 2012
In Central Laborers Pension Fund v. News Corp., the Delaware Supreme Court affirmed the Court of Chancery’s dismissal of an action seeking to enforce a Section 220 books and records demand on the grounds that the plaintiff’s demand had not strictly complied with the statute’s “form and manner” requirements.
June 5, 2012
In In re Micromet, Inc. Shareholders Litigation, the Court of Chancery denied the plaintiffs’ motion to preliminarily enjoin Amgen, Inc.’s $1.16 billion acquisition of Micromet, Inc., rejecting the plaintiffs’ challenges to Micromet’s market check and the merger agreement’s deal protection measures.
June 5, 2012
In In re Celera Corporation Shareholder Litigation, the Court of Chancery approved the settlement of a putative class action despite the representative plaintiff having sold all of its shares after entering into an MOU and before the closing of the challenged transaction.
June 5, 2012
In Frank v. Elgamal, the Court of Chancery held that entire fairness review would apply to a cash-out merger between American Surgical Holdings, Inc. and an unaffiliated private equity purchaser, having concluded that the plaintiff adequately alleged the existence of a control group.
June 5, 2012
In In re Answers Corporation Shareholders Litigation, the Court of Chancery refused to dismiss a lawsuit in connection with the acquisition of Answers Corporation by Summit Partners, L.P., holding that the plaintiffs adequately pled that four of Answers’ seven directors—though disinterested and independent—conceivably could have acted in bad faith, having known of the other directors’ interest but nevertheless conducting an expedited sales process.
June 5, 2012
In Gearreald v. Just Care, Inc., the Court of Chancery’s $35 million valuation of Just Care, Inc. in an appraisal proceeding was approximately $6 million less than the acquisition price.
June 5, 2012
In In re Comverge Inc. Shareholders Litigation, the Court of Chancery in an oral ruling refused to enjoin the acquisition of Comverge, Inc. by HIG Capital LLC, finding that the independent directors made reasonable decisions, even if those decisions were debatable in hindsight.
June 5, 2012
In Forsythe v. ESC Fund Management Co. (U.S.), Inc., the Court of Chancery resolved objections to a settlement by giving objectors the option of continuing the case in pursuit of a larger recovery if they agreed to post a secured bond.
Super Lawyers | 2012
Williams is a director at Richards, Layton & Finger, where he’s worked for 30 years, and chairs its corporate department.
Key 2011 Delaware Rulings for M&A, Corporate Governance and Alternative Entity Practice
May 24, 2012
Director Mike Allen will speak during this CLE-accredited webinar sponsored by Strafford Publications.
Minnesota CLE and MSBA Business Law Section 2012 Business Law Institute
May 9, 2012
William Haubert will speak at this CLE-accredited event in Minneapolis, Minnesota.
May 5, 2012
In Martin Marietta Materials, Inc. v. Vulcan Materials Co., the Court of Chancery upheld a pair of confidentiality agreements and temporarily enjoined Martin Marietta Materials from prosecuting a proxy contest and proceeding with a hostile bid for its industry rival Vulcan Materials Company.
32nd Annual Ray Garrett Jr. Corporate and Securities Law Institute
May 3, 2012
Director Gregory P. Williams will speak at this CLE-accredited institute in Chicago.
Chancery Finds Allegations of ‘Control Group’ Sufficient to Invoke Entire Fairness Review of Merger
Delaware Business Court Insider | April 25, 2012
In Frank v. Elgamal, the Delaware Court of Chancery held that the entire fairness standard would apply to the merger of American Surgical Holdings Inc. with an unaffiliated private equity purchaser.
Chancery Court Provides Guidance on Structuring Financings
Delaware Business Court Insider | April 4, 2012
In Zimmerman v. Crothall, the Delaware Court of Chancery, ruling on a motion for summary judgment, found that the defendants – directors and venture capital investors of Adhezion Biomedical – failed to establish that Adhezion’s issuance of preferred equity and convertible debt to the defendants that was not offered to all holders on the same terms were not self-interested transactions.
Director Liability: From Van Gorkom to Southern Peru and Beyond
Insights | April 2012
The Delaware courts have, on a couple of occasions over the past few decades, held corporate directors liable in headline-grabbing fashion.
2012 ABA Business Law Section Spring Meeting
March 22, 2012
Steve Bigler, Elisa Maas, Greg Varallo, and John Mark Zeberkiewicz will speak at this annual ABA section meeting in Las Vegas, NV.
Delaware Corporate Law Webinar
March 8, 2012
Cases addressed include: S. Muoio & Co. v. Hallmark Entertainment Investments (“Crown Media”), Shiftan v. Morgan Joseph Holdings, Inc., and Steinhardt v. Howard-Anderson.
March 7, 2012
In In re Delphi Financial Group Shareholder Litigation, the Court of Chancery declined to enjoin Tokio Marine Holdings, Inc.’s proposed takeover of Delphi Financial Group.
Recent Delaware Corporate Law Decisions
March 2, 2012
In recent months, Delaware courts have addressed a number of issues important to Delaware corporations and their advisors.
March 2, 2012
In In re Compellent Technologies, Inc. Shareholder Litigation, the Court of Chancery ruled on an application for attorneys’ fees brought by class counsel who had secured a settlement loosening the “buyer-friendly” deal protection provisions of a merger agreement.
March 2, 2012
In Shiftan v. Morgan Joseph Holdings, Inc., the Court of Chancery concluded on summary judgment that a specific, non-speculative future redemption right of preferred stockholders must be taken into account when determining the fair value of their shares in an appraisal.
March 2, 2012
In Dweck v. Nasser, the Court of Chancery imposed liability for breach of the fiduciary duty of loyalty on directors and officers of a Delaware corporation who established competing companies that usurped corporate opportunities, and joint and several liability on an officer who approved expense reimbursements for a disloyal director without considering their validity or asking any questions.
March 2, 2012
In Sherwood v. Chan, the Court of Chancery issued a temporary restraining order enjoining a corporation from holding its annual meeting for a period of 20 days to allow adequate time for corrective disclosures and consideration of a competing slate of director nominees by the stockholders.
March 2, 2012
In Steinhardt v. Howard-Anderson, the Court of Chancery imposed sanctions on representative plaintiffs for improper trading practices.
March 2, 2012
In In re Appraisal of Aristotle Corp., the Court of Chancery granted a motion to dismiss claims of breach of the fiduciary duty of disclosure brought by certain stockholders who had dissented from a short-form merger under 8 Del. C. § 253 and perfected their appraisal rights, on grounds that the plaintiffs lacked standing.
March 2, 2012
In SV Investment Partners, LLC v. ThoughtWorks, Inc., the Delaware Supreme Court affirmed the Court of Chancery’s holding that a corporation did not have “funds legally available” to satisfy a preferred stockholder’s redemption demand, but determined that it did not need to address the Court of Chancery’s other holding that “funds legally available” is not equivalent to “surplus” under 8 Del. C. § 160.
Going Private 2012: Doing the Deal Right
February 23, 2012
Director William J. Haubert will be a panelist at this PLI seminar in New York City.
30th Annual Federal Securities Institute
February 16, 2012
Richards Layton directors Gregory P. Williams, Institute co-chair, and Lisa Schmidt will speak at this event in Miami, Florida.
The Dynamics of Disclosure Claims
February 16, 2012
Associate Blake Rohrbacher will speak during this webcast sponsored by Deal Lawyers.
Corporate Governance – A Master Class 2012
February 15, 2012
Director John Mark Zeberkiewicz will speak at this CLE-accredited PLI seminar in New York City.
Notice, Cooperation, and Consent: Common Insurance Issues Arising in Delaware Deal Litigation
Insights | February 2012
By considering the common issues arising at the intersection of corporate litigation and D&O insurance, corporate practitioners may improve practical outcomes for their director and officer clients.
Delaware’s Next Step: Developments in the Step-Transaction Doctrine
Corporation | January 17, 2012
In this article, we discuss the genesis of the step-transaction doctrine and its first appearance in Delaware. Then we examine the Coughlan opinion and what it may mean for practitioners.
January 12, 2012
In Gerber v. Enterprise Products Holdings, LLC, C.A. No. 5989-VCN (Del. Ch. Jan. 6, 2012), the Court of Chancery enforced the contractual modification of fiduciary duties in Enterprise GP Holdings, L.P.’s partnership agreement and, on a motion to dismiss, dismissed all claims against the defendants arising out of the sale of a subsidiary by Enterprise GP Holdings to an affiliate and the subsequent merger of Enterprise GP Holdings into the same affiliate.
Chancery Court: Receiver May Be Necessary to Resolve Decades-Old Asbestos Claims
Delaware Business Court Insider | December 7, 2011
In its Nov. 9 decision in In re Krafft-Murphy Company, the Delaware Court of Chancery addressed several important issues that a board of directors and its legal advisers should consider in connection with the dissolution of a corporation.
Revisiting the Special Committee Process: ‘In re Southern Peru Copper Corporation’
BNA's Corporate Counsel Weekly | November 30, 2011
The Delaware Court of Chancery’s post-trial opinion in In re Southern Peru Copper Corporation is perhaps most notable for the staggering damages award—$1.263 billion—against the controlling stockholder defendants for breach of the duty of loyalty in a transaction subject to entire fairness review.
2011 Delaware Tax Institute – Windows of Opportunity: Tax Planning in Times of Transition
November 18, 2011
Directors Don Sparks, Stan Stevenson and John Mark Zeberkiewicz will speak at this Delaware Tax Institute sponsored by Widener University School of Law.
PLI’s 43rd Annual Securities Regulation Institute
November 9, 2011
Director Greg Varallo will be a speaker at this annual PLI-sponsored seminar in New York City.
2011 Annual Corporate Governance Conference
November 4, 2011
Director Greg Varallo will speak at this annual conference sponsored by the University of Delaware’s Weinberg Center for Corporate Governance in Wilmington, Delaware.
Recent Delaware Corporate Law Decisions
October 31, 2011
In recent months, Delaware courts have addressed a number of issues important to Delaware corporations and their advisors.
The 19th Annual National Association of Stock Plan Professionals Conference
November 1, 2011
Director William Haubert will be a panelist at the NASPP Annual Conference in San Francisco, California.
October 31, 2011
In In re OPENLANE, Inc. Shareholders Litigation, the Court of Chancery denied a motion to enjoin preliminarily the merger between OPENLANE, Inc. and KAR Auction Services, Inc. (through its wholly-owned subsidiary, ADESA, Inc.) (“KAR”), even though the merger agreement did not include a fiduciary-out and the transaction was effectively locked-up within 24 hours after signing by written consents from the holders of a majority of its stock.
October 31, 2011
In Johnston v. Pedersen, the Court of Chancery held that the directors of a Delaware corporation violated their duty of loyalty when designing and issuing a new series of preferred stock because those directors intentionally “structure[d] the stock issuance to prevent an insurgent group from waging a successful proxy contest.”
October 31, 2011
In New Jersey Carpenters Pension Fund v. infoGROUP, Inc., the Court of Chancery refused to dismiss a breach of fiduciary duty claim where the plaintiff had adequately pled that the founder and largest stockholder of defendant infoGROUP, Inc. dominated his fellow directors and forced them to approve a sale of the company at an unfair price in order to provide himself with some much-needed liquidity.
October 31, 2011
In Central Mortgage Co. v. Morgan Stanley Mortgage Capital Holdings LLC, the Delaware Supreme Court declined to address whether the “plausibility” standards set forth in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal should be applied in Delaware, and instead unanimously held that until the Delaware Supreme Court “decides otherwise or a change is duly effected through the Civil Rules process, the governing pleading standard in Delaware to survive a motion to dismiss is reasonable ‘conceivability.’”
October 31, 2011
In Amirsaleh v. Board of Trade, the Delaware Supreme Court held that appellee Board of Trade of the City of New York, Inc. (“NYBOT”) had not validly retracted its previous waiver of a contractual deadline by which its members were supposed to elect the form of consideration they would receive in connection with NYBOT’s 2007 merger with Intercontinental Exchange, Inc.
October 31, 2011
In Bank of New York Mellon Trust Co. v. Liberty Media Corp., the Delaware Supreme Court held that the split-off of the Capital and Starz business groups following three other major distributions of assets since 2004 did not constitute a transfer of “substantially all” of the assets of Liberty Media Corporation and its wholly owned subsidiary, Liberty Media LLC, under the terms of an indenture.
October 31, 2011
In Alta Berkeley VI C.V. v. Omneon, Inc., the Delaware Superior Court’s Complex Commercial Litigation Division denied a claim for a liquidation preference by certain former preferred stockholders of Omneon, Inc. in connection with a merger between Omneon and Harmonic, Inc.
October 28, 2011
Director Greg Williams will speak at this University of Tampa forum for business leaders in Tampa, Florida.
Southeastern Business Law Institute
October 27, 2011
Director Greg Williams will be a speaker at this program sponsored by Samford University’s Cumberland School of Law in Birmingham, Alabama.
29th Annual New England Business and Securities Law Conference 2011
October 19, 2011
Director John Mark Zeberkiewicz will speak at MCLE’s annual conference in Boston, Massachusetts.
October 17, 2011
In In re Southern Peru Copper Corp. Shareholder Derivative Litigation, C.A. No. 961-CS (Del. Ch. Oct. 14, 2011), the Court of Chancery awarded $1.263 billion as damages in a derivative action challenging the acquisition by Southern Peru Copper Corporation of another corporation controlled by Southern Peru’s controlling stockholder since the Court determined after trial that the controlling stockholder defendants breached their duty of loyalty.
October 13, 2011
In his first major corporate decision, Vice Chancellor Glasscock dismissed a stockholder derivative action brought against directors and officers of Goldman Sachs.
Lyin’, Cheatin’ and M&A Stealin’: Negotiating the Fraud Exception
October 13, 2011
Director Srinivas Raju will be a speaker during this Deal Lawyers webcast.
8th Annual Institute on Corporate, Securities, and Related Aspects of Mergers and Acquisitions
October 13, 2011
Directors Lisa A. Schmidt and Gregory P. Williams will speak at the 8th Annual Institute on Corporate, Securities, and Related Aspects of Mergers and Acquisitions in New York City.
Faegre & Benson 2011 M&A Conference
October 11, 2011
Director Mark Gentile will be a panelist at the 2011 Faegre & Benson LLP M&A Conference in Minneapolis, Minnesota.
Recent Developments in the Delaware Courts
October 5, 2011
Michael D. Allen, William J. Haubert, Srinivas M. Raju, and Gregory P. Williams will speak at this West LegalEdcenter webcast focusing on Delaware corporate law.
Mergers & Acquisitions 2011: What You Need to Know Now
September 23, 2011
C. Stephen Bigler will speak at this PLI seminar in Chicago focused on exploring the fascinating state of M&A and the trends to be aware of in the year ahead.
Mergers & Acquisitions 2011: ÿWhat You Need to Know Now
September 8, 2011
C. Stephen Bigler will speak at this PLI seminar in New York focused on exploring the fascinating state of M&A and the trends to be aware of in the year ahead.
Chancery Court Sensitive to Potential Conflicts of Financial Advisors in M&A
Delaware Business Court Insider | September 7, 2011
Over the past few years, the level of disclosure regarding the work performed by a financial adviser rendering a fairness opinion in connection with an M&A transaction has increased substantially, due in part to decisions of the Delaware Court of Chancery.
Valid Issuance of Capital Stock
The Review of Securities & Commodities Regulation | September 7, 2011
In recent months, the Delaware Court of Chancery has issued two opinions, Olson v. ev3, Inc. and Blades v. Wisehart, dealing with the validity of capital stock.
Delaware Corporate Law Webinar
August 9, 2011
Cases addressed include: Kahn v. Kolberg, Kravis Roberts & Co., In re Massey Energy, In re Orchid Cellmark, and In re Smufit-Stone.
August 1, 2011
In In re Orchid Cellmark Inc. Shareholder Litigation, the Delaware Court of Chancery denied plaintiffs’ motion to enjoin preliminarily a cash tender offer by Laboratory Corporation of America Holdings, Inc. for all of the shares of Orchid Cellmark Inc. for $2.80 per share under an Agreement and Plan of Merger, dated April 5, 2011.
2011 Amendments to the General Corporation Law of the State of Delaware
August 1, 2011
Legislation amending the General Corporation Law of the State of Delaware has been adopted by the Delaware General Assembly and was signed by the Governor of the State of Delaware on July 7, 2011.
Goggin v. Vermillion, Inc.: Court of Chancery Applies Airgas to Address Timing of Annual Meeting
August 1, 2011
In Goggin v. Vermillion, Inc., Vice Chancellor Noble, interpreting the Delaware Supreme Court’s opinion in Airgas, Inc. v. Air Products and Chemicals, Inc., denied plaintiff’s motion to enjoin the 2011 annual stockholders meeting of Vermillion, Inc., which was scheduled to occur six months after the 2010 annual meeting.
August 1, 2011
In Kahn v. Kohlberg Kravis Roberts & Co., L.P., the Delaware Supreme Court held that a plaintiff may state a derivative claim for insider trading without a showing of actual harm to the corporation.
August 1, 2011
In In re Del Monte Foods Company Shareholders Litigation, the Delaware Court of Chancery awarded plaintiff’s counsel $2.75 million in attorneys’ fees and expenses for supplemental disclosures achieved during the preliminary injunction phase of the case.
August 1, 2011
In In re Massey Energy Company Derivative and Class Action Litigation, the Delaware Court of Chancery declined to preliminarily enjoin a merger between Massey Energy Company and Alpha Natural Resources, Inc.
August 1, 2011
In Krieger v. Wesco Financial Corporation, the Delaware Court of Chancery denied plaintiff stockholder’s motion for a preliminary injunction against a proposed acquisition of Wesco Financial Corporation by Berkshire Hathaway , the holder of 80.1% of the Company’s common stock, in which Berkshire sought to acquire the remaining outstanding shares of common stock.
August 1, 2011
In In re Smurfit-Stone Container Corp. Shareholder Litigation, the Delaware Court of Chancery addressed “whether and in what circumstances Revlon applies when merger consideration is split roughly evenly between cash and stock.”
The Wheels Are Falling Off the Privilege Bus: What Deal Lawyers Need to Know to Avoid the Crash
The Business Lawyer | August 2011
Over the last several years, the rise of electronic discovery, the increasing focus of inhouse counsel on business roles, and the increasing complexity of mergers and acquisitions have expanded signifi cantly the volume and type of potentially privileged documents created in connection with mergers and acquisitions.
Fair Summary II: An Update on Delaware’s Disclosure Regime Regarding Fairness Opinions
The Business Lawyer | August 2011
In this article, we discuss the current state of Delaware’s fiduciary disclosure regime and the developments over the last three years.
2011 Amendments to the General Corporation Law of the State of Delaware
Insights | August 2011
Legislation amending the General Corporation Law of the State of Delaware was adopted by the Delaware General Assembly and was signed by the Governor of the State of Delaware on July 7, 2011.
Delaware Laws & Programs Affecting Business – 2011 Edition
July 2011
This guide presents an introduction to Delaware and an overview of the laws and programs relating to doing business in the State.
Arbitration in the Delaware Court of Chancery
Insights | July 2011
On January 5, 2010, the Court of Chancery adopted new rules providing for Chancery arbitration pursuant to a Delaware statute permitting Delaware’s Chancery judges to act as private arbitrators.
Deals: The Latest Delaware Developments
June 16, 2011
Steve Bigler will speak at this webcast sponsored by deallawyers.com.
Executive Compensation: Strategy, Design, and Implementation
June 16, 2011
Mark Gentile will speak at this premier ALI-ABA CLE-accredited program in New York City.
Effective Shareholders Agreements
June 15, 2011
Steve Bigler will speak during this CLE-accredited Strafford event.
Leadership Fights and Multi-Jurisdictional Gamesmanship in Deal Litigation
June 2, 2011
Greg Varallo will speak during this CLE-accredited American Bar Association web-based event.
Court of Chancery Clarifies the Reach of Revlon in Mixed Consideration Deals
The M&A Lawyer | June 2011
Despite the abundance of case law, whether Revlon applies in any given case remains the subject of much debate. While the Delaware Supreme Court has not had occasion to address the issue, the Delaware Court of Chancery is beginning to apply Revlon’s heightened reasonableness review more frequently in mixed-consideration transactions.
Delaware Law Developments 2011: What All Business Lawyers Need to Know
May 18, 2011
Gregory Williams and John Mark Zeberkiewicz will speak at this PLI Seminar in New York City.
The Seminar Group’s Private Equity Conference
May 18, 2011
Gregory Varallo will speak at this private equity conference in Dallas, Texas.
Chancery Court Addresses Revlon Duties and Deal Protection Measures in Small-Cap Transaction
Delaware Business Court Insider | May 11, 2011
In In re Answers Shareholders Litigation, the Delaware Court of Chancery declined to preliminarily enjoin the acquisition of Answers Corp. and, in so doing, made several important observations regarding the board of directors’ management of the sales process and negotiation of the definitive merger agreement, many of which are of particular significance to smaller corporations and their advisers.
Delaware Corporate Law Webinar [Audio only]
May 10, 2011
Cases addressed include: Del Monte, In re Atheros, Olson v. ev3, In re Answers Shareholders Litigation, S. Muoio & Co. v. Hallmark Entertainment Investments, Fletcher International v. ION Geophysical, and Meso Scale Diagnostics v. Roche Diagnostics.
2011 Delaware & California Law Update Symposium
May 6, 2011
Mark Gentile will speak at this Los Angeles County Bar Association event in Los Angeles, California.
Minnesota CLE and MSBA Business Law Section 2011 Business Law Institute
May 5, 2011
William Haubert will speak at this CLE-accredited event in Minneapolis, Minnesota.
April 28, 2011
In S. Muoio & Co. LLC v. Hallmark Entertainment Investments Co., et al., the Court of Chancery held that a recapitalization of Crown Media Holdings, Inc. by its controlling stockholder and primary debtholder, Hallmark Cards, Inc. and its affiliates, was entirely fair.
April 28, 2011
In In re Atheros Communications, Inc. Shareholder Litigation, the Court of Chancery preliminarily enjoined Atheros Communications, Inc. from holding a meeting of its stockholders to vote on a $3.1 billion all-cash merger agreement with Qualcomm Incorporated, pending appropriate distribution of curative proxy disclosures regarding contingency fees to be paid to Atheros’ financial advisor, and the potential employment of Atheros’ CEO by Qualcomm.
April 28, 2011
The efforts of Fletcher International, Ltd. to block a joint venture between ION Geophysical Corp. and China National Petroleum Corporation have resulted in multiple opinions interpreting Fletcher’s rights as a preferred stockholder of ION.
Olson v. ev3, Inc., et al.: Court of Chancery Addresses Validity of Top-Up Option
April 28, 2011
In Olson v. ev3, Inc., et al., C.A. No. 5583-VCL (Del. Ch. Feb. 21, 2011), the Court of Chancery awarded plaintiff’s counsel the full amount of attorneys’ fees and expenses requested—$1.1 million—for what was, according to the Court, “the first meaningful full-scale challenge to the use of a top-up option.”
April 28, 2011
In Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH, the Court of Chancery considered whether a reverse triangular merger would result in an assignment by operation of law—an issue of first impression under Delaware law.
April 27, 2011
C. Stephen Bigler and Gregory P. Williams will speak at this Atlanta Bar Association CLE-accredited meeting in Atlanta, Georgia.
Hot Issues in Executive Compensation 2011
April 19, 2011
Catherine Dearlove will speak at this PLI seminar in New York City focused on emerging best practices and current reactions to the changing landscape.
Irreconcilable Differences: Director, Manager, and Shareholder Conflicts in Takeover Transactions
April 11, 2011
William Haubert will speak at this CLE-accredited event hosted by the Delaware Journal of Corporate Law and Widener University School of Law in Wilmington, Delaware.
April 8, 2011
Director Anne C. Foster will be a panelist at this PLI seminar in New York City.
What To Do About Informational Conflicts Involving Designated Directors
The Practical Lawyer | April 2011
When a stockholder obtains director designation rights, the key to avoiding or mitigating potential informational conflicts involving the designated director is to consider these issues and balance allegiances at the outset of the transaction.
Tulane University Law School 23rd Annual Corporate Law Institute
March 31, 2011
Mark Gentile will be a moderator at this two-day seminar on corporate law in New Orleans, Lousiana.
Reviewing the Standards of Review in Delaware
Insights | March 2011
On January 21, 2011, the Court of Chancery issued Reis v. Hazelett Strip-Casting Corp., a post-trial decision regarding the fairness of a reverse stock split and the resulting injury to the minority stockholders.
February 16, 2011
Marking the latest chapter in the attempt of Air Products and Chemicals, Inc. to acquire Airgas, Inc., the Court of Chancery ruled for defendant Airgas.
February 15, 2011
In In re Del Monte Foods Company Shareholders Litigation, the Court of Chancery found on a preliminary record that a proposed $5.3 billion cash merger (including assumption of debt) with a group of private equity buyers was potentially tainted by alleged misconduct by the target banker, with the alleged knowing participation of the buyers.
Delaware Corporate Law Webinar [Audio only]
February 9, 2011
Cases addressed include: Air Products v. Airgas, Steinhardt v. Howard-Anderson, Reis v. Hazelett Strip-Casting, Art Technology Group Shareholders Litigation, SV Investment Partners v. ThoughtWorks, Golden Telecom v. Global GT, Roam-Tel Partners v. AT&T Mobility Wireless Op. Holdings, and Scully v. Nighthawk Radiology Holdings.
Recent Delaware Corporate Law Decisions
February 1, 2011
In recent months, the Delaware courts have addressed important issues for Delaware corporations and their advisors.
February 1, 2011
In Blades v. Wisehart, the Court of Chancery held that a corporation had not validly effectuated a stock split because it had not complied with the requisite corporate formalities, notwithstanding that the corporation’s board and stockholders all had the subjective intent to effectuate the split.
February 1, 2011
In Golden Telecom, the Supreme Court declined to impose strict requirements on the trial court’s determination of fair value, including deference to merger price or a requirement that the subject company be bound by previously disseminated company-specific data. In AT&T Mobility, the Court of Chancery held that a stockholder has the entire 20-day statutory period to consider whether or not to seek appraisal, and may even revoke a prior waiver of appraisal rights during that period, under certain circumstances.
February 1, 2011
In King v. VeriFone Holdings, Inc., the Delaware Supreme Court reversed the Court of Chancery’s decision that established a bright-line rule barring stockholder-plaintiffs from seeking books and records pursuant to 8 Del. C. § 220 (“Section 220”) solely because they filed a derivative action first.
February 1, 2011
In Narrowstep, Inc. v. Onstream Media Corp. the Court of Chancery, expressly relying on the motion to dismiss standard articulated by the United States Supreme Court in Bell Atlantic v. Twombly, dismissed an implied covenant of good faith and fair dealing claim but refused to dismiss claims for breach of fiduciary duty, fraud and unjust enrichment in connection with the failed merger between Narrowstep Inc. and Onstream Media Corporation.
February 1, 2011
At a status conference in Scully v. Nighthawk Radiology Holdings, Inc., Vice Chancellor Laster stated that there was prima facie evidence of collusive forum shopping in connection with a settlement of multi-jurisdictional, representative litigation challenging the fairness of a merger and announced that he would appoint special counsel to the Court to investigate these issues and possibly to recommend disciplinary action.
February 1, 2011
Following trial in SV Investment Partners, LLC v. ThoughtWorks, Inc. the Court of Chancery rejected a preferred stockholder’s argument that the phrase “funds legally available” is equivalent to “surplus” in the context of redemption rights and entered judgment against the preferred stockholder.
February 1, 2011
The Court of Chancery in In re Art Technology Group, Inc. Shareholders Litigation enjoined a merger until the target company disclosed to its stockholders additional information about its financial advisor’s prior work for the buyer. In Steinhardt v. Howard-Anderson the Court of Chancery applied the enhanced Revlon standard of review to a stockholder’s motion to preliminarily enjoin the acquisition of Occam Networks, Inc. by Calix, Inc. whereby Occam stockholders would receive cash and stock consideration.
New Day for Nonstock Corporations: The 2010 Amendments to Delaware’s General Corporation Law
The Business Lawyer | February 2011
This article describes the impetus for the nonstock amendments and explains the structure and nuances of those amendments.
Mergers & Acquisitions 2011 Committee Meeting
January 28, 2011
Director Gregory Varallo will be a panelist at this ABA-sponsored meeting in Coconut Grove, Florida.
January 14, 2011
Following trial in In re John Q. Hammons Hotels Inc. Shareholder Litigation, the Court of Chancery ruled in favor of defendants, finding that the merger price was fair value, that controlling stockholder John Q. Hammons did not breach his fiduciary duties, and that the third-party acquirers did not aid and abet a (nonexistent) fiduciary duty breach.
Corporate Roundtable: Hedge Funds
December 10, 2010
Director Gregory V. Varallo will be a panelist at this University of Pennsylvania Institute for Law and Economics event in Philadelphia.
November 23, 2010
In Airgas, Inc. v. Air Products and Chemicals, Inc., the Delaware Supreme Court reversed the ruling of the Delaware Chancery Court upholding the validity of a stockholder-proposed bylaw accelerating Airgas’s annual meeting by approximately eight months.
An Overview of Delaware-Specific Issues for Stockholders’ Meetings
The Review of Securities & Commodities Regulation | November 17, 2010
The Dodd-Frank Act’s adoption of say-on-pay and the SEC’s new proxy access rule implicate state law issues with regard to stockholders’ meetings. The authors discuss these issues in the context of an overview of Delaware law requirements for such meetings.
Delaware Corporate Law Webinar [Audio only]
November 16, 2010
Cases addressed include: In re Dollar Thrifty Shareholder Litigation, Forgo v. Health Grades, Inc., In re Cogent, Inc. Shareholder Litigation, Lambrecht v. O’Neal, and WaveDivision Holdings, LLC v. Millennium Digital Media Systems, L.L.C.
PLI’s 42nd Annual Institute on Securities Regulation
November 10, 2010
Director Gregory V. Varallo will speak at this PLI seminar in New York City focusing on the current state of securities, financial regulatory, and corporate law.
Balancing Allegiances in the Boardroom
November 4, 2010
Directors Catherine G. Dearlove and Raymond J. DiCamillo will speak at this CLE-accredited ABA program via teleconference.
October 28, 2010
In Aveta Inc. v. Cavallieri, C.A. No. 5074-VCL (Del. Ch. Sept. 20, 2010), the Court of Chancery held that the contractual process for calculating post-closing adjustments to plaintiff’s purchase price for Preferred Medical Choice Inc. (“PMC”) was binding on all former PMC stockholders.
October 28, 2010
In In re Cogent, Inc. Shareholder Litigation, Cons. C.A. No. 5780-VCP (Del. Ch. Oct. 5, 2010), the Delaware Court of Chancery denied plaintiffs’ motion for a preliminary injunction, which sought to enjoin a two-step acquisition in which a third-party acquiror, 3M Company (“3M”), agreed to commence a tender offer for the stock of the target corporation, Cogent, Inc. (“Cogent”), to be followed by a back-end merger at the same tender offer price.
October 28, 2010
In two recent decisions, the Delaware Court of Chancery analyzed whether a board of directors satisfied its obligations under Revlon where the board focused primarily on a “single bidder” strategy in seeking to sell the corporation.
October 28, 2010
The Delaware Court of Chancery’s decision in eBay Domestic Holdings, Inc. v. Newmark, C.A. No. 3705-CC (Del. Ch. Sept. 9, 2010), provides important insight on the use—and possible limitations—of takeover defense mechanisms in the context of private, closely held corporations.
October 28, 2010
In Lambrecht v. O’Neal, No. 135, 2010, 3 A.3d 277 (Del. Aug. 27, 2010), the Delaware Supreme Court answered a certified question of law submitted by the United States District Court for the Southern District of New York (the “Southern District Court”). In this en banc opinion, the Delaware Supreme Court clarified the standing requirements for maintaining a “double derivative” suit under Delaware law.
October 28, 2010
In City of Westland Police & Fire Retirement System v. Axcelis Technologies, Inc., No. 594, 2009 (Del. Aug. 11, 2010), the Delaware Supreme Court affirmed the dismissal of a books and records action under 8 Del. C. § 220 (“Section 220”), holding that plaintiff did not meet its evidentiary burden to demonstrate a “proper purpose” to support inspection where a board of directors rejected the resignations of three directors who failed to receive a majority of the votes cast in an uncontested election.
October 28, 2010
In WaveDivision Holdings, LLC v. Millennium Digital Media Systems, L.L.C., C.A. No. 2993-VCS (Del. Ch. Sept. 17, 2010), the Court of Chancery made clear that if there is no violation of fiduciary duty when entering into an agreement not to solicit other offers, then the company is obligated to honor its commitment.
Delaware Amends Unclaimed Property/Escheat Laws
October 28, 2010
Enacted in July 2010, 77 Del. Laws, c. 417 (the “Act”) represents a significant development in the area of unclaimed property administration in Delaware. The Act has three main components: (1) changes to the procedures related to the manner in which unclaimed property assessments are prosecuted; (2) a declaration that “uninvoiced payables” will not be considered escheatable property; and (3) provisions related to the State Escheator’s power to use estimation techniques to determine unclaimed property liability.
Recent Delaware Corporate Law Decisions and Amendments to Unclaimed Property/Escheat Laws
October 28, 2010
In recent months, the Delaware courts have addressed important issues for Delaware corporations and their advisors. The recent amendments to Delaware’s unclaimed property/escheat laws may also be of interest to Delaware corporations and their advisors.
BNA's Corporate Counsel Weekly | October 13, 2010
On Monday Oct. 4, 2010, the Delaware Supreme Court affirmed the Court of Chancery’s decision to sanction the use of a poison pill with a 4.99 percent trigger to protect a company’s net operating losses.
October 11, 2010
In a case of first impression, the Delaware Court of Chancery considered the validity of a stockholder-proposed bylaw amendment causing a corporation’s annual meeting to be held each year in the month of January, as opposed to the month of August, when the corporation’s annual meetings had historically been held.
October 4, 2010
On October 4, 2010, the Delaware Supreme Court issued an opinion affirming the Court of Chancery’s decision in Selectica, Inc. v. Versata, Inc.
The International Bar Association’s Annual Conference
October 3, 2010
Director Samuel A. Nolen will co-chair a panel at the International Bar Association’s Annual Conference in Vancouver, Canada.
University of Texas’ School of Law’s 6th Annual Mergers and Acquisitions Institute
September 30, 2010
Director Srinivas M. Raju will be a panelist at this CLE-accredited institute in Houston, Texas.
State Capital Group’s 2010 Annual Meeting
September 30, 2010
Directors Gregory V. Varallo and Daniel J. DeFranceschi will speak at the State Capital Group’s 2010 Annual Meeting in Las Vegas, Nevada.
Poison Pills – How Effective Is Too Effective?
The M&A Lawyer | September 2010
Although its prevalence has been in decline in recent years, the traditional stockholder rights plan (the so-called “poison pill”) remains one of the most effective anti-takeover devices in a board of directors’ arsenal.
Delaware Corporate Law Webinar [Audio only]
August 17, 2010
Cases addressed include: Yucaipa American Alliance Fund II, L.P. v. Riggio et al., Maric Capital Master Fund, Ltd, v. PLATO Learning, Inc., Steamfitters Local Union 447 v. Walter, Olson v. ev3, Inc., King v. VeriFone Holdings, Inc., Baca v. Insight Enterprises, Inc., and City of Westland Police & Fire Retirement System v. Axcelis Technologies, Inc.
August 12, 2010
In Yucaipa v. Riggio, the Delaware Court of Chancery confirmed in a post-trial decision that a board’s decision to adopt and maintain a stockholder rights plan triggered upon the acquisition of beneficial ownership of more than 20% of the company’s shares is subject to Unocal review, even where the board “grandfathers” an existing significant stockholder from the operation of the plan.
August 3, 2010
In Fletcher Int’l, Ltd. v. ION Geophysical Corp., C.A. No. 5109-VCP (Del. Ch. May 28, 2010), the Court of Chancery reaffirmed the primarily contractual nature of the duties owed to, and the rights of, preferred stockholders under Delaware law.
Olson v. ev3, Inc. – Court of Chancery Expedites Challenge of Top Up Option
August 3, 2010
In Olson v. ev3, Inc., C.A. No. 5583-VCL (Del. Ch. June 25, 2010) (Transcript), the plaintiff sought to enjoin a merger between ev3, Inc. and Covidien Group S.a.r.l., arguing, among other things, that the top up option granted to Covidien was invalid and coercive, and that ev3’s disclosure regarding the top up option was materially misleading and incomplete.
Recent Delaware Corporate Law Decisions
August 3, 2010
During the past few months, several cases in the Delaware courts have raised important issues for Delaware corporations and their advisors.
August 3, 2010
In Prizm Group, Inc. v. Anderson, C.A. No. 4060-VCP (Del. Ch. May 10, 2010), Prizm Group, Inc., a Delaware corporation, sought a declaration that Mark E. Anderson, who was issued common stock of Prizm in exchange for an unsecured promissory note, had failed to provide valid consideration for the shares and that the shares were void ab initio or voidable at the election of Prizm.
August 3, 2010
In two recent decisions, the Court of Chancery dismissed books and records actions under 8 Del. C. § 220 (“Section 220”) that were filed after the plaintiffs had filed derivative actions.
August 3, 2010
In two recent decisions, the Court of Chancery addressed the issue of disclosure of free cash flow estimates in connection with a merger.
ABA | August, 2010
The Delaware Court of Chancery’s decision in Selectica, Inc. v. Versata Enterprises, Inc has garnered a great deal of attention for its analysis and treatment of the low threshold poison pill used by Selectica, Inc. to protect its net operating loss carry-forwards, and the fact that it was the first time a poison pill has ever been triggered in modern memory.
The Business Lawyer | August 2010
This Article concludes that Delaware courts should reconsider the application and effect of section 141(e) and allow directors, regardless of their interest in a challenged transaction, to assert section 141(e) as a defense to liability in duty of care and duty of loyalty cases if they reasonably relied in good faith on expert advice .
July 6, 2010
The Delaware General Assembly has recently enacted legislation amending the Delaware Limited Liability Company Act (DLLCA), the Delaware Revised Uniform Limited Partnership Act (DRULPA) and the Delaware Revised Uniform Partnership Act (DRUPA).
Hot Issues in Executive Compensation 2010
June 3, 2010
C. Stephen Bigler will speak at this PLI seminar in New York City focused on emerging best practices and current reactions to the changing landscape.
May 26, 2010
In In re CNX Gas Corp. Shareholders Litigation, C.A. No. 5377-VCL (Del. Ch. May 25, 2010), the Delaware Chancery Court attempted to clarify the standard applicable to controlling stockholder tender offers and mergers.
Deal Lawyers | May-June 2010
Delaware case law has long discussed the directors’ fiduciary duties of care and loyalty to the corporation and its stockholders in absolute terms.
The Implied Covenant of Good Faith and Fair Dealing: Nemec v. Shrader
May 3, 2010
In Nemec v. Shrader, Nos. 305, 2009 & 309, 2009 (Del. Apr. 6, 2010), the Delaware Supreme Court, in a 3-2 split decision, affirmed the dismissal of a complaint by former officers against Booz, Allen & Hamilton Inc. and its board of directors for failure to state a claim, holding that the directors did not breach…
Fiduciary Duties to Preferred Stockholders in a Merger: LC Capital Master Fund, Ltd. v. James
May 3, 2010
In LC Capital Master Fund, Ltd. v. James, C.A. No. 5214-VCS (Del. Ch. Mar. 8, 2010), the Delaware Court of Chancery denied a preferred stockholder’s motion to enjoin the acquisition of QuadraMed Corporation by affiliates of Francisco Partners II, L.P., holding that the directors fulfilled the limited fiduciary duties owed to the preferred stockholders in approving…
The New Revlon: Court of Chancery Guidance Regarding Pursuit of Stockholder Litigation
May 3, 2010
In In re Revlon, Inc. Shareholders Litigation, Consol. C.A. No. 4578-VCL (Del. Ch. Mar. 16, 2010), the Court of Chancery replaced lead representative plaintiffs and their counsel after concluding that the plaintiffs and their counsel failed to litigate the case adequately and exaggerated their litigation efforts in filings submitted to the Court. The case arose after…
Special Litigation Committee Investigations: London v. Tyrell
May 3, 2010
In London v. Tyrell, C.A. No. 3321-CC (Del. Ch. Mar. 11, 2010), the Court of Chancery denied a special litigation committee’s (“SLC”) motion to dismiss, finding that there were material questions of fact regarding the SLC’s independence and the reasonableness and good faith of its investigation. This action, brought by two former directors individually and derivatively…
Insider Trading Fiduciary Duty Claims: Pfeiffer v. Toll
May 3, 2010
In Pfeiffer v. Toll, C.A. No. 4140-VCL (Del. Ch. Mar. 3, 2010), the Delaware Court of Chancery reaffirmed the right of a Delaware corporation, under Brophy v. Cities Service Co., 70 A.2d 5 (Del. Ch. 1949), to recover from its fiduciaries for harm caused by insider trading, and rejected the defendants’ position that Brophy…
May 3, 2010
Nonstock Corporations The General Corporation Law of the State of Delaware (the “DGCL”) has long contained provisions for both corporations authorized to issue capital stock and corporations not authorized to issue capital stock (commonly known as nonstock corporations). Among the proposed 2010 amendments is a comprehensive revision of the DGCL intended to make consistent the DGCL’s…
Recent Delaware Corporate Law Decisions and 2010 Amendments to the DGCL
May 3, 2010
During the past few months, several cases in the Delaware courts have raised important issues for Delaware corporations and their advisors.
Preferred Stockholder Consent Rights: Fletcher International, Ltd. v. ION Geophysical Corp.
May 3, 2010
In Fletcher International, Ltd. v. ION Geophysical Corp., C.A. No. 5109-VCP (Del. Ch. Mar. 24, 2010), the Court of Chancery held that a company’s issuance of a promissory note convertible into common stock likely violated a contractual right of the company’s preferred stockholder to consent to the issuance of “any security,” but declined to issue a…
April 22, 2010
In Crown EMAK Partners, LLC v. Kurz, the Supreme Court affirmed in part and reversed in part the Court of Chancery’s holding in Kurz v. Holbrook.
March 1, 2010
On February 26, 2010, the Delaware Court of Chancery sustained a board’s decision to adopt and use a poison pill rights plan with a 4.99% flip-in trigger designed to protect the corporation’s net operating losses.
Deal Protection Devices Enforced in the Delaware Court of Chancery
Insights | March 2010
Vice Chancellor J. Travis Laster’s recent decisions in Global Asset Capital, LLC v. Rubicon US REIT, Inc. and NACCO, Inc. v. Applica Incorporated provide good examples of Delaware’s approach to analyzing bargained-for deal protection devices.
February 13, 2010
On February 9, 2010, the Delaware Court of Chancery issued an opinion with substantial significance for corporate practitioners.
Disclosure Obligations in Private Company Transactions under Delaware Law
BNA's Securities Regulation & Law Report | February 8, 2010
In two recent decisions—Dubroff v. Wren Holdings, LLC and Berger v. Pubco Corporation—the Delaware Court of Chancery expanded the substantive fiduciary disclosure obligations flowing from statutory notice requirements when a corporation takes action by written consent of stockholders or provides notice of appraisal.
Delaware Corporate Law Decision – NACCO Industries, Inc. v. Applica Inc.
January 28, 2010
In NACCO Industries, Inc. v. Applica Inc., the Court of Chancery reaffirmed Delaware’s enforcement of deal protection devices such as no-shop and notice provisions, and held that the Court had jurisdiction over common law fraud claims arising out of disclosures in federal securities filings.
Delaware Corporate Law Update -The Court of Chancery Adopts New Arbitration Rules
January 28, 2010
In connection with recent legislation expanding the authority of the Court of Chancery to allow the Court’s judges to arbitrate business and technology disputes where there is no pre-existing pending action, the Court adopted new rules effective February 1, 2010, to govern such arbitrations.
Delaware Corporate Law Decision – TR Investors, LLC v. Genger
January 28, 2010
In TR Investors, LLC v. Genger, the Court of Chancery addressed allegations of spoliation of evidence, violations of the Court’s status quo order, and the stringent remedies for such actions.
Delaware Corporate Law Decision – Whittington v. Dragon Group, L.L.C.
January 28, 2010
In Whittington v. Dragon Group, L.L.C., the Delaware Supreme Court addressed, in the case of an individual, the requirements to establish a contract under seal.
Delaware Corporate Law Decision – Vichi v. Koninklijke Philips Electronics
January 28, 2010
In Vichi v. Koninklijke Philips Electronics, the Court of Chancery interpreted the application of a recent amendment to the Delaware Securities Act and addressed the ability of creditors of a limited liability company that is insolvent or in the zone of insolvency to bring direct claims against that entity.
Delaware Corporate Law Decision – Paolino v. Mace Security International, Inc.
January 28, 2010
In Paolino v. Mace Security International, Inc., the Court of Chancery granted advancement rights to a former officer and director for his defense of counterclaims asserted by the corporation despite the fact that the initial proceeding had been initiated by the former officer and director.
Delaware Corporate Law Decision – Global Asset Capital, LLC v. Rubicon US Reit, Inc.
January 28, 2010
In Global Asset Capital, LLC v. Rubicon US Reit, the Court of Chancery held that binding letters of intent create enforceable rights that the Court will protect.
Recent Delaware Corporate Law Decisions and New Court of Chancery Arbitration Rules
January 28, 2010
During the past few months, several cases in the Delaware courts have raised important issues for Delaware corporations and their advisors.
Case Study: NACCO Industries v. Applica
Law360 | January 26, 2010
NACCO Industries Inc. v. Applica Inc. No. 2541-VCL (Del. Ch. Dec. 22, 2009), highlights the expanded role that Delaware courts will play to ensure Delaware entities do not engage in fraud.
Sam Nolen is a panelist at the 15th Annual Rocky Mountain Bankruptcy Conference
January 21, 2010
Straddling the Continental Divide at Rocky Mountain National Park: Ethical and Legal Challenges in Advising Boards of Directors of Distressed Companies (Large and Small).
Prediction Protection: The Delaware Supreme Court’s Amylin Footnote
Insights | November 2009
The Delaware Supreme Court recently affirmed the Court of Chancery’s May 2009, opinion in San Antonio Fire & Police Pension Fund v. Amylin Pharmaceuticals, Inc. in a summary order.
An Unremarkable Case: Good Faith After Lyondell
The Corporate Governance Advisor | July/August 2009
Lyondell reaffirmed the definition of bad faith set forth by the Court in its Disney opinion and confirmed that Disney’s bad-faith standard applies in the transactional context.
Kistefos AS v. Trico Marine Services, Inc.
April 14, 2009
Delaware Court Rejects Issuer’s Attempt to Keep By-Law Proposal Off Ballot
Delaware Supreme Court Reverses Chancery Court’s Lyondell Decision
BNA's Corporate Counsel Weekly | April, 2009
Before the merger at issue in the case, Lyondell Chemical Company was the third-largest independent public chemical company in North America. Dan Smith was Lyondell’s Chairman and CEO; Lyondell’s other ten directors were independent and sophisticated businesspeople. This article explains what led to The Supreme Court’s reversal of the Court of Chancery’s decision and remanded the…
Delaware Supreme Court in Lyondell Decision Updates Duties of Directors in Response to a Takeover
Corporate Counsel Weekly | April, 2009
Directors will likely face the most intense scrutiny of their conduct when the board acts in response to a takeover proposal. In Lyondell Chemical Company v. Ryan, the Delaware Supreme Court confirmed important principles regarding both the duties owed by directors, and the standards by which their conduct will be measured. Ever since its adoption in…
Lessons from the Meltdown: Remedies
Deal Lawyers | March-April 2009
For years, private-equity money powered a vigorous M&A market. But the ongoing credit crunch has caused many private-equity buyers to flee their up-market deals. This mass flight has, in turn, put merger agreement remedy provisions in the spotlight. In the third article in our series discussing lessons from the meltdown, we address the implications of the…
Amendments to the General Corporation Law of the State of Delaware
February 23, 2009
Important Proposed Amendments to the General Corporation Law of the State of Delaware Relating to Proxy Access, Proxy Expense Reimbursements, Record Date Bifurcation and Other Matters
Stockholder Ratification: A Review of the Benefits and Burdens
Bloomberg Law Reports | February 2009
For years, the applicability of the doctrine of stockholder ratification to various corporate transactions, as well as the effect of a ratifying vote, has been the subject of debate. The Delaware Supreme Court recently issued an opinion clarifying the doctrine, seeking to specify what it can and cannot validly accomplish. This opinion raises important issues for…
Loyalty’s Core Demand: The Defining Role of Good Faith in Corporation Law
Harvard Law & Economics Discussion Paper | February 2009
Given the Enron-era debacles, the recent meltdown in our nation’s financial sector, the dependence of workers on equity investments to secure their retirements, the globalization of American corporate law principles, and the complexity of managing corporations with international operations, the legal standards used to evaluate whether directors have complied with their fiduciary duties will be a subject of growing international policy interest.
Lessons from the Meltdown: MAE Clauses
Deal Lawyers | Jan-Feb 2009
In most merger agreements, the occurrence of a “material adverse event” (MAE) or “material adverse change” typically allows a buyer to exit the agreement without penalty. In light of the developing meltdown of the financial markets, it is therefore not unrealistic to suggest that most every public merger transaction entered into since mid-2007 has, at one…
The Right Protection: More on Advancement and Indemnification
The Review of Securities & Commodities Regulation | December 2008
In three recent opinions, the Delaware Court of Chancery has addressed the scope of indemnification and advancement bylaws and has made some statements that may come as a surprise to corporate practitioners. In one of those cases, the Court held that an unvested right to indemnification or advancement in a corporation’s bylaws could be eliminated through…
Delaware Uniform Common Interest Ownership Act
November 13, 2008
On October 31, 2008, Governor Minner signed into law the Delaware Uniform Common Interest Ownership Act.
Lessons from the Meltdown: Reverse Termination Fees
Deal Lawyers | November 2008
As the economy travels its roller-coaster path, deal lawyers are constantly in danger of drafting merger provisions that deal with yesterday’s problems. During the frothy “up” market that developed after the Internet bubble burst in 2000, deal lawyers paid relatively little attention to remedies provisions. Relatively few deals fell through in the go-go days of 2005…
October 31, 2008
During the past few months, the Delaware courts have issued several opinions that raise important issues for Delaware corporations and their advisors.
Stormy Weather –Time to Prepare for a Potential Proxy Contest
Journal of Securities Law, Regulation & Compliance | October 2008
As a results of economic factors, as well as specific developments in Delaware law, the authors predict an increase in proxy contests and suggest a number of steps that issuers may consider taking to augment their preparedness for such a contest. Specifically, the authors suggest reviewing bylaws in light of the JANA Master Fund, Ltd v.…
Trenwick America Litigation Trust v. Ernst & Young LLP
August 11, 2008
Delaware Court Of Chancery Holds That No Cause Of Action For “Deepening Insolvency” Exists Under Delaware Law
2008 Amendments to the General Corporation Law of the State of Delaware
Insights | August 2008
Legislation amending the General Corporation Law of the State of Delaware (the DGCL) has been adopted by the Delaware General Assembly and was signed by the Governor of the State of Delaware on June 26, 2008. The DGCL amendments became effective upon signing by the Governor. The DGCL amendments are designed to keep Delaware law current…
Void or Voidable? – Curing Defects in Stock Issuances Under Delaware Law
The Business Lawyer | August 2008
It is not unusual for a Delaware corporation’s stock records to have omissions or procedural defects raising questions as to the valid authorization of some of the outstanding stock. Confronted with such irregularities, most corporate lawyers would likely attempt to cure the defect through board and, if necessary, stockholder ratifi cation. However, in a number of…
August 1, 2008
The Delaware Court of Chancery fires a warning shot regarding sales process issues.
Amendments to Delaware’s LLC and LP Legislation Enacted
July 24, 2008
The Delaware General Assembly has recently enacted legislation amending the Delaware Limited Liability Company Act and the Delaware Revised Uniform Limited Partnership Act.
CA, Inc. v. AFSCME Employees Pension Plan
July 17, 2008
The Delaware Supreme Court holds that a bylaw requiring expense reimbursement of a successful campaign to elect a short slate of directors violates Delaware law.
OHC Liquidation Trust v. Credit Suisse First Boston, et al.
June 12, 2008
Equitable defense results in dismissal of claims against financial advisor.
Commanding Officers: The Fiduciary Duties of Officers under Delaware Law
Insights | June 2008
For years, the nature and scope of non- director officers’ fiduciary duties has been unclear. But the Delaware Court of Chancery recently held that nondirector officers are subject to the same general fiduciary standards as are directors, suggesting also that these officers are entitled to the presumption of the business judgment rule. This and other opinions…
Fair Summary: Delaware’s Framework for Disclosing Fairness Opinions
The Business Lawyer | May 2008
Directors of Delaware corporations owe to their stockholders a duty of disclosure derived from their ordinary fi duciary duties of care and loyalty. A common disclosure claim is that the target company’s disclosure document in a business combination was materially misleading or incomplete with respect to the fairness opinion relied on by the target’s board in…
Delaware Journal of Corporate Law | May 2008
This article is about the duty of corporate directors to obey the law and how shareholders can hold boards accountable for their illegal acts. It is based on an assumption that there are situations in which it is rational, strictly from a profit-maximizing standpoint, for companies to violate the law. The article surveys numerous internal and…
Levitt Corp. v. Office Depot, Inc.
April 15, 2008
The Delaware Court of Chancery holds that a company’s notice of annual meeting identifying election of directors as "business" allows dissident stockholder to nominate director candidates without advance notice.
The (Mis)Application of Section 144
Delaware Lawyer | Spring 2008
The statutory tests of § 144 have been erroneously intertwined with longstanding common law principles and have eroded the plain meaning of unrelated statutory law.
What You Don’t Say Can Hurt You: Delaware’s Forthright Negotiator Principle
Insights | February 2008
In United Rentals, Inc. v. RAM Holdings, Inc., the Delaware Court of Chancery used the forthright negotiator principle in interpreting an otherwise ambiguous contractual provision. The Court applied this principle in denying the plaintiff’s petition for specific performance of a merger agreement. Those involved in the negotiation of contractual provisions should take note; in certain circumstances…
The Implications of Netsmart for Private Companies
Insights | January 2008
This article examines the implications of the Court of Chancery’s opinion in Netsmart to private company M&A transactions, particularly with respect to the nature of the target company’s marketing process pre-signing (including the extent to which the board surveyed likely financial and strategic buyers) and the meaningfulness of the board’s post-signing fiduciary out.…
Winning the Class Struggle: Acquirer Strategies for Declassifying Classified Boards
The Corporate Governance Advisor | January 2008
The struggle against a classified board can be daunting. As we hope to demonstrate in this article, however, a determined acquirer has at its disposal several ways to overcome the protections inherent in the classified-board structure. On the other hand, target boards also have ways to bolster the defenses provided by the classified-board structure. No short…
Finding Safe Harbor: Clarifying the Limited Application of Section 144
Delaware Journal of Corporate Law | 2008
This article attempts to clarify section 144’s limited role and application by distinguishing the analysis under section 144 from the analysis under the courts’ common-law fiduciary analysis.
United Rentals, Inc. v. RAM Holdings, Inc. et al.
December 21, 2007
Delaware Court of Chancery Denies United Rentals’ Petition for Specific Performance of Merger Agreement
In re CheckFree Corporation Shareholders Litigation
November 1, 2007
Delaware Court of Chancery Refuses to Enjoin Merger Vote Where Proxy Statement Did Not Disclose Raw Data Underlying Fairness Opinion
No Surprises: The Mandatory Nature of Mandatory Advancement and Indemnification
The Corporate Governance Advisor | November 2007
The Delaware Court of Chancery recently issued two opinions (Thompson and Levy) interpreting the nature and scope of indemnification and advancement provisions. 1 Though Thompson’s holding is interesting, almost as interesting is the subtext of the Court’s discussion—the Delaware courts will give boards of directors significant leeway in regulating advancement when the relevant bylaw or other…
Form or Substance? The Past, Present, and Future of the Doctrine of Independent Legal Significance
The Business Lawyer | November 2007
The “bedrock” doctrine of independent legal signifi cance provides that, if a transaction is effected in compliance with the requirements of one section of the Delaware General Corporation Law (“DGCL”), Delaware courts will not invalidate the transaction for failing to comply with the requirements of another section of the DGCL—even if the substance of the transaction…
October 4, 2007
In the past few months, the Delaware courts have issued several opinions that raise important issues for Delaware corporations and their advisors.
Don’t Take a Beating On Your Hit Rate
The Corporate Counselor | October 2007
While keyword searching has been responsible for streamlining modern discovery collection and review, the popularity of the technique has actually led to its downfall. The more familiar lawyers are with keywords, the more terms they want to search within a dataset. But, every time a search term fails to account for a prefix or a suffix,…
The Price of Remorse: Paying Reverse Termination Fees to Excuse Performance
Insights | October 2007
This article raises several issues regarding the use of reverse termination fees in M&A transactions, including whether a target company may discriminate between financial and strategic buyers in setting the amount of the fee.…
Paying for the Privilege of Independence: Termination Fees Triggered by “Naked No Votes”
Insights | September 2007
The Delaware Chancery Court has never given clear guidance on the use of termination fees triggered by “naked no votes.” These occur when a target’s stockholders reject a merger agreement in the absence of an alternative or superior transaction. The Court has, however, made some statements that are instructive.…
Teleglobe USA Inc. v. BCE Inc.
July 19, 2007
Third Circuit Rules On Important Parent/Subsidiary Privilege Issues
July 11, 2007
In the past few months, the Delaware courts have issued several opinions that raise important issues for Delaware corporations and their advisors.
The Shops Are Open: Delaware’s New Take on Go-Shop Provisions under Revlon
Insights | July 2007
In three recent cases, the Delaware Chancery Court provides significant guidance regarding the review and effectiveness of “go shop” provisions, which generally permit target boards of directors to solicit competing bids for a specified period of time following the execution of a merger agreement.…
In re The Topps Company Shareholders Litigation
June 15, 2007
Delaware Court of Chancery Enjoins Merger Vote Pending Supplemental Disclosure and Release of Competitor From Standstill to Permit it to Make a Competing Offer
Delaware Law Developments: Stock Option Backdating and Spring-Loading
The Review of Securities & Commodities Regulation | May 2007
In Recent Opinions, the Delaware Court of Chancery Has Denied Motions to Dismiss Stockholder Complaints that Directors Who Approved Backdated or Spring-Loaded Options Had Breached Their Fiduciary Duties to their Corporations and Stockholders. The Authors Discuss These Cases and Review Other Possible Challenges to Option Grants under Delaware Law.…
Deepening Insolvency: Developments for Directors
The Corporate Governance Advisor | January 2007
Deepening insolvency first appeared as a theory of damages. It rapidly expanded into an independent cause of action that threatened directors and officers of insolvent companies. Then, almost as rapidly, many courts abandoned it. Once seen as a potent plaintiff device for suits against officers and directors,1 deepening insolvency—in the latest stage of its evolution—has faded…
2006 Amendments to the General Corporation Law of the State of Delaware
July 11, 2006
A summary of the amendments to the General Corporation Law of the State of Delaware (the “General Corporation Law”) and to certain provisions of the Delaware Code relating to corporate franchise taxes is enclosed.
May 2, 2006
Delaware Bankruptcy Court Approves Non-Consensual Third Party Releases in Chapter 11 Plan
Delaware Laws & Programs Affecting Business
2005
This Guide presents an introduction to Delaware and an overview of laws and programs relating to doing business in our State.