On March 25, in Walsh v. White House Post Productions, LLC, C.A. No. 2019-0419-KSJM, the Delaware Court of Chancery held that a limited liability company’s contractual right to repurchase a member’s units upon the termination...more
In a prior client alert, we discussed a decision by the Delaware Supreme Court, Appel v. Berkman, in which the court held that the board’s failure to disclose the reasons why the chairman of the board abstained from voting on...more
On March 18, in Salzberg v. Sciabacucchi, No. 346, 2019, the Delaware Supreme Court held that Delaware corporations may validly adopt forum selection provisions requiring that all claims arising under the federal Securities...more
On February 27, the Delaware Court of Chancery issued important guidance to boards of directors seeking to utilize special committees of disinterested and independent directors to insulate themselves from fiduciary liability...more
3/10/2020
/ Acquisition Agreements ,
Arms Length Transactions ,
Board of Directors ,
Business Judgment Rule ,
Controlling Stockholders ,
Entire Fairness Standard ,
Fiduciary Duty ,
Independent Directors ,
Negotiations ,
Shareholder Votes ,
Special Committees ,
Standard of Review
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
Governor John Carney recently signed legislation that will put into effect a variety of amendments to the Delaware General Corporation Law (DGCL), the Delaware Limited Liability Company Act (DLLCA), the Delaware Revised...more
7/23/2019
/ Amended Legislation ,
Corporate Sales Transactions ,
Delaware General Corporation Law ,
Delaware Limited Liability Company Act ,
Delaware Revised Uniform Limited Partnership Act ,
Documentation ,
Electronic Records ,
Merger Agreements ,
Partnership Agreements ,
Safe Harbors ,
State and Local Government ,
Stockholder Agreements
Covering legal developments and regulatory news for registered funds, their advisers and industry participants through June 30, 2019.
Auditor Independence With Respect to Certain Loans or Debtor-Creditor Relationships -
On...more
7/19/2019
/ Broker-Dealer ,
Capital Formation ,
Common Reporting Standard (CRS) ,
Conflicts of Interest ,
Duty of Care ,
Duty of Loyalty ,
ETFs ,
Fiduciary Duty ,
Financial Markets ,
Financial Services Industry ,
Form CRS ,
Investment Management ,
Investor Protection ,
Public Comment ,
Regulation Best Interest ,
Regulation S-X ,
Regulatory Standards ,
Rulemaking Process ,
Securities and Exchange Commission (SEC) ,
Securities Regulation
A director’s duty to make a good faith effort to oversee the operations and management of a Delaware company is well-established. In a recent case, Marchand v. Barnhill, the Delaware Supreme Court provided guidance to boards...more
7/18/2019
/ Blue Bell Creameries ,
Board of Directors ,
Breach of Duty ,
Business Operations ,
Caremark claim ,
Controlling Stockholders ,
DE Supreme Court ,
Derivative Suit ,
Dismissals ,
Fiduciary Duty ,
Food and Drug Administration (FDA) ,
Food Contamination ,
Food Manufacturers ,
Food Recalls ,
Good Faith ,
Liability ,
Listeria ,
Manufacturing Facilities ,
Oversight Duties ,
Reversal ,
Risk Management
In Shareholder Representative Services LLC v. RSI Holdco, LLC, the Delaware Court of Chancery held that the sellers of a target corporation retained the right to assert attorney-client privilege over pre-merger communications...more
In In re Pilgrim’s Pride Corporation Derivative Litigation, the Delaware Court of Chancery held that a foreign controlling stockholder impliedly consented to personal jurisdiction in Delaware because the controller’s...more
A recent Delaware Supreme Court order affirming the Court of Chancery’s ruling in Alarm.com Holdings, Inc. v. ABS Capital Partners, Inc. provides important guidance for private equity and venture capital firms that seek to...more
2/22/2019
/ Business Opportunity Laws ,
Business Ownership ,
Capital Investments ,
Carve Out Provisions ,
Competition ,
Contract Terms ,
Controlling Stockholders ,
DE Supreme Court ,
Investment ,
Private Equity ,
Waivers
On December 7, 2018, the Delaware Supreme Court issued an order affirming the judgment of the Court of Chancery in Akorn, Inc. v. Fresenius Kabi AG, C.A. No. 2018-0300-JTL (Del. Ch. Oct. 1, 2018). ...more
In a recent opinion, the Delaware Court of Chancery, for the first time, held that contractual provisions in stockholder agreements barring common stockholders from exercising their statutory appraisal rights are enforceable...more
In a first-of-its-kind post-trial opinion, the Court of Chancery ruled on October 1 in Akorn, Inc. v. Fresenius Kabi AG, C.A. No. 2018-0300-JTL, that German pharmaceutical company Fresenius Kabi AG had properly terminated its...more
On August 1, several amendments to the Delaware Revised Uniform Limited Partnership Act, 6 Del. C. §§ 17-101, et seq. (DRULPA), and the Delaware Limited Liability Company Act, 6 Del. C. §§ 18-101, et seq. (DLLCA)...more
On August 1, several amendments to the Delaware General Corporation Law, 8 Del. C. § 1-101 et seq. (the DGCL), became effective. The most notable amendments alter (1) the availability of statutory appraisal rights and (2) the...more
The Delaware House of Representatives voted on June 28 to expand the number of vice chancellors on the Court of Chancery from four to six....more
On July 21, Delaware governor John C. Carney Jr. signed into law a series of amendments to the Delaware General Corporation Law (DGCL) that will allow companies to keep shareholder information on blockchain technology-based...more
8/3/2017
/ Alternative Trading System (ATS) ,
Blockchain ,
Delaware General Corporation Law ,
Distributed Ledger Technology (DLT) ,
Financial Institutions ,
Financial Markets ,
Innovative Technology ,
Investors ,
Nasdaq ,
New Legislation ,
Popular ,
Securities Transactions ,
Shareholders
New amendments affect Delaware general partnerships, limited liability partnerships, limited partnerships and limited liability companies.
On July 24, Delaware Governor Jack Markell signed into law several amendments to...more
Delaware corporations should evaluate their certificates of incorporation or bylaws in light of new amendments to the Delaware General Corporation Law.
On June 24, Delaware Governor Jack Markell signed Senate Bill 75...more
Few people following the crowdfunding space have been able to ignore the recent meteoric rise of online direct lending, often called “peer-to-peer” (P2P) lending. What started out as a simple one-to-multiple consumer lending...more
On April 17, the Corporation Law Section of the Delaware State Bar Association proposed amending the Delaware Revised Uniform Partnership Act, 6 Del. C. §§ 15-101, et seq. (DRUPA), the Delaware Revised Uniform Limited...more
On April 17, the Corporation Law Section of the Delaware State Bar Association proposed amending the Delaware General Corporation Law, 8 Del. C. §§ 1-101, et seq. (the DGCL). If the proposed legislation is enacted, the...more
In a 2013 decision, the Delaware Court of Chancery ruled that the business judgment standard of review should apply to a going-private transaction where certain procedural safeguards were implemented to protect minority...more
A recent post-trial decision by Vice Chancellor J. Travis Laster of the Delaware Court of Chancery puts directors serving as designees of preferred investors on notice that they must attempt to maximize value for common...more