Michael O'Bryan

Michael O'Bryan

Morrison & Foerster LLP

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Recent Decisions Confirm That Forum Selection Bylaws Are Best Considered on a Clear Day - But May Be Beneficial Later as Well

“Exclusive forum” bylaws and charter provisions are a powerful tool for managing the risk of parallel corporate governance litigation against a company and its directors in multiple forums, allowing stockholders to bring such...more

10/7/2014 - Bylaws Corporate Governance Delaware General Corporation Law Exclusive Forum Forum Selection Clause Publicly-Traded Companies Shareholder Litigation

Delaware Court Enforces Exclusive Forum Provision Adopted Concurrently with Announcement of Merger Agreement

Public companies are increasingly enacting “exclusive forum” bylaws — designating a single forum for intra-corporate disputes — as a way to limit the risk and burden of multi-jurisdictional stockholder litigation. This trend...more

9/19/2014 - Bylaws Chevron Delaware General Corporation Law Exclusive Forum Jurisdiction Mergers Publicly-Traded Companies Shareholder Litigation

Forum Selection Bylaws Are Best Considered On A Clear Day

“Exclusive forum” bylaws and charter provisions are a powerful tool for managing the risk of parallel corporate governance litigation against a company and its directors in multiple forums, allowing stockholders to bring such...more

9/18/2014 - Bylaws Chevron Corporate Governance Forum Selection Clause Jurisdiction Shareholder Litigation Shareholders

Recent Decision Confirms That Forum Selection Bylaws Are Best Considered on a Clear Day

“Exclusive forum” bylaws and charter provisions are a powerful tool for managing the risk of parallel corporate governance litigation against a company and its directors in multiple forums, allowing stockholders to bring such...more

9/11/2014 - Bylaws Chevron Corporate Governance Forum Selection Clause Jurisdiction

Exclusive Forum Provisions: A New Item for Corporate Governance and M&A Checklists

Public companies increasingly are adopting “exclusive forum” bylaws and charter provisions that require their stockholders to go to specified courts if they want to make fiduciary duty or other intra-corporate claims against...more

6/26/2014 - Board of Directors Bylaws Corporate Charters Corporate Governance Exclusive Forum Fiduciary Duty Publicly-Traded Companies Shareholder Litigation Shareholders

Paradigm Shift? The Delaware Supreme Court Allows Bylaw That Shifts Attorneys’ Fees to Loser in Fiduciary Duty Litigation

Under the prevailing “American rule,” shareholders and their counsel face little financial risk when they assert claims against directors and officers for breaches of fiduciary duty, typically following the announcement of a...more

5/22/2014 - American Rule Attorney's Fees Board of Directors Bylaws Corporate Officers Delaware General Corporation Law Fee-Shifting Statutes Fiduciary Duty Shareholders

Court Upholds Poison Pill in Response to Activist Accumulations

The Delaware Court of Chancery on May 2 rejected a request by Third Point to enjoin Sotheby’s annual stockholder meeting, scheduled for May 6, because of a “poison pill” stockholder rights plan adopted by Sotheby’s board....more

5/13/2014 - Board of Directors Breach of Duty Poison Pill Shareholder Rights Sothebys Stockholders' Meetings Third Point

Kahn v. MF Worldwide Corp. The Delaware Supreme Court Affirms In re MFW Holding That a Going-Private Transaction May Gain the...

On March 14, 2014, the Delaware Supreme Court decided Kahn v. MF Worldwide Corp. and unanimously affirmed the Chancery Court’s ruling in In re MFW. As we discussed previously, in In re MFW, then-Chancellor (now Chief Justice)...more

3/27/2014 - Business Judgment Rule Going-Private Transactions MFW Shareholder Litigation Shareholders Standard of Review

In Delaware, Privilege Goes to the Buyer -- Court Finds Buyer Controls Attorney-Client Privilege over Seller’s Pre-Closing...

The Delaware court of chancery held recently that control over a target company’s attorney-client privileged communications, including communications between the target company’s counsel and its pre-merger stockholders,...more

12/5/2013 - Attorney-Client Privilege Contract Drafting Corporate Counsel Disqualification Fraudulent Inducement Mergers Privilege Waivers Shareholders

Delaware Chancery Court Orders Company and Board Committee Counsel to Provide Privileged Communications to Dissident Director --...

The Delaware Court of Chancery, in Kalisman v. Friedman (Apr. 17, 2013), ordered the respective counsels for a company and for a special committee of the company’s board of directors to provide to a dissident director copies...more

6/19/2013 - Attorney-Client Privilege Board of Directors Right of Access Rival Director Slate Work Product Privilege

Board Enjoined from Impeding Hostile Consent Solicitation Without First Approving Rival Director Slate under Credit Agreement...

The Delaware Chancery Court recently enjoined a board of directors from impeding a stockholder’s solicitation of written consents to replace the board, unless the board first approved the stockholder’s nominees for purposes...more

3/18/2013 - Board of Directors Credit Agreements Fiduciary Duty Injunctions Proxy Put Rival Director Slate

Delaware Court Finds Reverse Triangular Merger Does Not Violate Contractual Prohibition on Assignment by Operation of Law

The Delaware Chancery Court, in Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH (Feb. 22, 2013), held that the acquisition of a company in a reverse triangular merger did not violate a restriction in an existing...more

3/5/2013 - Assignments Reverse Triangular Mergers

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