Recent Practice Columns

Ryan C. Cicoski and Jesse L. Noa

Recent Order Highlights Push for Trial Experience for New Attorneys

By Ryan C. Cicoski and Jesse L. Noa |

A 2017 standing order from U.S. Magistrate Judge Christopher Burke of the District of Delaware is part of an uptick in federal judges encouraging the participation of newer attorneys at trial.

Patricia A. Winston and Edward McNally, of Morris James

Where Is Delaware Corporate Litigation Going?

By Edward M. McNally and Patricia A. Winston |

There are always risks involved in buying a company. Until you are actually inside a company's operations, you can never be sure you know everything about it.

Jennifer H. Rearden, Jefferson E. Bell and Michael Marron

Del. Supreme Court Clarifies, Applies Choice of Law to Multistate Disputes

By Jennifer H. Rearden, Jefferson E. Bell and Michael Marron |

In a recent decision, the Delaware Supreme Court considered the "fundamental question" of whether "Delaware courts are required to treat insurance contracts that are part of a broad insurance program as legal documents with meaning that varies substantially based on where each claim happens to arise."

Barry M. Klayman and Mark E. Felger

Tribal Sovereign Immunity of Casinos in Preference Actions

By Barry M. Klayman and Mark E. Felger |

In a recent opinion, U.S. Bankruptcy Judge Christopher Sontchi of the District of Delaware addressed the interesting issue of the applicability and scope of the sovereign immunity of Indian tribes in the context of preference actions brought by a Chapter 11 trustee.

What to Consider When a US Public Company Acquires a Non-US Company

By By Jennifer V. Audeh and Corey R. Brown |

When it's time to sell a company, there are many financial and legal steps a target should consider regarding a merger or acquisition

Brett McCartney

Stockholders' Complaint Survives Chancery's 'Corwin' Analysis

By Brett M. McCartney |

After a series of successful applications of the Corwin doctrine in Delaware's Court of Chancery, a plaintiff has finally survived a motion to dismiss where Corwin was applied.

Clockwise, starting from top, Christopher B. Chuff, Joanna J. Cline, Douglass D. Herrmann, and James H.S. Levine

Boards Should Consider Adopting 'Director-Specific' Limits in Compensation Plans

By Christopher B. Chuff, Joanna J. Cline, Douglass D. Herrmann and James H.S. Levine |

A recent decision by the Delaware Court of Chancery serves as a reminder that boards of directors of Delaware corporations should consider amending their company's director compensation plans to include specific limits on the amount of compensation that a director may be awarded in a given year.

High Court May Shake Up 27 Years of Patent Venue Selection With 'TC Heartland'

By Alan R. Silverstein and Dominique A. Meyer |

The U.S. Supreme Court will soon decide whether the plain language of the patent venue statute—or the Federal Circuit's 27-year-old deviation from it—will dictate the appropriate venue for patent infringement litigation.

Shmuel Vasser and Andrew C. Harmeyer

'Millennium Lab': the Death Knell for Non-Consensual, Third-Party Releases?

By Shmuel Vasser and Andrew C. Harmeyer |

The D.C. District Court potentially has upended an assumption in bankruptcy courts, suggesting that in many cases, they lack that authority under Article III of the U.S. Constitution to enter a final order granting non-debtor, third-party releases, at least without the affected party's consent.

Kimberly A. Brown

Bankruptcy Court Upholds the Sanctity of the Final Order

By Kimberly A. Brown |

The U.S. Bankruptcy Court has denied a request by an Official Committee of Unsecured Creditors and its affiliated debtors-in-possession to reconsider and modify a final cash collateral order almost one year after its entry.

Robert B. Little and Louis J. Matthews

Supreme Court Suggests Caution for MLPs in Conflicted Transactions

By Robert B. Little and Louis J. Matthews |

The Delaware Supreme Court recently reviewed the limited partnership agreement of a master limited partnership in the context of a conflicted transaction.

Francis G.X. Pileggi

Removal of Director, Members of Nonstock Corporation Invalid

By Francis G.X. Pileggi, Justin M. Forcier and Alexandra Rogin |

The Delaware Court of Chancery recently held that a pro se defendant was not effectively removed as a director, officer or member of a Delaware nonstock corporation, Rainbow Mountain Inc.

Albert Manwaring of Morris James

Stockholder Vote Enjoined Over Banker's Financial Interest in Merger

By Albert H. Manwaring IV |

Investment bankers play a central role in the exploration, evaluation, selection and implementation of strategic alternatives for Delaware companies.

Court Rules That Professional Fees May Not Be Capped by Standard Carve-Out Provisions

By John C. Tishler and Tyler N. Layne |

Secured creditors and debtor-in-possession (DIP) lenders that rely on standard carve-out provisions to limit the impact of bankruptcy professional fees on their collateral would be well-advised to take notice of a U.S. Bankruptcy Court decision from earlier this year.

Lewis H. Lazarus

Court Gives Great Weight to Pre-Merger Negotiations

By Lewis H. Lazarus |

Contract interpretation is a staple of litigation in the Delaware Court of Chancery. Disputes over the meaning of commercial contracts, foundational documents such as certificates of incorporation or bylaws or agreements governing alternative entities such as limited liability companies or limited partnerships require the court to interpret language in contracts. So too do merger, stock purchase or sale of asset agreements. With the expansion of jurisdiction under Section 111(a)(2) of the Delaware General Corporation Law (DGCL) in 2016, disputes over the interpretation of agreements arising out of stock purchase and asset sale agreements may be expected to increase the number of cases requiring the court to interpret parties' agreements. The recent case of Shareholder Representative Services v. Gilead Sciences, C. A. No. 10537-CB (March 15), illustrates the methodology the court uses to interpret a contract and provides a primer for litigants seeking guidance on how the Court of Chancery resolves contract disputes.

Barry M. Klayman and Mark E. Felger

Delaware's Anti-SLAPP Statute Limited to Land Use Disputes

By Barry M. Klayman and Mark E. Felger |

In a rare case involving resort to a Delaware statute's legislative history, Vice Chancellor J. Travis Laster held that Delaware's anti-SLAPP statute is to be construed narrowly so as to be applicable only to public petition and participation in land use proceedings, and is not a broad legal protection against defamation claims.

P. Clarkson Collins Jr.

Del. Justices Award Attorney Fees Under Promissory Note Fee-Shifting Provisions

By P. Clarkson Collins Jr. |

Persuaded by the arguments of the appellant noteholders, the Delaware Supreme Court ruled that two fee-shifting provisions in the promissory notes entitled them to recover attorney fees the noteholders incurred filing suit to secure warrants issuable under the notes.

New FINRA Rules Address Financial Exploitation of Senior Investors

By Evan Charkes |

In recent years the SEC and FINRA have taken leadership roles in seeking to help senior investors become more cognizant of the dangers of financial exploitation and fraud.

And Then There Were Three: Del.'s Judge Robinson Set to Retire

By Alan R. Silverstein and Stephanie E. O'Byrne |

On Feb. 3, Judge Sue L. Robinson, the longest-serving member of the U.S. District Court for the District of Delaware (and the district judge with the second-highest number of patent cases assigned on a per judge basis in the country) acquired another title—that of senior judge.

Patricia A. Winston and Edward McNally, of Morris James

The Perils of Advancement

By Edward M. McNally and Patricia A. Winston |

There is perhaps one single obligation that most aggravates corporate boards of directors: Paying your opponent's legal fees when you are convinced he has done you wrong. How then is that not just possible, but a regular occurrence?

James L. Hallowell and Lauren M. Sager

Justice Holland's Lasting Imprint on Corporate Law

By James L. Hallowell and Lauren M. Sager |

In early February, Justice Randy Holland, the longest-tenured member of the Delaware Supreme Court, announced his plans to retire at the end of March.

Barry M. Klayman and Mark E. Felger

Dollar Cap on Committee Professional Fees Under Confirmed Plan

By Barry M. Klayman and Mark E. Felger |

U.S. Bankruptcy Judge Christopher S. Sontchi has held that absent specific language in a debtor-in-possession financing order, a carve-out for a fixed dollar amount for professional fees does not serve as a cap on the amount of fees to which a professional may be entitled once a Chapter 11 plan is confirmed.

Brian Arbetter and Samantha Beltre

Employer Tips for Minimizing Risks of Independent Contractors

By Brian Arbetter and Samantha Beltre |

In today's varying economic climate, many employers are using and misusing the concept of independent contractor to engage individuals to perform services.

Brett McCartney

Chancery Appoints Custodian to Dislodge Board Deadlock

By Brett M. McCartney |

Delaware law entrusts the management of a corporation to its board of directors. Not surprisingly, circumstances arise where a consensus among directors cannot be reached on major decisions impacting a company.

Stephen Plotnick and Alexander Malyshev.

New York's LLC Law Fosters Greater Certainty for Members and Their Rights

By Stephen M. Plotnick and Alexander G. Malyshev |

The LLC form is often favored because it offers a great deal of flexibility in how a business is to be governed and operated day-to-day.

Nathaniel J. Stuhlmiller

Applying 'Corwin' to Mergers and Irrebutable Presumption of Business Judgment Rule

By Nathaniel J. Stuhlmiller |

In Corwin v. KKR Financial Holdings,, the Delaware Supreme Court held that the business judgment rule applies to any merger not subject to entire fairness review that has been approved by a fully informed, uncoerced vote of disinterested stockholders.

Joseph M. McLaughlin and Yafit Cohn

Director Independence to Consider Pre-Suit Demand

By Joseph M. McLaughlin and Yafit Cohn |

A recent Delaware decision again signals those courts will closely scrutinize personal and business relationships that are asserted as compromising a director's ability to consider a pre-suit demand impartially.

Gabrielle Levin

Effect of Director Relationships on Director Independence

By Gabrielle Levin |

A recent decision from the Delaware Supreme Court ihighlights the potential impact that directors' business and financial arrangements can have on their independence in the context of considering shareholder demands on the board.

Albert Manwaring of Morris James

Stockholder Merger Vote Sets High Bar for Post-Closing Claims

By Albert H. Manwaring IV |

A Delaware Supreme Court decision reaffirmed the power of fully-informed, uncoerced, disinterested stockholder approval to immunize M&A transactions against stockholder challenge.

Barry M. Klayman and Mark E. Felger

Directors Are Public Figures for Election-Related Communications Among Investors

By Barry M. Klayman and Mark E. Felger |

In a case of first impression in Delaware, Vice Chancellor J. Travis Laster held that directors of a corporation, plaintiffs in a defamation action, were public figures for the limited purpose of election-related communications among the company's investors.