On January 3, 2022, the Delaware Court of Chancery issued a novel decision arising from a challenge to a transaction involving a special purpose acquisition company, commonly referred to as a SPAC, in In re MultiPlan Corp....more
This quarter’s issue of Inside the Courts — An Update From Skadden Securities Litigators includes summaries and associated court opinions of selected cases principally decided in May-August 2021....more
10/22/2021
/ Breach of Duty ,
Corporate Counsel ,
Derivative Suit ,
Enforcement Actions ,
Fiduciary Duty ,
Initial Public Offering (IPO) ,
Loss Causation ,
Mergers ,
Pleading Standards ,
PSLRA ,
Securities and Exchange Commission (SEC) ,
Securities Fraud ,
Securities Litigation ,
SLUSA ,
Statute of Limitations ,
Statute of Repose
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 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
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
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
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
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
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
Despite political and economic uncertainties, markets and deal activity were resilient in 2019, and strong fundamentals remain in place heading into 2020. Companies continue to face a challenging litigation and enforcement...more
1/30/2020
/ Acquisitions ,
Administrative Procedure Act ,
Anti-Discrimination Policies ,
Anti-Harassment Policies ,
Anti-Kickback Statute ,
Antitrust Investigations ,
Appeals ,
Arbitration Awards ,
Attorney General ,
Backstop Agreements ,
BEPS ,
BitLicense ,
Blockchain ,
Board of Directors ,
Bonds ,
Capital Markets ,
CFIUS ,
CFTC ,
Chapter 11 ,
Claim Preclusion ,
Class Action ,
Commercial Bankruptcy ,
Common Stock ,
Congressional Investigations & Hearings ,
Congressional Subpoenas ,
Consumer Financial Protection Bureau (CFPB) ,
Cooperation Agreement ,
Copyright ,
Corporate Governance ,
Corporate Restructuring ,
Corporate Social Responsibility ,
Corporate Taxes ,
Corwin Doctrine ,
Covenant Lite Deals ,
Creditors ,
Cross-Border Transactions ,
DACA ,
DE Supreme Court ,
Debt Financing ,
Debtors ,
Department of Justice (DOJ) ,
Dischargeable Debts ,
Disgorgement ,
Disparate Impact ,
Dodd-Frank ,
Down Rounds ,
Drug Pricing ,
EBITDA ,
Employee Retirement Income Security Act (ERISA) ,
Employer Liability Issues ,
Employment Discrimination ,
Enforcement Actions ,
Enforcement of Foreign Judgments ,
Enterprise Act 2002 ,
Environmental Social & Governance (ESG) ,
EU ,
Fair Housing Act (FHA) ,
Federal Trade Commission (FTC) ,
FinTech ,
FIRRMA ,
Foreign Acquisitions ,
Foreign Investment ,
Foreign Issuers ,
FRCP 23 ,
General Data Protection Regulation (GDPR) ,
General Elections ,
GILTI tax ,
High-Yield Markets ,
Hong Kong ,
Hong Kong Stock Exchange ,
Individual Accountability ,
Initial Public Offering (IPO) ,
Intellectual Property Litigation ,
Intercreditor Agreements ,
International Arbitration ,
International Litigation ,
IRS ,
Issue Preclusion ,
Japan ,
Joint Venture ,
Legislative Agendas ,
Life Sciences ,
Listing Rules ,
Litigation Strategies ,
Make-Whole Premium ,
Mergers ,
MFW ,
Multinationals ,
National Security ,
PCAOB ,
Pharmaceutical Industry ,
Political Parties ,
Preferred Shares ,
Private Offerings ,
Privately Held Corporations ,
Proxy Advisory Firms ,
Publicly-Traded Companies ,
Refinancing ,
Regulatory Agenda ,
Reporting Requirements ,
SCOTUS ,
Securities and Exchange Commission (SEC) ,
Securities Litigation ,
Separation of Powers ,
Shareholder Activism ,
Shareholder Proposals ,
Shareholders ,
Split of Authority ,
State Labor Laws ,
Stock Drop Litigation ,
Tax Cuts and Jobs Act ,
Tax Litigation ,
Technology Sector ,
Third-Party Release Agrements ,
Transparency ,
UK ,
UK Brexit ,
Valuation ,
White Collar Crimes
Consistent with trends in recent years, in 2019 Delaware corporation law largely was shaped by post-closing suits for money damages against directors who had approved mergers and acquisitions. Two Delaware Supreme Court...more
1/24/2020
/ Acquisitions ,
Board of Directors ,
Books & Records ,
Breach of Duty ,
Business Judgment Rule ,
Caremark claim ,
Conflicts of Interest ,
Controlling Stockholders ,
Corporate Counsel ,
Corwin Doctrine ,
Damages ,
DE Supreme Court ,
Delaware General Corporation Law ,
Derivative Suit ,
Discovery ,
Electronically Stored Information ,
Fiduciary Duty ,
Independent Directors ,
Inspection Rights ,
Litigation Strategies ,
Mergers ,
MFW ,
Motion to Dismiss ,
Oversight Duties ,
Section 220 Request ,
Shareholder Litigation ,
Shareholder Votes ,
Void ab initio
Recently, the frequency of stockholder demands to inspect corporate books and records pursuant to Section 220 of the Delaware General Corporation Law has increased. In turn, the case law concerning Section 220 demands is...more
1/21/2020
/ Activist Investors ,
Appeals ,
Board of Directors ,
Books & Records ,
Breach of Duty ,
Confidential Documents ,
Corporate Counsel ,
DE Supreme Court ,
Delaware General Corporation Law ,
Discovery ,
Document Productions ,
Electronically Stored Information ,
Email ,
Fiduciary Duty ,
Litigation Strategies ,
Mergers ,
Proxy Contests ,
Scope of Discovery Requests ,
Section 220 Request ,
Shareholder Litigation ,
Shareholders
This issue focuses on important, developing areas of Delaware corporation law and deal litigation, including recent trends in Delaware corporate disclosure law, the Delaware Supreme Court’s important ruling in Marchand v....more
11/20/2019
/ Acquisitions ,
Appraisal Rights ,
Attorney-Client Privilege ,
Board of Directors ,
Compliance ,
Conflicts of Interest ,
Controlling Stockholders ,
Corporate Executives ,
Corporate Officers ,
Corwin Doctrine ,
DE Supreme Court ,
Deal Price ,
Delaware General Corporation Law ,
Directors ,
Disclosure Requirements ,
Entire Fairness Standard ,
Fair Valuation ,
Fiduciary Duty ,
Financial Adviser ,
Good Faith ,
Market Price ,
Material Misstatements ,
Mergers ,
MFW ,
Mootness Fee Applications ,
Omissions ,
Oversight Committee ,
Oversight Duties ,
Preliminary Injunctions ,
Publicly-Traded Companies ,
Risk Assessment ,
Risk Management ,
Shareholder Votes
This quarter’s issue includes summaries and associated court opinions of selected cases principally decided between May and August 2019....more
10/2/2019
/ Acquisitions ,
Appraisal Rights ,
Board of Directors ,
Books & Records ,
Breach of Duty ,
Class Action ,
Corwin Doctrine ,
DE Supreme Court ,
Deal Price ,
Disclosure Requirements ,
Enforcement Actions ,
Excessive Fees ,
Fair Value Standard ,
Fiduciary Duty ,
Forfeiture ,
Guilty Pleas ,
Insider Trading ,
Investment Adviser ,
Jury Verdicts ,
Market Manipulation ,
Materiality ,
Mergers ,
Misrepresentation ,
Motion for Summary Judgment ,
Motion to Dismiss ,
Offering Documents ,
Omissions ,
Pleading Standards ,
Popular ,
Scienter ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act ,
Securities Fraud ,
Securities Litigation ,
Shareholder Litigation ,
SLUSA ,
Standing
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