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The North Carolina General Assembly Nears Passage of Significant Legislation Affecting Business

The North Carolina General Assembly is working on significant legislation affecting the state’s business legal climate. The Legislature is one vote away from adopting Senate Bill 853 (SB 853)[1], which is intended to improve...more

Ritchie v. Rupe

The Texas Supreme Court, on June 20, 2014, issued its highly anticipated opinion in Ritchie v. Rupe, 2014 Tex. LEXIS 500 (Tex. 2014). Ritchie involved a claim by a minority shareholder in a closely held corporation under the...more

Have Your Directors Met Their Revlon Duties? Delaware Court Dismisses Strike-Suit Allegations as Merely Cosmetic

In a virtual course on how to bring—or not bring—an M&A strike suit, on June 30, a Delaware Chancery Court dismissed all shareholder claims against a merger target and its acquirer, ending nearly two years of litigation. ...more

The Resilient Rights Plan: Recent Poison Pill Developments and Trends

Shareholder rights plans were developed more than 30 years ago to fend off opportunistic hostile offers and other abusive takeover transactions. Rights plans deter unauthorized stock accumulations by imposing substantial...more

In re El Paso Pipeline Partners, L.P. Derivative Litig., C.A. No. 7141-VCL (Del. Ch. Jun. 12, 2014) (Laster, V.C.)

In this memorandum opinion resolving cross-motions for summary judgment, the Court of Chancery dismissed in part claims challenging a drop-down sale governed by a limited partnership agreement that supplanted fiduciary duties...more

In re TriQuint Semiconductor, Inc. S'holders Litig., C.A. No. 9415-VCN (Del. Ch. Jun. 13, 2014) (Noble, V.C.)

In this letter opinion denying plaintiffs’ motion to expedite, the Court of Chancery held that plaintiffs, shareholders of TriQuint Semiconductor, Inc. (“TriQuint” or the “Company”), failed to assert a colorable claim that...more

"Fee-Shifting Bylaws: The Current State of Play"

As previously reported, on May 8, 2014, the Delaware Supreme Court issued an opinion in ATP Tour, Inc. v. Deutscher Tennis Bund (German Tennis Federation), No. 534,2013 (Del. May 8, 2014), holding that fee-shifting provisions...more

Beyond Truth, and Toward Repose: Price Increases Following “Merger to Monopoly” Do Not Rekindle Statute of Limitations

Z Technologies Corp. v. Lubrizol Corp., No. 2:12-cv-12206 (6th Cir., May 23, 2014). In February, 2007, Lubrizol Corporation made a “merger to monopoly” acquisition of the assets of a competitor. The acquisition...more

It Depends On The Meaning Of The Word "With"

The contractual interpretation issue before the Business Court in Schultheis v. Hatteras Capital Investment Management, LLC, 2014 NCBC 23, turned on the meaning of the word "with." Well, actually on the phrase "entering into...more

Are Fairness Opinions Admissible on a Plan of Arrangement Hearing?

Differing viewpoints have recently arisen in the Ontario Superior Court of Justice (Commercial List) as to whether fairness opinions are admissible during court approval of plans of arrangement. In Champion Iron Mines Limited...more

Delaware Court Clarifies Director and Officer Liability in M&A Transactions

In Chen v. Howard-Anderson, 87 A.3d 648 (Del. Ch. 2014), the Delaware Court of Chancery (Laster, V.C.) held that directors and officers can be held liable for their participation in a change-of-control transaction if their...more

A Second Opinion on Fairness Opinions in Commercial Arrangements - Champion Iron Called Into Question by Bear Lake and Royal...

Decisions on corporate plans of arrangement tend to be of two varieties. Most are fairly straightforward decisions, where the applicant proves that it complied with the interim order already issued by the court, shows that a...more

Delaware Court of Chancery Invalidates Consent Due to Inadequate Disclosures

The Delaware Court of Chancery recently invalidated a written consent of a Delaware pharmaceutical corporation due to inadequate disclosures to stockholders. ...more

Courts Uphold Use of Fairness Opinions at Hearings to Approve Plans of Arrangement

On April 7, 2014, Osler commented on the decision of Justice David Brown of the Ontario Superior Court of Justice (Commercial List) in Re Champion Iron Mines Limited. In that case, the Court held that a fairness opinion from...more

Recent Developments Relating to Hostile Deals in the US

In November 2013, Men’s Wearhouse made an unsolicited offer to acquire Jos. A. Bank, just weeks after rejecting a hostile offer from Jos. A. Bank. Jos. A. Bank initially rejected the “Pac Man” counteroffer, but ultimately...more

Shareholder Activism in Germany Following Takeover Announcements

Over the past few years there has been a noticeable increase in the frequency of activist investors building up considerable stakes in German listed companies in the context of public takeovers. One reason for this...more

M&A statutes of limitations: Delaware moves to vanquish a legal relic

In a world of continuous innovation, it is an understatement that to varying degrees the law lags behind the times. But even measured by the glacial pace of judicial and statutory change, the notion of a corporate “seal” –...more

Survival of Reps and Warranties: Avoiding Unpleasant Surprises for Buyers

Survival of representations and warranties (“reps and warranties”) is among the staples of highly negotiated provisions in M&A purchase agreements. The length of the survival period limits the time during which claims may be...more

Delaware Court of Chancery Underscores Heightened Pleading Standard Necessary to Support a Claim for Breach of Fiduciary Duty In...

In Houseman v. Sagerman, C.A. No. 8898-VCG, 2014 WL 1478511 (Del. Ch. Apr. 16, 2014), the Delaware Court of Chancery (Glasscock, V.C.) granted, in part, a motion to dismiss filed by certain directors and the financial advisor...more

A Shot In A Mug Of Beer May Not Be The Answer To This Exclusive Forum Bylaw Case

In March, Safeway and Albertsons announced that they had entered into a definitive merger agreement. As night follows day, litigation ensued. At least 12 class action complaints were filed by alleged stockholders of...more

Chen v. Howard-Anderson: A Study in the Standards of Review and of D&O Conduct in the Merger Context

Litigation over challenges to corporate mergers has swelled in recent years, exposing directors, officers and their D&O insurers to large amounts of defense costs and potentially great liability. The Delaware Chancery Court...more

Are You Facing the Prospect of a Merger Investigation?

If your organization is facing the prospect of a merger investigation and your lawyers haven’t raised the prospect of technology-assisted document review (“TAR”), then maybe you should be talking with someone...more

Smith, Katzenstein & Jenkins LLP v. Fidelity Mgmt. & Research Co., C.A. No. 8066-VCL (Del. Ch. April 16, 2014) (Laster, V.C.)

The Court of Chancery awarded plaintiffs attorneys’ fees and expenses under Delaware’s common fund and common benefit doctrines, concluding that defendants — who settled their potential claims against Revlon, Inc. (“Revlon”)—...more

Houseman v. Sagerman, C.A. No. 8897-VCG (Del. Ch. Apr. 16, 2014) (Glasscock, V.C.)

In this opinion, the Court of Chancery held that the plaintiffs failed to adequately plead that the board failed to satisfy its Revlon duties in good faith and to negotiate consideration for alleged derivative claims that...more

I/MX Info. Mgmt. Solutions, Inc. v. Multiplan, Inc., C.A. No. 7786-VCP (Del. Ch. Mar. 27, 2014) (Parsons, V.C.)

In this memorandum opinion, the Court of Chancery granted the plaintiff’s motion for partial summary judgment as to the withholding of escrowed funds, reasoning that the defendants did not have a pending claim that could...more

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