Ambiguous drafting of earnout provisions in M&A agreements is a perennial source of post-closing disputes. What may have seemed clear to parties in the heat of negotiations can often become less so as time passes,...more
In a recent decision, the Delaware Supreme Court clarified the proper standard to apply to a non-freeze-out merger transaction involving a controlling stockholder. Litigators who practice in the Delaware Court of Chancery are...more
On April 18, 2024, the New York Court of Appeals (New York’s highest appellate court) issued a decision in Lelchook v. Société Générale de Banque au Liban SAL, --- N.E.3d ---, 2024 WL 1661460 (Apr. 18, 2024) in which it held...more
In a decision likely to have a knock-on effect for future fraudulent transfer defense and valuation litigation, the Delaware bankruptcy court recently ruled that the price agreed in the sale of an oil and gas company closed...more
On October 6, 2022, in Kodiak Building Partners, LLC v. Philip D. Adams, C.A. No. 2022-0311-MTZ (Oct. 6, 2022), the Delaware Court of Chancery found that a restrictive covenant entered into in connection with an asset...more
The Delaware Court of Chancery issued its decision in In re Tesla Motors, Inc., on April 27, 2022, rejecting claims that Tesla, Inc. CEO Elon Musk breached his fiduciary duties to Tesla’s stockholders as a director and an...more
Recent Delaware cases appear to make two things clear. First, it remains extremely unlikely that a court will find an event or occurrence to fall within the general provisions of a Material Adverse Effect condition and as a...more
On May 6, 2021, Vice Chancellor Zurn of the Delaware Court of Chancery issued a 200-page decision denying a motion to dismiss in In re Pattern Energy Group Inc. Stockholders Litigation, a class action challenging the $6.1...more
One year ago, when we were finalizing our outlook for 2020, the world was in the early throes of the COVID-19 pandemic. While we anticipated that 2021 would bring many new challenges, few, if any, of us predicted at the time...more
Three weeks ago, I wrote about the Bak v Rostek case in Brooklyn Supreme Court addressing the duty to disclose third-party offers amidst buy-out negotiations between co-owners. ...more
“Successor liability”, is it a theory or distinct claim or cause of action? In a recent decision, Justice Sherwood analyzed the applicability of successor liability as a distinct cause of action, rather than merely a theory...more
Many business divorce practitioners are familiar with a phenomenon one might call “petitioner’s remorse” – an often abrupt abandonment of one’s desire to dissolve a closely-held business entity when the opposing party...more
In Channel Medsystems, Inc. v. Boston Scientific Corporation, the Delaware Court of Chancery rejected an attempt by Boston Scientific to terminate and thus avoid consummating a merger agreement with Channel on the grounds...more
This update is designed to highlight selected important M&A, corporate and commercial court decisions on a quarterly basis. The update contains brief summaries of each decision with links to more robust discussions. ...more
What does the contractual term “voting power” mean? Does it refer only to the power to elect corporate directors, or does it refer to the power to vote on any fundamental matter of corporate governance? Is voting power an...more
Investment bankers seeking to profit as both adviser to the seller and financier to the buyer in corporate sales processes have faced increased scrutiny by Delaware courts over the last few years. In a highly-publicized 2011...more