In a recent decision, Chancellor Kathaleen McCormick of the Delaware Chancery Court examined what constitutes a sale of “substantially all” of a selling company’s assets for purposes of Section 271 of the Delaware General Corporation Law (DGCL), granting a company’s motion to dismiss a stockholder’s lawsuit alleging that a sale of the “crown jewel” of the company amounted to a sale of substantially all of its assets and accordingly required stockholder approval. Altieri v. Alexy, No. 2021-0946-KSJM (Del. Ch. May 22, 2023).
https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png00Thomas E. Johnsonhttps://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.pngThomas E. Johnson2023-07-11 12:09:292023-09-08 10:00:08Delaware Chancery Court Clarifies What Constitutes a Sale of “Substantially All” Assets
In a recently issued opinion in HControl Holdings v. Antin Infrastructure Partners, Chancellor McCormick of the Delaware Court of Chancery allowed a buyer to avoid closing on a transaction based on the failure of a closing condition related to the capitalization representation.
https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png00Robert S. Velevishttps://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.pngRobert S. Velevis2023-06-27 10:01:342023-09-08 10:02:11A Small Phantom Is Still a Phantom: Chancery Declines To Imply Materiality Requirement When the Parties Have Not Done So
Last Friday, Gov. Greg Abbott signed into law House Bill 19, creating Texas “business courts” to hear certain types of complex commercial disputes. These courts will open on September 1, 2024. The creation of these courts raises a host of strategic questions for litigants, as described in detail below. In-house lawyers would do well to start familiarizing themselves with the business courts’ structure and the strategic issues and decision points that may arise when the courts open their doors next year.
https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png00Angela C. Zambranohttps://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.pngAngela C. Zambrano2023-06-21 09:03:172023-09-08 10:02:46Welcome to Texas: Texas Governor Signs Law Creating Specialized Business Courts
The recent Delaware Court of Chancery decision, In re McDonald’s Corporate Stockholder Derivative Litigation is a reminder of corporate officer duties and the vital role that corporate officers play in corporate governance, at both publicly and privately held corporations. These duties stem from officers’ status as both agents and fiduciaries. For boards of directors and other officers to perform their roles effectively, it is critical for officers to understand an satisfy their duties. Failure to do so may deprive boards of directors of information they need to monitor operations, mitigate risks and establish strategy and can expose officers to personal liability.
https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png00Beth E. Berghttps://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.pngBeth E. Berg2023-06-15 07:55:222023-09-08 10:03:20Corporate Officers’ Role in Corporate Governance: What Officers Need to Know
Holly Gregory and Claire Holland have authored the United States chapter of Getting the Deal Through – Corporate Governance 2023, an annual summary of key corporate governance practices in 19 jurisdictions worldwide. Topics addressed in the chapter include: sources of governance rules and practice, shareholders’ rights, duties and liability, anti-takeover devices, board structures, legal duties of the board, and disclosure and reporting requirements. Holly Gregory has served as the contributing editor since 2015.
https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png00Holly J. Gregoryhttps://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.pngHolly J. Gregory2023-06-12 10:12:082023-09-08 10:04:06Getting the Deal Through – Corporate Governance 2023
On June 1, 2023, the majority of an en banc panel of the Ninth Circuit found that Gap Inc.’s forum selection clause does not violate the anti-waiver provision of the Securities Exchange Act of 1934 (the “Exchange Act”) or Delaware law, entrenching its split with the Seventh Circuit’s circuit ruling on the same questions and ensuring that the enforcement of forum selection clauses across jurisdictions will remain unsettled for the foreseeable future.
https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png00Jaime A. Bartletthttps://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.pngJaime A. Bartlett2023-06-08 09:04:492023-09-08 10:04:52The Saga Continues: Part II
The Delaware Court of Chancery recently reminded litigants of the “fundamental right . . . to an open court system.” Minnie Sarwal v. Nephrosant, Inc., C.A. No. 2023-0222-BWD (Del Ch. May 11, 2023). The Court’s ruling in Sarwal, as well as another recent decision, serve as a strong reminder that litigants should not presume information will be kept confidential, no matter how sensitive it may be. If a party cannot demonstrate a particularized harm from disclosure that outweighs the public interest in accessing the information, the Court of Chancery will not permit confidential treatment.
https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png00Jim Ducayethttps://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.pngJim Ducayet2023-06-06 11:10:092023-09-08 10:05:30The Presumption of Public Access: From Internal Investigations to Arbitration Agreements, Delaware Courts Disfavor Confidentiality
Delaware Chancery Court Clarifies What Constitutes a Sale of “Substantially All” Assets
In a recent decision, Chancellor Kathaleen McCormick of the Delaware Chancery Court examined what constitutes a sale of “substantially all” of a selling company’s assets for purposes of Section 271 of the Delaware General Corporation Law (DGCL), granting a company’s motion to dismiss a stockholder’s lawsuit alleging that a sale of the “crown jewel” of the company amounted to a sale of substantially all of its assets and accordingly required stockholder approval. Altieri v. Alexy, No. 2021-0946-KSJM (Del. Ch. May 22, 2023).
(more…)
Thomas E. Johnson
Chicago
thomas.johnson@sidley.com
A Small Phantom Is Still a Phantom: Chancery Declines To Imply Materiality Requirement When the Parties Have Not Done So
In a recently issued opinion in HControl Holdings v. Antin Infrastructure Partners, Chancellor McCormick of the Delaware Court of Chancery allowed a buyer to avoid closing on a transaction based on the failure of a closing condition related to the capitalization representation.
(more…)
Robert S. Velevis
Dallas
rvelevis@sidley.com
Welcome to Texas: Texas Governor Signs Law Creating Specialized Business Courts
Last Friday, Gov. Greg Abbott signed into law House Bill 19, creating Texas “business courts” to hear certain types of complex commercial disputes. These courts will open on September 1, 2024. The creation of these courts raises a host of strategic questions for litigants, as described in detail below. In-house lawyers would do well to start familiarizing themselves with the business courts’ structure and the strategic issues and decision points that may arise when the courts open their doors next year.
(more…)
Angela C. Zambrano
Dallas
azambrano@sidley.com
Natali Wyson
Dallas
nwyson@sidley.com
Chelsea A. Priest
Dallas
cpriest@sidley.com
Corporate Officers’ Role in Corporate Governance: What Officers Need to Know
The recent Delaware Court of Chancery decision, In re McDonald’s Corporate Stockholder Derivative Litigation is a reminder of corporate officer duties and the vital role that corporate officers play in corporate governance, at both publicly and privately held corporations. These duties stem from officers’ status as both agents and fiduciaries. For boards of directors and other officers to perform their roles effectively, it is critical for officers to understand an satisfy their duties. Failure to do so may deprive boards of directors of information they need to monitor operations, mitigate risks and establish strategy and can expose officers to personal liability.
(more…)
Beth E. Berg
Chicago
bberg@sidley.com
Hannah Ellis
Chicago
hellis@sidley.com
Getting the Deal Through – Corporate Governance 2023
Holly Gregory and Claire Holland have authored the United States chapter of Getting the Deal Through – Corporate Governance 2023, an annual summary of key corporate governance practices in 19 jurisdictions worldwide. Topics addressed in the chapter include: sources of governance rules and practice, shareholders’ rights, duties and liability, anti-takeover devices, board structures, legal duties of the board, and disclosure and reporting requirements. Holly Gregory has served as the contributing editor since 2015.
(more…)
Holly J. Gregory
New York
holly.gregory@sidley.com
Claire H. Holland
Chicago
cholland@sidley.com
The Saga Continues: Part II
On June 1, 2023, the majority of an en banc panel of the Ninth Circuit found that Gap Inc.’s forum selection clause does not violate the anti-waiver provision of the Securities Exchange Act of 1934 (the “Exchange Act”) or Delaware law, entrenching its split with the Seventh Circuit’s circuit ruling on the same questions and ensuring that the enforcement of forum selection clauses across jurisdictions will remain unsettled for the foreseeable future.
(more…)
Jaime A. Bartlett
San Francisco
jbartlett@sidley.com
Tyler Baylis
San Francisco
tbaylis@sidley.com
The Presumption of Public Access: From Internal Investigations to Arbitration Agreements, Delaware Courts Disfavor Confidentiality
The Delaware Court of Chancery recently reminded litigants of the “fundamental right . . . to an open court system.” Minnie Sarwal v. Nephrosant, Inc., C.A. No. 2023-0222-BWD (Del Ch. May 11, 2023). The Court’s ruling in Sarwal, as well as another recent decision, serve as a strong reminder that litigants should not presume information will be kept confidential, no matter how sensitive it may be. If a party cannot demonstrate a particularized harm from disclosure that outweighs the public interest in accessing the information, the Court of Chancery will not permit confidential treatment.
(more…)
Jim Ducayet
Chicago
jducayet@sidley.com
Caitlin Fernandez Zamora
Chicago
caitlin.fernandezzamora@sidley.com
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