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 first half of 2024 has been a watershed moment for the development of controller law in the Delaware courts. Among the highlights, the Delaware Supreme Court reexamined and confirmed that transactions involving a...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
The proposed 2023 amendments to the Delaware General Corporation Law (DGCL) approved by the Delaware State Bar Association are intended to address a number of practical issues facing corporations and their counsel and to...more
On January 24, 2023, Skadden presented the fourth and final part of our 15th Annual Securities Litigation and Regulatory Enforcement Update series, “Developments and Trends in Delaware Law: A Review of 2022 and What to Expect...more
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
In early 2020, in BlackRock Credit Allocation Income Tr., et al. v. Saba Capital Master Fund, Ltd., the Delaware Supreme Court reiterated that Delaware courts will enforce clear and unambiguous advance notice bylaws according...more
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 1996, the Delaware Court of Chancery issued its seminal decision in In re Caremark International Inc. Derivative Litigation, establishing the conditions for director oversight liability under Delaware law. Adopted a decade...more
12/17/2021
/ Board of Directors ,
Boeing ,
Breach of Duty ,
Caremark claim ,
Cybersecurity ,
DE Supreme Court ,
Derivative Suit ,
Duty of Loyalty ,
Financial Statements ,
Food Safety ,
Marriott ,
Personal Information ,
Shareholder Litigation
This quarter’s issue includes summaries and associated court opinions of selected cases decided in August and September 2021.
Appraisal Rights - Delaware Supreme Court Enforces Sophisticated Investors’ Waiver of Appraisal...more
12/3/2021
/ Appraisal Rights ,
Arkansas Teacher Retirement System v Goldman Sachs Group ,
Board of Directors ,
Caremark claim ,
Cryptocurrency ,
DE Supreme Court ,
Delaware General Corporation Law ,
Demand Futility ,
Derivative Suit ,
Federal Rule 12(b)(6) ,
FRCP 23(b) ,
FRCP 9(b) ,
Initial Coin Offering (ICOs) ,
PSLRA ,
RICO ,
Rule 10b-5 ,
Securities Exchange Act ,
Shareholder Litigation ,
Sherman Act ,
Statute of Limitations ,
Statute of Repose
In one week, the Delaware Supreme Court handed down two important opinions simplifying Delaware law on derivative claims.
On September 23, 2021, in United Food and Commercial Workers Union and Participating Food Industry...more
10/1/2021
/ Board of Directors ,
DE Supreme Court ,
Demand Futility ,
Derivative Suit ,
Dilution ,
Entire Fairness Standard ,
Facebook ,
Mark Zuckerberg ,
Minority Shareholders ,
Personal Benefit ,
Stare Decisis
This quarter’s issue includes summaries and associated court opinions of selected cases principally decided between November 2020 and January 2021.
Derivative Litigation -
Second Circuit Reverses Summary Judgment...more
3/8/2021
/ Acquisitions ,
Board of Directors ,
Books & Records ,
Breach of Duty ,
Caremark claim ,
DE Supreme Court ,
Delaware General Corporation Law ,
Derivative Suit ,
Fiduciary Duty ,
Loss Causation ,
Mergers ,
Pleading Standards ,
Ponzi Scheme ,
Proxy Statements ,
PSLRA ,
Shareholder Litigation
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
In 2014, the Delaware Supreme Court’s landmark Kahn v. M&F Worldwide Corp.1 (MFW) decision established that the deferential business judgment standard of review could apply to controlling stockholder “squeeze-out” mergers...more
12/28/2020
/ Business Judgment Rule ,
Controlling Stockholders ,
DE Supreme Court ,
Entire Fairness Standard ,
Fiduciary Duty ,
Mergers ,
MFW ,
Minority Shareholders ,
Special Committees ,
Squeeze-Out Mergers ,
Standard of Review ,
Void ab initio
The recently published “The Friedman Essay and the True Purpose of the Business Corporation” defends a view of stakeholder governance that reflects the following two basic flaws...more
This issue includes summaries and associated court opinions of selected cases principally decided between October 2019 and January 2020. ...more
4/6/2020
/ Aiding and Abetting ,
Books & Records ,
Breach of Duty ,
Bylaws ,
CEOs ,
Civil Liability ,
Collateral Estoppel ,
Criminal Convictions ,
DE Supreme Court ,
Demand Futility ,
Derivative Suit ,
Dismissals ,
Enforcement Actions ,
Exchange-Traded Products ,
False Statements ,
Federal Pleading Requirements ,
Fiduciary Duty ,
Initial Public Offering (IPO) ,
Injunctions ,
Investment Adviser ,
Item 303 ,
Lack of Particularity ,
Mergers ,
Misleading Statements ,
Misrepresentation ,
Notice Requirements ,
Price-Fixing ,
PSLRA ,
Pyramid Schemes ,
Registration Statement ,
RICO ,
Scienter ,
Scope of Discovery Requests ,
Section 11 ,
Section 220 Request ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act ,
Securities Fraud ,
Securities Litigation ,
Securities Violations ,
Shareholder Litigation ,
Shareholder Votes ,
Summary Judgment
On February 26, 2020, Skadden held a webinar titled “Reevaluating the Board Risk Oversight Process: Implications of Marchand and Other Recent Developments.” The panelists were Edward Micheletti, litigation partner and...more
3/25/2020
/ Board of Directors ,
Books & Records ,
Corporate Officers ,
DE Supreme Court ,
Duty of Loyalty ,
Fiduciary Duty ,
GAAP ,
Non-GAAP Financial Measures ,
Oversight Duties ,
Personal Liability ,
Risk Assessment ,
Risk Management ,
Securities and Exchange Commission (SEC) ,
Shareholder Litigation
On March 18th, the Delaware Supreme Court issued a key decision upholding the validity of corporate charter provisions that designate federal courts as the exclusive forum for the litigation of 1933 Act claims. This opinion...more
Despite political and economic uncertainties, markets and deal activity were resilient in 2019, and strong fundamentals remain in place heading into 2020. Companies continue to face a challenging litigation and enforcement...more
1/30/2020
/ Acquisitions ,
Administrative Procedure Act ,
Anti-Discrimination Policies ,
Anti-Harassment Policies ,
Anti-Kickback Statute ,
Antitrust Investigations ,
Appeals ,
Arbitration Awards ,
Attorney General ,
Backstop Agreements ,
BEPS ,
BitLicense ,
Blockchain ,
Board of Directors ,
Bonds ,
Capital Markets ,
CFIUS ,
CFTC ,
Chapter 11 ,
Claim Preclusion ,
Class Action ,
Commercial Bankruptcy ,
Common Stock ,
Congressional Investigations & Hearings ,
Congressional Subpoenas ,
Consumer Financial Protection Bureau (CFPB) ,
Cooperation Agreement ,
Copyright ,
Corporate Governance ,
Corporate Restructuring ,
Corporate Social Responsibility ,
Corporate Taxes ,
Corwin Doctrine ,
Covenant Lite Deals ,
Creditors ,
Cross-Border Transactions ,
DACA ,
DE Supreme Court ,
Debt Financing ,
Debtors ,
Department of Justice (DOJ) ,
Dischargeable Debts ,
Disgorgement ,
Disparate Impact ,
Dodd-Frank ,
Down Rounds ,
Drug Pricing ,
EBITDA ,
Employee Retirement Income Security Act (ERISA) ,
Employer Liability Issues ,
Employment Discrimination ,
Enforcement Actions ,
Enforcement of Foreign Judgments ,
Enterprise Act 2002 ,
Environmental Social & Governance (ESG) ,
EU ,
Fair Housing Act (FHA) ,
Federal Trade Commission (FTC) ,
FinTech ,
FIRRMA ,
Foreign Acquisitions ,
Foreign Investment ,
Foreign Issuers ,
FRCP 23 ,
General Data Protection Regulation (GDPR) ,
General Elections ,
GILTI tax ,
High-Yield Markets ,
Hong Kong ,
Hong Kong Stock Exchange ,
Individual Accountability ,
Initial Public Offering (IPO) ,
Intellectual Property Litigation ,
Intercreditor Agreements ,
International Arbitration ,
International Litigation ,
IRS ,
Issue Preclusion ,
Japan ,
Joint Venture ,
Legislative Agendas ,
Life Sciences ,
Listing Rules ,
Litigation Strategies ,
Make-Whole Premium ,
Mergers ,
MFW ,
Multinationals ,
National Security ,
PCAOB ,
Pharmaceutical Industry ,
Political Parties ,
Preferred Shares ,
Private Offerings ,
Privately Held Corporations ,
Proxy Advisory Firms ,
Publicly-Traded Companies ,
Refinancing ,
Regulatory Agenda ,
Reporting Requirements ,
SCOTUS ,
Securities and Exchange Commission (SEC) ,
Securities Litigation ,
Separation of Powers ,
Shareholder Activism ,
Shareholder Proposals ,
Shareholders ,
Split of Authority ,
State Labor Laws ,
Stock Drop Litigation ,
Tax Cuts and Jobs Act ,
Tax Litigation ,
Technology Sector ,
Third-Party Release Agrements ,
Transparency ,
UK ,
UK Brexit ,
Valuation ,
White Collar Crimes
Consistent with trends in recent years, in 2019 Delaware corporation law largely was shaped by post-closing suits for money damages against directors who had approved mergers and acquisitions. Two Delaware Supreme Court...more
1/24/2020
/ Acquisitions ,
Board of Directors ,
Books & Records ,
Breach of Duty ,
Business Judgment Rule ,
Caremark claim ,
Conflicts of Interest ,
Controlling Stockholders ,
Corporate Counsel ,
Corwin Doctrine ,
Damages ,
DE Supreme Court ,
Delaware General Corporation Law ,
Derivative Suit ,
Discovery ,
Electronically Stored Information ,
Fiduciary Duty ,
Independent Director ,
Inspection Rights ,
Litigation Strategies ,
Mergers ,
MFW ,
Motion to Dismiss ,
Oversight Duties ,
Section 220 Request ,
Shareholder Litigation ,
Shareholder Votes ,
Void ab initio
Recently, the frequency of stockholder demands to inspect corporate books and records pursuant to Section 220 of the Delaware General Corporation Law has increased. In turn, the case law concerning Section 220 demands is...more
1/21/2020
/ Activist Investors ,
Appeals ,
Board of Directors ,
Books & Records ,
Breach of Duty ,
Confidential Documents ,
Corporate Counsel ,
DE Supreme Court ,
Delaware General Corporation Law ,
Discovery ,
Document Productions ,
Electronically Stored Information ,
Email ,
Fiduciary Duty ,
Litigation Strategies ,
Mergers ,
Proxy Contests ,
Scope of Discovery Requests ,
Section 220 Request ,
Shareholder Litigation ,
Shareholders
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
This quarter’s issue includes summaries and associated court opinions of selected cases principally decided between May and August 2019....more
10/2/2019
/ Acquisitions ,
Appraisal Rights ,
Board of Directors ,
Books & Records ,
Breach of Duty ,
Class Action ,
Corwin Doctrine ,
DE Supreme Court ,
Deal Price ,
Disclosure Requirements ,
Enforcement Actions ,
Excessive Fees ,
Fair Value Standard ,
Fiduciary Duty ,
Forfeiture ,
Guilty Pleas ,
Insider Trading ,
Investment Adviser ,
Jury Verdicts ,
Market Manipulation ,
Materiality ,
Mergers ,
Misrepresentation ,
Motion for Summary Judgment ,
Motion to Dismiss ,
Offering Documents ,
Omissions ,
Pleading Standards ,
Popular ,
Scienter ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act ,
Securities Fraud ,
Securities Litigation ,
Shareholder Litigation ,
SLUSA ,
Standing
The Delaware Supreme Court’s 2015 decision in Corwin v. KKR Financial Holdings LLC1 fashioned a powerful defense in post-closing money damages cases for boards of directors by finding that business judgment deference applies...more
5/13/2019
/ Acquisitions ,
Appeals ,
Board of Directors ,
Business Judgment Rule ,
Conflicts of Interest ,
Controlling Stockholders ,
Corwin Doctrine ,
Damages ,
DE Supreme Court ,
Defense Strategies ,
Disclosure Requirements ,
Disclosure Settlement ,
Disinterested Parties ,
Dismissals ,
Failure To Disclose ,
Injunctive Relief ,
Litigation Strategies ,
Material Misstatements ,
Merger Agreements ,
Mergers ,
Motion to Dismiss ,
Omissions ,
Pleadings ,
Pre-Closing Issues ,
Reaffirmation ,
Reversal ,
Section 220 Request ,
Shareholder Votes
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