Civil Procedure Mergers & Acquisitions Finance & Banking

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Your daily dose of financial news - The Brief – 8.23.16

The 2d Circuit has refused the DOJ’s motion for reconsideration of the panel’s May decision overturning a jury verdict and accompanying $1.27 billion fine against Bank of America over its “Hustle” mortgage generation program....more

Delaware Law Updates – Court of Chancery Puts Boards of Directors on Notice that Contracting Away Derivative Claims in a Merger...

Vice Chancellor Glasscock has held that a merger designed to eliminate derivative claims against a majority of directors justified the application of the entire fairness standard of review in a direct challenge to the merger....more

Delaware Chancery Court Confirms: Two Step Merger Initiated As A Tender Offer Enjoys Business Judgment Rule Protection

The Delaware Court of Chancery recently held that where a majority of a corporation’s fully informed, disinterested, and un-coerced stockholders tender their shares as part of a two-step merger, that has the same “cleansing”...more

Can a shareholder who is unable to rely on the HSR passive investor exemption still file a Schedule 13G? Maybe, says the SEC Staff...

On July 12, 2016, the US Department of Justice announced a record $11 million fine against an activist investment firm for improperly claiming an exemption from Hart-Scott-Rodino’s notification and waiting period provisions...more

Your daily dose of financial news - The Brief – 7.11.16

A putative class action filed last week is accusing 25 prominent banks—including Deutsche Bank, Goldman Sachs, and Barclays—of “conspiring to rig the market for securities” sold by the US Treasury in their roles as primary...more

2016 Amendments to the Delaware General Corporation Law

On June 16, 2016, Delaware Governor Jack Markell signed into law House Bill No. 371, which makes a number of noteworthy changes to the Delaware General Corporation Law (“DGCL”). The most significant 2016 amendments to the...more

‘Sorry, But You Have Nothing in Common’: The New York Court of Appeals’ Recent Rejection of the ‘Common Interest Doctrine’...

The New York Court of Appeals, the state’s highest court, recently rejected an attempt to apply the “common interest doctrine,” an exception to the general rule that communicating privileged information to a third party...more

Delaware Law Updates - Delaware Supreme Court Defers to the Court of Chancery’s Fact-Finding and Witness Credibility...

In a recent decision out of the Delaware Supreme Court—CDX Holdings, Inc. v. Fox, C.A. No. 526, 2015 (Del. June 6, 2016)—Justice Holland, writing for the majority, affirmed a Court of Chancery post-trial decision that found...more

Your daily dose of financial news - The Brief – 6.17.16

Dealbook’s Strategies feature reviews the Fed’s latest non-move and suggests that the current bind in which the Fed finds itself is—at least in part—a problem of its own making....more

New York’s Highest Court Refuses to Expand the Common Interest Doctrine to Merging Parties

On June 9, 2016, the New York Court of Appeals issued a stark reminder to transactional lawyers: no matter how much “common interest” two parties may have with respect to a transaction, the common interest doctrine may not...more

Dell Decision Grants Claimants Fair Value Award Above Merger Price

Delaware law has long made clear that the price established for a company in a market transaction, while a relevant factor, does not necessarily equate to the fair value that shareholder claimants are entitled to receive in...more

M&A Update: New York Court of Appeals Rejects Extension of Common Interest Privilege to Merger Talks

On June 9, 2016, a divided New York Court of Appeals in a much-anticipated ruling held that the attorney-client privilege can only be maintained for communications involving third parties in situations where litigation is...more

New York High Court Adopts Delaware Rule in Go-Private Suits

New York’s highest court earlier this month adopted a more lenient standard for reviewing certain types of corporate transactions between companies and controlling shareholders, similar to that adopted two years ago by...more

Top Courts in Delaware and New York Affirm Business Judgment Rule Protection Where Procedural Safeguards are Followed

In recent decisions, both the Delaware Supreme Court and the New York Court of Appeals affirmed defendant-friendly lower court rulings, holding that, if appropriate procedural safeguards are employed in M&A transactions,...more

Business Judgment Rule Applies to Shareholder Suits Challenging Going-Private Mergers in New York

Action Item: New York’s High court provides a road map of how corporate attorneys should structure going-private transactions involving controlling shareholders. Utilizing certain protective measures at the outset should...more

NY Court Of Appeals Rejects No-Opt Out Class Action Settlement In Shareholder Litigation

In Jinnaras v. Alfant, decided on May 5, 2015, the New York Court of Appeals rejected a proposed settlement of a shareholder class action, where the proposed settlement would have deprived out-of-state class members of a...more

N.Y. Court of Appeals Adopts Business Judgment Rule, with Conditions, for Going-Private Mergers

The New York Court of Appeals has followed Delaware in holding that the business-judgment rule applies to going-private mergers as long as certain shareholder-protective measures are met. The court’s May 5, 2016 decision in...more

Delaware Law Updates - Demand Refused Rule 23.1 Explained by the Delaware Court of Chancery

In a recent decision out of the Delaware Court of Chancery – Friedman v. Maffei et al., C.A. No. 111105-VCMR – the court’s second-newest member, Vice Chancellor Montgomery-Reeves, dismissed a proposed derivative complaint on...more

DOJ Suit Against ValueAct Shines Spotlight on HSR Requirements for Shareholder Activists

Suit signals potential consequences for activist investors who rely on the HSR “solely for purposes of investment” exemption. On April 4, 2016, the U.S. Department of Justice (DOJ) sued certain ValueAct Capital entities...more

Activist Funds Should Heed the Latest Enforcement of the HSR Act

The limits on an investor’s ability to acquire stock under the “investment-only” exemption to the HSR Act’s reporting requirements take center stage as the Antitrust Division of the U.S. Department of Justice (the “DOJ”)...more

When Passive Investors Take a Stand – HSR Act Enforcement Put to the Test

Enforcement actions for violations of the Hart-Scott-Rodino Act (HSR) often are announced with substantial money penalties or other restrictions agreed in advance between the agency and the parties. Not so with the Department...more

Louisiana Municipal Police Employees’ Retirement System v. Black, C.A. No. 9410-VCN (Del. Ch. Feb. 19, 2016) (Noble, V.C.)

In this letter opinion, the Court of Chancery awarded a $144,375 fee to counsel for Louisiana Municipal Police Employees’ Retirement System (“Plaintiff”) on a mootness fee application in connection with the terminated merger...more

Caveat Emptor: Non-compliance with a Non-Binding Term Sheet Results in $195 Million Judgment

On December 23, 2015, the Delaware Supreme Court affirmed the Delaware Chancery Court’s award of $195 million to PharmAthene, Inc. (“PharmAthene”) as compensation for lost profits (a/k/a expectation damages) on account of the...more

"Giving" And "Getting": The NC Business Court On Disclosure Only Class Action Settlements

Disclosure only settlements are in deep trouble in Delaware based on the Court of Chancery's recent decision in In re Trulia Inc. Stockholder Litigation. That decision is said to have sounded a "death knell" in Delaware for...more

After In re Trulia: Increased Scrutiny for the Give and the Get in Disclosure Settlements

It used to be that boards of public companies being acquired would routinely face one or (likely) more lawsuits alleging the directors breached their fiduciary duties because they had agreed to sell too cheaply or engaged in...more

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