Two recent decisions of the Delaware Court of Chancery offer increased flexibility for Delaware corporations to adopt differential voting by stockholders. Differential voting has typically been used to give key stockholders...more
This article describes two recent Delaware decisions relevant to the Model Business Corporation Act (the “MBCA”). One of those decisions relates to a board’s determination of the availability of surplus to support...more
Derivative actions play an important role in policing corporate insider conduct and compliance by directors and controlling stockholders with their fiduciary duties. A derivative action enables a stockholder, upon...more
The Delaware Court of Chancery, in The Williams Companies Stockholder Litigation, 2021 WL 754593 (Del. Ch. Feb. 26, 2021), struck down a shareholder rights plan (commonly known as a “poison pill”) adopted by The Williams...more
In an important decision, the Delaware Supreme Court, in AmerisourceBergen Corp. v. Lebanon Cty. Employees’ Ret. Fund, No. 60, 2020, 2020 WL 7266362 (Del. Dec. 10, 2020), ruled that stockholders may obtain access to a...more
On December 8, 2020, the Delaware Court of Chancery in Stream TV Networks, Inc. v. SeeCubic, Inc. upheld a unique structure established by secured lenders to protect their interests and in doing so the Court addressed a...more
Despite having stockholder approval of the $1.9 billion take-private sale of the wellness technology company Mindbody, Inc. to Vista Equity Partners Management LLC, the Delaware Court of Chancery at the motion to dismiss...more
On May 14, 2020, the NYSE adopted temporary rules that will permit its listed companies to issue more than 20% of their presently outstanding common stock in a private placement at a discount without the shareholder approval...more
ISS and Glass Lewis have issued guidance on their corporate governance voting policies that adds flexibility to reflect the realities of the impact of the COVID-19 crisis and the challenges in responding to it. Public...more
In times of economic distress, insiders can sometimes be the only source of capital for a company with urgent liquidity needs. Applying lessons learned in the 2008-2009 financial crisis to the current COVID-19 market...more
Delaware law usually protects directors in making good faith business decisions. However, the recent Delaware Court of Chancery AmerisourceBergen decision signals a two-part trend of (i) increased stockholder access to...more
On November 5, 2019, the Securities and Exchange Commission in a 3-2 vote proposed new rules on two high profile topics: proxy advisory firms and shareholder proposals. New rules on these topics have been anticipated since...more
On September 6, 2019, the SEC’s Division of Corporation Finance announced two notable revisions to its approach to handling no-action requests by companies seeking to exclude shareholder proposals under Rule 14a-8....more
In In re Towers Watson & Co. Stockholders Litigation, 2019 WL 3334521 (Del. Ch. July 25, 2019), the Delaware Court of Chancery applied the business judgment rule to dismiss a stockholder suit challenging the $18 billion...more
Post-signing “go-shop” processes first appeared in 2004 as an alternative to the traditional sale process for public companies. As one way to satisfy its “Revlon duty” to get the best price in the sale of the company, the...more
The Securities and Exchange Commission has again had to confront how to react to a mandatory arbitration provision that would have the effect of denying investors the ability to pursue federal securities law claims as a class...more
Two year-end decisions by the Delaware Court of Chancery provide practical guidance for mergers and other transactions, one on the meaning of “commercially reasonable efforts” and other commonly used standards of efforts and...more