Civil Procedure General Business Mergers & Acquisitions

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Colorado Supreme Court: Late Notice Inexcusable under Claims-Made Policies

Facts - In Craft v. Philadelphia Indemnity Ins. Co., 2015 CO 11 (Colo. Feb. 17, 2015), Craft was the principal shareholder and president of two entities to which Philadelphia issued claims-made directors and officers...more

Contractual Warranty Claims: When Does Time Begin To Run?

In The Hut Group Ltd v Oliver Nohabar-Cookson & anr [2014] EWHC 3842 (Comm) it was held that the interpretation of a limitation of liability clause imposing a time limit on the buyer for serving notice of a breach of warranty...more

McWane, Inc. v. Lanier, C.A. No. 9488-VCP (Del. Ch. Jan. 30, 2015) (Parsons, V.C.)

In this memorandum opinion, the Court of Chancery denied defendants’ motion to dismiss or stay for lack of personal jurisdiction. The Court held that a mandatory forum selection clause in a merger agreement controlled over a...more

Court Rejects “Merger Tax” Litigation Settlements That Benefit Primarily Plaintiffs’ Attorneys and Plaintiffs Who Do Not Represent...

It is no secret that when a public company announces a merger, lawsuits follow. There is nothing inherently wrong with this phenomenon. If the merger price is woefully unjustifiable or if shareholders are not given adequate...more

Oregon Court Calls Delaware By-Law Forum Selection Provisions Into Question

This past summer, an Oregon state court held that a Delaware “bylaw forum selection provision” was unenforceable. In its decision, Roberts v. TriQuint Semiconductor, Inc., the Court considered relevant that the provision was...more

"EU Nonmerger Antitrust Enforcement Gets Stricter"

Developments in the past year are likely to affect nonmerger antitrust enforcement in the European Union in 2015 and beyond. In addition to merger enforcement, antitrust activity in 2014 provided a number of interesting...more

Court Of Chancery Adopts Merger Price In Appraisal Proceedings As Fair Value

After a complete analysis of the usual issues in an appraisal case involving a DCF valuation, the Court here concluded that the result was close enough to the actual price paid in the merger to warrant adoption of the merger...more

New York Court Dispenses with the Litigation Requirement for the Application of the Common-Interest Privilege: Why Transactional...

In a recent decision, the Appellate Division of the Supreme Court of New York, First Judicial Department, broke with other New York courts and joined Delaware and federal courts in applying the common-interest privilege to...more

Court Of Chancery Explains Step-Transaction Theory

Not infrequently a plaintiff will argue that 2 transactions are so interrelated that his rights have been violated by structuring the deal to take 2 steps to accomplish it....more

Delaware Court Examines Implied Covenant of Good Faith Related to Earn-Out

In Fortis Advisors LLC, as the equity representative v. Dialog Semiconductor PLC, the Delaware Court of Chancery examined the implied covenant of good faith in the context of an earn-out provision included in a merger...more

Recent Delaware Court of Chancery Decisions Address When A Non-Majority Stockholder Will Be Deemed a Controlling Stockholder

In three recent decisions, the Delaware Court of Chancery reiterated that under Delaware law, a large, though not majority, stockholder of a corporation will not be considered a controlling stockholder (with the attendant...more

Eighth Circuit Clarifies the Requirements for Cy Pres Distribution of Class Action Settlement Funds

Due to what it called a “substantial history of district courts ignoring and resisting circuit court cy pres concerns and rulings in class action cases,” the Eighth Circuit recently clarified the legal principles surrounding...more

Indiana Department of Revenue Rules Forced Disposition is Nonbusiness Income

In Letter of Finding No. 02-20140306 (Dec. 31, 2014), the Indiana Department of Revenue (Department) determined that income from the sale of two operating divisions of a business pursuant to an order of the Federal Trade...more

Delaware Chancery Court Concludes Indemnification and Other Provisions of a Merger Agreement Are Not Enforceable Against...

In November, the Delaware Court of Chancery issued a decision that raises troubling questions about commonly used techniques in private company acquisitions and that, if not modified on appeal or through legislation, could...more

Delaware Court Rules That Beneficial Stockholder May Seek Appraisal in Its Own Name

On January 5, the Delaware Court of Chancery ruled that a beneficial stockholder has standing to bring an action for appraisal in its own name when the record stockholder’s actions have perfected the right of appraisal. The...more

New York Courts Reject Disclosure-Based Settlements of Merger Lawsuits

In two recent rulings, the New York Supreme Court rejected settlements arising from lawsuits in which plaintiff stockholders challenged the defendant public companies’ merger-related disclosures. The court in each case...more

Chancery Court Permits Appraisal Arbitrage

A fairly new litigation development is the subject of two Delaware Court of Chancery decisions issued on the same day. Both In re Appraisal of Ancestry.com, Consol. C.A. No. 8173-VCG (Jan. 5, 2015), and Merion Capital v. BMC...more

Delaware Corporate Law And Litigation: What Happened In 2014 And What It Means For You In 2015

In This Issue: - Delaware’s Leading Role in Business and Business Litigation - Curbing Stockholder Litigation: Exclusive Forum and Fee-Shifting Provisions - Two-Tiered Poison Pill Targeted at Hedge Fund...more

DOJ Guidance Underscores Importance of Anti-corruption Due Diligence in International M&A Transactions

FCPA Opinion Release provides insight into the jurisdictional reach of the FCPA and the level of due diligence the DOJ expects. On November 7, 2014, the US Department of Justice (DOJ) issued its second and final...more

Two Ways to Use Your Letter of Intent to Lock up a Deal – Maybe, For Good!

Letters of intent (LOI) are routinely used after business people have reached some degree of common ground on a potential deal. Sometimes an LOI comes very early on, before the parties know whether an ultimate agreement is...more

Del. Justices Reverse Injunction Halting Sale of Control Transaction

When a Delaware corporation engages in a sale of control transaction, its board's obligation is to obtain the highest value reasonably attainable. This obligation, often referred to as Revlon duties, may be fulfilled as long...more

Holley v. Nipro Diagnostics, Inc., C.A. No. 9679-VCP (Del. Ch. Dec. 23, 2014) (Parsons, V.C.)

In this memorandum opinion, the Court of Chancery granted partial summary judgment in favor of a former director on his advancement claims relating to his defense of a pending SEC civil lawsuit alleging insider-trading...more

Court Of Chancery Clarifies Standing For Appraisal Rights

Merion Capital LP v. BMC Software, Inc., C.A. 8900-VCG (January 5, 2015) and In Re Appraisal Of Ancestry.com Inc., C.A. 8173-VCG (January 5, 2015) both deal with appraisal arbitrage and resolve who is entitled to file an...more

Delaware Supreme Court Holds That Revlon Does Not Require An Active Market Check, Reverses Lower Court Order Preliminarily...

On December 19, 2014, the Supreme Court of Delaware reversed the Delaware Court of Chancery's November decision to preliminarily enjoin for 30 days a vote by C&J Energy Services stockholders on a merger with Nabors Red Lion...more

Delaware Supreme Court Reverses Injunction Requiring Thirty Day Go-Shop

In a recent decision, the Delaware Supreme Court reversed the Court of Chancery's entry of a preliminary injunction that enjoined C&J Energy Services, Inc. ("C&J") from holding a stockholder vote on its proposed merger with...more

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