It is well established that corporate officers owe the same fiduciary duties as directors under Delaware law. However, the Delaware courts have not had occasion to consider every species of fiduciary duty claim against...more
Recently, the Delaware Court of Chancery issued a decision regarding restrictive covenant agreements that will likely have an immediate impact on the scope of restrictive covenants in private equity transactions. In the...more
Effective as of August 1, amendments to the Delaware General Corporation Law (DGCL) update the framework under which a company’s board of directors may delegate its authority to grant equity incentive awards....more
In Totta v. CCSB Financial, the Court of Chancery invalidated a boards’ invocation of an anti-takeover provision in the corporation’s certificate of incorporation. It did so because the board invoked the provision to thwart...more
A recent post-trial decision from the Delaware Court of Chancery has become the latest authority in the debate over whether Delaware is or is not a “pro-sandbagging” jurisdiction. In Arwood v. AW Site Services, Vice...more
The Rearview Mirror -
Robust multiples and fear that the Biden administration might succeed in passing tax laws resulted in 2021 being one of the busiest years ever in the private equity space. Within the capital markets,...more
2/8/2022
/ Corporate Sales Transactions ,
Diversity and Inclusion Standards (D&I) ,
Environmental Social & Governance (ESG) ,
Health Information Technologies ,
Initial Public Offering (IPO) ,
Investment ,
Investors ,
Life Sciences ,
Private Equity ,
Private Equity Funds ,
Private Funds ,
Representations and Warranties ,
Special Purpose Acquisition Companies (SPACs) ,
Tax Liability
A recent decision by the Delaware Court of Chancery makes clear that extra-contractual fraud claims may only be eliminated through explicit anti-reliance provisions, not through other contractual mechanisms, such as exclusive...more
On June 30, Governor Carney signed into law certain amendments (Amendments) to the Delaware General Corporation Law (DGCL), the Delaware Limited Liability Company Act (LLC Act), the Delaware Revised Uniform Partnership Act...more
On September 13, the Delaware Supreme Court issued a decision in Manti Holdings LLC v. Authentix Acquisition Co., confirming the enforceability of appraisal waivers by private contract so long as the stockholders agreeing to...more
Whether a stockholder of a corporation or member of a limited liability company (LLC) is a controlling stockholder or member often has a significant impact on breach of fiduciary duty actions, including those arising out of...more
Who Needs to Know -
Boards of directors of Delaware corporations contemplating the adoption of a stockholder rights plan (a/k/a poison pill)....more
In Schillinger Genetics, Inc. v. Benson Hill Seeds, Inc., the Delaware Court of Chancery held that plaintiff sellers were entitled to summary judgment on their claim that the buyer breached the parties’ purchase agreement by...more
In a recent decision, the Delaware Court of Chancery permitted a buyer to escape its obligation to acquire a target from a seller under the parties’ purchase agreement because the target had made extensive changes to its...more
In In re Mindbody, Inc. Stockholders Litigation, the Delaware Court of Chancery declined to dismiss breach of fiduciary duty claims against the chief executive officer of MINDBODY, Inc. (the Company) arising out of the...more
10/6/2020
/ 10b5-1 Plans ,
Acquisitions ,
Board of Directors ,
Breach of Duty ,
Business Judgment Rule ,
CEOs ,
Corwin Doctrine ,
Fiduciary Duty ,
Merger Agreements ,
Mergers ,
Private Equity Firms
In Teamsters Local 443 Health Services & Insurance Plan v. Chou, the Delaware Court of Chancery held, at the pleading stage, that plaintiff stockholders had stated a claim for Caremark oversight liability against certain of...more
8/27/2020
/ Board of Directors ,
Caremark claim ,
Criminal Investigations ,
Delaware General Corporation Law ,
Department of Justice (DOJ) ,
Fiduciary Duty ,
Food and Drug Administration (FDA) ,
Form 10-K ,
Oversight Duties ,
Personal Liability ,
Reasonable Doubt ,
Scienter ,
Shareholders ,
Subsidiaries
In a recent decision, the Delaware Court of Chancery ruled that disputes regarding the internal affairs of a Delaware corporation, including stockholder inspection rights, are to be governed exclusively by Delaware law, even...more
Overview Governor Carney recently signed into law certain amendments (the Amendments) to the Delaware General Corporation Law (the DGCL) that (i) clarify the powers of boards of directors in an emergency...more
Overview -
On July 16, 2020, Governor Carney signed into law certain amendments (the Amendments) to the Delaware Limited Liability Company Act (the LLC Act), the Delaware Revised Uniform Limited Partnership Act (the LP...more
In the context of an M&A transaction, practitioners are routinely left to navigate the various standards of review that are applied by the Delaware courts to evaluate whether a Delaware corporation’s directors have complied...more
A recent decision by the Delaware Supreme Court emphasizes the importance of fully disclosing material director and officer conflicts of interest in connection with proposed M&A transactions. Indeed, as the Court’s ruling...more
7/9/2020
/ Acquisitions ,
Board of Directors ,
Breach of Duty ,
Business Judgment Rule ,
Conflicts of Interest ,
DE Supreme Court ,
Disclosure Requirements ,
Fairness Standard ,
Fiduciary Duty ,
Fraud ,
Mergers ,
Shareholder Litigation ,
Standard of Review
In Dohmen v. Goodman, the Delaware Supreme Court declined to impose an affirmative fiduciary duty of disclosure on a general partner arising out of the general partner’s solicitation of capital contributions from a limited...more
6/26/2020
/ Appeals ,
Breach of Contract ,
Breach of Duty ,
Capital Contributions ,
Causation ,
Damages ,
DE Supreme Court ,
Fiduciary Duty ,
General Partnerships ,
Limited Partnership Agreements ,
Limited Partnerships ,
Private Placements
On June 11, the Delaware Court of Chancery issued important guidance to boards of directors of Delaware corporations and their controlling stockholders seeking to utilize the dual protections of MFW2 — a special committee and...more
A recent Delaware Court of Chancery decision confirms that, unlike in statutory mergers, the attorney-client privilege will remain with the target entity in an asset sale unless the attorney-client privilege is explicitly...more
In 77 Charters, Inc. v. Gould, the Delaware Court of Chancery refused to dismiss breach of fiduciary duty claims against an indirect, “remote controller” of a limited liability company in connection with a series of...more
On April 6, Delaware Gov. John Carney issued the Tenth Modification of the Declaration of a State of Emergency for the State of Delaware Due to a Public Health Threat (Emergency Order), arising from the COVID-19 epidemic. ...more