On July 11, 2024, the Supreme Court of Delaware, en banc, issued an important decision in Kellner v. AIM Immunotech Inc.,1 which arose from a challenge in the Delaware Court of Chancery involving advance notice bylaws that...more
In this issue, we discuss Delaware court developments, including the first-ever dismissal of a SPAC disclosure complaint, as well as rulings pertaining to financial advisor conflict and disclosure law, state laws involving...more
6/26/2024
/ Acquisitions ,
Board of Directors ,
Business Judgment Rule ,
Commercial Litigation ,
Corporate Governance ,
DE Supreme Court ,
Disclosure ,
Disclosure Requirements ,
Mergers ,
Securities and Exchange Commission (SEC) ,
Securities Litigation
The Delaware Supreme Court recently issued two opinions weighing in on the scope of disclosures involving board advisors in connection with M&A transactions that warrant close attention. In both rulings — each written en banc...more
6/26/2024
/ Acquisitions ,
Board of Directors ,
Buyers ,
Corporate Governance ,
DE Supreme Court ,
Disclosure ,
Financial Adviser ,
Mergers ,
Proxy Statements ,
Securities and Exchange Commission (SEC) ,
Securities Litigation ,
Sellers
In January 2022, Vice Chancellor Lori Will of the Delaware Court of Chancery issued a groundbreaking opinion in In re MultiPlan Corp. Stockholders Litigation that paved the way for SPAC stockholders to bring direct breach of...more
6/25/2024
/ Acquisitions ,
Board of Directors ,
Commercial Litigation ,
Controlling Stockholders ,
Corporate Counsel ,
Corporate Governance ,
Disclosure Requirements ,
Mergers ,
Popular ,
Private Equity ,
Securities Litigation ,
Special Purpose Acquisition Companies (SPACs)
On May 31, 2024, the Delaware Court of Chancery issued its first opinion dismissing a “MultiPlan claim” at the pleadings stage.
As a reminder, a MultiPlan claim is a breach of fiduciary duty claim against directors,...more
On May 31, 2024, the Delaware Court of Chancery issued an important decision addressing several key areas of Delaware law related to merger litigation. The opinion indicates that the court will continue to closely scrutinize...more
Spotlight -
Macquarie Ruling Raises the Bar for Securities Fraud Claims -
Key Points -
- On April 12, 2024, the U.S. Supreme Court unanimously reversed and vacated the Second Circuit’s decision in Macquarie...more
5/23/2024
/ Acquisitions ,
Commercial Litigation ,
Cryptocurrency ,
Entertainment Industry ,
Financial Institutions ,
Healthcare ,
Life Sciences ,
Macquarie Infrastructure Corp v Moab Partners LP ,
Media ,
Mergers ,
Publicly-Traded Companies ,
Real Estate Market ,
Retail Market ,
SCOTUS ,
Securities and Exchange Commission (SEC) ,
Securities Litigation ,
Securities Regulation
In this issue, we discuss recent Delaware court developments regarding officer liability, who can recover “lost-premium” damages, and trends in books and records actions, among other topics....more
12/27/2023
/ Board of Directors ,
Books & Records ,
Corporate Governance ,
Corporate Misconduct ,
Corporate Officers ,
Delaware General Corporation Law ,
Fiduciary Duty ,
Misappropriation ,
Section 220 Request ,
Shareholder Litigation ,
Shareholders ,
Trade Secrets
On September 1, 2023, Vice Chancellor Paul A. Fioravanti, Jr. of the Court of Chancery delivered a decision finding that the president of a plaintiff company and a second business the president had formed and served...more
Expert Allegations Could Become More Frequent in Securities Fraud Complaints and Possibly Erode Pleading Standards -
A Ninth Circuit panel ruling that plaintiffs could use expert analysis to bolster securities fraud claims...more
12/22/2023
/ Article III ,
Bankruptcy Court ,
Constitutional Amendment ,
Consumer Protection Act ,
Corporate Governance ,
Department of Justice (DOJ) ,
Enforcement Actions ,
Federal Trade Commission (FTC) ,
Securities and Exchange Commission (SEC) ,
Securities Fraud ,
Self-Reporting ,
Special Purpose Acquisition Companies (SPACs) ,
Voluntary Disclosure
In 2023, the Delaware courts continued to be called upon to elaborate important rules of corporate law. The year’s docket brought further development in a number of areas, including oversight liability, “busted deal”...more
In a case of first impression, the Court of Chancery held recently that officers, like directors, owe their companies a duty of oversight, although the scope of that will vary with their responsibilities. Two other Chancery...more
6/12/2023
/ Acquisitions ,
Aiding and Abetting ,
Board of Directors ,
Breach of Duty ,
CEOs ,
Corporate Governance ,
Corporate Officers ,
Data Preservation ,
Disclosure Requirements ,
Duty of Oversight ,
Evidence ,
Fiduciary Duty ,
Mergers ,
Oracle ,
Oversight Duties ,
Publicly-Traded Companies ,
Revlon ,
Shareholders ,
Spoliation
In March 2023, the Delaware Court of Chancery issued a rare decision holding an officer personally liable for damages for breach of fiduciary duty under a post-closing Revlon enhanced scrutiny analysis. Specifically, the...more
6/12/2023
/ Aiding and Abetting ,
Breach of Duty ,
Business Litigation ,
CEOs ,
Damages ,
Disclosure ,
Disclosure Requirements ,
Fiduciary Duty ,
Investors ,
Judicial Review ,
Liability ,
Private Equity Firms ,
Revlon ,
Shareholder Litigation
Delaware courts have historically been reluctant to allow Caremark (or “board oversight”) claims to gain traction, describing such a claim as “possibly the most difficult theory in corporation law upon which a plaintiff might...more
12/27/2022
/ Board of Directors ,
Books & Records ,
Corporate Counsel ,
Corporate Governance ,
Cybersecurity ,
DE Supreme Court ,
Delaware ,
Delaware General Corporation Law ,
Popular ,
Red Flags Rule ,
Reporting Requirements ,
Risk Management ,
Shareholders ,
Standard of Review
In this issue, we discuss recent Delaware court decisions further developing the bounds around books and records demands. Other articles focus on recent developments concerning advance notice bylaws and the standards used by...more
12/21/2022
/ Advanced Notice of Proposed Rulemaking (ANPRM) ,
Board of Directors ,
Books & Records ,
Bylaws ,
Corporate Counsel ,
Corporate Governance ,
DE Supreme Court ,
Delaware ,
Delaware General Corporation Law ,
Enforcement ,
Recordkeeping Requirements ,
Reporting Requirements ,
Shareholders ,
Standard of Review
Takeaways -
The Delaware Supreme Court simplified the pleadings-stage test applied to derivative suits where no demand has first been made on the board.
Disputes about stockholder books-and-records requests focus...more
In Manti Holdings, LLC v. Authentix Acquisition Co., Inc., the Delaware Supreme Court affirmed the Court of Chancery’s decision to enforce a waiver of appraisal rights included in a stockholders agreement executed by...more
The Delaware Court of Chancery recently issued two opinions — Richardson v. Clark (MoneyGram) and Fisher v. Sanborn (LendingClub) — that dismissed stockholder derivative claims for breach of directors’ oversight duties...more
This issue covers important, developing areas of Delaware corporation law and deal litigation, including an increased focus on officer-related actions in merger litigation, the treatment of Caremark claims after Marchand and...more
Several recent Delaware decisions have analyzed allegations attempting to plead breach of fiduciary duty claims against executive directors even though the underlying transaction was approved by a...more
While Delaware’s “stay at home” order remains in place amid the COVID-19 pandemic, the Delaware Supreme Court and Court of Chancery are still operational, and legal services providers, which are deemed “essential,” may...more
5/12/2020
/ Coronavirus/COVID-19 ,
Court Closures ,
Court Schedules ,
DE Supreme Court ,
Electronic Filing ,
Filing Deadlines ,
Government Shutdown ,
Law & Motion Hearings ,
Operators of Essential Services ,
Statute of Limitations ,
Statute of Repose ,
Teleconferences ,
Time Extensions ,
Tolling ,
Trial Attorneys
On March 30, 2020, in The Chemours Company v. DowDuPont Inc., et al., C.A. No. 2019-0351-SG (Del. Ch. Mar. 30, 2020), the Delaware Court of Chancery issued an important decision reaffirming bedrock principles of Delaware...more
5/12/2020
/ Arbitration ,
Consent ,
Contract Terms ,
Delaware General Corporation Law ,
Dismissals ,
Federal Arbitration Act ,
Insolvency ,
Mandatory Arbitration Clauses ,
Parent Corporation ,
Separation Agreement ,
Spinoffs ,
Subsidiaries ,
Unconscionable Contracts
This issue focuses on important, developing areas of Delaware corporation law and deal litigation, including recent trends in Delaware corporate disclosure law, the Delaware Supreme Court’s important ruling in Marchand v....more
11/20/2019
/ Acquisitions ,
Appraisal Rights ,
Attorney-Client Privilege ,
Board of Directors ,
Compliance ,
Conflicts of Interest ,
Controlling Stockholders ,
Corporate Executives ,
Corporate Officers ,
Corwin Doctrine ,
DE Supreme Court ,
Deal Price ,
Delaware General Corporation Law ,
Directors ,
Disclosure Requirements ,
Entire Fairness Standard ,
Fair Valuation ,
Fiduciary Duty ,
Financial Adviser ,
Good Faith ,
Market Price ,
Material Misstatements ,
Mergers ,
MFW ,
Mootness Fee Applications ,
Omissions ,
Oversight Committee ,
Oversight Duties ,
Preliminary Injunctions ,
Publicly-Traded Companies ,
Risk Assessment ,
Risk Management ,
Shareholder Votes
Recent Delaware decisions in Williams Companies v. Energy Transfer Equity, L.P., and Akorn, Inc. v. Fresenius Kabi AG, examined contract provisions requiring “commercially reasonable efforts” and “reasonable best efforts” and...more
This issue focuses on important, developing areas of Delaware corporation law and deal litigation, including recent trends involving the Corwin doctrine, the Delaware Supreme Court's decision reaffirming its view that deal...more