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DLA Piper: Delaware corporate litigation: a review of 2012’s developments and guidance for 2013

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Delaware corporate litigation: a review of 2012’s developments and guidance for 2013

DLA Piper
February 13, 2013
26 pages

Delaware Securities Litigation News

Paul Weiss: Delaware Court of Chancery Criticizes Board’s Sale Process [Koehler v. NetSpend Holdings Inc]

May 25, 2013 M&A Litigation (Delaware)

Milbank: Delaware Chancery Court Denies Summary Judgment on Revlon Claims [In re Plains Exploration & Production Company Stockholder Litigation]

May 16, 2013 M&A Litigation (Delaware)

Paul Weiss: Delaware Court of Chancery Declines to Enjoin Merger Vote, Affirming Single-Bidder Strategy [In re Plains Exploration & Production Co. S'holder Litig]

May 14, 2013 M&A Litigation (Delaware)

Top-Up Options in Two-Step Merger

Chadbourne & Parke: In Olson v. ev3, the Delaware Chancery Court Revisits Top-Up Options and Critiques the Appraisal Dilution Theory

Bingham: Delaware Provides Guidance on Tender Offer Top-up Options — Court Underscores Importance of Compliance With Statutory Requirements

Chadbourne & Parke: Top-Up Options

In re Smurfit-Stone Container Corp: Delaware Court on Revlon Duties in Mixed Consideration Merger

Morrison Foerster: Delaware Chancery Court Provides New Data Point for Application of Revlon Standard to Mixed Stock and Cash Mergers

Blank Rome: Chancery: 'Revlon' Duties Likely Apply to Mixed-Consideration Mergers

Milbank: Delaware Court Discusses Applicability of Revlon Standard to 50% Cash/50% Stock Merger

Meso Scale Diagnostics: Reverse Triangular Mergers & "Assignment by Operation of Law"

Edwards Wildman: Delaware Chancery Court Rules that a Reverse Triangular Merger Does Not Trigger Consent Requirement Under Non-Assignment Provision

Paul Hastings: Delaware Chancery Court Rules that a Reverse Triangular Merger Does Not Constitute an "Assignment by Operation of Law"

Arnold & Porter: Delaware Decision Should Clarify Novation Requirements

Del Monte: Boards Can Learn From Enjoined Buyout & Deal Provisions

Kaye Scholer: Lessons for Boards of Directors from In Re Del Monte Foods Company Shareholder Litigation

Morrison Foerster: The Del Monte Decision: Court Finds Likely Breach of Fiduciary Duties by Board Arising from Actions by Financial Advisor; Postpones Merger Vote and Enjoins Deal Protections

Foley & Lardner: Investment Banker Conflicts Attract Greater Judicial Scrutiny

Air Products v Airgas: Delaware Court Blesses Board Use of Poison Pill

Milbank: Court of Chancery Upholds Airgas' Use of Rights Plan as a Defense Against Hostile Takeover

Jackson Walker: Poison Pill Still a Viable Prescription in Delaware

Orrick: Delaware Court of Chancery Refuses to Order Airgas Board's Redemption of Poison Pill and Reaffirms Directors' Decision-Making Authority in Hostile Takeover Bid Context

Airgas: Attempt to Compress Corporate Calendar With Bylaw Amendment Fails

White & Case: Delaware Supreme Court Rejects Bylaw Amendment Curtailing Term of Staggered Board of Directors

Simpson Thacher: The Delaware Supreme Court Invalidates a Bylaw Amendment Changing the Date of Airgas, Inc.’s Annual Meeting

Shearman & Sterling: Delaware Supreme Court Reverses Chancery Court and Invalidates Proposed Bylaw Amendment that Would Have Reduced the Interval between Annual Meetings for Election of a Classified Board

In Re Dollar Thrifty: Process & Reasonableness Key to Revlon Duties

Skadden: Revlon Update: Rejection of Nominally Higher Offers Because of Nonconsummation Risks Upheld in Two Recent Delaware Court of Chancery Cases

Milbank: Delaware Court Refuses to Enjoin Dollar Thrifty Merger With Hertz

Kirkland & Ellis: Revlon — Different Strokes for Different Folks?

Delaware Court Okays Barnes & Noble Rights Plan

Jones Day: Barnes & Noble Defends Poison Pill Adopted in Context of Proxy Contest in Yucaipa

Mayer Brown: Delaware Courts Decide the Validity of Two Poison Pills

Milbank: Delaware Court of Chancery Upholds Rights Plan Adopted in Response to Open Market Stock Accumulation Program [Yucaipa American Alliance Fund II, L.P. v. Riggio]

Selectica & the "NOL" Poison Pill

Jackson Walker: Delaware Supreme Court Upholds NOL Stockholder Rights Plan

Milbank: Delaware Supreme Court Upholds Validity of “NOL” Rights Plan

Morrison Foerster: Delaware Supreme Court Upholds NOL Poison Pill

Hammons Hotels & Entire Fairness Standard of Review

Drinker Biddle: Procedural Safeguards in a Buyout Get a Boost [In re John Q. Hammons Hotels Inc. Shareholder Litigation]

Milbank: Delaware Court Cites Inadequacy of Minority Protections in Applying Entire Fairness Standard to Third Party Buy-out of a Controlled Corporation [John Q. Hammons Hotels Inc. Shareholder Litigation]

Shearman & Sterling: Delaware Court Clarifies Application of Entire Fairness Standard to Mergers Involving Controlling Shareholders [In re John Q. Hammons Hotels Inc. Shareholder Litigation]

Crown Emak v Kurz: Delaware Guidance on Vote Buying, Stock Transfers & Director Removal

Kirkland & Ellis: Delaware Supreme Court Issues Important Decision Regarding Vote Buying, Stock Transfer Restrictions, Definition of “Stock Ledger” and Director Reduction Bylaws [Crown Emak Partners, LLC v. Kurz]

Paul Weiss: Delaware Supreme Court Narrows Kurz v. Holbrook Ruling

Milbank: Delaware Supreme Court Reverses (In Part) Court of Chancery’s Ruling in Kurz

In re CNX Gas Corp & Going Private Transactions

Latham & Watkins: M&A Commentary - Practical Implications of CNX Gas on Controlling Shareholder Acquisitions

Milbank: Delaware Vice Chancellor Applies “Unified Standard” in Reviewing Minority Freeze-out by Controlling Stockholder [In re CNX Gas Corporation Shareholders Litigation]

Pillsbury: Two Noteworthy Delaware Court Rulings on Controlling Stockholder Transactions

Ebay v Craigslist: Takeover Defenses for Private Companies

Milbank: Delaware Court Confronts Alleged Breach of Fiduciary Duty by Majority Stockholders of Privately-Held Company [eBay Domestic Holdings, Inc. v. Newmark]

Skadden: The eBay Decision – Unique Battle With Craigslist Results in Guidance on Poison Pills and Staggered Boards

Mayer Brown: Delaware Courts Decide the Validity of Two Poison Pills

Lyondell, Revlon & The Duty of Good Faith

Squire Sanders: Lyondell: A Victory for Corporate Directors in the Delaware Supreme Court

Paul Hastings: Lyondell Chemical Co. v. Ryan: Yes, You Can (Purchase or Sell a Delaware Company with a Preemptive Bid to a Disinterested Board)

Sullivan & Cromwell: Delaware Supreme Court Rejects Bad Faith Claim Against Lyondell Board: The Court Rejects a Claim that a Truncated Sale Process Run by an Independent Board Violated the Directors’ Duty to Act in Good Faith

Hexion v Huntsman: Material Adverse Effect

Baker Hostetler: New Agreement Protections in the Wake of Huntsman v. Hexion

Blank Rome: Hexion v. Huntsman: What’s an MAE Anyway?

Weil Gotshal: The Delaware Court of Chancery Addresses Material Adverse Effect/Material Adverse Change Provisions in Hexion v. Huntsman

Maric v Plato Learning: Delaware Court Enjoins Merger Over Disclosure Concerns

ReedSmith: Maric Capital: Delaware Court of Chancery Halts Merger on Duty of Disclosure Grounds

Paul Hastings: Maric Capital v. PLATO Learning: Important Lessons for Disclosure

Shearman & Sterling: Delaware Court Enjoins Stockholder Vote Pending Additional Disclosure Regarding Financial Analyses, Management Projections and Discussions Regarding Post-Closing Employment [Maric Capital Master Fund, Ltd. v. PLATO Learning]

Gantler: Delaware Clarifies Fiduciary Duty of Officers & Application of "Shareholder Ratification Doctrine"

Perkins Coie: Delaware Supreme Court: Corporate Officers Have Same Fiduciary Duties as Corporate Directors; Common Law Shareholder Ratification Clarified: Gantler v. Stephens

DLA Piper: Landmark Decisions Clarify Duties of Officers and Directors to Their Stockholders

Milbank: Delaware Supreme Court Orders Chancery Court to Conduct Entire Fairness Review of Conflicted Board's Decision to Abandon Sale Process

Blackstone v ADS: "Corporate Formalities" Upheld as Non-signatory Not Liable for "Cabined" Acquisition Sub

Milbank: Delaware Chancery Court Respects "Corporate Formalities" in Determining that Only the Signatories to a Merger Agreement are Bound by its Terms

Ropes & Gray: Delaware Chancery Court Rejects Attempt to Hold Private Equity Owner Liable for Failure of Closing Condition

Paul Weiss: Private Equity Deal Structure Upheld in Delaware

Loral & Interested Party Transactions

Paul Hastings: Interested Party Transactions: Lessons from Loral

Fried Frank: Delaware Chancery Court Converts Voting Preferred Stock Issued to Controlling Stockholder Into Non Voting Common Stock

Milbank: Delaware Court Applies the "Entire Fairness Standard" in Determining that 35% Stockholder's Preferred Stock Investment Was Unfair

Realogy: Delaware Court Blocks Exchange of Unsecured for Secured Notes

Jones Day: Exchange Offer Developments: Delaware Court Declares Debt Exchange Offer in Violation of Bond Indenture

Paul Hastings: Realogy Check

Milbank: The Realogy Case: Noteholders Block an Exchange Offer