Category: Litigation

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 […]

SCOTUS decides Omnicare: 6th Circuit applied incorrect standards in the context of liability under §11 for statements of opinion

by Cydney Posner Today, SCOTUS issued its opinion in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund.   In the case, SCOTUS answers these questions: First, when can a statement of opinion be considered a “false statement of material fact”? That is, for purposes of §11, a “strict […]

Delaware Chancery Court addresses application of fee-shifting bylaw to former stockholder

by Cydney Posner In a case just decided, Strougo v. Hollander, C.A. No. 9770-CB (Del. Ch. Mar. 16, 2015), the Delaware Chancery Court addressed the issue of whether the timing of adoption affects the enforceability of a unilaterally adopted fee-shifting bylaw against former stockholders.  While it appears that, in light […]

SEC Enforcement tries to fix more “broken windows”

by Cydney Posner On Friday, the SEC charged eight officers, directors and major shareholders for failing to update their Schedule 13D stock ownership reports to reflect material changes in connection with several going-private transactions. According to the press release, each person or entity charged “took steps to advance undisclosed plans […]