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Sullivan & Cromwell Discusses Information-Sharing Between Activists and Their Director Nominees
Recently, the Delaware Court of Chancery held in Icahn v. Illumina that a director was not permitted to share confidential and privileged information he received in connection with his board service with the activist stockholders that nominated him for election.…
Is It the End of Entire Fairness as We Know It?
Striving to better, oft we mar what’s well — William Shakespeare, King Lear (1606)
The Delaware Court of Chancery has, for more than a century, honed unparalleled expertise in a unique body of corporate law based on equity – and …
Columbia Law School to Hold 2023 Conference on M&A and Corporate Governance
On December 8, 2023, Columbia Law School will hold its 2023 Conference on Mergers & Acquisitions and Corporate Governance. The event is co-sponsored by the school’s Ira M. Millstein Center for Global Markets and Corporate Ownership, the Columbia Law School …
John C. Coffee, Jr. – Mass Torts and Corporate Strategies: What Will the Courts Allow?
Within a month, the U.S. Supreme Court will hear Harrington v. Purdue Pharma, L.P.,[1] a case that (i) could radically change the potential for bankruptcy to serve as the preferred mechanism for corporations seeking to resolve mass torts, …
To Whom Are Caremark Duties Owed?
A while ago, the National Center for Public Policy Research – a conservative organization that focuses its advocacy in the corporate and securities space – filed a lawsuit against Starbucks, arguing that its diversity equity and inclusion program ran
How to Prevent Pretextual Books and Records Demands
Delaware General Corporation Law § 220 permits shareholders to inspect a corporation’s books and records for a proper purpose, such as investigating managerial misconduct, valuing shares, or communicating with other shareholders. The Delaware case law interpreting this statute has created …
Understanding Corporate Law’s Quintet of Judicial Review
When assessing the legality of actions by boards of directors, corporate officers, and shareholders, judges use five standards of review: the business judgment rule, Unocal, Revlon, the entire fairness standard, and, to some degree, Blasius.[1]
These …
A Consequential Circuit Split Casts Doubt on Whether Borak Is Still Good Law
On June 1, the Ninth Circuit en banc in Lee v. Fisher issued a consequential decision calling into question the scope of the implied right of action recognized by J.I. Case Co. v. Borak and creating a stark split with …
Davis Polk Discusses Delaware Chancery Decision Denying Corwin Cleansing for Defensive Measure
The recent In re Edgio, Inc. Stockholders Litigation decision highlighted concerns when a public company involved in a business combination adopts defensive measures that would continue for a significant period of time post-closing. The court declined to apply Corwin cleansing …
Skadden Discusses Proposed Changes to Delaware Corporation Law
The proposed 2023 amendments to the Delaware General Corporation Law (DGCL) approved by the Delaware State Bar Association are intended to address a number of practical issues facing corporations and their counsel and to facilitate certain corporate actions. Among other …
The New Corporate Law of Corporate Groups
Large firms today are rarely organized as a single legal entity, but rather as corporate groups with numerous subsidiaries that have separate legal personalities. A debate has long raged over how to treat the legal boundaries between companies belonging to …
Cleary Gottlieb Discusses Denial of Corwin Cleansing in Action for Post-Closing Injunctive Relief Under Unocal
On May 1, 2023, the Delaware Court of Chancery addressed an unsettled question under Delaware law—whether a fully informed, uncoerced vote of disinterested stockholders (so-called “Corwin cleansing”[1]) can be applied to defeat claims to enjoin defensive measures …
Operational Risk and the New Caremark Liability for Boards of Directors
In a new article, we identify a subtle and unrecognized shift in Caremark[1] cases that changes how the Caremark doctrine actually works. Caremark claims, which accuse corporate directors of breaching the fiduciary duty of loyalty by not making a …
Gibson Dunn Offers 2022 Year-End Securities Litigation Update
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 …
Debevoise & Plimpton Discusses the Mindbody Problem
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. …
Davis Polk Discusses a New Front in M&A Litigation
Plaintiff stockholder litigation against announced M&A deals continues to be a common feature of the U.S. M&A landscape, despite the prevalence of forum selection bylaws, the demise of disclosure only settlements and general skepticism by the Delaware courts. Over the …
Why the Poison Pill Is Still Relevant After All These Years – Even in Japan
More than 40 years after its invention by lawyer Martin Lipton, the poison pill remains the subject of important judicial decisions and academic debate over corporate governance questions, in both the United States, its country of origin, and Japan, its …
Mayer Brown Discusses Five Steps for Directors to Consider About Risk Governance
Historically, directors have been protected from personal liability in connection with risk management by the high standard set in the seminal 1996 Caremark[1]case. In recent years, however, courts have held that certain plaintiffs have pled facts sufficient to …
Skadden Discusses Delaware Chancery Decision Questioning Fundamental SPAC Structure
With all the SPAC activity and scrutiny over the past several years, it was only a matter of time before the Delaware courts had an opportunity to weigh in on SPAC stockholder litigation.
Early last year, in January 2022, Vice …