Fiduciary Duty

News & Analysis as of

The Ropes Recap: Mergers & Acquisitions Law News - January 2015

In this issue: - News from the Courts - Delaware Supreme Court Clarifies Fiduciary Duties in Sale Context and Overturns Judicial Imposition of Auction in Deal with Passive Market Check - Illinois Court...more

The Advisor as Fiduciary - 2015, Vol. 2

This is my favorite topic. If you read my last post, you understand why I believe that acting in the spirit of "fiduciary" sets every advisory firm up for success, compliance and otherwise. One of the few remaining items in...more

"Insights Focus: Key Observations for Directors and Senior Executives"

Although Insights is intended to cover a wide range of issues, there are a number of topics we believe will be of particular interest to directors and senior corporate executives. Below is an introduction to these topics and...more

Caveat Emptor or Caveat Vendor? The Evolution of Unfairness in Federal Consumer Protection Law

Under the Federal Trade Commission’s original interpretation of unfair or deceptive acts or practices law, financial institutions could feel some sense of security that, if they provided a consumer with a clear understanding...more

BABC Attorneys Author Amicus Brief on Behalf of DRI Regarding Tibble Case in United States Supreme Court

In Tibble v Edison International, Plaintiffs brought fiduciary duty claims against Edison International for alleged mismanagement of Edison’s 401(k) Plan. Plaintiffs’ claims centered upon the fact that the Plan’s investment...more

"Dudenhoeffer: An Effective Tool to 'Weed Out Meritless' Employer Stock-Drop Claims?"

In Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. __, 134 S. Ct. 2459 (2014), a unanimous U.S. Supreme Court held that fiduciaries of an employee stock ownership plan (ESOP) are not entitled to a special presumption that their...more

The Continuing Fall-Out from the Second Circuit’s Insider Trading Decision in Newman

Last week, a New York federal judge struck another blow to prosecutorial efforts to secure insider trading convictions in tipper-tippee cases. As discussed in detail here, the U.S. Attorney’s Office for the Southern District...more

The Directed Trustee in the Post-Dudenhoeffer World

Overview - Court cases challenging the actions of Employee Retirement Income Security Act fiduciaries have continued unabated since the scandal of Enron in 2002. Since then, a large number of cases are in the ‘‘stock...more

In re Family Dollar Stores, Inc.: No Revlon Duty to Seek Better Terms From Competing Bidder

Last month, in In re: Family Dollar Stores, Inc. Stockholder Litigation, a Delaware Chancery judge rejected the efforts of certain shareholders of Family Dollar Stores, Inc., to prevent Family Tree’s shareholders from voting...more

DOL Investigations: A Shift in Focus

The Issue: During a recent Department of Labor (“DOL”) investigation for a local California employer, we experienced an increased focus by the DOL on plan expenses. While this isn’t necessarily surprising given the increased...more

Five Changes to the Tennessee Nonprofit Corporation Act That You Need to Know

The following are five important changes to the Tennessee Nonprofit Corporation Act (the Act) which became effective January 1, 2015: 1. Affirmative Disclosure Requirement to Report Up the Chain of Command; 2....more

A Few Thoughts on The Financial Advisor as Fiduciary, 2015

I was speaking at an event for hedge fund managers the other day to introduce my new book, the Ultimate Guide to The Investment Advisers Act, a Practitioner’s Guide. Dodd Frank introduced many changes to the existing rules...more

Service Provider Not A Fiduciary In Negotiating Its Contract

A federal district court in Iowa dismissed a putative class action complaint brought by several 401(k) plan sponsors who alleged that Principal Life Insurance Company breached its fiduciary duties to the plans by charging...more

District Court Defines Surcharge Broadly

A New York district court held that surcharge could include not only make-whole relief, but also consequential, exemplary, or punitive damages in limited circumstances where malice or fraud is involved. Plaintiff Janet...more

T&E Litigation Newsletter - January 2015

As 2014 came to a close, Massachusetts state and federal courts issued decisions concerning a number of issues of interest to estate planning attorneys and probate litigation attorneys, including testamentary capacity,...more

Del. Justices Reverse Injunction Halting Sale of Control Transaction

When a Delaware corporation engages in a sale of control transaction, its board's obligation is to obtain the highest value reasonably attainable. This obligation, often referred to as Revlon duties, may be fulfilled as long...more

Delaware Supreme Court Holds That Revlon Does Not Require An Active Market Check, Reverses Lower Court Order Preliminarily...

On December 19, 2014, the Supreme Court of Delaware reversed the Delaware Court of Chancery's November decision to preliminarily enjoin for 30 days a vote by C&J Energy Services stockholders on a merger with Nabors Red Lion...more

Third Circuit Limits ERISA Fiduciary Liability

Former and current annuity holders sued John Hancock Life Insurance Company in New Jersey federal court several years ago, alleging that, as a service provider to their 401(k) plans, John Hancock was an ERISA fiduciary and...more

Delaware Supreme Court Reverses Injunction Requiring Thirty Day Go-Shop

In a recent decision, the Delaware Supreme Court reversed the Court of Chancery's entry of a preliminary injunction that enjoined C&J Energy Services, Inc. ("C&J") from holding a stockholder vote on its proposed merger with...more

Accessing Digital Assets

For several years the Uniform Law Commission (the “ULC”), a non-partisan body that conceives model laws addressing legal issues of widespread importance, which legislatures are free to adopt fully or in modified form, has...more

New Delaware Decisions Provide Strong Support for Independent Board Decisions in the Sale of a Company

On December 19, 2014, the Delaware Supreme Court, in C&J Energy Services, Inc. v. City of Miami General Employees' & Sanitation Employees' Retirement Trust, issued a strongly worded decision refusing to enjoin a change of...more

The ERISA Litigation Newsletter - December 2014

This month's newsletter focuses on how Plan Trustees can appropriately settle ERISA breach of fiduciary duty claims in order to achieve "complete peace." The article provides a check list and discusses strategies for handling...more

In Post-Dudenhoeffer Decision, Class Action Plaintiffs Are Allowed to Pursue Their Claims For Fiduciary Breach Against Eastman...

A federal district court has permitted plaintiffs to pursue class actions against the fiduciaries of two Eastman Kodak defined contribution plans on the ground that those fiduciaries failed to prudently manage the plan funds....more

DOL 2014 Fall Regulatory Agenda

Introduction - The Department of Labor has released the 2014 Fall Regulatory Agenda. The updated agenda provides the anticipated publication dates for the next steps in the regulatory process for nearly a dozen ERISA...more

No Auction Required – Delaware Supreme Court Affirms Board Flexibility under Revlon

Ruling that an active solicitation process is not necessarily required for a target board of directors to satisfy its fiduciary duties in a change of control transaction, the Delaware Supreme Court overturned a preliminary...more

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