This quarter’s issue includes summaries and associated court opinions of selected cases principally decided between February and April 2019. ...more
6/12/2019
/ Acquisitions ,
Appraisal Rights ,
Breach of Duty ,
Fiduciary Duty ,
Investment Advisers Act of 1940 ,
Material Misrepresentation ,
Materiality ,
Mergers ,
Omissions ,
Omnicare ,
Pleading Standards ,
Popular ,
Sarbanes-Oxley ,
Scienter ,
Securities ,
Securities Exchange Act ,
Securities Litigation ,
Suspicious Activity Reports (SARs)
The Delaware Supreme Court’s 2015 decision in Corwin v. KKR Financial Holdings LLC1 fashioned a powerful defense in post-closing money damages cases for boards of directors by finding that business judgment deference applies...more
5/13/2019
/ Acquisitions ,
Appeals ,
Board of Directors ,
Business Judgment Rule ,
Conflicts of Interest ,
Controlling Stockholders ,
Corwin Doctrine ,
Damages ,
DE Supreme Court ,
Defense Strategies ,
Disclosure Requirements ,
Disclosure Settlement ,
Disinterested Parties ,
Dismissals ,
Failure To Disclose ,
Injunctive Relief ,
Litigation Strategies ,
Material Misstatements ,
Merger Agreements ,
Mergers ,
Motion to Dismiss ,
Omissions ,
Pleadings ,
Pre-Closing Issues ,
Reaffirmation ,
Reversal ,
Section 220 Request ,
Shareholder Votes
On February 20, 2019, Skadden held a webinar titled “2019 M&A and Corporate Litigation Trends.” The panelists were litigation partner and Delaware litigation practice leader Edward Micheletti and litigation counsel Jenness...more
3/1/2019
/ Acquisitions ,
Appraisal Rights ,
Books & Records ,
Business Judgment Rule ,
Bylaws ,
Controlling Stockholders ,
Corporate Counsel ,
Corwin Doctrine ,
DE Supreme Court ,
Defense Strategies ,
Delaware General Corporation Law ,
Disclosure Requirements ,
Entire Fairness Standard ,
Forum Selection ,
Mergers ,
MFW ,
Minority Shareholders ,
Motion to Dismiss ,
Popular ,
Ratification ,
Reversal ,
Section 220 Request ,
Securities Act of 1933 ,
Shareholder Demands ,
Shareholders ,
Standard of Review
The Delaware courts issued a number of significant decisions in 2018 that are likely to have ripple effects throughout 2019. Among them were a series of cases that further developed the parameters of the Corwin and MFW...more
1/24/2019
/ Acquisitions ,
Appeals ,
Breach of Duty ,
Business Judgment Rule ,
Controlling Stockholders ,
Corporate Counsel ,
Corporate Officers ,
Corwin Doctrine ,
DE Supreme Court ,
Delaware General Corporation Law ,
Directors ,
Disclosure Requirements ,
Due Diligence ,
Entire Fairness Standard ,
Failure To Disclose ,
Fair Value Standard ,
Forum Selection ,
Internal Affairs Doctrine ,
Market Pricing ,
Material Adverse Effects ,
Mergers ,
MFW ,
Minority Shareholders ,
Pleadings ,
Securities Act of 1933 ,
Securities Litigation ,
Shareholder Approval ,
Shareholder Rights ,
Squeeze-Out Mergers ,
Tender Offers ,
Unenforceable Contract Terms
On December 7, 2018, the Delaware Supreme Court affirmed the Court of Chancery's decision in Akorn, Inc. v. Fresenius Kabi AG , C.A. No. 2018-0300-JTL, which upheld, for the first time under Delaware law, the ability of a...more
12/22/2018
/ Acquisitions ,
Best Efforts Clauses ,
Breach of Contract ,
Buyers ,
Contract Negotiations ,
Contract Termination ,
Contract Terms ,
DE Supreme Court ,
Hell or High Water Clauses ,
Material Adverse Effects ,
Merger Agreements ,
Mergers ,
Reaffirmation ,
Remedies ,
Representations and Warranties ,
Sellers
This quarter’s issue includes summaries and associated court opinions of selected cases principally decided between September 2018 and October 2018. ...more
12/7/2018
/ Acquisitions ,
Administrative Law Judge (ALJ) ,
Aiding and Abetting ,
Appointments Clause ,
Breach of Duty ,
Claim Preclusion ,
Class Action ,
Constitutional Challenges ,
Controlling Stockholders ,
Damages ,
Dismissals ,
Enforcement Actions ,
Extraterritoriality Rules ,
Fiduciary Duty ,
Financial Institutions ,
General Partnerships ,
Initial Coin Offering (ICOs) ,
Investment Funds ,
Jurisdiction ,
Lucia v SEC ,
Material Adverse Effects ,
Material Misrepresentation ,
Merger Agreements ,
Mergers ,
MFW ,
Misrepresentation ,
Pleading Standards ,
Popular ,
Proxy Solicitations ,
PSLRA ,
Rule 10(b) ,
Scienter ,
Section 11 ,
Securities ,
Securities Act ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act ,
Securities Fraud ,
Securities Litigation ,
Shareholder Litigation ,
SLUSA ,
Squeeze-Out Mergers
Over the last few years, significant developments in Delaware law and practice have changed the traditional M&A litigation landscape. These developments resulted in a dramatic reduction in pre-closing applications for...more
11/30/2018
/ Acquisitions ,
Aiding and Abetting ,
Appraisal ,
Appraisal Rights ,
Board of Directors ,
Breach of Duty ,
Conflicts of Interest ,
Damages ,
Deal Price ,
Defense Strategies ,
Delaware General Corporation Law ,
Discovery ,
Fair Valuation ,
Fiduciary Duty ,
Financial Adviser ,
Investment Banks ,
Litigation Strategies ,
Mergers ,
Motion to Compel ,
Pleading Standards ,
Popular ,
Remedies ,
Scienter ,
Shareholders ,
Subpoenas
Akorn Found -
In Vice Chancellor J. Travis Laster’s recent opinion in Akorn, Inc. v. Fresenius Kabi AG, he discusses (on pages 212-216) the general subject of “efforts” clauses in contracts governed by Delaware law. The...more
11/2/2018
/ Acquisitions ,
Appeals ,
Burden of Proof ,
Commercially Reasonable Efforts ,
Contract Terms ,
Delaware General Corporation Law ,
Merger Agreements ,
Mergers ,
Reasonable Efforts Clauses ,
Standard of Proof ,
Standard of Review
This quarter’s issue includes summaries and associated court opinions of selected cases principally decided between May 2018 and August 2018....
US Supreme Court -
Supreme Court Holds That SEC Administrative Law Judges...more
9/28/2018
/ Acquisitions ,
Administrative Law Judge (ALJ) ,
Appeals ,
Appointments Clause ,
Appraisal ,
Attorney-Client Privilege ,
Class Certification ,
Constitutional Challenges ,
Controlling Stockholders ,
Deal Price ,
Delaware General Corporation Law ,
Disclosure Requirements ,
False Statements ,
Fiduciary Duty ,
Foreign Corporations ,
Insider Trading ,
Lorenzo v SEC ,
Lucia v SEC ,
Mergers ,
Misleading Statements ,
Petition for Writ of Certiorari ,
Pleading Standards ,
Rule 10(b) ,
Scienter ,
SCOTUS ,
Securities and Exchange Commission (SEC) ,
Securities Fraud ,
Securities Litigation ,
SLUSA ,
TRO
Over the last few years, three notable Delaware cases — C&J Energy, Corwin and Trulia — have paved the way for a dramatic shift in the deal litigation landscape. In C&J Energy Services, Inc. v. City of Miami General...more
5/29/2018
/ Acquisitions ,
Appraisal ,
Breach of Duty ,
Corporate Counsel ,
Corwin Doctrine ,
Damages ,
DE Supreme Court ,
Discovery ,
Injunctions ,
Mergers ,
Mootness ,
Section 220 Request ,
Securities Litigation ,
Settlement Negotiations ,
Shareholders ,
Trulia
This quarter's issue includes summaries and associated court opinions of selected cases principally decided between November 2017 and January 2018. The cases address developing trends in appraisal, class certification, core...more
3/27/2018
/ Acquisitions ,
Appraisal ,
Books & Records ,
Breach of Duty ,
Business Judgment Rule ,
Buyouts ,
CEOs ,
Claim Preclusion ,
Class Action ,
Class Certification ,
Controlling Stockholders ,
Core Operations Doctrine ,
Corwin Doctrine ,
DE Supreme Court ,
Delaware General Corporation Law ,
Dell ,
Demand Futility ,
Derivative Suit ,
Director Compensation ,
Entire Fairness Standard ,
Federal Trade Commission (FTC) ,
Fiduciary Duty ,
Fraud-on-the-Market ,
FRCP 9(b) ,
High-Speed Trading ,
Loss Causation ,
Material Misrepresentation ,
Mergers ,
Motion to Amend ,
Petrobras ,
Pharmaceutical Industry ,
Pleading Standards ,
Preponderance of the Evidence ,
Presumption of Reliance ,
Proximate Cause ,
PSLRA ,
Ratification ,
Rebuttable Presumptions ,
Rule 10(b) ,
Rule 10b-5 ,
Scienter ,
Section 220 Request ,
Securities Exchange Act ,
Securities Fraud ,
Securities Litigation ,
SRO ,
Stock Drop Litigation
Tax reform, shifting international dynamics, Trump administration goals and a potentially strong market for transactions all seem likely to impact business activity in 2018. Below are 10 areas to explore in our 10th annual...more
1/23/2018
/ #MeToo ,
Acquisitions ,
China ,
Class Action ,
Climate Change ,
Corporate Governance ,
Corporate Social Responsibility ,
Cybersecurity ,
Enforcement Actions ,
EU ,
Financial Regulatory Reform ,
Mergers ,
National Security ,
Regulatory Reform ,
Securities Litigation ,
Tax Reform ,
Trade Secrets ,
Trump Administration ,
UK Brexit
Over the past two years, the deal litigation landscape has changed dramatically. In early 2016, the Delaware Court of Chancery announced a new rule for evaluating disclosure-based settlements in deal litigation — the “plainly...more
11/27/2017
/ Acquisitions ,
Choice-of-Law ,
Corporate Counsel ,
Disclosure-Based Settlements ,
Fiduciary Duty ,
Forum Selection ,
Mergers ,
Mootness ,
Non-GAAP Financial Measures ,
Plainly Material Standard ,
Securities and Exchange Commission (SEC) ,
Shareholder Litigation ,
Standard of Review ,
Trulia
This quarter’s issue includes summaries and associated court opinions of selected cases principally decided between May 2017 and August 2017....more
9/28/2017
/ Acquisitions ,
Appraisal ,
CalPERS ,
CalPERS v ANZ Securities ,
Equitable Tolling ,
Fiduciary Duty ,
Insider Trading ,
Investment Company Act of 1940 ,
Materiality ,
Mergers ,
PLSRA ,
Scienter ,
SCOTUS ,
Securities Exchange Act ,
Securities Fraud ,
Standing ,
Statute of Limitations
This quarter’s issue includes summaries and associated court opinions of selected cases principally decided between February 2017 and April 2017. The cases address developing trends in class actions, ERISA, fiduciary duties,...more
6/9/2017
/ Acquisitions ,
Bad Faith ,
Board of Directors ,
Breach of Duty ,
Class Action ,
Class Certification ,
Dismissals ,
Dodd-Frank ,
Duty of Loyalty ,
Duty of Prudence ,
Employee Retirement Income Security Act (ERISA) ,
Enforcement Actions ,
ESOP ,
Ethics Breach ,
Excessive Fees ,
Food Manufacturers ,
Initial Public Offering (IPO) ,
Mergers ,
Misrepresentation ,
Pleading Standards ,
PLSRA ,
Regulation D ,
Rule 10b-5 ,
Rule 11 ,
Sanctions ,
Scienter ,
Securities ,
Securities Exchange Act ,
Securities Fraud ,
Securities Litigation ,
Securities Violations ,
Whistleblowers
Throughout the second half of 2015, the Delaware Court of Chancery began questioning its long-standing practice of approving deal litigation settlements involving broad releases for defendants in exchange for disclosure (or...more
11/21/2016
/ Acquisitions ,
Breach of Duty ,
Corporate Counsel ,
Disclosure Settlement ,
Dismissal With Prejudice ,
Fee Awards ,
Material Misstatements ,
Mootness ,
Mootness Fee Applications ,
Omissions ,
Proxy Statements ,
Shareholder Rights ,
Standard of Review ,
Supplemental Disclosures ,
Trulia
This issue focuses on important, developing areas of Delaware corporation law and deal litigation, including the Court of Chancery’s clarification of its evolving views about disclosure-based deal litigation settlements;...more
5/21/2016
/ Acquisitions ,
Aiding and Abetting ,
Board of Directors ,
Books & Records ,
Buyouts ,
Controlling Stockholders ,
DE Supreme Court ,
Demand Futility ,
Derivative Suit ,
Disclosure-Based Settlements ,
Fiduciary Duty ,
Financial Adviser ,
Mergers ,
Plainly Material Standard ,
Pleadings ,
Securities Litigation ,
Shareholder Demands ,
Shareholder Litigation ,
Standard of Review
As previously discussed in Insights: The Delaware Edition, throughout the second half of 2015, the Delaware Court of Chancery began to question its long-standing practice of approving deal litigation settlements involving...more
5/21/2016
/ Acquisitions ,
Disclosure-Based Settlements ,
Fiduciary Duty ,
Forum Selection ,
Mergers ,
Mootness ,
Plainly Material Standard ,
Shareholder Litigation ,
Stock Deals ,
Supplemental Disclosures ,
Trulia ,
Zillow