News

Stark Upholds Confirmation of Bankruptcy Plan Granting Third-Party Releases

Tom McParland | September 24, 2018

A Delaware federal judge has ruled that bankruptcy courts have the constitutional authority to grant third-party liability releases in confirming restructuring plans without creditor consent.

News

Judge Clears Way for Trial in Schnatter's Bid to Open Papa John's Books

Tom McParland | September 20, 2018

Delaware Court of Chancery Chancellor Andre G. Bouchard said Papa John’s had not carried its heavy burden of proving that Schnatter’s demand for documents related to his resignation from the pizza chain was improper under Delaware law.

News

Oxbow, Bill Koch Ordered to Post $87.8M Bond Before Appeal of Chancery's Decision to Force Sale

Tom McParland | September 20, 2018

A Delaware judge has ordered Bill Koch and his Oxbow Carbon energy firm to post a nearly $88 million bond before appealing a Delaware Court of Chancery decision to force the company's sale in order to compensate minority investors that were denied their right to a buyout in 2016.

News

Stay Denied as PTAB Mulls Apple's PTAB Petition

Tom McParland | September 19, 2018

A federal judge in Delaware on Wednesday denied Apple Inc.'s bid to pause a patent infringement suit while the Patent Trial and Appeal Board mulls an administrative review of four patents at the heart of the suit.

Commentary

Del. Discovery Updates 2018: Little Tolerance for Failure to Adhere to Deadlines

Chaney Hall| September 19, 2018

Both the Delaware Court of Chancery and the Delaware Superior Court emphasize that discovery must proceed in a timely manner in accordance with the scheduling order entered by the court. Litigants who delay in bringing their discovery disputes before the court may find themselves without a remedy.

News

Schnatter Takes Fight to Papa John's Board in Suit to Pry Open Records

Tom McParland | September 17, 2018

Attorneys in a multifaceted battle for control of Papa John's are set to square off in a Wilmington courtroom Thursday afternoon, as company founder and former CEO John Schnatter tries to maintain a books-and-records case seeking records related to his ouster from the pizza chain.

News

Third Circuit Affirms Reversal of $275M Break-Up Fee in Del. Bankruptcy Case

Tom McParland | September 13, 2018

The U.S. Court of Appeals for the Third Circuit on Thursday upheld a Delaware Bankruptcy Court's decision to block a Florida-based energy company from collecting a $275 million merger termination fee against the bankruptcy estates of Energy Future Holdings Corp. and a subsidiary.

News

Lawsuit Targets Zuckerberg, Facebook Board Over Stock Plan

Tom McParland | September 13, 2018

Facebook Inc. investors have launched another Delaware Court of Chancery lawsuit over the company's since abandoned plan to restructure in a way that would have given founder and CEO Mark Zuckerberg more control over the company.

Commentary

Are Post-Merger Facts Ever Relevant?

Edward M. McNally| September 12, 2018

Appraisal litigation is unique under Delaware law. In almost every instance you can think of, once an event provides a right to recover damages (such as a fire caused by negligence), what happens later is relevant to determining the amount of damages.

News

Papa John's Founder Attacks CEO in New Lawsuit

Tom McParland | September 07, 2018

According to a new lawsuit, Papa John's CEO launched a "false and defamatory campaign" accusing a chairman of racism to save his own job.

News

Genentech Sues to Halt Biosimilar Version of Cancer Drug

Tom McParland | September 05, 2018

Genentech Inc. has accused Samsung Bioepis Co. in Delaware federal court of infringing 21 patents for its breast cancer drug Herceptin.

Commentary

Court Hits Investor With Millions in Damages for Company's Demise

Corinne Ball| September 05, 2018

To the extent that a minority shareholder relies upon its blocking rights to obtain what might be viewed as an “unfair” advantage for itself, Basho suggests that there is potential exposure as a fiduciary.

Commentary

Bankruptcy Court Enforces Anti-Assignment Clause and Rejects Assignee's Proof of Claim

Barry M. Klayman and Mark E. Felger| September 05, 2018

The purchase and sale of claims held by creditors against debtors in a bankruptcy proceeding has become a big business.

News

Stark's Infringement Ruling Blocks Generic Acne Treatment

Tom McParland | September 04, 2018

A Delaware federal judge has barred Amneal Pharmaceuticals from marketing a generic version of Galderma Laboratories' Oracea acne drug through 2025, finding that the drug infringed under the equitable doctrine of equivalents.

News

Slights Slams 'Redundancy' of Bid to Toss Challenge to $1B Pipeline Deal

Tom McParland | August 30, 2018

The Delaware Court of Chancery has rejected Enbridge Energy Partners' bid to dismiss a shareholder suit targeting a $1 billion pipeline buyback deal, in a ruling that criticized the defendants for remaking arguments that had already been rejected by the state Supreme Court.

News

Claims Over Papa John's Founder John Schnatter Draw Investor Suit

Colby Hamilton | August 30, 2018

The former chairman and CEO of the pizza chain resigned after reportedly using a racial slur during a conference call, but the new class action suit said additional reports about Schnatter's behavior also show the company's public statements about its corporate ethics were false and misleading.

Commentary

Validation Under Section 205 of the Delaware General Corporation Law

John Mark Zeberkiewicz and Nathaniel Stuhlmiller| August 29, 2018

In two recent opinions, The Cirillo Family Trust v. Moezinia, 2018 WL 3388398 (Del. Ch. July 11, 2018), and Charles Almond v. Glenhill Advisors, 2018 WL 3954733 (Del. Ch. Aug. 17, 2018), the Delaware Court of Chancery exercised its powers under Section 205 of the Delaware General Corporation Law (the DGCL) to validate acts that, due to technical problems in their authorization, may have otherwise been void or voidable.

News

CBS Faces Class Action Over Moonves Sexual Harassment Allegations

Colby Hamilton | August 28, 2018

The media company allegedly made misleading statements about the integrity of its zero tolerance sexual harassment policy after recent claims were raised against CEO Leslie Moonves and others.

News

Stark Orders Seizure of Citgo Shares in Mining Company's Mineral Dispute With Venezuela

Tom McParland | August 24, 2018

A Delaware federal judge has allowed Crystallex International Corp. to begin seizing shares of Citgo Petroleum Corp., as the Canadian gold mining and exploration firm looks to collect a $1.2 billion judgment against the Venezuelan government.

News

Glasscock Ruling Sets Up Trial in Suit Over Sale of Medical Device Company

Tom McParland | August 23, 2018

The Delaware Court of Chancery has cleared the way for trial in an investor challenge to a deal that handed control of medical device company Halt Medical Inc. to a private equity firm in 2014.

Commentary

A (Foot)note About Sandbagging in M&A Transactions

Mark J. Oberstaedt and Nicholas Franchetti| August 22, 2018

When an important M&A contracting strategy goes by the moniker “sandbagging,” it is safe to assume the strategy is controversial.

Commentary

Chancery Awards Fair Value of Member Interest to Expelled Member of Del. LLC

Lewis H. Lazarus| August 22, 2018

Delaware statutes enabling formation of unincorporated entities like LLCs and limited partnerships afford freedom for owners to structure business relationships as they see fit. This freedom carries with it the responsibility accurately and completely to describe the parties’ rights and duties.

News

Bouchard Addresses Nature of Derivative Claims in Decision Tossing Challenge to Design Within Reach Merger

Tom McParland | August 17, 2018

The Delaware Court of Chancery on Friday rejected a "novel theory" to expand the state's narrow doctrine allowing some claims to be treated as both derivative and direct. The rejection comes in a decision that nixed an investor lawsuit seeking to undue the $124 million merger of Herman Miller and Design Within Reach.

News

Advertiser Class Action Claims Facebook Overestimates Audience Size

Ross Todd | August 16, 2018

The suit claims that Facebook's estimated reach among the key 18- to 34-year-old bracket exceeds the actual population of that demographic group in every state in the U.S.

News

Glasscock Scales Back Fair Value in AOL Appraisal

Tom McParland | August 15, 2018

Vice Chancellor Sam Glasscock III granted competing motions for reargument in the high-profile appraisal case after both sides questioned the treatment of financial inputs that led him to set a fair value below the $50 per share price Verizon Communications Inc. paid.

Commentary

VC Firms Should Be Mindful of Potential Controller Status

Christopher B. Chuff, M. Duncan Grant, and Joanna J. Cline| August 15, 2018

It is well-settled Delaware law that a stockholder is deemed to be a controller when it owns more than 50 percent of the corporation’s stock or it owns less than 50 percent of the corporation’s stock, but nevertheless exercises actual control over the corporation or the challenged decision.

News

Stark Authorizes Seizure of Citgo Shares in $1.2B Venezuela Arbitration Dispute

Tom McParland | August 14, 2018

A federal judge found Citgo’s owner acted as an “alter ego” of the Venezuelan government.

Facebook Says Derivative Suit Over Privacy Breaches Belongs in Delaware

Tom McParland| August 13, 2018

Facebook's Gibson, Dunn & Crutcher attorneys said a clause in the company's charter designated the Delaware business court as the "sole and exclusive forum" for litigating derivative cases against members of the board.

News

Tribune Sues for $1B in Damages After Canceling Deal With Sinclair

Tom McParland | August 09, 2018

The lawsuit filed by Debevoise & Plimpton targets Sinclair's "belligerent and unnecessarily protracted" negotiations with regulators.

News

Stark Skeptical of Groupon's Attempts to Attack $82.5M Infringement Verdict

Tom McParland | August 08, 2018

A Delaware federal judge on Wednesday expressed skepticism at Groupon Inc.'s attempt to roll back an $82.5 million verdict for willfully infringing four IBM patents that date back to the early days of the internet and called for a speedy close to post-trial briefing.

Commentary

Chancery Rejects Merger Price as Indicator of Fair Value in Appraisal Based on Flaws in Sales Process

Albert H. Manwaring IV| August 08, 2018

Appraisal is a limited statutory remedy that provides a Delaware general corporation’s stockholders, who dissent to the sufficiency of the merger price, with the right to have the Delaware Court of Chancery determine the “fair value” of their shares.

News

Investor Files Derivative Suit Over Tableau Competition Disclosures

Tom McParland | August 07, 2018

The lawsuit comes after the company’s stock sank nearly 50 percent after the market got wind of the toll competition was having on it.

Commentary

Court Denies Public Access to Unfiled Discovery Materials

Barry M. Klayman and Mark E. Felger| August 06, 2018

Does public access extend to discovery materials that are not filed with the court? Vice Chancellor J. Travis Laster says no: materials developed during the pretrial discovery process are not part of the presumptively public record until they are filed with the court, such as by being placed on the docket or lodged in evidence.

News

Laster Appoints Monitor in Court-Ordered Sale of William Koch's Oxbow Carbon

Tom McParland | August 02, 2018

The Delaware Court of Chancery on Wednesday appointed a monitor to oversee the sale of Oxbow Carbon and ordered CEO William Koch to pay tens of millions of dollars in damages to two private equity firms for derailing a deal for the energy company in 2016.

News

CBS Taps Firms, Former Prosecutors to Lead Probe Into Moonves Harassment Allegations

Tom McParland | Dan Packel | August 02, 2018

CBS Corp. has tapped Covington & Burling and Debevoise & Plimpton to conduct an investigation into allegations of sexual misconduct by CEO Leslie Moonves, naming two former prosecutors to lead the probe.

News

Moonves Allegations Roil CBS Leadership Amid Fight With Redstone

Tom McParland | August 01, 2018

Recent allegations of sexual harassment by CBS Corp. chief executive Leslie Moonves have brought increased scrutiny to the legal saga unfolding in the Delaware Court of Chancery over control of the New York-based broadcaster.

Commentary

So You Think You Know Delaware Law?

Edward M. McNally| August 01, 2018

We all sometimes believe we know more than what we really do understand. Despite scholarly warnings about that tendency, it continues to mislead us. Now that same error is threatening the legal profession.

News

Bouchard Turns to Deal Price in Solera Appraisal

Tom McParland | July 31, 2018

The ruling reflected the state Supreme Court's preference for using deal price as the best indicator of fair value in cases that involve a competitive sale process.

News

Del. Justices Uphold $40M in Coverage for TIAA's Defense in Class Actions

Tom McParland | July 31, 2018

All five justices sided with TIAA and its McKool Smith attorneys, rejecting an appeal that settlement payments are uninsurable disgorgements under New York law.

News

CBS Board Set to Investigate Moonves Misconduct Allegations

Tom McParland | July 27, 2018

The board of CBS Corp., already embroiled in a fierce legal battle with its controlling shareholder, on Friday indicated that it would investigate allegations of misconduct against CEO Leslie Moonves in response to a forthcoming article by The New Yorker.

News

IBM Wins $82.5M Verdict in Groupon Infringement Case

Tom McParland | July 27, 2018

A federal jury in Delaware has ordered daily deal website operator Groupon Inc. to pay $82.5 million for infringing four IBM patents dating back to the early days of the internet, in a case that has been closely watched by the tech industry.

News

Facebook Investor Sues for Records Involving Cambridge Analytica Data Breach

Tom McParland | July 27, 2018

An investor in Facebook Inc. this week sued for access to board documents related to the company's alleged mistreatment of personal user data, which has resulted in multiple privacy scandals and contributed to a historic loss in the social network's market value.

News

Papa John's Is Sued for Records Involving Founder's Ouster

Tom McParland | July 26, 2018

The founder of Papa John’s International Inc. has sued for access to board documents related to his ouster from the pizza chain, after it was reported that he used a racial slur in a company training session.

Expert Opinion

2 Different Choice-of-Law Issues in Case Involving Third-Party Consultant

Sharon M. Porcellio| July 26, 2018

U.S. Senior District Judge Michael A. Telesca then had more than 10 briefs and supplemental letter briefs and multiple statements and counter-statements of fact and other submissions from the two parties to decide the pending summary judgment motions.

Commentary

Contractual Duties to Conduct a Business in Accordance With 'Sound Business Practices'

Gabriel Herrmann and Lee R. Crain| July 25, 2018

The Delaware Court of Chancery’s decision in Wenske v. Blue Bell Creameries, C.A. No. 2017-0699-JRS (July 6, 2018) (Slights, V.C.), highlights an interesting practical challenge faced by parties seeking to impose oversight obligations on a manager charged with operating a business in accordance with sound industry business practices.

News

Attorneys Defend $129M Fee Request in Suit Over Facebook Stock Plan

Tom McParland | July 24, 2018

Three law firms are pressing their case for $129 million in attorney fees in a shareholder suit over Facebook Inc.'s since-abandoned plan to reform its stock structure in a way that would have given founder Mark Zuckerberg more control over the company.

News

Twitter Derivative Suit in Del. Stayed in Favor of Calif. Securities Action

Tom McParland | July 24, 2018

A magistrate judge in Delaware on Monday put a derivative suit against Twitter Inc.'s board of directors on pause while the San Francisco-based social media giant defends a similar securities suit in a California federal court.

News

Slights Denies Direct Appeal in Row Over Ouster of Calif. Investment Fund Partners

Tom McParland | July 23, 2018

A Delaware Court of Chancery judge has denied fast-tracked appeal of a decision earlier this month that kicked a fight for control of four investment funds to a Kentucky state court, where an influential pension fund is defending its move to replace general partners with in-house staff.

News

Del. Judge Dismisses Challenge to $325M Energy Industry Merger

Tom McParland | July 23, 2018

The Delaware Court of Chancery has dismissed a shareholder challenge to Earthstone Energy Inc.'s $325 million acquisition of a Texas oil and gas firm in 2016, finding that the deal met business-judgment protections for a conflicted transaction.

News

Del. Derivative Suit Targets Twitter Board, Alleging Active User Count Was Bloated

Tom McParland | July 18, 2018

A Twitter Inc. shareholder has accused the company’s top directors in the Delaware Court of Chancery of padding the company’s performance data, in the latest lawsuit to target the San Francisco-based social media giant’s user engagement disclosures in 2015.

News

Del. Supreme Court Upends $13.7M Insurance Judgment in Asbestos Suit

Tom McParland | July 17, 2018

Texas ties to the contractual relationship between the company and insurer trumped the fact that Wisconsin was the site of exposure, the court said in a ruling focused on choice of law in corporatewide insurance policies.

High Court Again Denies 'Corwin' Deference Due to Material Omissions Concerning Sale Process

K. Tyler O’Connell| July 16, 2018

These decisions support that stockholder-plaintiffs who are willing to invest resources in a pre-suit books and record demand may have a viable path to a post-Corwin claim.

News

Redstone Is Denied Access to Privileged Documents in CBS Dispute

Tom McParland | July 13, 2018

Shari Redstone holds the controlling voting stake in CBS and Viacom Inc.

News

Directive That Boeing Pay for Displaced Workers' Benefits Is OK'd by Del. Justices

Tom McParland | July 12, 2018

The Delaware Supreme Court on Thursday upheld a lower court's ruling that Boeing Co. was responsible for $150 million in payments to workers who were laid off when the aircraft-maker sold off three manufacturing facilities in 2005.

News

Del. High Court Revives Challenge to $1.4B Acquisition of Grocery Chain

Tom McParland | July 09, 2018

The Delaware Supreme Court on Monday effectively revived a shareholder suit challenging Fresh Market Inc.'s $1.4 billion acquisition by a private equity firm, in an opinion that served as a "cautionary reminder" that partial disclosures cannot secure business-judgment protections under the Corwin doctrine.

News

Laster Hits Investment Fund, Manager With $20.3M in Damages for Tech Firm Coup

Tom McParland | July 09, 2018

The Delaware Court of Chancery has ordered an investment fund and its manager to pay $20.3 million in damages for using their control over Basho Technologies Inc. to profit from efforts to maneuver the young firm into a "position of maximum crisis."

News

Investors Seek Records Over Pharma Company's Cancer-Drug Resale Scheme

Tom McParland | July 05, 2018

Investors in Pennsylvania-based AmerisourceBergen Corp. have sued in Delaware for access to books and records of the pharmaceutical firm, stating that they are considering launching a civil lawsuit over a scheme by its subsidiaries to skim and repackage cancer drugs for sale across the country.

News

Fraud Suit Continues Energy Firms' Fight Over $268M Coal Mine Acquisition

Tom McParland | July 05, 2018

Seneca Coal Resources accused Cliff Natural Resources and its brass of concealing a range of liabilities associated with the two West Virginia mines as it exited the coal business.

Chancery Defers to Ky. Court in Row Over Ouster of Calif. Investment Fund Partners

Tom McParland | July 03, 2018

The Delaware Court of Chancery has ruled that a fight for control of four investment funds should proceed in a Kentucky state court, where an influential pension fund is battling to uphold the removal of general partners with in-house staff.

Glasscock Greenlights Indemnification Claims Against Dallas-Based Investment Firm

Tom McParland | July 02, 2018

The Delaware Court of Chancery has allowed a former partner at Highland Capital Management to proceed with indemnification claims against the Dallas-based investment manager in a case seeking to recover $2.6 million he said he is owed from previous litigation in Texas.

Investor Targets Disclosures in Challenge to $67B Cigna Merger

Tom McParland | June 29, 2018

A second investor has sued Express Scripts Holding Co. in Delaware federal court over a planned $67 billion acquisition by Cigna Corp., alleging Express Scripts withheld key information in connection with the deal.

Commentary

Court of Chancery Awards Damages for Breach of a Director’s Duty of Loyalty

Lewis H. Lazarus| June 27, 2018

When friends go into business, their ties may fray if the business experiences difficulty and the parties have different views of how to proceed and who is responsible.

Expert Opinion

Court Affirms Effectiveness of Shareholder Consent Requirement for Bankruptcy Filing

Corinne Ball| June 27, 2018

In her Distress Mergers and Acquisitions column, Corinne Ball discusses the case "Franchise Services of North America" and writes: The importance of this case rests upon the threshold determination that relief from provisions in the certificate of incorporation granting rights to bona fide investors must be sought in the relevant state court, even when the remedy sought is the exercise of a federal right, generally exercised by fiduciaries that are required to act in the corporation’s best interests.

Commentary

Creditors Committee Dissolves Upon Conversion of Chapter 11 Cases

Barry M. Klayman and Mark E. Felger| June 27, 2018

In Official Committee of Unsecured Creditors v. Constellation Enterprises (In re Constellation Enterprises), Judge Andrews held that a creditors’ committee automatically dissolved when a Chapter 11 case was converted to a Chapter 7 case and as a result it lacked the capacity or authority to pursue appeals that had been filed from orders of the bankruptcy court, including the order converting the case.

News

Glasscock Greenlights Investor Suit Over Side Deal in Telecom Co.'s $3B Sale to Verizon

Tom McParland | June 25, 2018

A Delaware Court of Chancery judge on Monday allowed former investors in Straight Path Communications Inc. to proceed with claims that its controlling stockholder used his power to avoid more than $500 million in liability stemming from the telecommunication company's $3.1 billion sale to Verizon.

News

Fraud Claim Survives in Contract Suit Over Environmental Liability

Tom McParland | June 22, 2018

A breach of contract suit over the sale of a contaminated chemical site in New Jersey can be expanded to include claims that the seller concealed information about its remediation efforts and tried to stick Ashland Inc. with the bill for the cleanup, a Delaware judge has ruled.

News

Del. Federal Judge's Ruling Sets Up Trial in IBM's Infringement Case Against Groupon

Tom McParland | June 21, 2018

A Delaware federal judge has blocked Groupon Inc.'s bid to escape a lawsuit accusing the daily deal website operator of infringing IBM Corp. patents dating back to the early days of the internet.

Analysis

Tesla’s Stock Option Grant to Elon Musk: Part 2

Joseph E. Bachelder III| June 21, 2018

In this month's article on Executive Compensation, Joseph E. Bachelder III further explores Elon Musk's pay as CEO of Tesla.

Commentary

When Is a Seller's Word His Bond?

Edward M. McNally| June 20, 2018

Every transaction to some extent is based on trust. At least a buyer trusts that a seller is not actively trying to defraud him.

News

Investor Suit Against Controlling Shareholders in Medical Robotics Company Investor Clears Hurdle

Tom McParland | June 19, 2018

Investors in Hansen Medical Inc. will be allowed to proceed a Delaware Court of Chancery lawsuit alleging the California-based medical robotics firm's $80 million squeezeout merger with Auris Surgical Robotics Inc. unfairly benefited a group of controlling stockholders who steered the deal.

News

Delaware Class Action Folded into Facebook, Cambridge Analytica MDL

Tom McParland | June 18, 2018

A federal judicial panel on Monday added a Delaware class action against Facebook Inc. and Cambridge Analytica to multidistrict litigation in a California federal court.

News

Laster Tosses Trade Secrets Suit Against Investors Who Took Stake in Competitor

Tom McParland | June 18, 2018

The Delaware Court of Chancery has dismissed a suit filed by a home security company that accused a private equity firm of stealing trade secrets through its investment in a competitor.

News

Theranos CEO Elizabeth Holmes Indicted in Alleged Wire Fraud Scheme

Ross Todd | June 15, 2018

The indictment alleges a multimillion-dollar scheme to defraud investors, doctors and patients.

Analysis

Justice Cardozo’s Opinion in 'Meinhard v. Salmon' Continues to Reverberate

Fred D. Weinstein| June 13, 2018

At the heart of the 'Meinhard' opinion is the concept that a fiduciary has a duty of undivided loyalty and, therefore, may not exploit a corporate opportunity for his or her own self-benefit.

Commentary

Chancery Court Rejects Demand Futility in Absence of Particularized Allegations

Jennifer H. Rearden, Jefferson E. Bell and Michael Marron| June 13, 2018

In Steinberg v. Bearden, the Delaware Chancery Court considered whether the Aronson or Rales test for demand futility should apply to a derivative claim for breach of fiduciary duty against directors who allegedly made false and misleading statements.

News

Trial Set for October in CBS, Redstone Battle for Control of Media Giant

Tom McParland | June 12, 2018

The Delaware Court of Chancery has set an October trial date in CBS Corp.'s legal battle with controlling shareholder Shari Redstone for control of the media giant.

News

Aerospace Company Investors Seek Appraisal in $9B Deal With Northrop Grumman

Tom McParland | June 11, 2018

Former investors in Orbital ATK Inc. filed a petition in the Delaware Court of Chancery seeking appraisal of their shares in connection with Northrop Grumman Corp.'s $9.2 billion acquisition of the aerospace and defense technologies firm.

News

Tesla Investor Suit Targets Musk's Pay Package Valued at $2.6 Billion

Tom McParland | June 11, 2018

A Tesla Inc. investor has sued over Elon Musk's $2.6 billion-valued pay package in the Delaware Court of Chancery, calling the stock option a "massive, unfair and unprecedented" gift that would make the car manufacturer's CEO one of the richest public-company executives in the world.

What Constitutes a Transfer of “All or Substantially All” of a Borrower’s Assets for Purposes of Indentures and Credit Agreements?

Kenneth Pasquale and Isaac Sasson| June 08, 2018

As the credit markets have slowly tightened and borrowers look for creative solutions to delever and refinance their balance sheets outside of bankruptcy, it is important to keep in mind that a transfer that is otherwise allowed under a borrower’s debt documents may still be attacked if there are indicia that the transfer is for “all or substantially all” of the borrower’s assets.

News

Walmart Sues to Block Tax Executive's Move to Amazon

Tom McParland | June 07, 2018

Walmart Inc. on Thursday sued to prevent a former top tax executive from taking a job with Amazon.com Inc., arguing the move would present a "direct competitive threat" to Walmart by exposing the online retailer's business strategy and potential merger plans.

News

Sleet Upholds Patent for Anti-Inflammatory Drug, Blocking Generic

Tom McParland | June 06, 2018

A Delaware federal judge on Tuesday upheld the validity of Shire Orphan Therapies' patent for Firazyr, blocking a Germany-based pharma company from launching a planned generic version of the anti-inflammatory drug until 2019.

Commentary

Former Client Entitled to Attorney’s Entire Litigation File Including Internal Work Product

Barry M. Klayman and Mark E. Felger| June 06, 2018

In TCV VI v. TradingScreen, Vice Chancellor J. Travis Laster addressed the scope of the materials that a lawyer must produce to a former client upon request.

Commentary

Chancery Court Declines Stockholder Invitations to Expand Transactions Subject to Appraisal Rights

K. Tyler O’Connell| June 06, 2018

Appraisal rights have been the subject of increased focus in the current, post-Corwin environment, in which a fully-informed noncoerced stockholder vote suffices to dispose of most M&A challenges.

News

Judge Orders Discovery on 'Unclean Hands' Defense in Humira Infringement Case

Tom McParland | June 05, 2018

A federal judge in Delaware has ordered AbbVie Inc. to turn over documents related to Boehringer Ingelheim's defense of unclean hands in a case accusing the German drugmaker of infringing 74 patents with a biosimilar version of AbbVie's immunosuppressant Humira.

News

Dr Pepper Investors Blocked From Pursuing Appraisal, Bouchard Rules

Tom McParland | June 04, 2018

Chancellor Andre G. Bouchard said the statutory remedy was not an option for two Florida-based pension funds because Dr Pepper itself would not be merged with Keurig, but would merely participate as a parent company in the transaction.

News

CBS Investors File Class Action Against Redstone, Saying She Improperly Blocked Dividend

Tom McParland | June 01, 2018

The new lawsuit, filed Thursday by a Pennsylvania-based pension fund, asserted individual and class action claims against CBS's controlling stockholder, adding yet another layer to the unfolding saga in Delaware Chancery Court.

News

Bouchard Tosses Derivative Suit Against Hortonworks Directors

Tom McParland | May 31, 2018

The Delaware Court of Chancery has dismissed a derivative suit accusing the directors of California-based software company Hortonworks Inc. of hiding the firm's troubled financial status from investors as they headed toward a capital raise to help the company pay its bills.

News

Redstone's Lawsuit Fires Back at Moonves in CBS Power Struggle

Tom McParland | May 30, 2018

In a new lawsuit, Redstone and her family's National Amusements Inc. holding company challenged several "unsupported, false and pretextual" assertions CBS has levied in recent weeks.

The Bankruptcy Proceedings of Three Prominent Shoe Stores

Edward E. Neiger| May 30, 2018

This issue of the Bankruptcy Update focuses on recent restructurings in the shoe industry. The column delves into the bankruptcy proceedings of Aerogroup International, Nine West and The Rockport Co.

Commentary

Court Denies TRO; Highlights the Difficulty of Board Conflicts With Controlling Stockholders

Ellis E. Herington| May 30, 2018

What obligations does a board of directors owe to a controlling stockholder? What actions can a board of directors take against a controlling stockholder?

Commentary

Appraisal, Quasi-Appraisal and Indemnification—Are Deals at Risk?

Larry R. “Buzz” Wood Jr., Adam V. Orlacchio and Craig Haring| May 30, 2018

Delaware litigators and deal lawyers around the globe are keen on accounting for the risk of dissenting stockholders exercising appraisal rights when negotiating and structuring a corporate transaction.

News

Del. Judge Denies Interest in Asbestos Coverage Dispute

Tom McParland | May 24, 2018

A Delaware judge on Wednesday rejected what he called a "peculiar" motion by an industrial pump manufacturer seeking prejudgment interest against excess insurers in a dispute over millions of dollars in asbestos-injury coverage, observing that no court had ever granted such a request without first finding damages.

News

Arista's Antitrust Suit Against Cisco OK'd for Trial

Scott Graham | May 23, 2018

U.S. District Judge Beth Labson Freeman of the Northern District of California ruled that Cisco's copyright suit combined with GC Mark Chandler's blog posts were enough to get by summary judgment.

News

CBS, in New Complaint Against Redstone, Says It Moved to Preserve Discretion of Independent Directors

Tom McParland | May 23, 2018

CBS on Wednesday defended a board vote that sharply reduced the voting power of Shari Redstone, its controlling stockholder, filing an amended complaint that her bid to block the move was "inequitable and invalid" and arguing that it acted to preserve the discretion of independent directors.

Commentary

Self-Dealing Conduct Supporting Fiduciary-Duty Claims Was Covered by Contractual Duties Imposed in the LLC Agreement

Albert H. Manwaring IV| May 23, 2018

The Delaware Limited Liability Company Act’s policy is to give the maximum effect to the principle of freedom of contract in LLC operating agreements.

News

Icahn Sues to Stop AmTrust's $2.7B Go-Private Deal

Tom McParland | May 22, 2018

Activist investor Carl Icahn on Monday sued AmTrust Financial Services Inc. in the Delaware Court of Chancery, accusing the New York-based workers' compensation insurer of undervaluing the company in a $2.7 billion go-private bid in order to benefit its controlling family.

News

Laster Sets Up Del. Supreme Court Challenge to His $3B Appraisal of Company HP Bought

Tom McParland | May 21, 2018

A Delaware Court of Chancery judge on Monday said that two recent decisions from the state Supreme Court represented an "unprecedented shift" in the way the state handles appraisal cases and that it would be up to the high court to sift through the errors in a ruling decision that has rankled petitioners and raised questions about the future of appraisal in the First State.

Del. Justices OK Dismissal of Suit Over Viacom Payments to Sumner Redstone

Tom McParland | May 21, 2018

The Delaware Supreme Court has upheld the dismissal of a derivative suit challenging more than $13 million in payments the Viacom Inc. board made to founder and former chairman Sumner Redstone, even as the billionaire media mogul's declining health prevented him from providing any services of value to the company.

In CBS Board's Showdown With Shari Redstone, Whose Move Is Next?

Tom McParland | May 18, 2018

The next chapter of CBS Corp.'s ongoing feud with Shari Redstone is set to turn on the validity of a board of directors' vote late Thursday to strip its controlling stockholder of her voting power and whether Redstone's National Amusements Inc. has the authority to block the move.

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Glasscock Lets Stand $1B ETE Equity Deal Despite Finding of 'Unfairness'

Tom McParland | May 18, 2018

A Delaware Court of Chancery judge on Thursday refused to cancel a 2016 deal in which Energy Transfer Equity issued $1 billion in equity units, finding there had been no harm to investors. At the same time, however, Vice Chancellor Sam Glasscock III said the transaction was unfair.