Non-director officers may face liability for failing to properly oversee the corporation’s affairs and ignoring “red flags” within their “areas of responsibility.”
Key Points:
..The McDonald’s Corporation’s response...more
2/6/2023
/ Board of Directors ,
Breach of Duty ,
C-Suite Executives ,
Caremark claim ,
Corporate Governance ,
Corporate Officers ,
Delaware General Corporation Law ,
Fiduciary Duty ,
McDonalds ,
Securities and Exchange Commission (SEC) ,
Sexual Harassment
The decision adopts enhanced scrutiny of director fiduciary duties for de-SPAC transactions, but suggests dismissal may be appropriate when stockholders exercise redemption rights on a fully informed basis.
On January 3,...more
The legislation - passed via the first congressional override of the Trump presidency - extends the SEC’s ability to obtain disgorgement for violations of federal securities laws.
Key Points:
..As amended, the...more
1/4/2021
/ Congressional Override ,
Disgorgement ,
Enforcement Actions ,
Equitable Relief ,
Kokesh v SEC ,
Liu v Securities and Exchange Commission ,
Look-Back Measurement Period ,
NDAA ,
Presidential Veto ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act ,
Statute of Limitations
The decision leaves the door open for buyers to argue that inflexible ordinary course covenants can provide a basis to terminate a transaction in which a seller does not suffer an MAE.
Key Points:
..The Delaware Court...more
Many predicted a wave of securities litigation would follow the stock market plunge during the early days of the pandemic in March 2020, just as it did in the wake of the 2008 economic downturn. But in the months since the...more
Questions about the scope of the SEC’s disgorgement authority remain open, including in administrative proceedings.
Key Points:
..Since the April 2017 decision in Kokesh v. SEC, the statutory authority of the Securities...more
6/24/2020
/ 15 U.S.C. § 78u(d)(5) ,
Administrative Authority ,
Business Expenses ,
Calculation of Damages ,
Corporate Misconduct ,
Disgorgement ,
Enforcement Actions ,
Equitable Relief ,
Kokesh v SEC ,
Lack of Authority ,
Liu v Securities and Exchange Commission ,
Net Profits ,
Remedies ,
SCOTUS ,
Securities and Exchange Commission (SEC)
Buyers in M&A transactions should consider a number of due diligence items in response to COVID-19 and the governmental response thereto.
As parties pursue mergers and acquisitions transactions during, and in the wake of,...more
The decision is a positive development for Delaware corporations seeking to reduce duplicative state court litigation arising from public securities offerings.
On March 18, 2020, the Delaware Supreme Court issued its...more
To obtain business judgment deference, controllers must insist on MFW’s minority protections before engaging in any substantive economic or valuation discussions.
The Delaware Supreme Court’s 2014 decision in Kahn v. M&F...more
Delaware Supreme Court’s ruling provides additional grounds for dismissal in post-closing stockholder litigation regarding mergers that are not subject to entire fairness review.
Introduction -
Clarifying a...more
In determining fair value, Delaware Court of Chancery and Delaware Supreme Court take cues from deal price.
On February 12, 2015, the Delaware Supreme Court affirmed the Court of Chancery’s ruling in Huff Fund Investment...more
In adopting an exclusive forum selection bylaw, companies can avoid the cost and complication of multi-forum litigation after an M&A transaction.
In response to the wasteful and burdensome trend of multi-forum...more
Delaware Court of Chancery applies entire fairness review to a take-private merger with a controlling stockholder, despite approval by a special committee and a majority-of-the-minority, and holds that disclosure claims may...more