To stay ahead of the feds, companies need to monitor their own data for possible compliance problems. Congress may soon give companies better visibility into their shareholder bases, including derivatives positions.
In this...more
10/8/2021
/ 10b5-1 Plans ,
Biden Administration ,
Board of Directors ,
Books & Records ,
Competition ,
Corporate Governance ,
Department of Justice (DOJ) ,
Disclosure Requirements ,
Federal Trade Commission (FTC) ,
Horizontal Merger Guidelines ,
Mergers ,
Section 220 Request ,
Securities and Exchange Commission (SEC)
In one week, the Delaware Supreme Court handed down two important opinions simplifying Delaware law on derivative claims.
On September 23, 2021, in United Food and Commercial Workers Union and Participating Food Industry...more
10/1/2021
/ Board of Directors ,
DE Supreme Court ,
Demand Futility ,
Derivative Suit ,
Dilution ,
Entire Fairness Standard ,
Facebook ,
Mark Zuckerberg ,
Minority Shareholders ,
Personal Benefit ,
Stare Decisis
The rise in Section 220 demands (and related lawsuits) has resulted in several recent opinions that continue a trend in favor of greater access for stockholders to corporate books and records. These decisions, which are...more
In Firefighters’ Pension System of the City of Kansas City, Missouri Trust v. Presidio, Inc., Vice Chancellor Laster of the Delaware Court of Chancery dismissed claims against directors of Presidio, Inc. (Presidio) and...more
Books and Records - Court of Chancery Orders Production of Emails, Denies Production of Privileged Communications in Books and Records Action - Emps.’ Ret. Sys. of R.I. v. Facebook, Inc., C.A. No. 2020-0085-JRS (Del. Ch....more
6/9/2021
/ Board of Directors ,
Books & Records ,
Breach of Duty ,
Fiduciary Duty ,
Pleading Standards ,
PSLRA ,
Putative Class Actions ,
Scienter ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act ,
Securities Fraud ,
SLUSA
The 10 most common client misconceptions about the attorney-client privilege -
Protecting corporate confidences has become more challenging in the COVID-19 world, as directors and executives work from home and other...more
On February 26, 2021, Vice Chancellor Kathaleen S. McCormick of the Delaware Court of Chancery permanently enjoined a stockholder rights plan — or so-called “poison pill” — with a 5% trigger that The Williams Companies, Inc....more
This quarter’s issue includes summaries and associated court opinions of selected cases principally decided between November 2020 and January 2021.
Derivative Litigation -
Second Circuit Reverses Summary Judgment...more
3/8/2021
/ Acquisitions ,
Board of Directors ,
Books & Records ,
Breach of Duty ,
Caremark claim ,
DE Supreme Court ,
Delaware General Corporation Law ,
Derivative Suit ,
Fiduciary Duty ,
Loss Causation ,
Mergers ,
Pleading Standards ,
Ponzi Scheme ,
Proxy Statements ,
PSLRA ,
Shareholder Litigation
The Delaware Court of Chancery’s docket exploded with expedited “broken” deal litigation in 2020, driven by the impact of COVID-19. Beyond pandemic-related merger litigation, stockholder plaintiffs remained focused on claims...more
This issue covers important, developing areas of Delaware corporation law and deal litigation, including an increased focus on officer-related actions in merger litigation, the treatment of Caremark claims after Marchand and...more
In 2014, the Delaware Supreme Court’s landmark Kahn v. M&F Worldwide Corp.1 (MFW) decision established that the deferential business judgment standard of review could apply to controlling stockholder “squeeze-out” mergers...more
12/28/2020
/ Business Judgment Rule ,
Controlling Stockholders ,
DE Supreme Court ,
Entire Fairness Standard ,
Fiduciary Duty ,
Mergers ,
MFW ,
Minority Shareholders ,
Special Committees ,
Squeeze-Out Mergers ,
Standard of Review ,
Void ab initio
More than a decade ago in the seminal case Gantler v. Stephens, the Delaware Supreme Court clarified that officers of Delaware corporations owe the same fiduciary duties of care and loyalty that directors owe to the...more
12/23/2020
/ Board of Directors ,
Books & Records ,
Breach of Duty ,
CEOs ,
Certificates of Incorporation ,
Class Action ,
Corporate Governance ,
Corporate Officers ,
Delaware General Corporation Law ,
Disclosure Requirements ,
Duty of Care ,
Fiduciary Duty ,
Gross Negligence ,
Mergers
This quarter’s issue includes summaries and associated court opinions of selected cases principally decided between July and October 2020.
Class Certification
- Cryptocurrency – Definition of a Security
- Derivative...more
12/11/2020
/ Breach of Duty ,
Class Action ,
Class Certification ,
Cryptocurrency ,
Department of Justice (DOJ) ,
Derivative Suit ,
EBITDA ,
Enforcement Actions ,
Excessive Fees ,
Fiduciary Duty ,
Insider Trading ,
Investment Company Act of 1940 ,
Loss Causation ,
Material Misrepresentation ,
Material Misstatements ,
Mergers ,
Pleading Standards ,
PSLRA ,
Securities and Exchange Commission (SEC) ,
Securities Fraud ,
Securities Litigation ,
Standing ,
Whistleblowers
The recently published “The Friedman Essay and the True Purpose of the Business Corporation” defends a view of stakeholder governance that reflects the following two basic flaws...more
This quarter’s issue includes summaries and associated court opinions of selected cases principally decided between February and June 2020....more
8/27/2020
/ Arbitration Agreements ,
Best Interest Standard ,
Board of Directors ,
Bylaws ,
Corporate Counsel ,
Corwin Doctrine ,
Derivative Suit ,
Fiduciary Duty ,
Forum Selection ,
Investment Advisers Act of 1940 ,
Judicial Notice ,
Loss Causation ,
Material Misstatements ,
Mergers ,
MFW ,
Omissions ,
Pleading Standards ,
PLSRA ,
Scienter ,
Securities Fraud ,
Securities Litigation ,
Settlement ,
Short-Swing Trading ,
Summary Judgment
Directors of most for-profit U.S. corporations have long considered the corporation’s relationships with customers, employees, suppliers and the communities in which they operate — sometimes referred to as “stakeholders” — in...more
8/7/2020
/ Board of Directors ,
Business Judgment Rule ,
Coronavirus/COVID-19 ,
Corporate Governance ,
Directors ,
Environmental Social & Governance (ESG) ,
Fiduciary Duty ,
Human Rights ,
Oversight Duties ,
Shareholders ,
Stakeholder Engagement
On June 23, 2020, the Delaware General Assembly adopted amendments to the Delaware General Corporation Law (DGCL) proposed by the Delaware State Bar Association, including provisions confirming certain powers that a board of...more
Recently a definition of corporate purpose has been proposed and elaborated on in a memorandum captioned “On the Purpose of the Corporation” (the Corporate Purpose Memo)....more
Skadden partner Edward Micheletti, who heads the litigation practice of the firm’s Wilmington office, answers common Delaware law questions facing boards of directors during the COVID-19 crisis....more
5/12/2020
/ Acquisitions ,
Board of Directors ,
Business Closures ,
Buyers ,
Coronavirus/COVID-19 ,
Delaware General Corporation Law ,
Government Shutdown ,
Material Adverse Change Clauses (MACs) ,
Material Adverse Effects ,
Mergers ,
Oversight Duties ,
Publicly-Traded Companies ,
Section 220 Request ,
Sellers ,
Shareholder Litigation ,
Shareholders ,
Workplace Safety
On April 6, 2020, the governor of Delaware, John Carney, issued an executive order addressing the notice requirement for public companies that switch their stockholders’ meetings from a physical location to a “virtual”...more
4/8/2020
/ Board of Directors ,
Coronavirus/COVID-19 ,
Corporate Counsel ,
Executive Orders ,
Filing Requirements ,
Governor Carney ,
Notice Requirements ,
Public Health Emergency ,
Publicly-Traded Companies ,
Reporting Requirements ,
Securities and Exchange Commission (SEC) ,
Shareholder Meetings ,
Shareholders ,
Virtual Meetings ,
Websites
This issue includes summaries and associated court opinions of selected cases principally decided between October 2019 and January 2020. ...more
4/6/2020
/ Aiding and Abetting ,
Books & Records ,
Breach of Duty ,
Bylaws ,
CEOs ,
Civil Liability ,
Collateral Estoppel ,
Criminal Convictions ,
DE Supreme Court ,
Demand Futility ,
Derivative Suit ,
Dismissals ,
Enforcement Actions ,
Exchange-Traded Products ,
False Statements ,
Federal Pleading Requirements ,
Fiduciary Duty ,
Initial Public Offering (IPO) ,
Injunctions ,
Investment Adviser ,
Item 303 ,
Lack of Particularity ,
Mergers ,
Misleading Statements ,
Misrepresentation ,
Notice Requirements ,
Price-Fixing ,
PSLRA ,
Pyramid Schemes ,
Registration Statement ,
RICO ,
Scienter ,
Scope of Discovery Requests ,
Section 11 ,
Section 220 Request ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act ,
Securities Fraud ,
Securities Litigation ,
Securities Violations ,
Shareholder Litigation ,
Shareholder Votes ,
Summary Judgment
On February 26, 2020, Skadden held a webinar titled “Reevaluating the Board Risk Oversight Process: Implications of Marchand and Other Recent Developments.” The panelists were Edward Micheletti, litigation partner and...more
3/25/2020
/ Board of Directors ,
Books & Records ,
Corporate Officers ,
DE Supreme Court ,
Duty of Loyalty ,
Fiduciary Duty ,
GAAP ,
Non-GAAP Financial Measures ,
Oversight Duties ,
Personal Liability ,
Risk Assessment ,
Risk Management ,
Securities and Exchange Commission (SEC) ,
Shareholder Litigation
The question is no longer whether the volatility created by the COVID-19 pandemic will deepen the difficulties businesses and other institutions face in the coming months, but by how much and in what ways. In the past few...more
3/21/2020
/ Acquisitions ,
Antitrust Provisions ,
Audits ,
Board of Directors ,
Coronavirus/COVID-19 ,
Corporate Restructuring ,
Corporate Taxes ,
Court Closures ,
Debt-Equity ,
Energy Projects ,
Families First Coronavirus Response Act (FFCRA) ,
IRS ,
Liquidity ,
Mergers ,
Power Infrastructure ,
Securities Litigation ,
Shareholder Activism ,
Shareholder Meetings ,
Stock Repurchases
On March 18th, the Delaware Supreme Court issued a key decision upholding the validity of corporate charter provisions that designate federal courts as the exclusive forum for the litigation of 1933 Act claims. This opinion...more
The dawn of a new decade brings with it the certainty of ongoing challenges to the conduct of public company directors based on alleged breaches of fiduciary duty.
This note is a brief reminder for directors of Delaware...more