Tag: Delaware
Keeping Up With M&A Case Law – Spotlight on Recent Delaware Decisions
The mergers & acquisitions market may wax and wane, but one thing in M&A is consistent from year to year: The Delaware courts issue opinions that impact M&A dealmaking. And this year is certainly no exception – Delaware courts continue to have plenty to say about M&A. While certainly not […]
Highlights From the 2022 Berkeley Fall Forum on Corporate Governance
On November 8 and 9, Cooley and the Berkeley Center for Law and Business presented the 2022 Berkeley Fall Forum on Corporate Governance. The two-day event featured panel discussions on a range of topics, including emerging trends in M&A and capital markets, Delaware corporate jurisprudence, key boardroom strategy and governance best […]
Delaware bar recommends DGCL amendments, including officer exculpation charter provisions
The Council of the Corporation Law Section of the Delaware State Bar Association has provided recommendations to the Delaware General Assembly for a number of changes to the Delaware General Corporation Law, some of them significant, such as an amendment authorizing charter provisions that would eliminate the personal liability of specified officers […]
Delaware Advance Notice Decisions Highlight Move Toward Enhanced Scrutiny of Board Actions, Even Where Conflicts Exist
Like US constitutional law, Delaware courts apply a tiered standard of judicial review to actions taken by the board of directors of corporations: Business judgment deference (rational basis). Enhanced scrutiny under Unocal and Revlon (intermediate scrutiny). The compelling justification standard articulated in Blasius (strict scrutiny). In the constitutional arena, the […]
Delaware (Again!) Requires Upward Adjustment to Deal Price in Appraisal Proceeding Despite Objectively Fair Sales Process
A recent Court of Chancery decision adds yet another wrinkle to the appraisal landscape and the potential for appraisal arbitrage. In BCIM Strategic Value Master Fund LP v. HFF, Inc. (Del. Ch. Feb. 2, 2022), the court found that—despite a sufficiently robust sales process that supported ascribing heavy weight to […]
Delaware Finds Stockholder Claims Against SPAC Fiduciaries Subject to Entire Fairness Review
As SPAC IPOs broke records – in both value and volume – in 2020 (and again in 2021), it was inevitable that stockholder litigation would follow. More than 50% of the SPACs that went public in 2020 and 2021 are incorporated in Delaware, giving particular significance to SPAC litigation filed […]
Pleading Bad Faith Against Special Committee Members: A New Trend?
Special committees, by design, are created to address conflicts and to insulate the board of directors from liability for the very conflicts that may invite judicial scrutiny of the fairness of the board’s decision. A well-functioning special committee will also mitigate the risk of personal liability for a company’s fiduciaries, […]
Keeping Up with Delaware Appraisal Jurisprudence Since Aruba: Deal Price Reigns Supreme, But Will Recent Decision Lead to More Arbitrage?
In a string of seminal decisions from 2017 through 2019 (DFC Global, Dell and Aruba), the Delaware Supreme Court re-shaped appraisal jurisprudence, in each case by overturning the Court of Chancery for failing to give adequate weight to deal price as the most reliable indicator of fair value. In the […]
Have Your Cake, and Closing Too: Invoking Prevention Doctrine, Delaware Chancery Court Grants Seller’s Request for Specific Performance in COVID-Related M&A Dispute
Chancellor McCormick’s opinion in Snow Phipps Group, LLC, et al. v. KCake Acquisition, Inc., et al. (Del. Ch. April 30, 2021) is 125 pages long, but she helpfully digests the holding in a single sentence on page 3: “Chalking up a victory for deal certainty, this post-trial decision resolves all […]
Delaware Puts the Conduct of Business Covenant on Center Stage in COVID-Related M&A Dispute
In the months following the onset of the COVID-19 pandemic, a slew of parties filed lawsuits in US courts relating to M&A transactions that were signed prior to March 2020 and that buyers were seeking to terminate as a result of the pandemic. In these lawsuits, buyers commonly alleged one […]