E-Alerts / Newsletters

• Beyond the Delaware Statutory Trust Act: Is Willful Misconduct the Floor for Liability?
  February 2, 2012
  Freedom of contract, including the ability to alter the fiduciary duties and liabilities of trustees, is the hallmark of Delaware trust law and may be the foremost reason for the preeminent position of the Delaware statutory trust in structured finance and investment fund transactions.
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• Gerber v. Enterprise Products Holdings, LLC: Court of Chancery Upholds Contractual Modifications of Fiduciary Duties
  January 12, 2012
  In Gerber v. Enterprise Products Holdings, LLC, C.A. No. 5989-VCN (Del. Ch. Jan. 6, 2012), the Court of Chancery enforced the contractual modification of fiduciary duties in Enterprise GP Holdings, L.P.'s partnership agreement and, on a motion to dismiss, dismissed all claims against the defendants arising out of the sale of a subsidiary by Enterprise GP Holdings to an affiliate and the subsequent merger of Enterprise GP Holdings into the same affiliate.
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• Condominium Project Recertification a Must
  January 5, 2012
  In the past few years the FHA has revised its loan underwriting requirements for condominium projects. Under recently updated FHA rules, entire condominium projects must receive FHA certification before buyers and owners will qualify for FHA loans.
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• 2011

• District Court Releases New Default Discovery Standards
  December 9, 2011
  On Thursday, December 8, the District Court released a new Default Standard for Discovery, Including Discovery of Electronically Stored Information, which each of the District Judges is expected to use.
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• Delaware Real Estate Law Update: Substantive Changes to Real Estate Broker Licensing Law
  November 21, 2011
  On August 3, 2011, Governor Jack Markell signed into law Senate Bill 154, as amended, which completely rewrites the section of the Delaware Code addressing the licensing of real estate brokers and salespersons.
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• District of Delaware Begins Magistrate Judge Pilot Program
  November 14, 2011
  The United States District Court for the District of Delaware has begun a pilot project by which the clerk of the court will randomly select a discrete number of cases for direct assignment to a magistrate judge in place of one of the district judges for pretrial case management.
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• Penn State Ordeal Reminds Employers that Clear Policies and Reporting Structures Are Critical
  November 11, 2011
  The events at Penn State shed light on a company’s obligation to promptly investigate and resolve, as appropriate, any and all allegations of wrongdoing.
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• Andrews Confirmed to the Delaware District Court
  November 3, 2011
  The Senate today voted unanimously to confirm the nomination of Richard G. Andrews to the United States District Court for the District of Delaware.
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• Recent Delaware Corporate Law Decisions
  October 31, 2011
  In recent months, Delaware courts have addressed a number of issues important to Delaware corporations and their advisors.
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• Johnston v. Pedersen: Court of Chancery Holds That Directors Violated Their Duty Of Loyalty When Issuing Preferred Stock To Friendly Stockholders
  October 31, 2011
  In Johnston v. Pedersen, the Court of Chancery held that the directors of a Delaware corporation violated their duty of loyalty when designing and issuing a new series of preferred stock because those directors intentionally “structure[d] the stock issuance to prevent an insurgent group from waging a successful proxy contest.”
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• Bank of New York Mellon Trust Co. v. Liberty Media Corp.: Delaware Supreme Court Applies New York Law to "Substantially All" Provision of Indenture and Declines to Aggregate Series of Dispositions
  October 31, 2011
  In Bank of New York Mellon Trust Co. v. Liberty Media Corp., the Delaware Supreme Court held that the split-off of the Capital and Starz business groups following three other major distributions of assets since 2004 did not constitute a transfer of “substantially all” of the assets of Liberty Media Corporation and its wholly owned subsidiary, Liberty Media LLC, under the terms of an indenture.
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• New Jersey Carpenters Pension Fund v. infoGROUP, Inc.: Court of Chancery Finds Complaint Adequately States Claim that Entire Board Dominated by the Company's Largest Stockholder
  October 31, 2011
  In New Jersey Carpenters Pension Fund v. infoGROUP, Inc., the Court of Chancery refused to dismiss a breach of fiduciary duty claim where the plaintiff had adequately pled that the founder and largest stockholder of defendant infoGROUP, Inc. dominated his fellow directors and forced them to approve a sale of the company at an unfair price in order to provide himself with some much-needed liquidity.
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• Central Mortgage Co. v. Morgan Stanley Mortgage Capital Holdings LLC: Delaware Supreme Court Holds that the Governing Pleading Standard in Delaware to Survive a Motion to Dismiss is Reasonable Conceivability
  October 31, 2011
  In Central Mortgage Co. v. Morgan Stanley Mortgage Capital Holdings LLC, the Delaware Supreme Court declined to address whether the “plausibility” standards set forth in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal should be applied in Delaware, and instead unanimously held that until the Delaware Supreme Court “decides otherwise or a change is duly effected through the Civil Rules process, the governing pleading standard in Delaware to survive a motion to dismiss is reasonable ‘conceivability.’”
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• In re OPENLANE, Inc. Shareholders Litigation: Court of Chancery Denies Injunction Motion Where Merger Agreement Lacks Fiduciary Out
  October 31, 2011
  In In re OPENLANE, Inc. Shareholders Litigation, the Court of Chancery denied a motion to enjoin preliminarily the merger between OPENLANE, Inc. and KAR Auction Services, Inc. (through its wholly-owned subsidiary, ADESA, Inc.) (“KAR”), even though the merger agreement did not include a fiduciary-out and the transaction was effectively locked-up within 24 hours after signing by written consents from the holders of a majority of its stock.
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• Alta Berkeley VI C.V. v. Omneon, Inc.: Delaware Superior Court's Complex Commercial Litigation Division Construes Corporation's Certificate of Incorporation Against Former Preferred Stockholders
  October 31, 2011
  In Alta Berkeley VI C.V. v. Omneon, Inc., the Delaware Superior Court’s Complex Commercial Litigation Division denied a claim for a liquidation preference by certain former preferred stockholders of Omneon, Inc. in connection with a merger between Omneon and Harmonic, Inc.
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• Amirsaleh v. Board of Trade: Delaware Supreme Court Emphasizes Requirements for a Waiver of Contractual Rights to be Retracted
  October 31, 2011
  In Amirsaleh v. Board of Trade, the Delaware Supreme Court held that appellee Board of Trade of the City of New York, Inc. (“NYBOT”) had not validly retracted its previous waiver of a contractual deadline by which its members were supposed to elect the form of consideration they would receive in connection with NYBOT’s 2007 merger with Intercontinental Exchange, Inc.
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• In re Southern Peru Copper Corp. Shareholder Derivative Litigation: Court of Chancery Grants Billion Dollar Damage Award
  October 17, 2011
  In In re Southern Peru Copper Corp. Shareholder Derivative Litigation, C.A. No. 961-CS (Del. Ch. Oct. 14, 2011), the Court of Chancery awarded $1.263 billion as damages in a derivative action challenging the acquisition by Southern Peru Copper Corporation of another corporation controlled by Southern Peru's controlling stockholder since the Court determined after trial that the controlling stockholder defendants breached their duty of loyalty.
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• In re Goldman Sachs Group, Inc. Shareholder Litigation: Court of Chancery Dismisses Compensation and Oversight Claims Against Directors
  October 13, 2011
  In his first major corporate decision, Vice Chancellor Glasscock dismissed a stockholder derivative action brought against directors and officers of Goldman Sachs.
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• Andrews Nomination to Delaware District Court Advances to Senate Vote
  September 9, 2011
  The Senate Judiciary Committee this week voted unanimously to forward the nomination of Richard G. Andrews to the full Senate for confirmation.
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• New Mandatory Posting Requirements for Employers
  September 8, 2011
  On August 30, 2011, the National Labor Relations Board (NLRB) issued a final rule that requires all employers subject to the NLRB's jurisdiction to post a notice informing employees of their rights under the National Labor Relations Act.
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• Delaware Real Estate Law Update - Legislature Removes Impediment to Seller Financing of Commercial Real Estate
  August 11, 2011
  On July 13, 2011, Governor Jack Markell signed Senate Bill 104. This legislation excludes the application of 25 Del. C. § 314(c) to most commercial real estate contracts involving seller financing.
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• In re Massey Energy Company Derivative and Class Action Litigation: Court of Chancery Discusses Valuation of Potential Derivative Claims and Declines to Enjoin Merger
  August 1, 2011
  In In re Massey Energy Company Derivative and Class Action Litigation, the Delaware Court of Chancery declined to preliminarily enjoin a merger between Massey Energy Company and Alpha Natural Resources, Inc.
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• Krieger v. Wesco Financial Corporation: Court of Chancery Applies Unified Standard of Review to Controlling Stockholder Transaction and Considers Entitlement to Appraisal Rights in Cash/Stock Election Transaction
  August 1, 2011
  In Krieger v. Wesco Financial Corporation, the Delaware Court of Chancery denied plaintiff stockholder's motion for a preliminary injunction against a proposed acquisition of Wesco Financial Corporation by Berkshire Hathaway , the holder of 80.1% of the Company's common stock, in which Berkshire sought to acquire the remaining outstanding shares of common stock.
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• In re Orchid Cellmark Inc. Shareholder Litigation: Court of Chancery Addresses Deal Protections and Adequacy of Disclosures
  August 1, 2011
  In In re Orchid Cellmark Inc. Shareholder Litigation, the Delaware Court of Chancery denied plaintiffs' motion to enjoin preliminarily a cash tender offer by Laboratory Corporation of America Holdings, Inc. for all of the shares of Orchid Cellmark Inc. for $2.80 per share under an Agreement and Plan of Merger, dated April 5, 2011.
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• Goggin v. Vermillion, Inc.: Court of Chancery Applies Airgas to Address Timing of Annual Meeting
  August 1, 2011
  In Goggin v. Vermillion, Inc., Vice Chancellor Noble, interpreting the Delaware Supreme Court's opinion in Airgas, Inc. v. Air Products and Chemicals, Inc., denied plaintiff's motion to enjoin the 2011 annual stockholders meeting of Vermillion, Inc., which was scheduled to occur six months after the 2010 annual meeting.
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• In re Del Monte Foods Company Shareholders Litigation: Court of Chancery Awards Plaintiff's Counsel $2.75 Million in Attorneys' Fees and Expenses for Supplemental Disclosures
  August 1, 2011
  In In re Del Monte Foods Company Shareholders Litigation, the Delaware Court of Chancery awarded plaintiff's counsel $2.75 million in attorneys' fees and expenses for supplemental disclosures achieved during the preliminary injunction phase of the case.
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• 2011 Amendments to the General Corporation Law of the State of Delaware
  August 1, 2011
  Legislation amending the General Corporation Law of the State of Delaware has been adopted by the Delaware General Assembly and was signed by the Governor of the State of Delaware on July 7, 2011.
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• Kahn v. Kohlberg Kravis Roberts & Co., L.P.: Delaware Supreme Court Holds that Derivative Claims for Insider Trading Need Not Plead Actual Harm to Corporation
  August 1, 2011
  In Kahn v. Kohlberg Kravis Roberts & Co., L.P., the Delaware Supreme Court held that a plaintiff may state a derivative claim for insider trading without a showing of actual harm to the corporation.
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• In re Smurfit-Stone Container Corp. Shareholder Litigation: Court of Chancery Considers Applicability of Revlon in Cash/Stock Transaction
  August 1, 2011
  In In re Smurfit-Stone Container Corp. Shareholder Litigation, the Delaware Court of Chancery addressed "whether and in what circumstances Revlon applies when merger consideration is split roughly evenly between cash and stock."
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• 2011 Amendments to the Delaware Statutory Trust Act
  July 26, 2011

  The Delaware Statutory Trust Act, 12 Del. C. § 3801, et seq. (the "Act"), was amended on July 13, 2011 in order to address several technical issues. The amendments to the Act (the "2011 Amendments") are set forth in House Bill No. 115.

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• Delaware LLC & Partnership Law Update: Amendments to Delaware's Alternative Entity Legislation Enacted
  July 14, 2011

  The Delaware General Assembly has recently enacted legislation amending the Delaware Limited Liability Company Act, the Delaware Revised Uniform Partnership Act and the Delaware Revised Uniform Limited Partnership Act.

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• Delaware Real Estate Law Update: Street Connections Through Age-Restricted Communities
  June 6, 2011
  On May 19, 2011, Governor Markell signed Senate Bill No. 9, as amended. This legislation prohibits the Delaware Department of Transportation from accepting as a public street certain roads that will connect to an existing road system in a community restricted to age 55 or older.
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• Delaware Employers Urged to Review and Revise Employment Policies and Compensation Plans in Light of Delaware's Recently Enacted Civil Union and Equality Act
  June 1, 2011
  Recently, Delaware Governor Jack Markell signed the Civil Union and Equality Act of 2011 legalizing civil unions for same-sex couples in the state.
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• Delaware Intellectual Property Law Update: Progress Made in Delaware District Court Vacancies (Updated 27 May)
  May 27, 2011
  On Wednesday, May 11, 2011, President Obama nominated Richard G. Andrews to fill the vacancy in the United States District Court for the District of Delaware.
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• Delaware Intellectual Property Law Update
  May 27, 2011
  In the last few months, the United States District Court for the District of Delaware has issued a number of decisions of note in the intellectual property area.
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• Olson v. ev3, Inc., et al.: Court of Chancery Addresses Validity of Top-Up Option
  April 28, 2011
  In Olson v. ev3, Inc., et al., C.A. No. 5583-VCL (Del. Ch. Feb. 21, 2011), the Court of Chancery awarded plaintiff's counsel the full amount of attorneys' fees and expenses requested—$1.1 million—for what was, according to the Court, "the first meaningful full-scale challenge to the use of a top-up option."
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• Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH: Court of Chancery Considers Whether a Reverse Triangular Merger is an Assignment by Operation of Law
  April 28, 2011
  In Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH, the Court of Chancery considered whether a reverse triangular merger would result in an assignment by operation of law—an issue of first impression under Delaware law.
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• S. Muoio & Co. LLC v. Hallmark Entertainment Investments Co., et al.: Court of Chancery Upholds Recapitalization as Entirely Fair
  April 28, 2011
  In S. Muoio & Co. LLC v. Hallmark Entertainment Investments Co., et al., the Court of Chancery held that a recapitalization of Crown Media Holdings, Inc. by its controlling stockholder and primary debtholder, Hallmark Cards, Inc. and its affiliates, was entirely fair.
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• Fletcher International, Ltd. v. ION Geophysical Corp.: Court of Chancery Interprets Consent Right of Preferred Stockholder
  April 28, 2011
  The efforts of Fletcher International, Ltd. to block a joint venture between ION Geophysical Corp. and China National Petroleum Corporation have resulted in multiple opinions interpreting Fletcher's rights as a preferred stockholder of ION.
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• In re Atheros Communications, Inc. Shareholder Litigation: Court of Chancery Requires Disclosure of Percentage of Financial Advisory Fees That Were Contingent on Transaction Closing
  April 28, 2011
  In In re Atheros Communications, Inc. Shareholder Litigation, the Court of Chancery preliminarily enjoined Atheros Communications, Inc. from holding a meeting of its stockholders to vote on a $3.1 billion all-cash merger agreement with Qualcomm Incorporated, pending appropriate distribution of curative proxy disclosures regarding contingency fees to be paid to Atheros' financial advisor, and the potential employment of Atheros' CEO by Qualcomm.
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• William Penn Partnership v. Saliba, C.A. No. 111 (Del. Feb. 9, 2011): Burden of Demonstrating Entire Fairness Falls on Defendants in an Interested Transaction
  April 6, 2011
  In William Penn, the Delaware Supreme Court considered whether the Delaware Court of Chancery erred when it held that William Lingo and Bryce Lingo, through their ownership in William Penn Partnership, a Delaware limited partnership, breached their fiduciary duties to the members of Del Bay Associates, LLC, a Delaware limited liability company (“Del Bay”), and awarded attorneys’ fees and costs to the plaintiff members of Del Bay due to the pre-litigation conduct of the Lingos.
  
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• Delaware LLC & Partnership Law Update
  April 6, 2011
  In two recent decisions, the Delaware Supreme Court addressed the fiduciary duties of controlling persons of a Delaware limited liability company, and the Delaware Chancery Court considered a request for access to a Delaware limited liability company's books and records.
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• Sanders v. Ohmite Holding, LLC, C.A. No. 5145-VCL (Del. Ch. Feb. 21, 2011): Plaintiff Demonstrates Proper Purpose in Requesting Inspection of an LLC’s Books and Records
  April 6, 2011
  In Sanders v. Ohmite, the Delaware Court of Chancery considered whether plaintiff Max Sanders, as a member of Ohmite Holding, LLC, a Delaware limited liability company (the “Company”), was entitled to inspect certain books and records of the Company pursuant to Section 18-305 of the Delaware Limited Liability Company Act.
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• Delaware Real Estate Law Update: Revised Seller's Disclosure Forms Create New Burdens for Builders and Other Sellers
  April 6, 2011
  Effective January 1, 2011, the forms of Seller’s Disclosure of Real Property Condition Report and Seller’s Disclosure of Real Property Condition Report - New Construction Only include several new disclosures that are now required under Delaware law to be provided to a prospective buyer of residential property prior to the time that the buyer makes an offer to purchase the property.
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• Delaware Real Estate Law Update: Revised Seller's Disclosure of Real Property Condition Report Forms Create New Burdens for Builders and Other Sellers
  April 5, 2011
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• Delaware Labor & Employment Law Update: EEOC Issues Final Regulations on the ADA Amendments
  March 31, 2011
  On March 24, 2011, the EEOC issued final regulations to implement the ADAAA which become effective June 24, 2011.
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• Intellectual Property - Requests for Stay
  February 22, 2011
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• Intellectual Property - Miscellaneous
  February 22, 2011
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• Intellectual Property - Summary Judgment
  February 22, 2011
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• Air Products & Chemicals, Inc. v. Airgas, Inc.: Court of Chancery Declines to Enjoin Airgas Poison Pill
  February 16, 2011
  Marking the latest chapter in the attempt of Air Products and Chemicals, Inc. to acquire Airgas, Inc., the Court of Chancery ruled for defendant Airgas.
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• In re Del Monte Foods Company Shareholders Litigation: Court of Chancery Enjoins Stockholder Vote and Enforcement of Deal Protection Provisions
  February 15, 2011
  In In re Del Monte Foods Company Shareholders Litigation, the Court of Chancery found on a preliminary record that a proposed $5.3 billion cash merger (including assumption of debt) with a group of private equity buyers was potentially tainted by alleged misconduct by the target banker, with the alleged knowing participation of the buyers.
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• Recent Delaware Corporate Law Decisions
  February 1, 2011
  In recent months, the Delaware courts have addressed important issues for Delaware corporations and their advisors.
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• Golden Telecom, Inc. v. Global GT LP and Roam-Tel Partners v. AT&T Mobility Wireless Op. Holdings Inc.: Developments in the Law of Appraisal
  February 1, 2011
  In Golden Telecom, the Supreme Court declined to impose strict requirements on the trial court’s determination of fair value, including deference to merger price or a requirement that the subject company be bound by previously disseminated company-specific data. In AT&T Mobility, the Court of Chancery held that a stockholder has the entire 20-day statutory period to consider whether or not to seek appraisal, and may even revoke a prior waiver of appraisal rights during that period, under certain circumstances.
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• Blades v. Wisehart: Court of Chancery Confirms that Strict Adherence to Corporate Formalities Required in Implementing a Stock Split
  February 1, 2011
  In Blades v. Wisehart, the Court of Chancery held that a corporation had not validly effectuated a stock split because it had not complied with the requisite corporate formalities, notwithstanding that the corporation’s board and stockholders all had the subjective intent to effectuate the split.
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• Scully v. Nighthawk Radiology Holdings, Inc.: Court of Chancery Questions Potential Collusive Forum Shopping in Settlement of Stockholder Litigation
  February 1, 2011
  At a status conference in Scully v. Nighthawk Radiology Holdings, Inc., Vice Chancellor Laster stated that there was prima facie evidence of collusive forum shopping in connection with a settlement of multi-jurisdictional, representative litigation challenging the fairness of a merger and announced that he would appoint special counsel to the Court to investigate these issues and possibly to recommend disciplinary action.
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• Narrowstep, Inc. v. Onstream Media Corp.: Court of Chancery Relies on United States Supreme Court's Twombly Motion to Dismiss Standard in Analyzing Failed Merger Claims Against Acquiror
  February 1, 2011
  In Narrowstep, Inc. v. Onstream Media Corp. the Court of Chancery, expressly relying on the motion to dismiss standard articulated by the United States Supreme Court in Bell Atlantic v. Twombly, dismissed an implied covenant of good faith and fair dealing claim but refused to dismiss claims for breach of fiduciary duty, fraud and unjust enrichment in connection with the failed merger between Narrowstep Inc. and Onstream Media Corporation.
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• King v. VeriFone Holdings, Inc.: Derivative Plaintiffs May Inspect Books and Records After Filing Derivative Action
  February 1, 2011
  In King v. VeriFone Holdings, Inc., the Delaware Supreme Court reversed the Court of Chancery’s decision that established a bright-line rule barring stockholder-plaintiffs from seeking books and records pursuant to 8 Del. C. § 220 (“Section 220”) solely because they filed a derivative action first.
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• In re Art Technology Group, Inc. Shareholders Litigation and Steinhardt v. Howard-Anderson: Court of Chancery Enjoins Two Transactions Pending Additional Disclosures and Comments on Applicability of Revlon to Mixed Consideration Transaction
  February 1, 2011
  The Court of Chancery in In re Art Technology Group, Inc. Shareholders Litigation enjoined a merger until the target company disclosed to its stockholders additional information about its financial advisor’s prior work for the buyer. In Steinhardt v. Howard-Anderson the Court of Chancery applied the enhanced Revlon standard of review to a stockholder’s motion to preliminarily enjoin the acquisition of Occam Networks, Inc. by Calix, Inc. whereby Occam stockholders would receive cash and stock consideration.
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• SV Investment Partners, LLC v. ThoughtWorks, Inc.: Court of Chancery Interprets Redemption Rights of Preferred Stockholder
  February 1, 2011
  Following trial in SV Investment Partners, LLC v. ThoughtWorks, Inc. the Court of Chancery rejected a preferred stockholder’s argument that the phrase “funds legally available” is equivalent to “surplus” in the context of redemption rights and entered judgment against the preferred stockholder.
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• In re John Q. Hammons Hotels Inc. Shareholder Litigation: Delaware Court of Chancery Rules In Favor Of Controlling Stockholder After Trial
  January 14, 2011
  Following trial in In re John Q. Hammons Hotels Inc. Shareholder Litigation, the Court of Chancery ruled in favor of defendants, finding that the merger price was fair value, that controlling stockholder John Q. Hammons did not breach his fiduciary duties, and that the third-party acquirers did not aid and abet a (nonexistent) fiduciary duty breach.
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• Techmer Accel Holdings, LLC v. Amer: The Delaware Court of Chancery Discusses the Different Statutory Approaches that Apply to Distributions Made by a Limited Partnership Before and After Dissolution
  January 11, 2011
  In a recent case, the Delaware Court of Chancery addressed cross-motions for summary judgment in a case involving defendants Crescent Private Capital, L.P., a Delaware limited partnership, and Crescent Gate Partners, L.L.C., a Delaware limited liability company.
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• 2010

• Delaware Real Estate Law Update: Tax Withholding Form Issued for All Sellers of Delaware Real Estate
  December 28, 2010
  Legislation effective for tax periods after December 31, 2010, requires non-resident sellers of Delaware real estate to report and remit an estimated state income tax on capital gains realized from the sale of that real estate.
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• Airgas, Inc. v. Air Products and Chemicals, Inc.: Delaware Supreme Court Reverses Chancery Court Ruling on Terms of Directors Serving on Classified Boards
  November 23, 2010
  In Airgas, Inc. v. Air Products and Chemicals, Inc., the Delaware Supreme Court reversed the ruling of the Delaware Chancery Court upholding the validity of a stockholder-proposed bylaw accelerating Airgas’s annual meeting by approximately eight months.
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• Labor & Employment Law Update: EEOC Issues Final GINA Regulations
  November 18, 2010
  The Equal Employment Opportunity Commission (EEOC) has issued final regulations interpreting the Genetic Information Nondiscrimination Act (GINA), which will become effective on January 10, 2011.
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• Delaware Bankruptcy Court Decision Strictly Construes Plan Provisions Putting Burden on Subscribers to Properly Prepare and Submit Subscription Forms in Rights Offerings
  November 18, 2010
  Delaware Bankruptcy Judge Shannon holds in the Accuride chapter 11 case that a noteholder, who gave erroneous information to the debtor in its subscription to a rights offering for new notes pursuant to a plan, was not entitled to an additional distribution to cover the difference in value between what it thought it was subscribing for and what it actually submitted to the debtor in its subscription form.
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• CML V, LLC v. Bax: The Delaware Court of Chancery Discusses Creditors' Standing to Bring Derivative Claims Under the LLC Act and Confirms Creditors' Protective Options Under the LLC Act
  November 17, 2010
  In a recent opinion, the Delaware Court of Chancery considered whether creditors of an insolvent limited liability company have standing to assert derivative claims under the Delaware Limited Liability Company Act.
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• Lonergan v. EPE Holdings LLC: The Delaware Court of Chancery Discusses the Implied Covenant of Good Faith and Fair Dealing
  November 8, 2010
  In a recent opinion, the Delaware Court of Chancery further clarified the role of the implied covenant of good faith and fair dealing in interpreting a limited partnership agreement.
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• Delaware LLC & Partnership Law Update - November 2010
  November 8, 2010
  In three recent decisions, the Delaware Court of Chancery addressed important issues in connection with the restructuring of publicly traded alternative entities. The issues addressed included fiduciary duties and the implied contractual covenant of good faith and fair dealing.
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• In re Inergy L.P. Unitholder Litigation: The Delaware Court of Chancery Applies Standards Set Forth in Limited Partnership Agreement of a Delaware Limited Partnership and Declines to Enjoin a Simplification Transaction
  November 8, 2010
  In a recent opinion, the Delaware Court of Chancery applied standard Delaware contract interpretation principles to interpret a limited partnership agreement of a Delaware master limited partnership and permitted a strategically compelling simplification transaction to proceed.
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• In re Atlas Energy Resources, LLC, Unitholder Litigation: The Delaware Court of Chancery Discusses Fiduciary Duties and the Implied Covenant of Good Faith and Fair Dealing in a Case Involving a Publicly Traded Limited Liability Company
  November 8, 2010
  In Atlas, the Delaware Court of Chancery considered issues relating to the modification and elimination of fiduciary duties in a limited liability company agreement and the implied covenant of good faith and fair dealing in connection with a challenged merger.
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• Aveta Inc. v. Cavallieri: Court of Chancery Holds that Non-Signatories Are Bound By Terms of Purchase Agreement, Including the Forum Selection Clause, and Upholds Irrevocable Authority of Stockholders’ Representative
  October 28, 2010
  In Aveta Inc. v. Cavallieri, C.A. No. 5074-VCL (Del. Ch. Sept. 20, 2010), the Court of Chancery held that the contractual process for calculating post-closing adjustments to plaintiff’s purchase price for Preferred Medical Choice Inc. (“PMC”) was binding on all former PMC stockholders.
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• In re Cogent, Inc. Shareholder Litigation: Court of Chancery Allows Tender Offer to Proceed, Finding that Deal Protection Devices, Including the Use of a Top-Up Option, Were Not Unreasonably Preclusive
  October 28, 2010
  In In re Cogent, Inc. Shareholder Litigation, Cons. C.A. No. 5780-VCP (Del. Ch. Oct. 5, 2010), the Delaware Court of Chancery denied plaintiffs’ motion for a preliminary injunction, which sought to enjoin a two-step acquisition in which a third-party acquiror, 3M Company (“3M”), agreed to commence a tender offer for the stock of the target corporation, Cogent, Inc. (“Cogent”), to be followed by a back-end merger at the same tender offer price.
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• City of Westland Police & Fire Retirement System v. Axcelis Technologies, Inc.: Delaware Supreme Court Clarifies Section 220 Standard in the Context of a Board-Adopted “Plurality Plus” Governance Policy
  October 28, 2010
  In City of Westland Police & Fire Retirement System v. Axcelis Technologies, Inc., No. 594, 2009 (Del. Aug. 11, 2010), the Delaware Supreme Court affirmed the dismissal of a books and records action under 8 Del. C. § 220 (“Section 220”), holding that plaintiff did not meet its evidentiary burden to demonstrate a “proper purpose” to support inspection where a board of directors rejected the resignations of three directors who failed to receive a majority of the votes cast in an uncontested election.
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• eBay Domestic Holdings, Inc. v. Newmark: Court of Chancery Rescinds Private Company’s Poison Pill and Right of First Refusal Agreement; Upholds Staggered Board Amendments
  October 28, 2010
  The Delaware Court of Chancery’s decision in eBay Domestic Holdings, Inc. v. Newmark, C.A. No. 3705-CC (Del. Ch. Sept. 9, 2010), provides important insight on the use—and possible limitations—of takeover defense mechanisms in the context of private, closely held corporations.
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• In re Dollar Thrifty Shareholder Litigation and Forgo v. Health Grades, Inc.: Value Maximization Under Revlon
  October 28, 2010

  In two recent decisions, the Delaware Court of Chancery analyzed whether a board of directors satisfied its obligations under Revlon where the board focused primarily on a "single bidder" strategy in seeking to sell the corporation.

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• Lambrecht v. O’Neal: Delaware Supreme Court Clarifies Standing Requirements for Maintaining a “Double Derivative” Suit Under Delaware Law
  October 28, 2010
  In Lambrecht v. O’Neal, No. 135, 2010, 3 A.3d 277 (Del. Aug. 27, 2010), the Delaware Supreme Court answered a certified question of law submitted by the United States District Court for the Southern District of New York (the “Southern District Court”). In this en banc opinion, the Delaware Supreme Court clarified the standing requirements for maintaining a “double derivative” suit under Delaware law.
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• Delaware Amends Unclaimed Property/Escheat Laws
  October 28, 2010
  Enacted in July 2010, 77 Del. Laws, c. 417 (the “Act”) represents a significant development in the area of unclaimed property administration in Delaware. The Act has three main components: (1) changes to the procedures related to the manner in which unclaimed property assessments are prosecuted; (2) a declaration that “uninvoiced payables” will not be considered escheatable property; and (3) provisions related to the State Escheator’s power to use estimation techniques to determine unclaimed property liability.
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• Recent Delaware Corporate Law Decisions and Amendments to Unclaimed Property/Escheat Laws
  October 28, 2010
  In recent months, the Delaware courts have addressed important issues for Delaware corporations and their advisors. The recent amendments to Delaware’s unclaimed property/escheat laws may also be of interest to Delaware corporations and their advisors.
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• WaveDivision Holdings, LLC v. Millennium Digital Media Systems, L.L.C.: Court of Chancery Makes Clear that a Fiduciary Out Is Not Required so Long as There Was No Breach of Fiduciary Duty When Entering into the Contract
  October 28, 2010
  In WaveDivision Holdings, LLC v. Millennium Digital Media Systems, L.L.C., C.A. No. 2993-VCS (Del. Ch. Sept. 17, 2010), the Court of Chancery made clear that if there is no violation of fiduciary duty when entering into an agreement not to solicit other offers, then the company is obligated to honor its commitment.
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• Airgas, Inc. v. Air Products and Chemicals, Inc.: Court of Chancery Affirms Validity of Bylaw Accelerating Timing of Annual Meeting for Election of Classified Board
  October 11, 2010

  In a case of first impression, the Delaware Court of Chancery considered the validity of a stockholder-proposed bylaw amendment causing a corporation’s annual meeting to be held each year in the month of January, as opposed to the month of August, when the corporation’s annual meetings had historically been held.

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• Versata Enterprises, Inc. v. Selectica, Inc.: The Delaware Supreme Court Upholds Adoption and Use of NOL Pill as Proper Exercise of Directors’ Business Judgment Under Unocal
  October 4, 2010
  On October 4, 2010, the Delaware Supreme Court issued an opinion affirming the Court of Chancery’s decision in Selectica, Inc. v. Versata, Inc.
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• Delaware Bankruptcy Law Update: In re Leslie Controls, Inc.
  September 24, 2010
  Delaware Bankruptcy Court holds that the “common interest doctrine” protects privileged communications that the Debtor shared with pre-petition Ad Hoc Committee.
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• Delaware Real Estate Law Update: Commercial Loan Insurance Requirements Now Enforceable
  August 24, 2010
  On July 27, 2010, Governor Markell signed into law House Bill 371, which corrected a long standing problem for lenders making commercial loans in Delaware.
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• Delaware Real Estate Law Update: Estimated Taxes for Non-Resident Sellers of Delaware Real Estate
  August 24, 2010
  On June 11, 2010, Governor Markell signed into law House Bill 349, which requires non-resident sellers of Delaware real estate to report and remit an estimated state income tax on capital gains recognized from the sale of that real estate.
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• Judge Stark Sworn in as Judge for the District of Delaware
  August 16, 2010
  On August 16, 2010, Leonard P. Stark was sworn in as a U.S. District Court Judge for the District of Delaware.
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• Chancery Court Analysis of Rights Plan with a 20% Trigger: Yucaipa American Alliance Fund II, L.P. v. Riggio et al.
  August 12, 2010

  In Yucaipa v. Riggio, the Delaware Court of Chancery confirmed in a post-trial decision that a board's decision to adopt and maintain a stockholder rights plan triggered upon the acquisition of beneficial ownership of more than 20% of the company's shares is subject to Unocal review, even where the board "grandfathers" an existing significant stockholder from the operation of the plan.

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• Delaware Real Estate Law Update: Homeowners’ Association Authority to Regulate Demolition
  August 5, 2010
  The Delaware Court of Chancery has recently held that where a restrictive covenant requires homeowners’ association approval of changes or alterations to buildings in a development, such approval is not required for a homeowner to demolish the homeowner’s house where no replacement structure is planned.
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• Delaware Real Estate Law Update: Delaware Prohibits Private Transfer Fees
  August 5, 2010
  On July 27, 2010, Governor Markell signed into law Senate Bill 322 prohibiting the charging of so-called private transfer fees on the transfer of real property.
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• Delaware Real Estate Law Update: Changes for Leasehold Mortgages
  August 5, 2010
  On July 23, 2010, Governor Markell signed into law a bill that clarifies a long-standing ambiguity in Delaware law regarding leasehold mortgages.
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• Delaware Real Estate Law Update
  August 5, 2010

  Delaware Real Estate law information pertaining to changes for leasehold mortgages, private transfer fees, and homeowners' association authority to regulate demolition.

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• Maric Capital Master Fund, Ltd. v. PLATO Learning, Inc. and Steamfitters Local Union 447 v. Walter - Court of Chancery Addresses Disclosure of Free Cash Flow Estimates
  August 3, 2010
  In two recent decisions, the Court of Chancery addressed the issue of disclosure of free cash flow estimates in connection with a merger.
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• King v. VeriFone Holdings, Inc. and Baca v. Insight Enterprises, Inc. - Court of Chancery Dismisses Books and Records Actions Filed After Derivative Actions
  August 3, 2010
  In two recent decisions, the Court of Chancery dismissed books and records actions under 8 Del. C. § 220 (“Section 220”) that were filed after the plaintiffs had filed derivative actions.
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• Olson v. ev3, Inc. - Court of Chancery Expedites Challenge of Top Up Option
  August 3, 2010
  In Olson v. ev3, Inc., C.A. No. 5583-VCL (Del. Ch. June 25, 2010) (Transcript), the plaintiff sought to enjoin a merger between ev3, Inc. and Covidien Group S.a.r.l., arguing, among other things, that the top up option granted to Covidien was invalid and coercive, and that ev3’s disclosure regarding the top up option was materially misleading and incomplete.
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• Fletcher Int’l, Ltd. v. ION Geophysical Corp. - Court of Chancery Reaffirms Primarily Contractual Nature of Preferred Stockholders’ Rights
  August 3, 2010
  In Fletcher Int’l, Ltd. v. ION Geophysical Corp., C.A. No. 5109-VCP (Del. Ch. May 28, 2010), the Court of Chancery reaffirmed the primarily contractual nature of the duties owed to, and the rights of, preferred stockholders under Delaware law.
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• Prizm Group, Inc. v. Anderson - Court of Chancery Holds that Unsecured Promissory Note Not Valid Consideration for Issuance of Stock of a Delaware Corporation Under Pre-August 2004 DGCL
  August 3, 2010
  In Prizm Group, Inc. v. Anderson, C.A. No. 4060-VCP (Del. Ch. May 10, 2010), Prizm Group, Inc., a Delaware corporation, sought a declaration that Mark E. Anderson, who was issued common stock of Prizm in exchange for an unsecured promissory note, had failed to provide valid consideration for the shares and that the shares were void ab initio or voidable at the election of Prizm.
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• Recent Delaware Corporate Law Decisions
  August 3, 2010
  During the past few months, several cases in the Delaware courts have raised important issues for Delaware corporations and their advisors.
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• Delaware Enacts Amendments to the Statutory Trust Act
  July 19, 2010
  Consistent with Delaware's commitment to maintaining statutes that are state-of-the-art with respect to business entities, including statutory trusts, the Delaware Statutory Trust Act was amended on July 15, 2010.
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• Real Estate Law Update: New Requirements for Residential Developers
  July 15, 2010
  On June 10, 2010, Governor Markell signed into law two bills that have a significant effect on developers of residential communities in Delaware.
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• Real Estate Law Update: Technical Amendments to the DUCIOA
  July 15, 2010
  On July 12, 2010, Governor Markell signed into law House Bill 475, which makes certain technical amendments to the Delaware Uniform Common Interest Ownership Act.
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• Amendments to Delaware's Limited Liability Company, Limited Partnership and General Partnership Legislation Enacted
  July 6, 2010
  The Delaware General Assembly has recently enacted legislation amending the Delaware Limited Liability Company Act (DLLCA), the Delaware Revised Uniform Limited Partnership Act (DRULPA) and the Delaware Revised Uniform Partnership Act (DRUPA).
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• FMLA Definition of "Son and Daughter" Clarified by the U.S. Department of Labor
  June 30, 2010
  The U.S. Department of Labor clarified the definition of "son and daughter" under the Family and Medical Leave Act to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship to the child.
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• This is the full title of the article which will appear on the page, and in any links across the site.
  June 10, 2010
  This is the short description.
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• Delaware Bankruptcy Law Update - The Grossman's and Exide Decisions
  June 4, 2010
  In two recent Third Circuit opinions, the Court: (1) en banc overruled the controversial Frenville test and set a new standard as to when a “claim” arises, and (2) found an agreement containing a trademark license not to be executory, with a concurring opinion criticizing those courts following Lubrizol.
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• Delaware Chancery Court Addresses Standard Applicable to Controlling Stockholder Tender Offers and Mergers: In re CNX Gas Corp. Shareholders Litigation
  May 26, 2010
  In In re CNX Gas Corp. Shareholders Litigation, C.A. No. 5377-VCL (Del. Ch. May 25, 2010), the Delaware Chancery Court attempted to clarify the standard applicable to controlling stockholder tender offers and mergers. 
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• Delaware Proposes Significant Changes to Chronic Violator Law
  May 5, 2010
  Legislation was introduced on May 4, 2010 the Delaware General Assembly that would significantly revise the State's "chronic violator" enforcement program.
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• Branch Captive and Agency Captive Insurance Companies Now Expressly Permitted in Delaware
  May 5, 2010
  On Monday, May 3, 2010, Governor Markell of Delaware signed into law House Bill 314 amending the Delaware Revised Captive Insurance Company Act.
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• Recent Delaware Corporate Law Decisions and 2010 Amendments to the DGCL
  May 3, 2010
  During the past few months, several cases in the Delaware courts have raised important issues for Delaware corporations and their advisors.
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• 2010 Amendments to the DGCL: Nonstock Corporations, Short Form Mergers, Indemnification and Other Changes
  May 3, 2010
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• Insider Trading Fiduciary Duty Claims: Pfeiffer v. Toll
  May 3, 2010
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• Special Litigation Committee Investigations: London v. Tyrell
  May 3, 2010
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• The New Revlon: Court of Chancery Guidance Regarding Pursuit of Stockholder Litigation
  May 3, 2010
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• Fiduciary Duties to Preferred Stockholders in a Merger: LC Capital Master Fund, Ltd. v. James
  May 3, 2010
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• The Implied Covenant of Good Faith and Fair Dealing: Nemec v. Shrader
  May 3, 2010
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• Preferred Stockholder Consent Rights: Fletcher International, Ltd. v. ION Geophysical Corp.
  May 3, 2010
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• Delaware Courts Add Another Venue for Business and Commercial Litigation
  April 27, 2010
  On April 26, 2010, President Judge James T. Vaughn, Jr., of the Superior Court of Delaware  issued Administrative Directive No. 2010-3 creating a Complex Commercial Litigation Division within the Delaware Superior Court.
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• Implied Contractual Covenant of Good Faith and Fair Dealing - Kelly v. Blum, Kuroda v. SPJS Holdings, L.L.C. and Nemec v. Shrader
  April 26, 2010
  The implied contractual covenant of good faith and fair dealing is becoming more relevant in analyzing issues in the alternative entity context.
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• Delaware Supreme Court Reverses Kurz v. Holbrook (In Part); Chancery's Stock Ledger Analysis is "Without Precedential Effect"
  April 22, 2010
  In Crown EMAK Partners, LLC v. Kurz, the Supreme Court affirmed in part and reversed in part the Court of Chancery’s holding in Kurz v. Holbrook.
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• Labor & Employment Law Update - FLSA Amendment Requires Breaks for Nursing Mothers
  April 14, 2010
  As part of the recently enacted Patient Protection and Affordable Care Act ("PPACA"), the Fair Labor Standards Act has been amended, effective immediately, to require breaks for nursing mothers.
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• Environmental Law - Dredging of Delaware River Allowed to Begin...Will It Be Completed?
  March 29, 2010
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• Intellectual Property - Pleadings and Motions to Dismiss
  March 25, 2010
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• Intellectual Property - Discovery
  March 25, 2010
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• Intellectual Property - Post-Trial
  March 25, 2010
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• Intellectual Property - Magistrate Judge Stark Has Been Nominated to Fill the Vacancy on the United States District Court for the District of Delaware
  March 25, 2010
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• Intellectual Property - Transfer
  March 25, 2010
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• Intellectual Property - Sanctions and Attorneys' Fees
  March 25, 2010
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• Intellectual Property Developments in Delaware
  March 25, 2010
  In the last few months, the United States District Court for the District of Delaware has issued a number of decisions of note in the intellectual property area.
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• President Obama Signs Law to Provide Tax Benefits for Employers
  March 22, 2010
  On March 18, 2010, the Hiring Incentives to Restore Employment Act (the "HIRE Act") was enacted into law.
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• The Delaware Court of Chancery Upholds Adoption and Use of NOL Pill as Proper Exercise of Directors’ Business Judgment Under Unocal
  March 1, 2010
  On February 26, 2010, the Delaware Court of Chancery sustained a board's decision to adopt and use a poison pill rights plan with a 4.99% flip-in trigger designed to protect the corporation's net operating losses.
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• The Delaware Court of Chancery Redefines Record Holders, Addresses Vote Buying Claims and Invalidates Bylaw Amendment Resulting in Director Removal
  February 13, 2010
  On February 9, 2010, the Delaware Court of Chancery issued an opinion with substantial significance for corporate practitioners.
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