Category: Publications

The Death of the Dead-Hand Poison Put?

Morris Nichols attorneys Bill Lafferty, John DiTomo and Mac Measly contributed this article on the Delaware Court of Chancery ruling in Healthways II concerning a so-called “dead hand proxy put” provision in a credit agreement. The authors discuss proxy put trends, the history of the case and practical implications... Continue Reading

Using Financial Advisor Engagement Letters to Vet Potential Conflicts of Interest

Financial advisors often are selected by a board of directors (or committee thereof) to advise on a strategic review process because of their role as brokers in the market and their ability to generate transactional activity. Of course, that role and ability is dependent upon relationships with potential counterparties to a transaction. Because financial advisors are hired in part to exploit their... Continue Reading

Pleading Direct Patent Infringement Without Form 18

The way plaintiffs plead direct patent infringement may be about to change. Currently, the use of Form 18 suffices to plead a claim of direct patent infringement, despite what many courts and commentators believe is insufficient factual information required by that form. Recognizing that deficiency, the Federal Rules Advisory Committee recently submitted a proposal to the U.S. Supreme Court to... Continue Reading

Enforcing a Private Company Indemnity Regime

Whether a private company acquisition is structured as a stock sale or a merger, the parties will often include in their deals provisions that specify when a buyer can bring claims for breach of representations. These provisions often take the form of highly negotiated indemnification provisions in the deal documents. In a stock sale, the sellers are party to the agreement, so that they are... Continue Reading

What Distressed Cos. Can Take Away from Quadrant v. Vertin

On May 4, 2015, the Delaware Court of Chancery issued an opinion in Quadrant Structured Products Co. Ltd. v. Vertin that provides important guidance to those counseling distressed Delaware corporations and their stakeholders. The issue in Vertin was whether a creditor suing derivatively on behalf of an insolvent corporation loses standing to maintain that lawsuit if the corporation becomes solvent... Continue Reading

Delaware Bankruptcy Court Reins in Hold-Out Leverage

In a case of first impression, Chief Judge Brendan L. Shannon of the U.S. Bankruptcy Court for the District of Delaware ruled on Dec. 18, 2014, that Delaware corporate law’s “entire fairness” test, which is utilized to evaluate self-dealing transactions, is inapplicable to the Bankruptcy Code’s requirement that a plan be “proposed ... not by any means forbidden by... Continue Reading

Amendments to the DGCL Remove Obstacles to Adoption of Public Benefit Status

On April 2, 2015, the Corporation Law Council of the Delaware State Bar Association announced proposed amendments to the Delaware General Corporation Law which, if approved by the Executive Committee of the DSBA, will be proposed to the state legislature in the current session. Those amendments include important changes to Subchapter XV of Title 8, which governs public benefit corporations... Continue Reading

It Doesn’t Always Come Down to the Highest Dollar: Delaware Court of Chancery Upholds Board’s Decision Not to Engage in Discussions with Topping Bidder in In Re Family Dollar, Inc. Stockholder Litigation

Morris Nichols partner Patricia O. Vella and associate Elizabeth A. Hecker “present a fascinating analysis of the intersection between antitrust, attorney-client privilege, and Delaware corporate law” in this article on In Re Family Dollar, Inc. Stockholder Litigation, a case involving the long-running takeover battle for Family Dollar Stores, Inc... Continue Reading

Proposed Delaware Amendments

Proposed amendments to the Delaware General Corporation Law would expressly authorize forum selection charter and bylaw provisions and generally prohibit “fee-shifting” charter and bylaw provisions for stock corporations. The proposed amendments also would provide a “de minimis” exception to the availability of appraisal rights in certain mergers and permit a corporation to... Continue Reading

Financial Advisor Engagement Letters: Post-Rural/Metro Thoughts and Observations

Much ink has been spilled discussing the factual and legal underpinnings of the Court of Chancery’s opinions in the Rural/Metro litigation. It seems the phrase “in doing so, they function as a gatekeeper” has attracted more attention over the past year than any other phrase in a Delaware opinion since “the directors of Trans Union breached their fiduciary duty” in Van... Continue Reading