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Last week, Vice Chancellor Joseph R. Slights III issued a ruling in Tornetta v. Musk that serves as a reminder that the corporate attorney-client privilege is not absolute. Deciding a discovery motion in a stockholder derivative suit challenging the 2018 compensation deal for Tesla CEO Elon Musk, the Court ordered the defendants to produce a limited set of documents that reflected communications between Musk and in-house counsel, though it rejected the plaintiff’s request for additional communications between in-house counsel, the Board’s Compensation Committee, and outside advisors. The decision serves as a reminder to company counsel, both internal and external, that their communications may not always be protected from stockholder plaintiffs in shareholder derivative actions.

Best Practices; Derivative Litigation; Privilege

Maybe ESG Derivative Cases Aren’t Going to be a Thing After All?

May 11 2021

Sara Brody

Starting last summer, a series of derivative cases were filed against boards of a number of public companies alleging that the boards failed to create meaningful diversity in their board rooms and amongst the ranks of senior management. These cases, filed mostly by one law firm and primarily in the Northern District of California, had the markings of becoming a new genre of claim. Two of these cases have now proceeded through their first motion hearing and neither survived intact. Ocegueda v. Zuckerberg et al., No. 20-cv-04444 (the Facebook case) and Lee v. Fisher et al., No. 20-cv-06163 (the Gap case). Although other cases remain pending and perhaps these two will be refiled, judicial reaction so far suggests that other methods to promote diversity may have greater impact.

Charter/Bylaw Provisions and Amendments; Derivative Litigation; ESG

“Chalking Up a Victory for Deal Certainty,” Delaware Court of Chancery Orders That Contested Merger Close

May 03 2021

Hille R. Sheppard and Charlotte K. Newell

Last Friday, soon-to-be Chancellor McCormick issued a decision in Snow Phipps Group, LLC v. KCake Acquisition, Inc. that ordered the defendant buyers to specifically perform their agreement to acquire DecoPac Holdings, Inc. (“DecoPac” or the Company), which sells cake decorations and technology for use in supermarket bakeries. The 125-page decision, which opens with a quote from the incomparable Julia Child (“A party without cake is just a meeting”), and is rightly described by the Court as a “victory for deal certainty,” offers a detailed analysis of several common contractual provisions in the time of COVID-19. Despite its length, it is a must-read for those interested in the drafting and negotiation of M&A agreements generally, and their operation during the COVID-19 pandemic specifically.

COVID-19; M&A; MAE

Section 220 Is Not a Blank Check

Apr 26 2021

Alex J. Kaplan and Emily E. Fountain

The Delaware Court of Chancery recently issued another decision regarding the statutory right to inspection of corporate books and records under Delaware General Corporation Law Section 220. In Melvin Gross v. Biogen Inc., the plaintiff-stockholder was permitted to obtain certain books and records, but the court limited inspection in key respects, and offered words of caution regarding confidentiality agreements. Companies facing Section 220 demands should review this decision and consider its lessons regarding the appropriate scope of inspection.

Best Practices; Board Minutes and Materials; Section 220/Inspection Rights

SPACs and Delaware Fiduciary Duties

Apr 19 2021

Jim Ducayet, Joshua G. DuClos and Rebecca B. Shafer

Special purpose acquisition companies, or SPACs, are popular new tools for raising capital that have garnered significant attention and momentum over the past year. In 2020, 248 SPAC initial public offerings raised over $83 billion in capital—more than quadrupling the number of such offerings from the previous year and eclipsing the amount of capital they raised in 2019 by $69 billion. The amount and value of such offerings is set to grow exponentially again in 2021; as of April 1, 2021, 298 SPAC initial public offerings raised over $97 billion and an additional 247 SPACs filed for an IPO that had yet to close.

There have been few fully litigated cases relating to SPACs. Although many of the cases that have been filed have focused on federal securities law, the nature of SPACs and so-called de-SPACing transactions also potentially implicate a host of state law issues, particularly in connection with the fiduciary duties of directors. This article addresses several issues under Delaware law and how the unique features of SPACs may have an impact on the applicability of those rules.

SPACs

A Reminder of the Obvious: Lawsuit Built on “Bold-Faced Lie” Does not End Well for Plaintiff

Apr 15 2021

Andrew W. Stern

In the course of affirming a Court of Chancery decision in a seemingly routine dispute relating to a stockholder’s ability to nominate a slate of directors, the Delaware Supreme Court underscored the importance of parties’ (and counsel’s) candor with the Court and the potential consequences should the Court conclude it has been misled.

Best Practices; Charter/Bylaw Provisions and Amendments; Shareholder Activism

Delaware Governor Announces Two Court of Chancery Nominations to Fill Retiring Chancellor Bouchard’s Seat

Apr 12 2021

Enhanced Scrutiny Contributors

On April 9, 2021, Delaware Governor John Carney announced a number of judicial nominations, including two nominations to the Court of Chancery:

Vice Chancellor Kathaleen McCormick has been nominated to become the next Chancellor of the Court of Chancery, replacing Andre Bouchard who previously announced his retirement, effective April 30, 2021. She will be the first woman to serve in that role.
Lori W. Will, a partner at Wilson Sonsini in Delaware, has been nominated to fill McCormick’s seat as a Vice Chancellor.

We wish Chancellor Bouchard well in his retirement and thank him for his service on the Court, and look forward to the tenures of Chancellor McCormick and Vice Chancellor Will.

General

SPAC Litigation Accelerates in Delaware Courts

Apr 08 2021

Julia L. Bensur and James Heyworth

As commented on in this space previously (here, here, and here), 2020 and the beginning of 2021 have seen an explosion in popularity of Special Purpose Acquisition Company (“SPAC”) deals. As readers know, SPACs have become one of the predominant vehicles for raising funds outside of the traditional IPO. Historically, SPACs have been the target of litigation relatively infrequently, but that trend is changing with the recent SPAC boom and the corresponding increase in public awareness and interest (including from regulators, short sellers, and the securities plaintiffs’ bar). Along with the increase in federal securities suits filed against pre- and post-de-SPAC companies, a trend likewise may be emerging in the Delaware Court of Chancery: a handful of stockholder suits alleging breach of fiduciary duties have been filed against SPAC entities and/or their boards of directors recently. We highlight a few below.

Misrepresentations and Omissions; SPACs

Securities Litigation Against Life Sciences Companies: 2020

Apr 07 2021

Sara Brody, Robin Wechkin, Francesca Brody and Sarah Hemmendinger

Securities class actions against life sciences companies are almost always second-order problems. The first-order problem is a business or regulatory setback that, when disclosed by the company or a third party, triggers a stock price decline. Following the decline, plaintiffs’ class-action attorneys will search the company’s previous public statements and seek to identify inconsistencies between past positive comments and the current negative development. In most cases, plaintiffs’ attorneys will seek to show that any arguable inconsistency amounts to fraud — that is, they will claim that the earlier statement was knowingly or recklessly false or misleading. Where a company makes the challenged statement in a public offering document — a registration statement or prospectus — plaintiffs need only show that the statement was materially false or misleading, not that it was made with scienter.

COVID-19; Derivative Litigation; Materiality of Disclosures; Misrepresentations and Omissions

Court of Chancery Provides Reminder That Privilege Is Not Absolute