A. W. "Chip" Phinney III

A. W. "Chip" Phinney III

Mintz Levin

Contact  |  View Bio  |  RSS

Latest Publications


Delaware Bans Corporate Fee-Shifting Bylaws and Authorizes Delaware-Only Forum Requirement for Intra-Corporate Litigation

Delaware recently enacted new legislation to prohibit stock corporations from adopting fee-shifting bylaws and charter provisions, among other amendments to the Delaware General Corporation Law. The fee-shifting ban ends a...more

7/7/2015 - Attorney's Fees Board of Directors Breach of Duty Bylaws Certificates of Incorporation Corporate Charters Fee-Shifting Fiduciary Duty Forum Selection New Legislation Shareholder Litigation

Data Security Breach Documents Sought in Home Depot Books-and-Records Suit

Home Depot was recently hit with a books-and-records suit in the Delaware Court of Chancery, Frohman v. Home Depot, which seeks documents relating to the giant retailer’s data security breach last September. The plaintiff, a...more

6/22/2015 - Books & Records Data Breach Data Protection Discovery Home Depot Shareholders

Massachusetts Supreme Judicial Court Takes Expansive View of Investment Advisor’s Liability Under Blue Sky Law in Hays v. Ellrich

Last week, the Massachusetts Supreme Judicial Court (SJC) handed down Hays v. Ellrich, a decision with important implications for the investor advising community. The case is significant for two reasons. First, even though...more

6/17/2015 - Actual or Constructive Knowledge Blue Sky Laws Fiduciary Duty Fraudulent Concealment Hedge Funds Investment Adviser Securities Sellers State Securities Claims

Federal Court Rules That SEC Administrative Proceeding Is “Likely Unconstitutional”

As we discussed in a post last November, the SEC’s increasing use of enforcement proceedings before its own administrative law judges (ALJs), rather than before federal court judges, has spawned a number of constitutional...more

6/12/2015 - ALJ Article I Dodd-Frank Injunctions Insider Trading Non-Delegation Doctrine Preliminary Injunctions SEC

SEC Announces Action Against Company for Using Confidentiality Agreements That Allegedly Could Deter Whistleblowers

As we discussed in a post last month, the SEC has been closely scrutinizing whether companies may be using non-disclosure and confidentiality agreements that could discourage employees from acting as whistleblowers and...more

4/4/2015 - Confidentiality Agreements Internal Investigations KBR (formerly Kellogg Brown & Root) Non-Disclosure Agreement SEC Whistleblowers

Delaware Bar Proposes Amendments to Ban Fee-Shifting Provisions and Allow Delaware-Only Forum Selection Provisions in Corporate...

The Council of the Corporation Law Section of the Delaware State Bar Association recently released proposed amendments to the Delaware General Corporation Law (DGCL) that would prohibit fee-shifting provisions in a...more

3/27/2015 - Bar Associations Bylaws Corporate Charters Delaware General Corporation Law Fee-Shifting Forum Selection

Supreme Court Holds That Issuers Can Be Liable for Omitting Material Facts From Statements of Opinion in Omnicare Case

In its opinion in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, released yesterday, the U.S. Supreme Court held that a securities issuer’s statement of opinion in a registration statement,...more

3/26/2015 - Omnicare Omnicare v Laborers District Council Pharmaceutical Industry Pharmacies Registration Statement SCOTUS Section 11 Securities Securities Act of 1933 Securities Fraud Strict Liability

More “Broken Windows”: SEC Charges Schedule 13D Filers with Disclosure Violations for Failing to Update Ownership Reports

When a significant stockholder in a publicly-held company is considering plans to take the company private, how soon must the stockholder disclose those plans in a Schedule 13D filing?...more

3/24/2015 - Board of Directors Broken Windows Corporate Officers Disclosure Requirements Enforcement Actions Going-Private Transactions Schedule 13D SEC Shareholders

Delaware Legislature Introduces Rapid Arbitration Act

The Delaware Rapid Arbitration Act, House Bill 49, was recently introduced in the Delaware General Assembly. The proposed Act would establish a streamlined arbitration procedure to resolve disputes involving Delaware business...more

3/22/2015 - Amended Legislation Appeals Arbitration Arbitration Agreements Arbitrators Business Disputes Confidential Information Discovery Fast Track Process First Amendment Pending Legislation

SEC Whistleblower Inquiry Raises Concerns About Protection of Confidential and Privileged Information

According to a recent Wall Street Journal article, the SEC has launched an inquiry into whether corporations are using confidentiality agreements to prevent employees from communicating with the SEC about potential securities...more

3/17/2015 - Attorney-Client Privilege Confidentiality Agreements Dodd-Frank Enforcement Actions Fraud SEC Whistleblower Protection Policies Whistleblowers

SEC Enforcement Director Discusses Issues for Pharmaceutical and Medical Technology Companies

In a wide-ranging speech on Tuesday, Securities and Exchange Commission Director of Enforcement Andrew Ceresney discussed recent SEC actions and current concerns involving the pharmaceutical and medical technology industries....more

3/6/2015 - Accounting Controls Disclosure Requirements FCPA FDA Internal Controls Medical Devices Pharmaceutical Industry SEC Strategic Enforcement Plan

Delaware Supreme Court Holds That Court of Chancery Can Restrict Forum Where Books and Records Can Be Used

Previously we have discussed Delaware court decisions upholding forum selection bylaws requiring suits involving a corporation’s internal affairs to be filed in a specified court, such as the Delaware Court of Chancery. Last...more

12/31/2014 - Bylaws Delaware General Corporation Law Forum Selection Shareholder Litigation Shareholders

Federal Court Holds That Lack of Loss Causation Is Not a Defense Under Massachusetts Blue Sky Law

The United States District Court for the District of Massachusetts recently held in Massachusetts Mutual Life Insurance Co. v. Residential Funding Co., LLC, that lack of loss causation is not available even as an affirmative...more

11/20/2014 - Blue Sky Laws False Statements Insurance Industry Loss Causation Material Misstatements Securities Act of 1933

SEC’s Increased Use of Administrative Proceedings Draws Criticism and Legal Challenges

The SEC’s plan to bring more enforcement actions as administrative proceedings before its own administrative law judges rather than in the federal district courts — even in insider trading cases — has been drawing increasing...more

11/13/2014 - Administrative Hearings Enforcement Actions Federal Rules of Civil Procedure Federal Rules of Evidence Judge Rakoff SEC

Supreme Court Seems Likely to Adopt Reasonable Basis Standard for Section 11 Claims Concerning Statements of Opinion in...

If Monday’s oral argument in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund is a reliable indicator, it seems likely that the Court will adopt the “reasonable basis” standard advocated by the...more

11/6/2014 - Omnicare Omnicare v Laborers District Council Reasonableness Factors Registration Statement SCOTUS SEC Section 11 Securities Act of 1933 Solicitor General

The High Cost of Whistleblowing

In a number of recent posts, we have highlighted the SEC’s whistleblower program, which offers awards of 10%-30% of the money collected where a whistleblower provides high-quality, original information that results in an SEC...more

11/4/2014 - Criminal Prosecution Enforcement Actions Penalties SEC Whistleblower Awards Whistleblowers

Business Judgment Rule Protects Board's Decision to Maximize the Value of an Insolvent Delaware Corporation Even If It Puts...

Directors of an insolvent corporation face a host of difficult questions. Should they wind up operations or file for bankruptcy to preserve assets for creditors, or chart a riskier course that could lead the company back to...more

11/3/2014 - Commercial Bankruptcy Controlling Stockholders Insolvency Shareholder Litigation Shareholders

How to Tailor Your Strategies for Engaging With Shareholder Activists

When it comes to engaging with shareholder activists, one size does not fit all. It’s crucial to think about the activist’s goals and possible outcomes. Is the activist seeking governance reforms, or a short-term return on...more

10/30/2014 - Corporate Counsel Corporate Governance Shareholder Activism Shareholder Litigation Shareholders

Upcoming Supreme Court Securities Cases

As the Supreme Court begins its 2014-15 term this month, it will be considering a number of securities cases, including the Omnicare case, which is scheduled for oral argument on November 3rd, and three other cases in which...more

10/2/2014 - Compliance Omnicare SCOTUS Securities Litigation

SEC Awards $30 Million to Overseas Whistleblower

Last week, the SEC announced its largest-ever whistleblower award – more than $30 million. Indeed, the SEC order in the case indicates that the final award could be as high as $35 million, depending on the amount of...more

9/30/2014 - Enforcement Enforcement Actions SEC Whistleblower Awards Whistleblowers

SEC Uses Data Analytics to Identify and Punish Late Form Filers

Can merely late filing of “routine” forms get you in trouble with the SEC? Yes, at least if it happens too often. On Wednesday the SEC announced charges and financial penalties totaling $2.6 million against 28 officers,...more

9/15/2014 - Enforcement Actions Filing Deadlines Filing Requirements Publicly-Traded Companies Reporting Requirements SEC

Delaware Court of Chancery Upholds North Carolina Forum Selection Bylaw for Delaware Corporation

Yesterday, in City of Providence v. First Citizens BancShares, Inc., Chancellor Andre Bouchard of the Delaware Court of Chancery held in a case of first impression that the board of a Delaware corporation may validly adopt a...more

9/10/2014 - Board of Directors Bylaws Chevron Corporate Counsel Derivative Suit Fiduciary Duty Forum Selection

SEC Gives $300,000 Whistleblower Award to Audit and Compliance Employee

Last week the SEC announced that, for the first time, it had made a whistleblower award to an employee who performs audit and compliance functions at a company. As the SEC noted in its order in the case, although its...more

9/4/2014 - Audits SEC Securities Exchange Act Whistleblower Awards Whistleblowers

What Does Delaware’s Wal-Mart Decision Mean for the Attorney-Client Privilege and Internal Investigations?

The Delaware Supreme Court’s decision in Wal-Mart Stores, Inc. v. Indiana Electrical Workers Pension Trust Fund IBEW, No. 614, 2014 Del. LEXIS 336, 2014 WL 3638848 (July 23, 2014), a Section 220 “books and records” case...more

9/3/2014 - Attorney-Client Privilege Breach of Duty Bribery Delaware General Corporation Law Garner Internal Investigations Mexico Shareholders Subsidiaries Wal-Mart Young Lawyers

Second Circuit Holds That Dodd-Frank Act Does Not Protect Whistleblower Outside U.S. Territory

Thursday's post on the SEC’s whistleblower program discussed among other topics the question of whether the Dodd-Frank Act protects employee whistleblowers from retaliation by their employers where the employees only raise...more

8/18/2014 - Dodd-Frank Extraterritoriality Rules Whistleblower Protection Policies Whistleblowers

40 Results
View per page
Page: of 2

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.