Mergers & Acquisitions General Business Civil Procedure

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Delaware Court Dismisses Action Against Seller's Directors and Financial Advisor, And Finds That Large Stockholder's "Side Deals"...

On October 24, 2014, the Delaware Court of Chancery issued a decision, In Re: Crimson Exploration Inc. Stockholder Litigation, addressing when: (i) a stockholder with less than majority voting power may be deemed a...more

Delaware Court of Chancery Rejects Controlling Stockholder Claims and Applies Business Judgment Rule to Merger Suits

In In re KKR Financial Holdings LLC Shareholder Litigation, C.A. No. 9210 (Del. Ch. Oct. 14, 2014), the Delaware Court of Chancery dismissed a shareholder derivative suit brought by shareholders of KKR Financial Holdings LLC...more

Delaware Court of Chancery Rejects Contemporaneous Ownership Requirement For Creditors Asserting Derivative Claims

In Quadrant Structured Products Co. v. Vertin, C.A. No. 6990-VCL, 2014 Del. Ch. LEXIS 193 (Del. Ch. Oct. 1, 2014), the Delaware Court of Chancery held that when creditors of insolvent firms assert derivative claims, they need...more

The Ropes Recap: Mergers & Acquisitions Law News - October 2014

In this issue: - Delaware Legislative Update - Amendments to DGCL Effective August 1, 2014 - News from the Courts - Additional Guidance on Kahn v. M&F Worldwide Corp. - Exculpation...more

Delaware Court Confirms Applicability of Business Judgment Rule to Investment Decisions of Insolvent Corporations

In its October 1, 2014 decision in Quadrant Structured Prods. Co. v. Vertin, et al., C.A. No. 6990, the Delaware Court of Chancery applied the protections afforded under the business judgment rule to investment strategies...more

Hong Kong Competition Commission Publishes Draft Guidelines - a key step toward bringing the Competition Ordinance into full force

The Hong Kong Competition Commission (the "Commission") has published a set of draft guidelines (the "Guidelines") on 9 October 2014 for public consultation. These guidelines, upon finalization, will be submitted to the...more

Black Horse Capital, LP v. Xstelos Holdings, Inc., C.A. No. 8642-VCP (Del. Ch. Sept. 30, 2014) (Parsons, V.C.)

In this decision, the Court of Chancery granted defendants’ motion to dismiss, finding that it could not enforce the plaintiffs’ alleged oral agreement where the related written agreements make no reference to any prior...more

ev3, Inc. v. Lesh, C.A. No. 515, 2013 (Del. Sept. 30, 2014)

In this en banc Memorandum Opinion, the Supreme Court reversed the Superior Court’s denial of the defendant-below’s motion for a new trial following a jury verdict and remanded the case for a new trial. The Supreme Court...more

Texas Court Refuses to Apply Texas Choice of Law in Non-Compete Fight Involving Texas Bank

A recurrent theme in non-compete litigation is the overriding importance of choice-of-law. The latest example comes to us from the United States District Court for the Southern District of Texas and pits a Texas choice-of-law...more

In re Cornerstone Therapeutics Inc. S'holder Litig., Consol. C.A. No. 8922-VCG (Del. Ch. Sept. 10, 2014) (Glasscock, V.C.)

In this opinion on a motion to dismiss, the Court of Chancery held that, in a controller transaction governed by entire fairness review, a plaintiff need not specifically plead non-exculpated breaches of duty as to...more

Antitrust and Competition Newsletter - October 2014 (Global)

Recent U.S. Criticism of China’s Enforcement of Its Antitrust Laws Against Foreign Companies - For some time, many in the antitrust community have expressed concerns about how China is enforcing its antitrust laws...more

Rural/Metro II: Additional Lessons for Financial Advisors, Directors and Counsel in M&A Transactions And Related Litigation

On October 10, 2014, the Delaware Court of Chancery issued a decision awarding nearly $76 million in damages against a seller’s financial advisor. In an earlier March 7, 2014 opinion in the case, In re Rural/Metro Corp....more

Blog: Will The SEC Intercede In The Battle Over Fee-Shifting Bylaws?

“The first trickle through a leak in the dam” that eventually causes the dam to collapse is how Professor John Coffee characterized the adoption of fee-shifting bylaw or charter provisions by 24 companies since May of this...more

PTAB - Trulia and Zillow possible merger is not a sufficient basis for extending the 12 month period to complete the trial

In Trulia, Inc. v. Zillow, Inc., Trulia filed a petition seeking covered business method review of U.S. Patent No. 7,970,674 relating to automatically determining a current value for a real estate property. CBM2013-00056. On...more

Forum Selection Bylaws Gain Ground

As we previously discussed (Should Your Board Adopt an Exclusive Forum Bylaw?, July 2013; The Future of Exclusive Forum Bylaws, November 2013), forum selection bylaws (also sometimes called exclusive forum bylaws) have become...more

The Flawed Headcount Requirement on Schemes of Arrangement

A failed takeover of a Hong Kong-listed company has highlighted a weakness in English company law. On 16 June, a proposed take private by way of scheme of arrangement lapsed when the resolution to approve the scheme...more

"Opening shot" in negotiations: when does "without prejudice" protection apply?

In Rochester Resources Ltd & ors v Leonid Lebedev & anr [2014] EWHC 2185 (Comm), 2 July 2014, the High Court found that a draft set of Particulars (a Complaint), produced in advance of U.S. Litigation and sent to the other...more

Delaware Court Approves Out-Of-State Forum Selection Bylaw Adopted At Time Of Merger

In City of Providence v. First Citizens BancShares Inc. et al., C.A. No. 9795-CB (Del. Ch. Sept. 8, 2014), the Delaware Court of Chancery (Bouchard, C.) held that a minority shareholder's claims against a Delaware...more

Delaware Chancery Court Applies M&F Worldwide Six-Factor Test in Private Company Freeze-Out Merger and Grants Motion to Dismiss...

In a bench ruling in Swomley v. Schlecht, C.A. No. 9355-VCL (Del. Ch. Aug. 27, 2014), the Delaware Chancery Court relied on the six-factor test set out in Kahn v. M&F Worldwide Corp., 88 A.3d 635 (Del. 2014), to dismiss a...more

Disclosing Merger Negotiations: The Eleventh Circuit Weighs In

Corporate merger negotiations are typically conducted under a veil of secrecy, with public disclosure withheld until the end when a definitive agreement has been signed. The fear is that premature disclosure of preliminary...more

Delaware Court of Chancery Reaffirms Enforceability of Forum Selection Bylaws

In City of Providence v. First Citizens BancShares, Inc. (Del. Ch. September 8, 2014), the Delaware Court of Chancery upheld a forum selection bylaw that designated North Carolina as the exclusive forum for certain...more

City of Providence v. First Citizens BancShares, Inc., C.A. No. 9795-CB (Del. Ch. Sept. 4, 2014) (Bouchard, C.)

In this consolidated opinion concerning the validity of a forum selection bylaw, the Court of Chancery affirmatively answered, among other things, an issue of first impression: “whether the board of a Delaware corporation may...more

Delaware Court Enforces Exclusive Forum Provision Adopted Concurrently with Announcement of Merger Agreement

Public companies are increasingly enacting “exclusive forum” bylaws — designating a single forum for intra-corporate disputes — as a way to limit the risk and burden of multi-jurisdictional stockholder litigation. This trend...more

Forum Selection Bylaws Are Best Considered On A Clear Day

“Exclusive forum” bylaws and charter provisions are a powerful tool for managing the risk of parallel corporate governance litigation against a company and its directors in multiple forums, allowing stockholders to bring such...more

The Delaware Court of Chancery Finds Two Transactions Were Not Entirely Fair, but Awards No Damages Where the Prices of the...

On September 4, 2014, the Delaware Court of Chancery issued two lengthy post-trial opinions, both authored by Vice Chancellor John W. Noble, finding that recapitalization or restructuring transactions did not satisfy the...more

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