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Claims of Branding, Acquisition and Control Satisfy Single-Employer Test

The Worker Adjustment and Retraining Notification Act (WARN Act) was enacted in 1988 to allow workers to adjust to the prospective loss of employment from a plant closing or mass layoff. It requires employers to give affected...more

What Does the Supreme Court Ruling in Alice v. CLS Mean to a Software Entrepreneur? [Video]

The Supreme Court’s ruling against broadly claimed software patents in Alice Corp. v. CLS Bank leaves many questions on patent eligibility unanswered, which means the controversy and confusion over the scope of patent...more

NY High Court To Address Continuing Vitality Of “Separate Entity” Rule For International Banks With New York Branches

This September, New York’s highest court will consider an issue of significant interest to international banks with a New York presence – whether a judgment creditor can use New York’s judgment enforcement procedures to...more

2014 Amendments to the Delaware General Corporation Law

On July 15, 2014, Delaware Governor Jack Markell signed Delaware House Bill No. 329, which makes a number of noteworthy changes to the Delaware General Corporation Law. The 2014 amendments address: (1) mergers under DGCL...more

The Fate of Delaware "Fee-Shifting" Bylaws

A topic of considerable controversy within the corporate community over the past two months has been the possibility of adopting a "fee-shifting" provision in the bylaws of Delaware corporations. Depending on how it is...more

Adoption of Fee-Shifting Bylaws by Pennsylvania Corporations

Recently, there has been some unusual excitement in the corporate bar in Delaware after the Supreme Court of Delaware held that a nonstock corporation could adopt a bylaw requiring a losing plaintiff in a lawsuit involving...more

How Broad Was That Bylaw?

In yesterday’s posting, I noted a recent Form 8-K filing that discloses the adoption of a fee-shifting bylaw. In ATP Tour, Inc. v. Deutscher Tennis Bund, 2014 Del. LEXIS 209 (Del. May 8, 2014), the Delaware Supreme Court...more

Biolase v. Oracle Partners, L.P., C.A. No. 9438 (Del. June 12, 2014)

In this expedited appeal from a post-trial decision of the Court of Chancery, the Delaware Supreme Court affirmed the Court of Chancery’s holding that, under 8 Del. C. § 141(b), directors may resign by verbal statements,...more

Using Corporate Bylaws and Charters to Set the Rules for Shareholder Litigation

Recent court decisions, including the Delaware Supreme Court’s opinion earlier this month in ATP Tour, Inc. v. Deutscher Tennis Bund, have focused new attention on the use of corporate bylaws and charters to establish the...more

Fee Shifting Bylaw Provisions May Face Constitutional Limitation

The corporate governance world has been disquieted by Delaware Supreme Court Justice Carolyn Berger’s recent opinion that upheld the validity of a fee-shifting bylaw provision in the bylaws of a Delaware non-stock...more

Delaware May Level Playing Field With Regard to Fee-Shifting Bylaws

As discussed (see link below), a recent decision of the Delaware Supreme Court could be a game changer in the world of stockholder litigation. In ATP Tour, Inc. v. Deutscher Tennis Bund (Del. May 8, 2014), the Delaware...more

The Fluid State of Delaware Fee-Shifting Bylaws

On May 8, 2014, the Delaware Supreme Court held in ATP Tour, Inc. v. Deutscher Tennis Bund that a bylaw provision that shifts "all fees, costs and expenses of every kind and description (including, but not limited to...more

In an abrupt reversal, Delaware says "Ummm... Wait!" to fee shifting bylaws

It has been a dizzying couple of weeks for the Delaware Bar. Previously, the disaffected German tennis federation of the professional ATP tennis tour had sour grapes over the downgrading of the Hamburg tennis tournament and...more

Delaware Court Enforces “Loser Pays” Bylaw, Opens the Door for D&O Insurers to Better Assess and Control Shareholder Litigation...

The Delaware Supreme Court held that a corporation’s fee-shifting bylaw is enforceable as long as the bylaw is not adopted for an inequitable purpose. A first of its kind, this ruling seems poised to change dramatically the...more

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

Delaware Supreme Court Approves Fee-Shifting Bylaw for Non-Stock Corporations - The Court’s Reasoning Suggests These Provisions...

In its May 8, 2014 decision in ATP Tour, Inc. v. Deutscher Tennis Bund, No. 534, 2013, --- A.3d ----, 2014 WL 1847446 (Del. May 8, 2014), the Delaware Supreme Court may have opened the door to the adoption by Delaware...more

Actions Speak Louder Than Words or Partnership by Ambush?: Formation of Partnerships in Texas after ETP v. Enterprise

On March 4, 2014, a Dallas jury awarded Energy Transfer Partners, L.P. (“ETP”) $319 million in damages after finding that Enterprise Products Partners, L.P. (“Enterprise”) had formed a binding partnership with ETP to build a...more

First Circuit Holds That AIG Must Defend Directors and Officers in FDIC Litigation

What you need to know: The United States First Circuit Court of Appeals recently held that an insured versus insured exclusion did not exempt AIG from advancing defense costs under a D&O policy in a suit brought...more

Proxies Unbundled: Recent SEC Guidance after Greenlight Capital v. Apple Case

Last year, Judge Sullivan in the U.S. District Court for the Southern District of New York issued a preliminary injunction in Greenlight Capital, L.P. v. Apple, Inc. enjoining the “bundling” of multiple proposals by Apple in...more

Collecting On Judgments Against A Member's LLC Interest

A lawyer has limited remedies to collect on a judgment from a defendant who is unwilling to pay. If the defendant holds stock in a corporation, you can execute on the shares, take possession of them, and sell them. N.C. Gen....more

SCOTUS Expands Sarbanes-Oxley to Include Contractors

In a stunning expansion of previously understood law, the Supreme Court held, on Tuesday, March 4, 2014, that the employees of a contractor to a publicly traded company may sue their employer for retaliation suffered as a...more

Partnership Verdict in Dallas: You May be Married and Not Know it

On Tuesday, March 4, 2014, a Dallas jury found that Enterprise Products Partners, L.P. (Enterprise) had entered into a partnership with Energy Transfer Partners, L.P. (ETP) to jointly develop a crude oil pipeline from...more

New York Federal Court Dismisses Derivative Suit Against Sons of Norway Executives

On February 6, the US Court for the Eastern District of New York dismissed a derivative suit against the CEO, general counsel and former international president of Sons of Norway, a fraternal organization. Former members of a...more

Fear Alone Won’t Get You An Injunction

With apologies for being absent for a week, ponder this question when you embark on a fight with the officers and directors of the energy company you own a part of: How does your subjective fear of harm factor into your right...more

For Executives, This May Have Been The Most Frightening Holding Of 2013

Recently, I wrote about the Court of Appeal’s holding in Asahi Kasei Pharma Corp. v. Actelion Ltd., 2013 Cal. App. LEXIS 1017 (Cal. App. 1st Dist. Dec. 18, 2013). Because it was the holidays, I’m not sure that the case...more

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