Sky Blog
In a new article, I argue that, under current Delaware law, there is a collision between the definition of pre-suit demand and shareholder voice. To demonstrate, imagine that a sophisticated institutional shareholder of a Delaware public corporation has determined that …
After the Delaware Court of Chancery invalidated Elon Musk’s $56 billion compensation package, Tesla made headlines by moving its incorporation from Delaware—the longtime gold standard for incorporation—to Texas. Following Tesla’s reincorporation, Texas moved to strengthen its newly created business court. …
Delaware courts reserve their entire fairness standard of review – the state’s “most onerous standard” – for, among others, cases involving conflicted controllers.[1] In recent years, there is a view that the standard’s application (or at least the procedural …
Founders and early investors increasingly maintain control of companies while holding small economic stakes in them – raising fundamental questions about how Delaware courts can enforce accountability in corporate governance. In a new working paper, I challenge the courts’ …
As I write this from the Tulane Corporate Law Institute’s annual conference in New Orleans, the energy is palpable. While Mardi Gras revelers have vacated the streets, they’ve been replaced by a different phalanx of uncharacteristically confrontational carousers: corporate law …
Judge Medinilla’s recent opinion in Cytotheryx, Inc. v. Castle Creek Biosciences, Inc. is a reminder for practitioners to carefully consider whether an integration clause in a purchase agreement will be sufficient to bar extra-contractual misrepresentation claims. And although fraud claims …
Legislation proposing to amend the General Corporation Law of the State of Delaware (the “DGCL”) has been approved by the Council of the Corporation Law Section of the Delaware State Bar Association and is expected to be introduced to the …
Although the number of securities lawsuits filed this year remained steady compared to 2021, we have seen many notable developments in securities law. This year-end update provides an overview of the major developments in federal and state securities litigation since …
Private equity sponsors compete ferociously for acquisition targets, with one of their principal tools being the speed with which they can move. A recent decision of the Delaware Court of Chancery (In Re Mindbody, Inc., S’Holder Litig., C.A. …
Engaged shareholder voting is often perceived as the linchpin of sound corporate governance. That reputation is well deserved: Even as corporate governance has broadened its sights of late to accommodate a wider set of stakeholders, the pivotal role of shareholders …
Against the backdrop of unexpected developments arising from the COVID-19 pandemic, parties with signed, but not yet closed, M&A transactions are taking a closer look at potential openings for claims of breaches and failures of closing conditions. It seems the …
Delaware corporate law differs from other areas where fiduciary obligations apply – such as agency, LLCs, partnerships, and trusts. Three distinct actors owe fiduciary duties – executive officers, directors, and controlling shareholders – and numerous aspects of their duties greatly …
Channel Medsystems, Inc. v. Boston Scientific Corporation (Dec. 18, 2019) is the Delaware Court of Chancery’s first decision issued since the Delaware Supreme Court’s 2018 Akorn decision to evaluate whether an acquiror had a right, under a merger agreement, to …
U.S. corporate law adopts a regulation-by-litigation model where the efficient balance between incentives and filters is essential for litigation to perform its function. In this model, over-litigation is not only a detrimental distortion but also a significant indication that the …
A recent decision by the Delaware Supreme Court, In re Investors Bancorp, Inc. Stockholder Litigation (“Investors Bancorp”), increased the risk of litigation against directors, bucking a decades-long trend. The decision reversed a Chancery Court …
Following Corwin v. KKR Financial Holdings and other Delaware cases that have reinforced the standards that stockholder suits must meet to survive dismissal, would-be litigants have increasingly invoked Section 220 of the Delaware General Corporate Law (“Section 220”) to try …
A recent decision of the Delaware Court of Chancery highlights the need for boards of directors of Delaware publicly traded companies to develop heightened awareness and vigilance in responding to shareholder activists, particularly those following a short-term agenda of putting …
Two recent decisions confirm that, in the wake of the Delaware Supreme Court’s landmark decisions in Dell and DFC, Delaware courts are taking an increasingly skeptical view of claims in appraisal actions that the “fair value” of a company’s …
