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Delaware Corporate Law Bulletins Category

Chancery Court Finds Notice to Non-Consenting Stockholders Not a Precondition to an Effective Majority Written Consent

Jan. 15, 2020—Robert S. Reder & Jake Haskins | 73 Vand. L. Rev. En Banc. 53 | PDF Download Link “[N]otice issues were addressed by the Delaware Court of Chancery (“Chancery Court”) in Brown v. Kellar, C.A. No. 2018-0687-MTZ, 2018 WL 6721263 (Del. Ch. Dec. 21, 2018). First, Vice Chancellor Morgan T. Zurn considered whether “prompt notice”...

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Chancery Court Rejects Target Company Claim That Termination Fee Was Jilted Merger Partner’s Exclusive Remedy

Jan. 15, 2020—Robert S. Reder & Alexandra Sasha Gombar | 73 Vand. L. Rev. En Banc 45 | PDF Download Link “Recently, in Genuine Parts Co. v. Essendant Inc., C.A. No. 2018-0730-JRS, 2019 WL 4257160 (Del. Ch. Sept. 9, 2019) (“Genuine Parts”), the Chancery Court had another opportunity to analyze standard public merger agreement provisions. Vice Chancellor...

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Chancery Court Refuses Pleading Stage Dismissal Under Corwin When Stockholders Not Fully Informed of Long-Overdue Financial Restatement

Jan. 15, 2020—Robert S. Reder & Amanda M. Mitchell | 73 Vand. L. Rev. En Banc 35 | PDF Download Link “The factual bases underlying Vice Chancellor Slights’s refusal to entertain a Corwin defense at the pleading stage in Tangoe—delayed Securities and Exchange Commission (“SEC”) filings and inadequate financial statement disclosures to stockholders—are similar to the factual...

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Chancery Court Refuses to Dismiss Action to Enforce Post-Merger Covenant Due to Ambiguities in Merger Agreement

Jan. 15, 2020—Robert S. Reder & Faisal Q. Haider | 73 Vand. L. Rev. En Banc 27 | PDF Download Link “Notwithstanding the disavowal of covenant survival and third-party beneficiary rights, there are circumstances in which publicly traded targets bargain for post-merger covenants in public merger agreements. For instance, where a significant amount of acquiring company stock...

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Chancery Court Declines to Apply Corwin at Pleading Stage to “Cleanse” Breach of Fiduciary Duty Claim Due to Material Non-Disclosures

Jan. 15, 2020—Robert S. Reder & Robert W. Dillard | 73 Vand. L. Rev. En Banc 17 | PDF Download Link “In late 2018, the Delaware Court of Chancery (the “Chancery Court”) once again denied pleading-stage application of Corwin when faced with well-pled allegations a stockholder vote was not fully informed. In In re Xura, Inc. Stockholder...

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Chancery Court Finds Merger Agreement Preserved Sellers’ Privilege Over Pre-Merger Attorney-Client Communications

Jan. 15, 2020—Robert S. Reder & Jake Haskins | 73 Vand. L. Rev. En Banc 11 | PDF Download Link “Parties to a merger naturally retain individual legal counsel throughout the process. By operation of the merger statute, when the transaction closes all assets of each constituent corporation to the merger become assets of the surviving corporation....

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Delaware Court Refuses Corwin “Cleanse” Due to Inadequate Disclosures of Conflicts of Interest and Financial Projections

Jan. 15, 2020—Robert S. Reder & Kelsey McKeag | 73 Vand. L. Rev. En Banc 1 | PDF Download Link “In Chester County Employees’ Retirement Fund v. KCG Holdings, Inc., C.A. No 2017-0421-KSJM (Del. Ch. June 21, 2019) (“Chester County”), Vice Chancellor Kathaleen St. J. McCormick refused to grant dismissal of a former stockholder’s challenge of a...

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Chancery Court Applies M&F Framework to Transactions in Which Controlling Stockholders Allegedly Received “Unique Benefits”

May. 9, 2019—Robert S. Reder & Elizabeth F. Shore | 72 Vand. L. Rev. En Banc 221 | MFW Trio | Chancery Court Applies M&F Framework to Transactions in Which Controlling Stockholders Allegedly Received “Unique Benefits” | PDF Download Link | Three recent Chancery Court decisions focus on circumstances in which controlling stockholders, each alleged to have...

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Chancery Court Finds that Adverse Directors Not Entitled to Privileged Board Communications Concerning a Potential Merger

May. 9, 2019—Robert S. Reder & Katie Clemmons | 72 Vand. L. Rev. En Banc 249 | CBS Litigation | Chancery Court Finds that Adverse Directors Not Entitled to Privileged Board Communications Concerning a Potential Merger | PDF Download Link | Chancellor Andre G. Bouchard’s letter ruling in CBS Litigation provides a useful analysis how a board...

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Chancery Court Finds Corwin Applicable to Third-Party Buyout of a Company Controlled by a Large Stockholder

May. 9, 2019—Robert S. Reder | 72 Vand. L. Rev. En Banc 213 | English v. Narang | Chancery Court Finds Corwin Applicable to Third-Party Buyout of a Company Controlled by a Large Stockholder | PDF Download Link | The Chancery Court again considered the availability of a Corwin defense in connection with a third-party buyout of...

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Delaware Supreme Court Explores Application of MFW’s “Ab Initio” Requirement in Controlling Stockholder-Related Litigation

May. 9, 2019—Robert S. Reder | 72 Vand. L. Rev. En Banc 237 | Synutra and Olenik Appeals | Refusing to draw a bright-line, the Court focuses on the point at which “substantive economic negotiations” begin in determining whether failure to include MFW’s dual procedural protections in the initial offer may not be fatal to pleading-stage dismissal...

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Delaware Chancery Court Rejects Federal Forum Selection Clause for Securities Act Claims

May. 3, 2019—Robert S. Reder & Jóna N. Mays | 72 Vand. L. Rev. En Banc 183 | Sciabacucchi | Citing Boilermakers ruling, court distinguishes between internal and external claims | PDF Download Link | Vice Chancellor J. Travis Laster granted summary judgment to a plaintiff who attacked three such forum selection clauses, opinion that “[t]he constitutive...

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Dell Appraisal: Delaware Supreme Court Rejects Chancery Court Valuation Giving No Weight to Deal Price in Connection with Management-Led LBO

Apr. 29, 2019—Robert S. Reder & Micah N. Bradley | 72 Vand. L. Rev. En Banc 201 | Dell MBO | Reverses Chancery Court valuation that relied exclusively on a discounted cash flow analysis while giving no weight to deal price or stock market trading values | PDF Download Link | Delaware General Corporation Law §262 (“DGCL...

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Chancery Court Analyzes MFW’s “Ab Initio” Requirement in Controlling Stockholder Litigation

Feb. 15, 2019—Robert S. Reder & Ashleigh C. Bennett | 72 Vand. L. Rev. En Banc 117 | Olenik v. Lodzinski | Chancery Court Analyzes MFW’s “Ab Initio” Requirement in Controlling Stockholder Litigation | PDF Download Link | Distinguishes exploratory “discussions” from “negotiations” in determining that MFW’s “ab initio” requirement was satisfied.

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Chancery Court Declares Corwin is not a “Massive Eraser” for all Fiduciary Wrongdoing

Nov. 2, 2018—Robert S. Reder | 72 Vand. L. Rev. En Banc, 93 | In Re Massey Energy Co. | Chancery Court Declares Corwin is not a “Massive Eraser” for all Fiduciary Wrongdoing | PDF Download Link | Delaware court demands “a far more proximate relationship” between the transaction approved by stockholders and the claims sought to be...

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Delaware Supreme Court Once Again Reverses Dismissal of Fiduciary Breach Claims Brought Against Target Company Directors

Oct. 10, 2018—Robert S. Reder | 72 Vand. L. Rev. En Banc 71 | Morrison v. Berry | Delaware Supreme Court Once Again Reverses Dismissal of Fiduciary Breach Claims Brought Against Target Company Directors | PDF Download Link | Corwin defense defeated due to tendering stockholders not being “fully informed” as to founder’s side deal with winning bidder.

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