Articles

Delaware Courts Affirm Guidance for Directors in Distressed Situations

The Delaware Supreme Court and the Court of Chancery recently issued guidance for directors navigating the complex fiduciary issues that arise around insolvency. That guidance, outlined in a series of decisions in Quadrant Structured Products Co., Ltd. v. Vertin, should give directors a measure of comfort in understanding the who, what, when, and how of fulfilling fiduciary duties in these... Continue Reading

Practical Considerations for Single-Bidder Processes in Public M&A

Whether a public company should engage in a “single-bidder” process is one of the most difficult questions a target public company’s board of directors must consider during the early stages of a transaction. In the right circumstances, a single-bidder process can result in an expedient transaction that maximizes stockholder value while minimizing the risks associated with putting a... Continue Reading

Limits on Informational Rights of Directors with Interests Adverse to the Company

In three orders issued on the same day, Vice Chancellor Travis Laster of the Delaware Court of Chancery addressed an exception to directors’ virtually unfettered informational rights.  In a discovery dispute in In re Oxbow Carbon LLC Unitholder Litigation, Oxbow Carbon LLC (Oxbow Carbon or the Company) asserted attorney-client privilege against four current and former Oxbow Carbon directors... Continue Reading

Independence Issues in the Entrepreneurial Ecosystem

The Delaware Supreme Court decision in Sandys v. Pincus, 2016 WL 7094027, at *1 (Del. Dec. 5, 2016) (Zynga) has raised questions regarding well-established legal precedent and business practices that are recognized as common in the venture capi­tal and entrepreneurial communities. Al­though Zynga and other decisions regarding director independence reveal the Delaware judiciary’s focus on... Continue Reading

Build It And They Will Come: Why Delaware Trusts Lead The League

The article, “Build It And They Will Come: Why Delaware Trusts Lead The League,” was published in the Spring, 2017 issue of the Delaware Banker Journal. It describes the history of the Delaware trust industry and how the robust trust infrastructure and commitment of the State and the industry have made Delaware the preeminent trust jurisdiction in the world... Continue Reading

How to Deal With Repeal—Dynasty Trust Planning Will Be an Essential Tool

Once again, it appears there’s a strong possibility that the federal estate tax and generation-skipping transfer (GTS) tax may be repealed. President Donald J. Trump and the Republican majority in the House and Senate all support a repeal of the “death tax.” One must only revisit the last time Republicans held control of the House, Senate and the White House in 2001 to identify the last time... Continue Reading

Moving Beyond Shareholder Primacy: Can Mammoth Corporations Like ExxonMobil Benefit Everyone?

The New York Times recently took issue with Rex Tillerson, the President-elect’s nominee for Secretary of State, and the current CEO of ExxonMobil. Why? “Tillerson Put Company’s Needs Over U.S. Interests,” accused the front page headline. The article details how the company puts shareholders’ interests before the interests of the United States and of impoverished citizens of countries... Continue Reading

Recent Developments in Delaware Commercial Law: Important Decisions and Legislation for Contract Drafting

Over the past few years, there have been numerous developments in Delaware commercial law as a result of court decisions and legislation. This article addresses a few of these developments that are particularly relevant to drafting and interpreting certain provisions in merger agreements, stock purchase agreements, asset purchase agreements and other transaction documents. This article is not... Continue Reading

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