Mergers & Acquisitions Business Organization Civil Procedure

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Delaware Corporation Law Amendments Address Fee-Shifting and Exclusive Jurisdiction Provisions

Recently enacted amendments to the Delaware General Corporation Law will prohibit the certificates of incorporation and bylaws of Delaware corporations from including "loser pays" litigation provisions with respect to...more

Chancery Court Upholds Indicted Ex-Director's Advancement Rights

Advancement provides corporate officials with immediate interim relief from the personal out-of-pocket financial burden of paying the significant ongoing expenses inevitably involved with defending investigations and legal...more

In re Cornerstone Therapeutics Inc. S’holder Litig., C.A. No. 564, 2014 (Del. May 14, 2015) & Leal v. Meeks, C.A. No. 706, 2014...

In these interlocutory appeals, the Delaware Supreme Court resolved a long-standing split in Delaware authorities by ruling that independent directors (including members of a special committee negotiating a transaction with a...more

Court Of Chancery Rejects Management Projections In An Appraisal

Thus, it turns out differently from the recent decision in the Owen v. Cannon litigation because, as the Court explained, the facts are different, particularly when as here the merger price had all indications of being fairly...more

Takeovers: A New Approach to Unacceptable Circumstances

Queensland North Australia Pty ltd v Takeovers Panel [2015] FCAFC 68 - Background - The Full Federal Court has delivered a judgment that will change the way the Australian Takeovers Panel (the Panel) approaches...more

2015 Amendments to the Delaware General Corporation Law

On June 24, 2015, Delaware Governor Jack Markell signed into law Senate Bill No. 75, which makes a number of noteworthy changes to the Delaware General Corporation Law (“DGCL”) effective August 1, 2015....more

I’ve said too much/I haven’t said enough: Eleventh Circuit law on the duty to correct prior representations in light of the Ninth...

On May 15, the Ninth Circuit declined to recognize a duty to correct prior representations under §§ 10(b) and 20(a) of the Securities Exchange Act of 1934, affirming the Northern District of California’s dismissal of a...more

Corralling and Curtailing Merger Litigation: Lessons Learned from Past Securities and Corporate Governance Litigation Reform

In the world of securities and corporate governance litigation, we are always in the middle of a reform discussion of some variety. For the past several years, there has been great focus on amendment of corporate bylaws to...more

Lazard Tech. Partners, LLC v. Qinetiq North America Operations LLC, No. 464,2014 (Del. Apr. 23, 2015) (Strine, C.J.)

In this appeal of a post-trial bench decision by the Court of Chancery, the Delaware Supreme Court affirmed the Court of Chancery’s finding that a buyer did not breach an earn-out provision in a merger agreement. The...more

Delaware Supreme Court Preserves Benefit of Exculpatory Provisions for Independent Directors at Motion to Dismiss Stage

A recent decision by the Delaware Supreme Court provides independent directors, such as special committee members, with the ability to escape protracted fiduciary duty litigation during its initial stages. The court’s...more

Delaware Supreme Court Holds That a Stockholder Plaintiff Must Plead a Non-Exculpated Claim to Avoid Section 102(b)(7)-Based...

In the consolidated appeal In re Cornerstone Therapeutics Inc., Stockholder Litigation and In re Zhongpin Stockholders Litigation, Nos. 564, 2014 and 706, 2014, 2015 Del. LEXIS 231 (Del. May 14, 2015), the Delaware Supreme...more

Important Delaware Supreme Court ruling on use of charter provision to seek preliminary dismissal – 3 key takeaways

In a decision jointly resolving two appeals - In re Cornerstone Therapeutics Inc. Stockholder Litigation and Leal v. Meeks - the Delaware Supreme Court clarified seemingly conflicting Delaware case law. The decision sought to...more

CLIENT ALERT: Delaware Supreme Court Establishes Rule Permitting Dismissal of Independent Directors From Entire Fairness Suits

In re Cornerstone Therapeutics Inc. S’holder Litig., No. 564, 2014 (Del. May 14, 2015) & Leal v. Meeks, No. 706, 2014 (Del. May 14, 2015) In these interlocutory appeals, the Delaware Supreme Court resolved a...more

Southeastern Pennsylvania Transportation Authority, v. AbbVie, Inc., CA No. 10374-VCG and Rizzolo v. AbbVie Inc., CA No. 10408-VCG...

In this memorandum opinion, the Court of Chancery denied two stockholders’ request for the inspection of books and records of a company pursuant to 8 Del. C. § 220, finding that the stockholders failed to show a credible...more

In re El Paso Pipeline Partners, L.P. Deriv. Litig., C.A. No. 7141-VCL (Del. Ch. Apr. 20, 2015) (Laster, V.C.)

In this post-trial opinion, the Delaware Court of Chancery determined that a general partner breached a limited partnership agreement in connection with a “drop-down” transaction. The Court held that the partnership’s...more

Mergers and Acquisitions Alert: Lazard v. Qinetiq: Important Lessons for Structuring Earn-Outs

Overview - A recent Delaware Supreme Court case authored by Chief Justice Strine upholds the literal meaning of an earn-out provision that limited the buyer from taking action “intended to reduce or limit an earn-out...more

Court Of Chancery Again Accepts Merger Price In An Appraisal

This decision is another in a line of recent appraisal cases where the Court of Chancery has relied on the merger price to set the “fair value” of the stock involved. ...more

Obligations Under Earn-Outs Are Limited to What the Words Say

The stockholders of Cyveillance, Inc., sold their company for $40 million up-front and a $40 million earn-out if the company’s revenues reached a certain level. Section 5.4 of the merger agreement prohibited the buyer from...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

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

"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

Court Of Chancery Limits Drag-Along Rights

Whether drag-along rights can preclude an appraisal action for common stock has not been decided in Delaware. Here, because the merger was completed before the drag-along rights were asserted, the Court did not have to...more

It's Not Just A Delaware Thing: Other Courts Are Also Questioning Disclosure-Only Settlements In M&A Litigation

In an age when overburdened courts with reduced budgets often approve class action settlements without significant oversight, Delaware courts have frequently bucked that trend in the merger litigation context: rejecting...more

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