Publications

• Drafting a Mandatory Put Provision for Preferred Stock after ThoughtWorks
  January 23, 2012
  Investors should be aware of the interpretation given to the “funds legally available” phrase in the ThoughtWorks decision, and should consider alternatives to that language when drafting mandatory put provisions.
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• 3rd Circuit Narrowly Construes Police Power Exception to Automatic Stay
  January 18, 2012
  In a recent decision in In re Nortel Networks Inc., the 3rd U.S. Circuit Court of Appeals held that Bankruptcy Code Section 362(b)(4)'s "police power exception" to the automatic stay should be narrowly construed.
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• 2011

• Chancery Court: Receiver May Be Necessary to Resolve Decades-Old Asbestos Claims
  December 7, 2011
  In its Nov. 9 decision in In re Krafft-Murphy Company, the Delaware Court of Chancery addressed several important issues that a board of directors and its legal advisers should consider in connection with the dissolution of a corporation.
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• Revisiting the Special Committee Process: 'In re Southern Peru Copper Corporation'
  November 30, 2011
  The Delaware Court of Chancery’s post-trial opinion in In re Southern Peru Copper Corporation is perhaps most notable for the staggering damages award—$1.263 billion—against the controlling stockholder defendants for breach of the duty of loyalty in a transaction subject to entire fairness review.
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• Lack of Oversight May Leave Operators Liable
  November 29, 2011
  In Lemington, the Third Circuit considered an appeal from the decision of the U.S. District Court for the Western District of Pennsylvania to enter summary judgment in favor of the directors and officers of a Pennsylvania nonprofit corporation on claims for breach of fiduciary duty and deepening insolvency.
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• Third Circuit Provides Guidance on Determining Value
  November 15, 2011
  In Am. Home Mortg., the Third Circuit addressed an issue of apparent first impression: whether the term “commercially reasonable determinants of value” under section 562(b) is limited to market or sale value.
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• Reliance on Client's Automated Information System May Support Rule 9011 Liability
  November 14, 2011
  A recent decision of the Third Circuit, In re Taylor, a personal bankruptcy case, suggests that, in certain circumstances, counsel’s reliance on a client lender’s information systems can lead to the imposition of sanctions against not only the client, but also against counsel.
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• TOUSA, USACafes, and the Fiduciary Duties of a Parent's Directors Upon a Subsidiary's Insolvency
  November 2011
  In this article, we examine the TOUSA opinion, and the doctrines it relies on, in an attempt to understand how these doctrines should be treated together.
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• Recent Decisions Illustrate the Limits of the Post-Confirmation Jurisdiction of the Bankruptcy Court
  October 19, 2011
  Bankruptcy court jurisdiction suddenly has become a hot topic in light of the U.S. Supreme Court's June 2011 opinion in Stern v. Marshall. However, Stern is not the only issue affecting bankruptcy court jurisdiction.
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• Delaware Superior Court's Complex Commercial Litigation Division
  October 4, 2011
  In the October 4, 2011 edition of U.S. Law Week, C. Malcolm Cochran and Jason Rawnsley discuss the scope, procedures, and caseload of the Delaware Superior Court's Complex Commercial Litigation Division, including its implications for the separation of law and equity in Delaware.
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• Chancery Court Sensitive to Potential Conflicts of Financial Advisors in M&A
  September 7, 2011
  Over the past few years, the level of disclosure regarding the work performed by a financial adviser rendering a fairness opinion in connection with an M&A transaction has increased substantially, due in part to decisions of the Delaware Court of Chancery.
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• Valid Issuance of Capital Stock
  September 7, 2011
  In recent months, the Delaware Court of Chancery has issued two opinions, Olson v. ev3, Inc. and Blades v. Wisehart, dealing with the validity of capital stock.
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• 2011 Amendments to the General Corporation Law of the State of Delaware
  August 2011
  Legislation amending the General Corporation Law of the State of Delaware was 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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• Fair Summary II: An Update on Delaware's Disclosure Regime Regarding Fairness Opinions
  August 2011
  In this article, we discuss the current state of Delaware’s fiduciary disclosure regime and the developments over the last three years.
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• The Wheels Are Falling Off the Privilege Bus: What Deal Lawyers Need to Know to Avoid the Crash
  August 2011
  Over the last several years, the rise of electronic discovery, the increasing focus of inhouse counsel on business roles, and the increasing complexity of mergers and acquisitions have expanded signifi cantly the volume and type of potentially privileged documents created in connection with mergers and acquisitions.
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• A Step Toward Equality in Estate Planning
  Summer 2011
  Delaware Adds to its Jurisdictional Advantages for Asset Protection and Estate Planning Opportunities for Same-Sex Couples.
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• Delaware Laws & Programs Affecting Business - 2011 Edition
  July 2011
  This guide presents an introduction to Delaware and an overview of the laws and programs relating to doing business in the State.
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• Think Carefully Before Amending LLC and Partnership Agreements: Understanding NextMedia
  July 27, 2011
  Under the Delaware Limited Liability Company Act and the Delaware Revised Uniform Limited Partnership Act, if a limited liability company agreement or a limited partnership agreement "provides for the manner in which it may be amended ... it may be amended only in that manner or as otherwise permitted by law."
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• Protecting the Protectors: Indemnification of Trustees of Delaware Statutory Trusts
  July 2011
  The board members of registered investment companies play a critical role in protecting the interests of shareholders. In order to encourage the diligent discharge of their duties, the board members of registered investment companies in turn need to be protected. Indemnification and advancement, along with insurance, are key components of the protections available to board members with respect to the discharge of their duties.
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• Arbitration in the Delaware Court of Chancery
  July 2011
  On January 5, 2010, the Court of Chancery adopted new rules providing for Chancery arbitration pursuant to a Delaware statute permitting Delaware’s Chancery judges to act as private arbitrators.
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• Dispute Resolution 2011: Delaware
  June 2011
  The Delaware judicial system consists of the Supreme Court, Court of Chancery, Superior Court, Family Court, Court of Common Pleas and Justice of the Peace Courts.
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• "Don’t Say They Didn’t WARN You": Bankruptcy Court's High Threshold for Corporate Affiliates' WARN Act Liability
  June 1, 2011
  In two recent decisions, the Delaware Bankruptcy Court rejected the imposition of WARN Act liability on corporations affiliated with debtors.
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• Court of Chancery Clarifies the Reach of Revlon in Mixed Consideration Deals
  June 2011
  Despite the abundance of case law, whether Revlon applies in any given case remains the subject of much debate. While the Delaware Supreme Court has not had occasion to address the issue, the Delaware Court of Chancery is beginning to apply Revlon’s heightened reasonableness review more frequently in mixed-consideration transactions.
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• Chancery Court Addresses Revlon Duties and Deal Protection Measures in Small-Cap Transaction
  May 11, 2011
  In In re Answers Shareholders Litigation, the Delaware Court of Chancery declined to preliminarily enjoin the acquisition of Answers Corp. and, in so doing, made several important observations regarding the board of directors' management of the sales process and negotiation of the definitive merger agreement, many of which are of particular significance to smaller corporations and their advisers.
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• Delaware's Solvency Test: What Is It and Does It Make Sense?
  2011
  This article examines the ambiguities in Delaware solvency law and recommends that the Delaware courts clarify the law and adopt uniform solvency tests.
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• LLC’s Are Different: Creditors of Insolvent LLC’s Do Not Have Standing to Sue for Breach of Fiduciary Duty, But Can a Creditors’ Committee Be Granted Standing?
  April 2011
  Almost four years ago, the Delaware Supreme Court held that while creditors of an insolvent Delaware corporation do not have the right to assert direct claims for breach of fiduciary duty against officers and directors, they may obtain derivative standing to enforce the company’s claims.
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• Trustees Should Expect Changes to Derivatives Markets Under Dodd-Frank Act
  Spring 2011
  In response to perceived market conditions leading to the recent economic downturn in the United States, Congress passed, and the President signed into law, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.
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• Reviewing the Standards of Review in Delaware
  March 2011
  On January 21, 2011, the Court of Chancery issued Reis v. Hazelett Strip-Casting Corp., a post-trial decision regarding the fairness of a reverse stock split and the resulting injury to the minority stockholders.
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• New Day for Nonstock Corporations: The 2010 Amendments to Delaware's General Corporation Law
  February 2011
  This article describes the impetus for the nonstock amendments and explains the structure and nuances of those amendments.
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• Local Practices for Electronic Discovery
  February, 2011
  The shift from paper to electronic communication and storage has transformed every step of litigation, from initial case assessment to discovery and even trial.
  
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• Special Committees: Law and Practice (Oxford 2011)
  January 18, 2011
  Written by knowledgeable practitioners in corporate law and special committee practice, this comprehensive book provides in-depth explanations on the uses, benefits and disadvantages of special committees.
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• Doing Business in United States: Delaware
  2011
  This Q&A from Practical Law Company gives an overview of Delaware's unique legal system.
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• Court Awards Costs, Not Attorney Fees, Due to American Rule
  2011
  In Claybrook v. Autozone Texas, L.P., the Delaware Bankruptcy Court awarded costs to the defendants based in part on the court’s finding that the plaintiff-trustee failed to demonstrate a viable basis for his claims against the defendants.
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• Insurers' Tangible Disadvantage Is Sufficient Injury for Article III Standing
  2011
  The Third Circuit held that two liability insurance carriers have standing to object to their insured’s plan of reorganization because “when a federal court gives its approval to a plan that allows a party to put its hands into other people’s pockets, the ones with the pockets are entitled to be fully heard and to have their legitimate objections addressed.”
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• Third Circuit Addresses Issue of First Impression
  2011
  In Marcal, the Third Circuit addressed an issue of first impression under the Employee Retirement Income Security Act as amended by the Multiemployer Pension Plan Amendments Act: Can the portion of withdrawal liability attributable to post-petition services qualify as an administrative expense of the debtor’s estate?
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• 2010

• An Overview of Delaware-Specific Issues for Stockholders' Meetings
  November 17, 2010
  The Dodd-Frank Act’s adoption of say-on-pay and the SEC’s new proxy access rule implicate state law issues with regard to stockholders’ meetings. The authors discuss these issues in the context of an overview of Delaware law requirements for such meetings.
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• A Baker's Dozen - 13 Defensive Takeover Measures Available to Closed-End Investment Companies Organized as Delaware Statutory Trusts
  November 2010
  In light of recent public discussion with respect to the use of defensive measures by closed-end funds to counteract takeover attempts, this article addresses some of the more common defensive measures that have been adopted by closed-end funds organized as Delaware statutory trusts and the permissibility of such measures under Delaware law.
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• Delaware Supreme Court Sanctions Use of 4.99 Percent NOL Poison Pill Using 'Unocal' Analysis, as Modified by 'Unitrin'
  October 13, 2010
  On Monday Oct. 4, 2010, the Delaware Supreme Court affirmed the Court of Chancery's decision to sanction the use of a poison pill with a 4.99 percent trigger to protect a company's net operating losses.
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• Poison Pills - How Effective Is Too Effective?
  September 2010
  Although its prevalence has been in decline in recent years, the traditional stockholder rights plan (the so-called “poison pill”) remains one of the most effective anti-takeover devices in a board of directors’ arsenal.
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• Selectica, Inc. v. Versata Enterprises, Inc.: A Case Study on the Use (and Usefulness) of Experts in Delaware Corporate Litigation
  August, 2010
  The Delaware Court of Chancery’s decision in Selectica, Inc. v. Versata Enterprises, Inc has garnered a great deal of attention for its analysis and treatment of the low threshold poison pill used by Selectica, Inc. to protect its net operating loss carry-forwards, and the fact that it was the first time a poison pill has ever been triggered in modern memory.
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• Reinterpreting Section 141(e) of Delaware's General Corporation Law: Why Interested Directors Should Be "Fully Protected" in Relying on Expert Advice
  August 2010
  This Article concludes that Delaware courts should reconsider the application and effect of section 141(e) and allow directors, regardless of their interest in a challenged transaction, to assert section 141(e) as a defense to liability in duty of care and duty of loyalty cases if they reasonably relied in good faith on expert advice .
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• Delaware's Continued Commitment to Captive Insurance
  Summer 2010
  Delaware continues its commitment to establishing a reputation as a competitive domicile for licensing a captive insurance company.
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• Contributor, ABA Handbook for the Conduct of Shareholders' Meetings (First and Second Editions)
  2010
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• Amendments to Delaware General Corporation Law
  June 2010
  Significant amendments to the General Corporation Law of the State of Delaware (DGCL) have been introduced in Delaware’s General Assembly this year.
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• Loyal to Whom? Recent Delaware Decisions Clarify Common Stockholders Are Primary Beneficiaries of Directors' Fiduciary Duties
  May-June 2010
  Delaware case law has long discussed the directors' fiduciary duties of care and loyalty to the corporation and its stockholders in absolute terms.
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• Does Rule 2019 Apply to Ad Hoc or Informal Committees?
  April, 2010
  The debate over whether ad hoc or informal committees or groups of creditors or interest holders (“ad hoc committees”) must comply with Bankruptcy Rule 2019 recently intensified due to a split among several Bankruptcy Court decisions.
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• Deal Protection Devices Enforced in the Delaware Court of Chancery
  March 2010
  Vice Chancellor J. Travis Laster's recent decisions in Global Asset Capital, LLC v. Rubicon US REIT, Inc. and NACCO, Inc. v. Applica Incorporated provide good examples of Delaware's approach to analyzing bargained-for deal protection devices.
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• Securities Regulation and Law Report
  February 8, 2010
  In two recent decisions—Dubroff v. Wren Holdings, LLC and Berger v. Pubco Corporation—the Delaware Court of Chancery expanded the substantive fiduciary disclosure obligations flowing from statutory notice requirements when a corporation takes action by written consent of stockholders or provides notice of appraisal.
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