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Chicago Bridge Reversal Reiterates Need for Consistent Accounting in Working...
The vast majority of private company acquisitions contain some type of purchase price adjustment to account for any changes in certain financial metrics (including working capital) of the target...
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Martha Stewart Decision Draws Roadmap for Controller Sales to Third Parties
A transaction involving a controlling stockholder on both sides of the deal presents a clear conflict of interest that will result in heightened scrutiny under the “entire fairness” standard of review...
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Delaware Supreme Court Reverses Dell’s Merger Appraisal Price Bump
On December 14, 2017, the Delaware Supreme Court reversed and remanded the Court of Chancery’s appraisal of the fair value of Dell Inc. The trial court’s 2016 ruling, which found that a $25 billion...
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How much disclosure of deal dirty laundry is necessary in order to fully...
In Elizabeth Morrison v. Ray Berry et. al., (dated July 9, 2018), the Delaware Supreme Court reversed the Delaware Chancery Court’s dismissal of deal litigation based on obtaining a cleansing vote...
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MAEjor Ruling: Delaware Court of Chancery Finds Target Suffers Material...
M&A practitioners have long advised boards of directors that the Delaware courts have never found that the events or circumstances in a particular transaction met the contractual standard of having...
View ArticleWhataday for Special Committees: Salladay v. Lev Clarifies Committee...
In late February as the COVID-19 pandemic was accelerating, the Delaware Chancery Court issued an important decision that is likely to impact transactions during the expected recession. In Salladay v....
View ArticleSocial Distancing From a (Supposed) Life Partner: Early Lessons From Deals...
In “La La Land,” Damien Chazelle’s Oscar winning film, the audience thinks it has a formulaic Hollywood love story on its hands: boy and girl meet; boy and girl fall in love; boy and girl break up;...
View ArticleRenegotiating Deal Terms? Delaware Reminds Fiduciaries of Unremitting Duties
In Captain Phillips, a pirate hijacks a ship and turns to the captain and says (in what is an amazing improvised line) “Look at me, I’m the captain now.”[1] While the comparisons between piracy and...
View ArticleDo We Have a Quorum?
Although its final episode aired more than a decade ago, there is still debate about the ending of HBO’s critically-acclaimed series, the Sopranos. In fact, as one critic notes, “the only objectively...
View ArticlePandemic-Related Deal Litigation Highlights Buyer Leverage in Transactions...
In a May blog post we discussed several initial observations regarding the dozens of M&A transactions that were signed prior to March 2020 and that were in jeopardy as a result of COVID-19. Since...
View ArticleDelaware Puts the Conduct of Business Covenant on Center Stage in...
In the months following the onset of the COVID-19 pandemic, a slew of parties filed lawsuits in US courts relating to M&A transactions that were signed prior to March 2020 and that buyers were...
View ArticleHave Your Cake, and Closing Too: Invoking Prevention Doctrine, Delaware...
Chancellor McCormick’s opinion in Snow Phipps Group, LLC, et al. v. KCake Acquisition, Inc., et al. (Del. Ch. April 30, 2021) is 125 pages long, but she helpfully digests the holding in a single...
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Keeping Up with Delaware Appraisal Jurisprudence Since Aruba: Deal Price...
In a string of seminal decisions from 2017 through 2019 (DFC Global, Dell and Aruba), the Delaware Supreme Court re-shaped appraisal jurisprudence, in each case by overturning the Court of Chancery...
View ArticlePleading Bad Faith Against Special Committee Members: A New Trend?
Special committees, by design, are created to address conflicts and to insulate the board of directors from liability for the very conflicts that may invite judicial scrutiny of the fairness of the...
View ArticleDelaware Finds Stockholder Claims Against SPAC Fiduciaries Subject to Entire...
As SPAC IPOs broke records – in both value and volume – in 2020 (and again in 2021), it was inevitable that stockholder litigation would follow. More than 50% of the SPACs that went public in 2020 and...
View ArticleDelaware (Again!) Requires Upward Adjustment to Deal Price in Appraisal...
A recent Court of Chancery decision adds yet another wrinkle to the appraisal landscape and the potential for appraisal arbitrage. In BCIM Strategic Value Master Fund LP v. HFF, Inc. (Del. Ch. Feb. 2,...
View ArticleDelaware Advance Notice Decisions Highlight Move Toward Enhanced Scrutiny of...
Like US constitutional law, Delaware courts apply a tiered standard of judicial review to actions taken by the board of directors of corporations: Business judgment deference (rational basis).Enhanced...
View ArticleDelaware bar recommends DGCL amendments, including officer exculpation...
The Council of the Corporation Law Section of the Delaware State Bar Association has provided recommendations to the Delaware General Assembly for a number of changes to the Delaware General...
View ArticleHighlights From the 2022 Berkeley Fall Forum on Corporate Governance
On November 8 and 9, Cooley and the Berkeley Center for Law and Business presented the 2022 Berkeley Fall Forum on Corporate Governance. The two-day event featured panel discussions on a range of...
View ArticleKeeping Up With M&A Case Law – Spotlight on Recent Delaware Decisions
The mergers & acquisitions market may wax and wane, but one thing in M&A is consistent from year to year: The Delaware courts issue opinions that impact M&A dealmaking. And this year is...
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