General Business Mergers & Acquisitions Civil Procedure

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Decisions Raise Bar on Waiver of Arbitration Agreements Under Texas Law

While employers may enter into arbitration agreements with employees relatively easily, ensuring the enforcement of arbitration agreements can be a different matter. For this reason, employers are rightfully cautious to avoid...more

I Think We’re Alone Now: Applying the Common-Interest Privilege When No Litigation is Pending

Recently, the New York Appellate Division broadened that state’s common-interest privilege doctrine. In Ambac Assurance Corp. v. Countrywide Home Loans, Inc., 124 A.D.3d 129 (N.Y. App. Div. 1st Dep’t 2014), the court removed...more

“It’s Not Easy to Unscramble the Eggs” … Despite the FTC’s Win at the U.S. Supreme Court, the Phoebe Putney Hospital Merger...

Nearly four years after the Federal Trade Commission (“FTC”) first challenged the combination of the only two hospitals in Albany, Georgia, the FTC, Phoebe Putney Health Systems, Inc. (“Phoebe Putney”), Hospital Authority of...more

Use it or lose it: French courts reject procedural objections not raised at the earliest opportunity

The Paris Court of Appeal has issued a stark warning to litigants who fail to raise procedural objections at the earliest opportunity, denying parties the right to raise those objections in a subsequent challenge to the...more

Fundamental Changes to Take-over Bid Regime One Step Closer With Release of Draft Amendments

On March 31, 2015, the Canadian Securities Administrators (CSA) released draft amendments to Canada’s take over bid regulatory regime. As previously announced by the CSA in September 2014, the amendments will increase the...more

Ellis v. OTLP GP, LLC, C.A. No. 10495-VCN (Del. Ch. Jan. 30, 2015) (Noble, V.C.)

In this letter opinion, the Court of Chancery denied plaintiffs’ motion to expedite certain contractual claims arising from the sale of a limited partnership after finding that the claims were not colorable. Plaintiffs were...more

FTC Ordered to Reveal Names of Witnesses to Sysco, US Foods

A federal judge in Washington, DC ruled last week that the FTC must disclose the names of the individuals it relied on in its bid to block a proposed $3.5 billion merger between Sysco and US Foods. The FTC attached under seal...more

Halpin v. Riverstone National, Inc., C.A. No. 9796-VCG (Del. Ch. Feb. 26, 2015) (Glasscock, V.C.)

In this decision, the Court of Chancery granted a motion for summary judgment for minority stockholders asserting appraisal rights in a squeeze-out merger. The Court assumed, without deciding, that a common stockholder may...more

Fortis Advisors LLC v. Dialog Semiconductor PLC, C.A. No. 9522-CB (Del. Ch. Jan. 30, 2015) (Bouchard, C.)

In this memorandum opinion, the Court of Chancery granted a motion to dismiss certain claims relating to a dispute over earn-out payments owed to the former equity holders of iWatt, Inc. (“iWatt”) following the sale of iWatt...more

Locating Time Frames for the Hypothetical Negotiation

In determining a reasonable royalty for patent infringement damages, district courts often use the hypothetical negotiation analysis: that is, what is the royalty rate that the patent owner and the infringer would have agreed...more

Lewis v. Aimco Properties, L.P, et al., C.A. No. 9934-VCP (Del. Ch. Feb. 10, 2015) (Parsons, V.C.)

In this memorandum opinion, the Court of Chancery (i) granted in part certain defendants’ motion to dismiss for lack of subject matter jurisdiction, specifically ordering a stay pending arbitration; and (ii) granted certain...more

Proposed 2015 Amendments to the Delaware General Corporation Law

The Delaware Corporation Law Council—composed of members of the Delaware bar charged with proposing annual amendments to the Delaware General Corporation Law (DGCL)—has proposed several potentially significant amendments to...more

Potential Cost Savers in German M&A Transactions – Practical Experience with Notary’s Fees

International investors with corporate transactions in Germany are often surprised to learn that significant costs can be incurred by a German notary as part of a normal corporate transaction. The involvement of a German...more

"Proposed DGCL Amendments to Address Fee Shifting, Forum Selection and Appraisal Proceedings"

On March 6, 2015, the Corporation Law Council of the Delaware State Bar Association announced proposed amendments to the Delaware General Corporation Law (DGCL) intended to address fee shifting, forum selection and appraisal...more

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

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