This past summer, in a decision that attracted little attention, Vice Chancellor David in the Delaware Court of Chancery tossed Joel B. Ritchie v. G. Leonard Baker et al., a shareholder derivative suit filed on behalf of Corcept Therapeutics, Inc. against certain directors for alleged breaches of fiduciary duty related to off-label marketing practices. The Court dismissed the complaint under Court of Chancery Rule 23.1 because Plaintiff, who had not made a pre-litigation demand, failed to plead that the Board was unable to bring its business judgment to bear on assessing such a demand and, as such, the demand was not futile.
https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png00Andrew W. Sternhttps://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.pngAndrew W. Stern2025-11-10 09:04:072025-11-07 12:51:34Get Your Story Straight: Inconsistency in Plaintiff’s Allegations & Theories Dooms Complaint
Recently, in Witmer v. Armistice Capital, LLC, Delaware’s Court of Chancery dismissed a stockholder plaintiff’s derivative suit against Armistice Capital, LLC, a large investor in Aytu Biopharma, Inc., for, among other things, purported breaches of fiduciary duty and aiding and abetting fiduciary breaches, in connection with two transactions for which the plaintiff alleged Aytu overpaid, the investor improperly benefited, and the investor exercised control.
https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2025/02/MN-18360_Updated-Enhanced-Scrutiny-Blog-imagery_833x606_26.jpg606833Yolanda C. Garciahttps://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.pngYolanda C. Garcia2025-11-04 09:03:422025-11-04 09:59:08Potential Control Won’t Do: Court of Chancery Confirms Common Law Standards for Actual Control Regarding Challenged Transactions
In re The Trade Desk, Inc. Derivative Litigationdemonstrates the careful analysis the courts will engage in when conducting a Rule 23.1 demand futility challenge to assess both director independence and the likelihood of liability for the claims against the directors. This litigation was filed in 2022, and therefore was not impacted by the amendment of DGCL Section 144 earlier this year, which provided new procedural safe harbors for acts or transactions involving corporations and their directors, officers, controlling stockholders, and control groups. As a result, the court’s ruling and this post do not engage with the amended statute. Nevertheless, the court’s methodical analysis of director independence is informative of the factors that the Court of Chancery has found, and may continue to find, relevant to independence analyses. This ruling was affirmed on November 6, 2025 by the Supreme Court of Delaware on the basis of and for the reasons stated in the Memorandum of Opinion.
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. Bartlett2025-10-20 09:59:472025-11-17 12:26:17Delaware Court of Chancery Dismisses Derivative Challenge to The Trade Desk CEO’s Compensation Award Valued at $819 Million for Lack of Demand Futility
Uncertainty in Section 11 securities litigation has grown following the Supreme Court’s Slack v. Pirani decision and ambiguities in the Private Securities Litigation Reform Act (PSLRA). The PSLRA grants judgment reduction credits when outside directors settle, but its silence on other Section 11 defendants has created confusion that discourages fair and efficient settlements. Although courts often extend judgment reduction credits more broadly, inconsistent interpretations leave litigants uncertain. Amending the PSLRA to provide uniform rules would promote quicker, fairer resolutions and better serve its goal of curbing abusive securities litigation.
https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2024/10/MN-24015-Enhanced-Scrutiny-Blog-Imagery-Refresh_11.jpg606833Bruce R. Braunhttps://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.pngBruce R. Braun2025-10-01 09:04:422025-10-01 09:45:09Congress Must Resolve PSLRA Issue For Section 11 Litigants
On July 21, 2025, the California Supreme Court issued a decision in EpicentRX v. Superior Court, reversing a decision by the California Fourth District Court of Appeal that declined to enforce a forum selection clause in a corporation’s certificate of incorporation and bylaws designating the Delaware Court of Chancery as the mandatory forum. As we reported at the time, the Court of Appeal concluded that because the Delaware Court of Chancery, as a court of equity, does not conduct jury trials, the forum selection clause in favor of the Delaware forum ran afoul of California’s “sacred” right to a jury trial and thus was unenforceable. In reversing, the California Supreme Court rejected this reasoning in its entirety, holding that “A forum selection clause is not unenforceable simply because it requires the parties to litigate in a jurisdiction that does not afford civil litigants the same right to trial by jury as litigants in California courts enjoy.” (more…)
https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png00Matthew J. Dolanhttps://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.pngMatthew J. Dolan2025-09-23 09:02:312025-12-03 12:55:27California Supreme Court Holds Right to Jury Trial Does Not Bar Enforcement of a Delaware Forum Selection Clause
On September 1, 2022, the SEC universal proxy card (UPC) rules took effect, allowing shareholders to freely “mix and match” from among management and dissident nominees in contested director elections. Before the rules’ adoption, their impact on shareholder activism was hotly debated, including in a comment letter to the SEC from our practice. Since they went into effect, judgments (even by us) have too often been anecdotal or based on limited data.
https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2025/01/MN-24015-Enhanced-Scrutiny-Blog-Imagery-Refresh_15.jpg606833Eric S. Goodwinhttps://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.pngEric S. Goodwin2025-09-16 09:03:162025-09-30 12:45:04How Three Years of the Universal Proxy Card Rules Have Changed Proxy Contests
Derek Zaba and Kai Liekefett, co-chairs of Sidley’s Shareholder Activism and Corporate Defense practice, discuss the 2025 proxy season and give a shareholder activism outlook for the second half of the year.
Get Your Story Straight: Inconsistency in Plaintiff’s Allegations & Theories Dooms Complaint
This past summer, in a decision that attracted little attention, Vice Chancellor David in the Delaware Court of Chancery tossed Joel B. Ritchie v. G. Leonard Baker et al., a shareholder derivative suit filed on behalf of Corcept Therapeutics, Inc. against certain directors for alleged breaches of fiduciary duty related to off-label marketing practices. The Court dismissed the complaint under Court of Chancery Rule 23.1 because Plaintiff, who had not made a pre-litigation demand, failed to plead that the Board was unable to bring its business judgment to bear on assessing such a demand and, as such, the demand was not futile.
(more…)
Andrew W. Stern
Alexandra Bieler
New York
abieler@sidley.com
Potential Control Won’t Do: Court of Chancery Confirms Common Law Standards for Actual Control Regarding Challenged Transactions
Recently, in Witmer v. Armistice Capital, LLC, Delaware’s Court of Chancery dismissed a stockholder plaintiff’s derivative suit against Armistice Capital, LLC, a large investor in Aytu Biopharma, Inc., for, among other things, purported breaches of fiduciary duty and aiding and abetting fiduciary breaches, in connection with two transactions for which the plaintiff alleged Aytu overpaid, the investor improperly benefited, and the investor exercised control.
(more…)
Yolanda C. Garcia
Dallas
ygarcia@sidley.com
Vincent J. Margiotta
New York
vmargiotta@sidley.com
Delaware Court of Chancery Dismisses Derivative Challenge to The Trade Desk CEO’s Compensation Award Valued at $819 Million for Lack of Demand Futility
In re The Trade Desk, Inc. Derivative Litigation demonstrates the careful analysis the courts will engage in when conducting a Rule 23.1 demand futility challenge to assess both director independence and the likelihood of liability for the claims against the directors. This litigation was filed in 2022, and therefore was not impacted by the amendment of DGCL Section 144 earlier this year, which provided new procedural safe harbors for acts or transactions involving corporations and their directors, officers, controlling stockholders, and control groups. As a result, the court’s ruling and this post do not engage with the amended statute. Nevertheless, the court’s methodical analysis of director independence is informative of the factors that the Court of Chancery has found, and may continue to find, relevant to independence analyses. This ruling was affirmed on November 6, 2025 by the Supreme Court of Delaware on the basis of and for the reasons stated in the Memorandum of Opinion.
(more…)
Jaime A. Bartlett
San Francisco
jbartlett@sidley.com
Madison J. Ferraro
San Francisco
madison.ferraro@sidley.com
Congress Must Resolve PSLRA Issue For Section 11 Litigants
Uncertainty in Section 11 securities litigation has grown following the Supreme Court’s Slack v. Pirani decision and ambiguities in the Private Securities Litigation Reform Act (PSLRA). The PSLRA grants judgment reduction credits when outside directors settle, but its silence on other Section 11 defendants has created confusion that discourages fair and efficient settlements. Although courts often extend judgment reduction credits more broadly, inconsistent interpretations leave litigants uncertain. Amending the PSLRA to provide uniform rules would promote quicker, fairer resolutions and better serve its goal of curbing abusive securities litigation.
(more…)
Bruce R. Braun
Chicago
bbraun@sidley.com
Tommy Hoyt
Chicago
thoyt@sidley.com
California Supreme Court Holds Right to Jury Trial Does Not Bar Enforcement of a Delaware Forum Selection Clause
On July 21, 2025, the California Supreme Court issued a decision in EpicentRX v. Superior Court, reversing a decision by the California Fourth District Court of Appeal that declined to enforce a forum selection clause in a corporation’s certificate of incorporation and bylaws designating the Delaware Court of Chancery as the mandatory forum. As we reported at the time, the Court of Appeal concluded that because the Delaware Court of Chancery, as a court of equity, does not conduct jury trials, the forum selection clause in favor of the Delaware forum ran afoul of California’s “sacred” right to a jury trial and thus was unenforceable. In reversing, the California Supreme Court rejected this reasoning in its entirety, holding that “A forum selection clause is not unenforceable simply because it requires the parties to litigate in a jurisdiction that does not afford civil litigants the same right to trial by jury as litigants in California courts enjoy.” (more…)
Matthew J. Dolan
Palo Alto
mdolan@sidley.com
Jaime A. Bartlett
San Francisco
jbartlett@sidley.com
How Three Years of the Universal Proxy Card Rules Have Changed Proxy Contests
On September 1, 2022, the SEC universal proxy card (UPC) rules took effect, allowing shareholders to freely “mix and match” from among management and dissident nominees in contested director elections. Before the rules’ adoption, their impact on shareholder activism was hotly debated, including in a comment letter to the SEC from our practice. Since they went into effect, judgments (even by us) have too often been anecdotal or based on limited data.
(more…)
Eric S. Goodwin
New York
egoodwin@sidley.com
Kai H.E. Liekefett
New York
kliekefett@sidley.com
Derek Zaba
Palo Alto, New York
dzaba@sidley.com
2025 Proxy Season: Temporary Disruption Amid Structural Shifts in Shareholder Activism
(more…)
Derek Zaba
Palo Alto, New York
dzaba@sidley.com
Kai H.E. Liekefett
New York
kliekefett@sidley.com
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Charlotte K. Newell
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Yolanda C. Garcia
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James Heyworth
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Alex J. Kaplan
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Ian M. Ross
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