Category: Litigation

Three-judge panel of D.C. Circuit again holds that mandatory disclosure requirement of conflict minerals rule violates First Amendment

by Cydney Posner In November 2014, the D.C. Circuit Court of Appeals granted the petitions of the SEC and Amnesty International for panel rehearing in connection with the conflict minerals case, National Association of Manufacturers, Inc. v. SEC. Today, a three-judge panel of the D.C. Circuit, by a vote of two […]

Third Circuit renders opinion in Trinity Wall Street v. Wal-Mart (and admonishes SEC to issue new guidance)

by Cydney Posner Yesterday, the Third Circuit finally rendered its opinion  in Trinity Wall Street v. Wal-Mart Stores Inc, a case involving a shareholder proposal submitted by Trinity Wall Street requesting that Wal-Mart’s board develop a policy regarding the sale of high-capacity firearms and other dangerous products. Wal-Mart sought to […]

Delaware Governor signs into law prohibition on fee-shifting bylaws and authorization of exclusive forum bylaws

by Cydney Posner On June 24, 2015, the Governor of Delaware signed into law amendments to the Delaware General Corporation Law  proposed by the Delaware Bar’s Corporation Law Council  and overwhelmingly passed by the Legislature regarding fee-shifting and forum selection provisions in Delaware governing documents. (See this post and this post […]

Delaware Chancery Court applies entire fairness standard of review to director compensation

by Cydney Posner What is the judicial standard of review applicable to an award of compensation by directors to directors under an equity incentive compensation plan that has been approved by the shareholders?  That was the question before the Delaware Chancery Court in Calma v. Templeton. The answer is, as always: […]

WSJ reports SEC Enforcement looking at failures to disclose alliances among hedge fund activists

by Cydney Posner The WSJ reports  that the SEC is investigating whether some hedge fund activists formed 13D “groups” but failed to make appropriate disclosure of their alliances. Under Rule 13d-5, when two or more persons agree to act together for the purpose of acquiring, holding, voting or disposing of […]

Third Circuit allows Wal-Mart to exclude Trinity’s proposal from its 2015 proxy statement

by Cydney Posner No sooner did I post regarding oral argument in the appeal of Trinity Wall Street v. Wal-Mart Stores, Inc  (see this post) than I find that the Third Circuit has just issued an Order in the case, vacating the injunction that had been issued against Wal-Mart. As a result, Wal-Mart will […]

Third Circuit hears oral argument in Trinity Wall Street v. Wal-Mart Stores

by Cydney Posner Last week, the 3rd Circuit heard oral argument in the appeal of Trinity Wall Street v. Wal-Mart Stores, Inc., a decision by a federal district court in Delaware that had enjoined Wal-Mart from relying on the “ordinary business operations” exclusion, Rule 14a-8(i)(7), to exclude Trinity’s shareholder proposal from […]

Corporation Section of Delaware bar approves amendments re fee shifting and forum selection, substantially as proposed, and some other stuff

by Cydney Posner The Corporation Law Section of the Delaware Bar has approved, substantially as proposed, the amendments to the Delaware General Corporation Law  proposed by the Delaware Bar’s Corporation Law Council regarding fee-shifting and forum selection provisions in Delaware governing documents. (See this post.) Accordingly, it is anticipated that […]

Is there a gaping hole in the proposed Delaware legislation on fee-shifting bylaws?

by Cydney Posner Leave it to a distinguished law professor to actually read the text of proposed legislation and locate the gaping hole in it. In this post, “Delaware Throws a Curveball,” Professor John Coffee analyzes the proposed Delaware legislation on fee-shifting bylaws and finds it wanting.

SEC brings enforcement action for use of confidentiality agreements that impede whistleblowers

by Cydney Posner Well, the folks in the SEC’s whistleblower office were looking for a case to bring and it looks like they found one.  As indicated in this press release, today, the SEC announced that it had brought “its first enforcement action against a company for using improperly restrictive […]