Litigation developments: federal forum provisions
In Seavitt v. N-able, Inc., the Delaware Court of Chancery held that certain governance rights granted to a corporation’s significant stockholders were statutorily invalid. This included a provision purporting to allow those...more
In August 2022, the Delaware General Assembly amended the Delaware General Corporation Law (“DGCL”) to allow corporations to adopt charter provisions exculpating certain officers from personal liability for monetary damages...more
On February 23, 2024, the Delaware Court of Chancery issued a decision in a class action lawsuit (West Palm Beach Firefighters’ Pension v. Moelis & Co.) that concluded most of the control provisions in a stockholder agreement...more
The Merchant Marine Act of 1920, commonly known as the “Jones Act” requires that any vessel engaged in the U.S. coastwise trade be owned and operated by U.S. citizens. To qualify as a U.S. citizen under the Jones Act an...more
Recently, in Colon v. Bumble, the Delaware Court of Chancery held that certain provisions in the charter of Bumble, Inc. (Bumble), which contemplated that each share of stock carried either one vote or 10 votes depending upon...more
Recently, Professor Ann Lipton wrote that the California Supreme Court has granted review of EpicentRx, In.c v. Superior Court, 95 Cal. App. 5th 890 (2023), review granted 539 P.3d 118 (2023). This was a case that I...more
We’ve all read countless headlines and articles about the removal and swift return of Sam Altman as CEO of OpenAI over the past several weeks. Simply put, the nonprofit board voted to remove Altman as a result of a...more
With the 2023 proxy season now over for most companies, we took a fresh look at recent bylaw and charter amendments at the Silicon Valley 150 (the SV150) to better understand how companies are addressing i) new Rule 14a-19,...more
As Vice Chancellor, Leo E. Strine Jr. once declared "Delaware law does not charter law breakers". In re Massey Energy Co., No. CIV. A. 5430-VCS, 2011 WL 2176479, at *20 (Del. Ch. May 31, 2011). The California General...more
What happened - A recent Delaware chancery court decision has called into question consolidated voting on charter amendments by some companies with multiple classes of common stock. In Garfield v. Boxed, Inc., the court...more
If the rule isn’t that anything goes with enough votes, what is it? Experienced entrepreneurs and investors alike understand that equity dilution is a fundamental aspect of investing in corporations. This is especially...more
On April 11, 2022, Vice Chancellor Paul A. Fiorvanti of the Delaware Court of Chancery dismissed a stockholder challenge to an amendment of the certificate of incorporation of The Trade Desk, Inc. (the “Company”). According...more
Our Securities and Securities Litigation Groups suggest that Delaware companies consider updates to corporate charters following a change in Delaware law allowing companies to exculpate officers....more
On July 29, the Delaware Court of Chancery issued a noteworthy decision confirming the broad application of the "MFW" framework—based on the Delaware Supreme Court's decision in Kahn v. M & F Worldwide Corp., 88 A.3d 635...more
On June 16, 2022, Vice Chancellor Lori W. Will of the Delaware Court of Chancery granted declaratory judgment in favor of plaintiffs — four members of the board of Aerojet Rocketdyne Holdings, Inc. (the “Company”), including...more
On April 28, 2022, the California Court of Appeal issued a much-anticipated decision in Wong v. Restoration Robotics, Case No. A161489, enforcing a forum selection clause contained in a corporate charter provision that...more
In 2005, Nevada stopped issuing ceremonial charters to corporations when it introduced its e-SOS processing system. A ceremonial charter is basically a charter printed by the Nevada Secretary of State's office on colored...more
In this podcast episode, Hogan Lovells partner Ann Kim and counsel Scott Haiber, from our Los Angeles and Baltimore offices respectively, discuss federal forum provisions – and the continued viability of these provisions in...more
Former British Prime Minister Winston Churchill once said, “Plans are of little importance, but planning is essential.” Perhaps that quote is a tad strong to apply generally to corporate reorganizations under Section 368 of...more
Courts sometimes disagree over whether provisions in a borrower's organizational documents designed to prevent the borrower from filing for bankruptcy are enforceable as a matter of federal public policy or applicable state...more
On September 1, 2020, Judge Marie S. Weiner of the San Mateo County, California Superior Court held that an exclusive federal forum provision was enforceable under California law. See Wong v. Restoration Robotics, Inc., No....more
On August 31, 2020, Vice Chancellor Sam Glasscock III of the Delaware Court of Chancery dismissed breach of fiduciary duty claims asserted against the directors of USG Corporation by former stockholders following its...more
Regardless of size or industry, thoughtful director appointment is critical to the success of any public company. Yet following the departure of a director, many boards are left scrambling to locate and onboard a suitable...more
A recent, highly anticipated ruling by a Bankruptcy Court in Delaware has reilluminated the concept of a "golden share". While an appeal of the ruling seems likely, this latest ruling by Delaware Bankruptcy Judge Mary F....more
On March 18, 2020, the Delaware Supreme Court reversed a Chancery Court decision invalidating federal forum selection provisions contained in the certificates of incorporation of three Delaware corporations – Blue Apron...more