Author Archives: Brandon Harper

“Red Flags” and the Duty of Oversight

Sarah Baker Under Delaware law, the fiduciary duty of oversight imposes several obligations on boards of directors, including the responsibility to oversee companies and their employees by implementing compliance systems designed to detect and report corporate misconduct.  Courts have uniformly held … Continue reading

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Rule 23.1: Take it to the Board or the Court, Not Both

Kevin Packer In its recent decision in Zucker v. Hassell, the Court of Chancery addressed when a shareholder can have standing to pursue derivative actions in the demand refusal context. In Zucker the stockholder plaintiff argued that he had derivative … Continue reading

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Direct and Derivative Claims in El Paso v. Brinckerhoff

Melaina Hudack In its recent decision in El Paso v. Brinckerhoff, the Delaware Supreme Court reversed the Court of Chancery’s decision and, in doing so, helped to clarify how to determine whether a stockholder claim is derivative, direct, or both. … Continue reading

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In re OM Group, Inc. Stockholders Litigation: The Value of a Vote

Caneel Radinson-Blasucci In its recent In re OM Group, Inc. Stockholders Litigation (“OMG”) opinion, the Court of Chancery addressed an interesting wrinkle in determining the appropriate standard of review for assessing stockholder’s fiduciary duty claims regarding directors’ conduct in negotiating … Continue reading

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Post-Close Disclosure Claims in Nguyen v. Barrett

John Brady Nguyen v. Barrett deals with post-close claims of breach of fiduciary duty and improper/partial disclosure arising out of a Merger Agreement between Millennial Media, Inc. (“Millennial” or “The Company”) and AOL through which AOL would acquire Millennial through … Continue reading

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Genuine Parts Requires Genuine Jurisdiction: Protecting Our Economy Through Constitutional Principles

Brittany Giusini        The Delaware Supreme Court’s recent opinion in Genuine Parts Co. v. Cepec gives clarity to long-standing personal jurisdiction principles by acknowledging an unfettered exercise of judicial power over businesses creates constitutional and economic concerns. In Genuine Parts, a Georgia … Continue reading

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Annual Review of Key Delaware Corporate and Commercial Decisions

Francis Pileggi  This is the twelfth year that I am providing an annual list of key Delaware corporate and commercial decisions. In some of my past annual reviews, I listed only three key cases, and in other years I listed a few … Continue reading

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Rebutting Fairness in Business: A Look at In Re Books-A-Million

Lindsay Killian In its recent decision in In Re Books-A-Million, Inc. Stockholders Litigation (“BAM”), the Delaware Court of Chancery addressed a basis for challenging a shift from entire fairness review to the business judgment rule that the Delaware Supreme Court … Continue reading

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The Chancery Court Strictly Adheres to the Proper Purpose Requirement in 220 Actions in Two Recent Decisions

Katelyn Tuoni Section 220 of the Delaware General Corporation Law provides a process for stockholders to request access to a corporation’s books and records for inspection.  Section 220 requires that stockholders comply with certain procedural and substantive requirements for making … Continue reading

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Contractual Versus Statutory Rights In Books And Records Demands On Delaware Statutory Trusts

Jason Rigby In Grand Acquisition, LLC, v. Passco Indian Springs DST, the Delaware Court of Chancery determined a beneficial owner of a Delaware Statutory Trust (“DST”) had the right to inspect the books and records of the DST based on the … Continue reading

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Calesa Associates: Recognizing an Anomaly of Corporate Law Pleadings

Matthew Goeller In Calesa Associates, L.P. v. American Capital, Ltd., Vice Chancellor Glasscock denied defendants’ motion to dismiss plaintiffs’ claims alleging that directors of Halt Medical, Inc. (“Halt”) and its alleged controller American Capital, Ltd. (“American Capital”) had engaged in an … Continue reading

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In re Appraisal of Dell Inc.: Eliminating the Tension Between a Share-Tracing Requirement and the Continuous Record Holder Requirement

Ashley Callaway The Delaware Chancery Court caused quite a stir with the issuance of the opinion for In re Appraisal of Dell, Inc. last summer.  Articles with titles such as “Dell Stockholders Lose Appraisal Rights as Custodial Bank’s Common Back-Office … Continue reading

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Does the Equitable Mootness Doctrine Apply to Appeals from Chapter 7 Liquidations?

Jennifer Penberthy Buckley When implementation of a confirmed Chapter 11 plan proceeds while an appeal is pending, the District Court or the Court of Appeals may be presented with a dilemma. First, reversing the confirmed plan may detrimentally impact third … Continue reading

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Section 141(k) Mandatory Prohibition of For-Cause Removal of a Declassified Board

Kendra Rodwell On December 21, 2015, in In re Vaalco Energy Shareholder Litigation, the Delaware Court of Chancery granted the plaintiffs’ motion for summary judgment, invalidating a provision included in Vaalco Energy’s bylaws and charter that purported to make directors … Continue reading

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Applying Omnicare and Protecting Investors Under § 11 of the ‘33 Act

Nicholas D. Picollelli, Jr. In order for a company to offer securities in interstate commerce, it must comply with the requirements of the Securities Act of 1933.  The Securities Act “protects investors by ensuring that companies issuing securities . . … Continue reading

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In Re Trulia, Inc. Stockholder Litigation: End to Disclosure Settlements?

Erin Rogers In January 2016, the Court of Chancery issued an opinion in In re Trulia, Inc. Stockholder Litigation that will surely have an impact on the amount of disclosure settlements and merger-related litigation. The court expressed three concerns regarding … Continue reading

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The Impact of Obergefell on Employee Benefits in Delaware

Elizabeth Miosi On June 26, 2015, the United States Supreme Court issued its historic ruling in Obergefell v. Hodges, holding that the right to marry is a fundamental right inherent in the liberty protected by the Fourteenth Amendment. The opinion also mandates that … Continue reading

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