Civil Procedure Mergers & Acquisitions

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FTC Wins Key Appellate Victory in FTC v. Penn State Hershey Medical Center

The Federal Trade Commission (FTC) won a decisive victory today in its efforts to slow the record pace of health care provider consolidation, when the U.S. Court of Appeals for the Third Circuit reversed a District Court's...more

Second Circuit Affirms Exclusion of Certain Foreign Purchasers and Purchases from Securities Class Action

The U.S. Court of Appeals for the Second Circuit issued a lengthy opinion today in the long-running In re Vivendi, S.A. Securities Litigation, affirming the jury’s verdict on liability and addressing issues about loss...more

Antitrust-Related Recent Developments: Merger Agreement Efforts Subject of Litigation

In a recent action raising the issue of the nature of a merger party’s obligation to take steps necessary to clear antitrust regulatory hurdles “as promptly as reasonably practicable,” Alere, Inc. sued Abbott Laboratories in...more

Taming the Bull Rider: Chancery Court Reining in Mootness Fee Awards in Merger Litigation

Last month, the Delaware Chancery Court drastically reduced – from $275,000 to $50,000 – a mootness fee award requested by plaintiffs’ counsel in a lawsuit challenging the merger between PayPal and Xoom Corporation, finding...more

Your daily dose of financial news - The Brief – 9.14.16

Following news of Starboard Value’s plan to shake things up at Perrigo, we have this take from Breakingviews, which suggests that fending off a hostile takeover (as Perrigo did from Mylan) tends to “make fertile turf for an...more

Delaware Court of Chancery Addresses the “Cleansing Effect” of Stockholder Approval In Post-Closing M&A Damages Actions

In two recent decisions, City of Miami General Employees’ & Sanitation Employees’ Retirement Trust v. Comstock, C.A. No. 9980-CB, 2016 Del. Ch. LEXIS 133 (Del. Ch. Aug. 24, 2016) (Bouchard, C.) (“Comstock”), and Larkin v....more

Court Of Chancery Again Explains Scope Of The Corwin Doctrine

This is one of two recent Court of Chancery decisions explaining that the Corwin case really does mean that there is an “irrebuttable business judgment rule” that bars challenges to a merger approved by a majority of the...more

Court Finds Spanish-Language Movies May Be A Proper Antitrust Product Submarket

Can Spanish-language media content constitute a proper antitrust product submarket for purposes of a Sherman Act claim? A federal district court in Houston appears to be the first to address the issue and has signaled that,...more

Court: Derivative Claims Allowed to Be Asserted as Part of Merger Attack

It is well-settled under Delaware law that in a merger a stockholder loses standing to assert a purely derivative claim. That claim passes instead to the acquiring company. As an asset of a Delaware company, derivative claims...more

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

Court Of Chancery Dismisses Merger Litigation Under The Corwin Doctrine

This decision applies the Corwin doctrine to dismiss a suit attacking a merger that received stockholder approval. It explains that approval by a fully-informed, uncoerced majority of disinterested and independent...more

Two New Court Decisions Bookend Antitrust Risks for Integrated Hospitals

A Florida federal court recently denied summary judgment to an integrated hospital system hoping to exit a multicount antitrust and unfair trade lawsuit. Four days later, the Third Circuit Court of Appeals upheld summary...more

Strike Suit Struck Down

It seems that the announcement of any corporate transaction triggers a race to the courthouse by plaintiffs’ firms. These firms specialize in filing class action lawsuits demanding additional disclosures for the benefit of...more

The Decline of the Disclosure-Only Settlement: Will We Regret What We Wished For?

In combination with the Delaware Court of Chancery’s decision in In re Trulia, Inc. Stockholder Litigation, 129 A.3d 884 (Del. Ch. 2016), Judge Posner’s blistering opinion In re Walgreen Company Stockholder Litigation, 2016...more

Are Appraisal Cases to Decline?

Among the most-discussed issues in corporate law today is whether appraisal actions should be curtailed. Triggered by above-merger price awards after deals were shopped in the market, the argument is that the appraisal...more

In re Volcano Corporation Stockholder Litigation, C.A. No. 10485-VCMR (Del. Ch. June 30, 2016) (Montgomery-Reeves, V.C.).

In this memorandum opinion, the Court of Chancery dismissed claims for breach of fiduciary duty under Chancery Rule 12(b)(6), holding that an irrebuttable business judgment rule standard applies to a merger effected under...more

Seventh Circuit Adopts Trulia Standard for Disclosure-Only Settlements

Last week, in an opinion authored by Judge Richard Posner, the U.S. Court of Appeals for the Seventh Circuit rejected a proposed class-action settlement arising from Walgreen Co.’s acquisition of the Swiss-based pharmacy...more

Seventh Circuit Brands Disclosure-Only Settlement a “Racket” and Endorses Delaware Court of Chancery’s Stricter Standard for...

In a 2-1 decision, the Seventh Circuit has joined the Delaware Court of Chancery’s call for enhanced scrutiny of “disclosure-only” M&A settlements that involve no monetary benefits to shareholders. As previously discussed,...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

Eighth Circuit Holds Asset Purchaser Liable for Failure to Provide WARN Notice to Seller's Employees

In a typical corporate transaction, the parties structure the deal as an asset purchase, whereby the buyer purchases essentially all of the company’s property, equipment, goodwill, customer lists, etc. If the asset purchase...more

Court of Chancery Awards Mootness Fee for “Helpful” Supplemental Disclosures

The Court of Chancery’s highly-publicized decision in In re Trulia, Inc. Stockholders Litigation, 129 A.3d 884 (Del. Ch. 2016) (Bouchard, C.) (discussed here) took aim at the problem of disclosure-only settlements and...more

Chancery Court Denies Motion to Dismiss Fiduciary Duty Claims Where Directors Approved Merger That Extinguished Threatened...

On July 28, 2016, the Delaware Court of Chancery held that stockholders of Riverstone National, Inc. had adequately stated a breach of fiduciary duty claim against the company's directors who approved a merger that...more

Key Takeaways from Cornerstone Research’s Securities Class-Action Filings 2016 Midyear Assessment

Cornerstone Research recently released its 2016 midyear assessment of federal securities class-actions filings. The report finds an increase in filings in the first half of 2016, with particular increases in M&A filings,...more

Delaware Chancery Court Finds that Director Defendants Can Not “Merge Their Way Out of” Breach of Fiduciary Claims

On July 28, 2016, the Delaware Chancery Court allowed claims of unfair dealing against the Board of property management company Riverstone National Inc. to survive where the directors facilitated a merger that forestalled a...more

Court Of Chancery Reviews Corporate Opportunity Doctrine Where Derivative Claim Eliminated By Merger

This is an excellent explanation of the corporate opportunity doctrine’s four elements, under which directors may be liable for taking a business opportunity that: (1) the corporation is financially able to take for itself;...more

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