Donald H. Tucker, Jr

Donald H. Tucker, Jr

Smith Anderson

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Proposed Legislation Threatens Corporations' Ability to Select Forum

Current Delaware law permits a Delaware corporation to adopt a bylaw specifying an exclusive forum other than Delaware to litigate intra-corporate disputes, so long as there is a logical connection between the forum selected...more

4/21/2015 - Bylaws Delaware General Corporation Law Exclusive Forum Fee-Shifting Proposed Amendments

If at First You Don't Succeed: Fourth Circuit Revives Securities Fraud Claims

The Fourth Circuit recently revived securities fraud claims against a pharmaceutical company, holding that the allegations that the company acted with wrongful intent were sufficient to proceed even under the heightened...more

4/14/2015 - Appeals Pharmaceutical Manufacturers Pleading Standards PSLRA Scienter SEC Securities Securities Fraud

“Frivolous” Merger Litigation Settlement Rejected by the Court

In an opinion that could help remedy the problem of baseless merger litigation, a court applying North Carolina law recently refused to approve a class action settlement because the underlying lawsuit was without merit. ...more

2/4/2015 - Breach of Duty Class Action Frivolous Lawsuits Mergers Shareholder Litigation Shareholders

The Fraudulent Joinder Doctrine...It’s Not Just For Fraud Or Joinder

In Weidman v. ExxonMobil Corporation, et al., No. 13-2007 (4th Cir., January 8, 2015), the Fourth Circuit confirmed that the “fraudulent joinder” doctrine requires neither an allegation of fraud nor a situation involving a...more

1/30/2015 - Diversity Jurisdiction Employer Liability Issues Exxon Mobil Fraudulent Joinder Pharmacies Prescription Drugs Retaliation State Law Tort Claims Wrongful Termination

Documents Speak Louder Than Words in Securities Fraud Suit

The Eastern District of North Carolina recently granted summary judgment for the defendant in a securities fraud action, holding that the plaintiff had failed to prove either scienter or reliance where alleged verbal...more

11/21/2014 - Annuities Evidence Insurers Misrepresentation Scienter Securities Fraud

Delaware Court of Chancery Upholds North Carolina "Exclusive Forum" Bylaw

In a closely-watched case with implications for corporations across the nation, Chancellor Andre Bouchard of the Delaware Court of Chancery has issued an opinion enforcing a forum-selection bylaw that requires intra-corporate...more

9/11/2014 - Bylaws Exclusive Forum Forum Forum Selection Clause

Federal Court Report - Fourth Circuit Clarifies Pleading Standards and (Again) Rejects Affidavits that Contradict a Party’s...

In Stevenson v. City of Seat Pleasant, Maryland, No. 12-2047 (4th Cir. Feb. 21, 2014), the Fourth Circuit spent some time cleaning up a rather messy case involving the alleged use of excessive force by members of a police...more

5/28/2014 - Affidavits Depositions Pleading Standards Pleadings Rules of Civil Procedure

Fourth Circuit Affirms Dismissal of Securities Claim Alleging Accounting Fraud

If you thought it was difficult to make a federal securities fraud claim stick in the Fourth Circuit, the court has now raised the bar even higher. The Fourth Circuit recently affirmed a trial court’s dismissal of securities...more

5/27/2014 - Balance Sheets Financial Statements Investment Partnerships MuniMae Private Securities Litigation Reform Act of 1995 Rule 10b-5 Section 10(b) Securities Fraud

Federal Court Report - Fourth Circuit Denies Appeal When There are Genuine Issues of Fact on Defendants’ Immunity Defense

In an unpublished opinion, the Fourth Circuit considered the defendants’ appeal from the denial of their motion for summary judgment based on qualified immunity. Cooper v. Lippa No. 13-2055 (4th Cir. April 4, 2014). The Court...more

4/8/2014 - Appeals Collateral Order Doctrine Genuine Issue of Material Fact Interlocutory Orders Qualified Immunity Summary Judgment

Federal Court Report - Sometimes it’s Just Better to Leave “Well-Enough” Alone

In Sisk v. Abbott Laboratories, — F.R.D. –, No. 1:11-cv-159 (W.D.N.C. Feb. 10, 2014) (J., Reidinger), after prevailing in part on its motion for summary judgment, the defendant asked the court for the Western District to...more

4/8/2014 - Affirmative Defenses Food Contamination Negligence Summary Judgment Twombly/Iqbal Pleading Standard

North Carolina Court of Appeals Upholds Arbitration Clauses in Consumer Agreements

The North Carolina Court of Appeals has recently enforced arbitration clauses in short-term “payday” loan contracts, requiring the borrowers to bring their claims in arbitration rather than in court. In doing so, the Court...more

4/4/2014 - Arbitration Agreements Class Action Class Action Arbitration Waivers Payday Loans

North Carolina Business Court Limits Unfair and Deceptive Trade Practice Claims Concerning Internal Corporate Matters

On January 28, 2014, the North Carolina Business Court dismissed an unfair and deceptive trade practice claim alleging that corporate directors structured the sale of a corporation in a manner that shortchanged its common...more

2/7/2014 - Preferred Shares Shareholder Litigation Shareholders UDAAP

Members of Nonprofit Corporations Can Bring Derivative Actions – But They May Have to Pay a Price

A recent decision by the North Carolina Court of Appeals serves as a reminder to North Carolina nonprofit corporations that their members can bring derivative actions on behalf of the nonprofit. But, if such actions are...more

1/29/2014 - Attorney's Fees Derivative Suit Non-Profits

Federal Court Report - Fourth Circuit Applies “Nerve Center” Test for Diversity Jurisdiction

On January 7, 2014, the Fourth Circuit applied the “nerve center” test for determining a corporation’s principal place of business for diversity jurisdiction. The Supreme Court recently adopted the nerve center test in Hertz...more

1/12/2014 - Diversity Jurisdiction Jurisdiction Principal Place of Business

North Carolina Supreme Court Addresses Duties of Corporate Directors

On November 8, 2013, the North Carolina Supreme Court issued a rare opinion addressing the duties of corporate directors and reaffirming that those duties are generally owed only to the corporation itself rather than the...more

12/20/2013 - Board of Directors Corporate Counsel Corporate Governance Derivative Suit Directors Fiduciary Duty Shareholders

North Carolina Business Court Holds that Shareholders Cannot Directly Sue Officers and Directors in Merger Challenge

A recent decision by the North Carolina Business Court potentially makes it more difficult for shareholders to challenge mergers and acquisitions in North Carolina. The Court held that an action against a company’s officers...more

11/27/2013 - Board of Directors Corporate Officers Derivative Suit Fiduciary Duty Mergers Professional Liability Shareholders

Smith Anderson Obtains Dismissal of Dodd-Frank Act “Say on Pay” Claims

In a groundbreaking new decision, the United States District Court for the Eastern District of North Carolina has dismissed “say on pay” claims against officers and directors of Dex One Corporation. Smith Anderson served as...more

10/1/2012 - Directors Dodd-Frank Executive Compensation Fiduciary Duty Motion to Dismiss Officers Pay-for-Performance Proxy Materials Say-on-Pay

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