Showing 82 posts in Articles.
Section 220 of the Delaware General Corporation Law permits a stockholder to inspect the books and records of a corporation, provided that the demand for inspection meets certain form and manner requirements, and the inspection is sought for a proper purpose—e.g., one reasonably related to the interests of stockholders. It is well established that the investigation of corporate mismanagement or wrongdoing is a proper purpose under DGCL Section 220. But, to state a proper purpose to investigate mismanagement or wrongdoing of a corporation, a stockholder must allege a "credible basis" to infer "possible" mismanagement or wrongdoing. The Court of Chancery has noted that the "credible basis" standard has, however, the lowest possible burden of proof under Delaware law. More ›Share
Plaintiffs lawyers are questioning whether their cases will be heard by Delaware's courts. That concern is fueled by the Delaware Supreme Court affirmance of a trial court's dismissal of a case against DuPont Co., the ultimate Delaware corporation, on forum non conveniens grounds, in Martinez v. E.I. du Pont de Nemours & Co., 86 A.3d 1102 (Del. 2014). For if Delaware will reject a case as too inconvenient for a defendant like DuPont, whose headquarters is just four blocks from the courthouse, might not any defendant also have a case against it thrown out for the same reason? Of course, that is a too-broad reading of the Martinez case. Moreover, on April 28, the Court of Chancery sent a strong signal that the Delaware courts remain open to all, even foreign, plaintiffs. More ›Share
In a comprehensive analysis of the standards of review, burdens of proof and potential damages implicated in a fiduciary-duty challenge to a squeeze-out merger, the Delaware Court of Chancery recently examined the harsh potential consequences for controlling shareholders who manipulate special board committees, the fairness opinions of their financial advisers, and proxy materials concerning the value of a company. More ›Share
Delaware continues to expand its enforcement of agreements not to compete with one's former employer. The latest step in this path to enforcement is the recognition that a noncompete and nonsolicitation agreement may be entered into by a mere click of the "accept" button on a computer screen. The Delaware Court of Chancery just upheld such agreements in Newell Rubbermaid v. Storm, Del. Ch. C.A. 9398-VCN (March 27, 2014). The decision has serious implications for employees who may wish to quit their present jobs to pursue careers at an employer's competitor. More ›Share
The record upon which a court evaluates a motion to dismiss is often outcome-determinative. If based upon the well-pleaded allegations of a plaintiff's complaint, the court cannot determine that it is reasonably conceivable that the plaintiff may obtain a recovery, the court must dismiss the complaint. As a general matter, the plaintiff controls the record by virtue of how and what the plaintiff pleads. The Delaware Supreme Court has held, however, that the record fairly before the court on a motion to dismiss may include documents "integral to and incorporated into the complaint." The recent Court of Chancery decision in In re Gardner Denver Shareholders Litigation, Cons. C. A. No. 8505-VCN (Feb. 21, 2014), provides useful guidance concerning how the Court of Chancery will treat deposition transcripts where, as is happening more frequently, a plaintiff pursues but abandons a preliminary injunction after deposing several witnesses, and then amends the complaint by selectively quoting from the deposition record. More ›Share
Investment bankers seeking to profit as both adviser to the seller and financier to the buyer in corporate sales processes have faced increased scrutiny by the Delaware Court of Chancery over the last few years. In a highly publicized 2011 decision that changed the landscape for investment bankers, Vice Chancellor J. Travis Laster criticized investment banker Barclays PLC for acting both as adviser to the seller and financier to the buyer in the sale process of Del Monte Foods Co. Laster found that Barclays "secretly and selfishly manipulated the sale process to engineer a transaction that would permit Barclays to obtain lucrative buy-side financing fees." Laster explained that Barclays faced conflicts of interest in the sale process, which were not disclosed to the board of Del Monte Foods, in its role as financial adviser to the board, while at the same time profiting by providing staple financing to the buyer, private equity firm KKR & Co. More ›Share
What can you do when you discover that a former employee is hurting your business by working for a competitor? If the employee never signed a noncompetition or nonsolicitation agreement, it may seem there is little you can do. However, the Delaware Court of Chancery's recent opinion in Wayman Fire Protection v. Premium Fire & Security LLC, C.A. No. 7866-VCP (Del. Ch. March 5, 2014), provides new remedies if that former employee has breached the duties the court explains in this decision. More ›Share
The Delaware Supreme Court's Feb. 20 decision in an asbestos case brought by an Argentine widow against DuPont Co. is a hot topic in Delaware. Martinez v. E.I. du Pont de Nemours & Co., (Del. Supr. C.A. 669, 2012), upheld the dismissal of the asbestos case despite a vigorous dissent by Justice Carolyn Berger.
Dissenting opinions in Delaware Supreme Court decisions are very rare and that alone generates discussion. In Martinez, the majority opinion takes the time to respond to the dissent, recognizing that Berger makes some good points. Nonetheless, with new Chief Justice Leo E. Strine Jr. as part of the majority (in his capacity as chancellor designated as a justice for this one case), some wonder if this opinion signals an internal rift within the Supreme Court. More ›
Is it becoming easier for defendants to win summary judgment in corporate litigation? A recent Delaware Court of Chancery decision granting summary judgment to the defendants in a fiduciary duty case appears to resolve disputed facts in defendants' favor. Yet, it is settled law that a court may not resolve disputes of material fact without a trial. Has Delaware law changed when summary judgment is appropriate? More ›Share
In contrast to many jurisdictions that have recognized special fiduciary duties owed by majority stockholders to protect minority stockholders in closely held corporations, Delaware courts have not adopted a special fiduciary duty of a controlling or majority stockholder to minority stockholders in closely held corporations, or a fiduciary duty to buy back a minority stockholder's shares. Thus, declining to follow the approach of many other jurisdictions, Delaware law does not afford minority stockholders in a closely held corporation any greater protection than the fiduciary duties a controlling stockholder owes to a minority stockholder in a public corporation. More ›Share
At the very end of 2013, the Delaware Court of Chancery issued a major insider-trading decision that has substantial implications for company officials selling their company stock. The decision in Silverberg v. Gold, Del. Ch. C.A. 7647-VCL (December 31, 2013), upholds using circumstantial evidence to establish that insiders were motivated by material nonpublic information to sell company stock. Silverberg's significance lies in the extent to which it draws inferences of wrongful conduct from some limited evidence. Thus, Silverberg may permit more insider-trading complaints to survive a motion to dismiss. More ›Share
Advancement rights assure directors and officers that if they are sued for conduct arising out of their company service, the company will pay their attorney fees and costs as they are incurred. Without advancement rights, many people would not serve out of fear that their personal assets would be depleted in defending suits based on their conduct as directors or officers. For that reason, Delaware courts regularly enforce advancement rights, even after a finding of criminal guilt at the trial level, until the judgment is final and all appeals are exhausted. Nonetheless, mandatory advancement rights apply only if provided by charter, bylaw or contract. The recent case of Grace v. Ashbridge LLC, C.A. No. 8348-VCN (Del. Ch. Dec. 31, 2013), provides a cautionary tale that advancement rights that may have existed when the entity was a corporation do not necessarily survive intact when the entity converts to a limited liability company. More ›Share