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Derivatives Corporate Counsel

Mintz - Bankruptcy & Restructuring Viewpoints

Delaware Bankruptcy Court Grants Derivative Standing to Creditors’ Committee to Sue Members and Officers of Delaware LLC

In early February, a Delaware bankruptcy judge set new precedent by granting a creditors’ committee derivative standing to pursue breach of fiduciary duty claims against a Delaware LLC’s members and officers. At least three...more

Cadwalader, Wickersham & Taft LLP

SEC Adopts Final Rules to Amend Beneficial Ownership Reporting Rules

On October 10, 2023, the SEC adopted rule amendments related to Section 13 beneficial ownership reporting rules (the “Final Rules”).  In brief, the Final Rules accelerate the filing deadlines for Schedules 13D and 13G,...more

Allen Matkins

Nevada Supreme Court Affirms Contemporaneous Ownership Requirement In LLC Derivative Action

Allen Matkins on

In a short order of affirmance issued last week, the Nevada Supreme Court affirmed a basic requirement of derivative litigation. J. McDonald Co. v. Tropical & Losee, LLC, 2022 WL 6833521 (Nev. Oct. 11, 2022).  The case...more

Allen Matkins

Why A River Runs Through Every Derivative Action

Allen Matkins on

I was perplexed by Judge Cindee F. Mayfield's repeated references to "derivate claims" in a recent unpublished opinion - JBB Investment Partners v. Fair, Cal. Ct. of Appeal Case No. No. A160098 (June 9, 2022).  Was this a...more

Bennett Jones LLP

Securities Administrators Invite Public Comment on Proposed Business Conduct Rules for Derivatives Dealers

Bennett Jones LLP on

The Canadian Securities Administrators (the CSA) have invited public comment on Proposed National Instrument 93-101 Derivatives: Business Conduct Rules (the Proposed Business Conduct Rules) which would apply to dealers in...more

A&O Shearman

Seventh Circuit Rules Aerospace Company Cannot Use Bylaws To Avoid Federal Securities Claims

A&O Shearman on

On January 7, 2022, a split panel of the United States Court of Appeals for the Seventh Circuit reversed the dismissal of claims under Section 14(a) of the Securities Exchange Act of 1934 (the “Exchange Act”) against the...more

Wiley Rein LLP

Exception to Insured v. Insured Exclusion for “Any Claim Brought by” Certain Former Directors Does Not Apply to Restore Coverage...

Wiley Rein LLP on

In a win for Wiley’s client, the California Superior Court has held that an exception to an insured v. insured exclusion for “any Claim brought by any director . . . of a Company who has not served in such capacity . . . for...more

Allen Matkins

Professor Bainbridge's Quibble Might Be No Quillet

Allen Matkins on

In this post, UCLA Law School Professor Stephen Bainbridge quibbles my description of Delaware's two-step approach to the special litigation committee defense in derivative suits.  In particular, he points out that Delaware...more

Wilson Sonsini Goodrich & Rosati

Chancellor McCormick Provides Helpful Guidance on Pre-Suit Litigation Demands Under Delaware Law

Last month, Delaware's new Chancellor Kathaleen S. McCormick issued a decision largely dismissing challenges to board action after finding that the plaintiff's emails to the board constituted pre-suit litigation demands, and...more

Allen Matkins

Does A Plaintiff In A Derivative Action Have A Protectable Interest?

Allen Matkins on

When allegations of corporate misfeasance surface at public companies, derivative actions are sure to follow.  Often, actions will be filed in both state and federal court.  This is what happened when "sexual misconduct"...more

Orrick, Herrington & Sutcliffe LLP

For the First Time, the CFTC Uses its Powers to Combat Foreign Corruption

In a landmark action on December 3, 2020, the Commodity Futures Trading Commission (“CFTC”) announced resolution of its first enforcement action involving foreign corruption by issuing an order and settling charges against...more

Skadden, Arps, Slate, Meagher & Flom LLP

UK Imposes Restrictions on the Sale of Cryptoassets and Related Products

The U.K. Treasury and the U.K. Financial Conduct Authority (the FCA) have taken steps to restrict the sale of cryptoassets and ban the sale of derivatives referencing cryptoassets (crypto-derivatives) to U.K. retail...more

Allen Matkins

LLC's Failure To File Cross-Complaint Dooms Derivative Action

Allen Matkins on

Although the members of a limited liability may file a derivative action, the right of action belongs to the LLC and not to the members themselves.  This fundamental principle had real consequences for the plaintiffs in...more

Fox Rothschild LLP

Chancery Rules that Claims against General Partner are Direct, Allows Action to Proceed Despite Partnership’s Bankruptcy

Fox Rothschild LLP on

Whether a claim against company management is direct or derivative is not infrequently disputed in litigation before the Delaware Court of Chancery. This determination becomes important in many contexts, including whether it...more

Farrell Fritz, P.C.

Limited Partners Take a Licking in Two Delaware Supreme Court Decisions

Farrell Fritz, P.C. on

Notwithstanding the ascendency of the limited liability company, the Delaware limited partnership continues to serve as an important, tax-advantaged vehicle for certain capital-intensive ventures — especially in the energy...more

Mintz - Privacy & Cybersecurity Viewpoints

Fizzled Suit Against Target Officers and Directors Raises Question as to the Value of Derivative Claims in Data Breach Cases

In a terse two-page order, Senior District Court Judge Paul Magnuson dismissed derivative claims brought against officers and directors of Target in connection with the 2013 holiday-season data breach. The dismissed claims,...more

Carlton Fields

A Firewall for the Boardroom: Best Practices to Insulate Directors and Officers From Derivative Lawsuits and Related Regulatory...

Carlton Fields on

Shortly after the massive 2013 Target data breach, shareholders filed four derivative lawsuits against the company’s directors and some of its officers (13 CARE 624, 3/20/15). The shareholders alleged that the defendants had...more

Carlton Fields

Second Circuit: Facebook Shareholders Lack Standing for Derivative Suits Challenging Pre-IPO Statements

Carlton Fields on

Earlier this week, a U.S. Court of Appeals for the Second Circuit opinion reinforced that federal courts take standing in derivative actions quite seriously, particular when the alleged director misconduct predated the IPO....more

Latham & Watkins LLP

Regulatory Notes on Bitcoin and Other Cryptocurrency Derivatives

Latham & Watkins LLP on

Six things every investor, start-up, financial institution and payment processor should know about the future regulation of Bitcoin and other cryptocurrency derivatives. With the quickly developing market for...more

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