Health care provider boards of directors have been put on notice—given these two recent Delaware court decisions - Clovis and Marchand—that courts may be willing to significantly extend a corporate board’s Caremark duty to...more
1/14/2020
/ Bad Faith ,
Board of Directors ,
Breach of Duty ,
Caremark claim ,
Compliance ,
Corporate Officers ,
DE Supreme Court ,
Duty of Loyalty ,
Food and Drug Administration (FDA) ,
Health Care Providers ,
Oversight Duties ,
Personal Liability ,
Pleading Standards ,
Regulatory Standards ,
Risk Management
Board oversight of significant company risk areas and legal compliance deserves renewed attention, as the Delaware Supreme Court recently ruled that monitoring practices that have previously been considered acceptable may...more
10/18/2019
/ Blue Bell Creameries ,
Board of Directors ,
Breach of Duty ,
Caremark claim ,
Compliance ,
Controlling Stockholders ,
DE Supreme Court ,
Derivative Suit ,
Duty of Loyalty ,
Failure To State A Claim ,
Fiduciary Duty ,
Liability ,
Listeria ,
Manufacturing Facilities ,
Oversight Duties ,
Risk Management ,
Senior Managers
In Marchand v. Barnhill, a unanimous Delaware Supreme Court imposed substantial new procedural expectations on corporate directors to satisfy their fiduciary duty of oversight related to material risk areas and legal...more
9/28/2019
/ Appeals ,
Bad Faith ,
Board Meetings ,
Board of Directors ,
Breach of Duty ,
Corporate Minutes ,
Damages ,
DE Supreme Court ,
Duty of Care ,
Duty of Loyalty ,
Fiduciary Duty ,
Food Safety ,
Listeria ,
Oversight Duties ,
Reversal ,
Risk Management ,
Senior Managers ,
Shareholder Litigation
A Delaware Chancery Court has allowed a buyer to cancel a deal based on a material adverse effect. The decision is believed to be the first of its kind in Delaware.
In Akorn, Inc. v. Fresenius Kabi AG, the Delaware Court...more
Preferred stock is commonly used for venture capital and private equity investments. It gives the investor the ability to convert to common stock if the deal succeeds, and also includes protection of the liquidation...more
7/30/2018
/ Board of Directors ,
Breach of Duty ,
Capital Raising ,
Delaware General Corporation Law ,
Entrepreneurs ,
Fiduciary Duty ,
Investors ,
Liquidation ,
Preferred Shares ,
Share Redemption ,
Shareholders ,
Venture Capital
Venture capital firms and their director designees on portfolio company boards can find themselves stuck between their fiduciary duty to common shareholders and the terms of preferred investment documents. Before any other...more
4/30/2018
/ Board of Directors ,
Breach of Duty ,
Common Stock ,
Conflicts of Interest ,
Fiduciary Duty ,
Mergers ,
Preferred Shares ,
Recapitalization ,
Risk Mitigation ,
Shareholders ,
Stock Redemption ,
Venture Capital
Acquisition agreements frequently contain maximum limits or “caps” on the sellers’ potential liability for losses resulting from breaches of the sellers’ and target company’s representations and warranties. However, the...more
In what is believed to be the first case nationwide seeking to strike down a groundbreaking corporate bylaw aimed at combatting frivolous shareholder class actions, Emergent Capital, Inc., has secured the dismissal with...more
10/20/2015
/ Board of Directors ,
Bylaws ,
Class Action ,
Corporate Counsel ,
Corporate Officers ,
Derivative Suit ,
Dismissal With Prejudice ,
Frivolous Lawsuits ,
Motion to Dismiss ,
Publicly-Traded Companies ,
Shareholder Litigation
In Third Point LLC v. Ruprecht, et al., C.A. No. 9469-VCP (Del.Ch. May 2, 2014), the Delaware Chancery Court denied a preliminary injunction challenging Sotheby’s stockholder rights plan, or so-called “poison pill,” which...more
In Kahn v. M&F Worldwide Corp., the Delaware Supreme Court unanimously affirmed the Court of Chancery’s decision that the more deferential business judgment rule standard of review, rather than an entire fairness standard of...more
The Delaware Chancery Court recently held a respected investment banking firm liable for aiding and abetting breaches of fiduciary duty by the target company board in connection with an allegedly flawed sale process. The...more
The 2013 Florida Legislature made several important changes to the law governing Florida limited liability companies (LLCs). The new law was based primarily on the Revised Uniform Limited Liability Company Act as amended in...more