Delaware Bankruptcy Court Adopts the “Time” Approach to Lease Rejection Damages

Recently, Judge Kevin Carey of the United States Bankruptcy Court for the District of Delaware issued the first written opinion in the District of Delaware resolving the “time versus rent” debate and interpreting section 502(b)(6) of the Bankruptcy Code in Delaware, an issue that is important to both debtors and commercial landlords. In In re Filene’s Basement, LLC, 2015 Bankr. LEXIS 1350... Continue Reading

Analysis of the 2015 Amendments to the Delaware General Corporation Law

The 2015 amendments to the Delaware General Corporation Law (the “DGCL”) were recently enacted. The amendments address important policy topics (such as prohibiting charter- or bylaw-imposed “loserpays” fee-shifting provisions for stockholder litigation and expressly permitting charter- or bylaw-imposed exclusive forum selection provisions). The amendments also make certain technical... Continue Reading

2015 Amendments to the Delaware General Corporation Law

Morris Nichols attorneys Jeff Wolters and Dan Matthews contributed an article on 2015 amendments to the Delaware General Corporation Law (DGCL). The authors discuss important changes which include the addition of a prohibition on “fee-shifting” charter and bylaw provisions for stock corporations, express authorization of exclusive forum provisions, amendments confirming that the DGCL provides... Continue Reading

Examining the 2015 Amendments to Delaware’s General Corporation Law and Alternative Entity Statutes

In its last session, the Delaware legislature passed a number of amendments to the Delaware General Corporation Law (“DGCL”) and to three of Delaware’s four “alternative entity” statutes—the Delaware Limited Liability Company Act (“DLLCA”), the Delaware Revised Uniform Limited Partnership Act (“DRULPA”) and the Delaware Revised Uniform... Continue Reading

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