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Delaware Choice-of-Law Provision Upheld

Delaware case law is replete with decisions upholding provisions in contracts that choose Delaware as the governing law for any disputes related to an agreement. A recent Delaware decision adds to the large body of Delaware jurisprudence on this topic. See, e.g., selected decisions on choice-of-law enforceability from the Delaware Supreme Court and Delaware Court of Chancery, … Continue Reading

Recent Delaware Corporate Governance Scholarship

A recent law review article by a former Delaware corporate litigator, turned law professor, provides timely insights about recent developments in Delaware corporate law regarding the private enforcement of directors’ fiduciary duties. The article is based on a lecture that Professor Randall Thomas delivered a few months ago in Delaware (that is part of a series named after … Continue Reading

Collection of Cases on Earn Out Disputes

A recent article on The Harvard Law School Corporate Governance Blog collected decisions, mostly based on Delaware law, that address Earn Out disputes, which generally involve agreements for the sale of a company that allow for post-closing payments subject to various milestones or revenue targets being satisfied. Commonly, the buyer of the company is required to use a … Continue Reading

Claims That Directors Breached Duty of Loyalty Rejected

My latest latest article for the national publication of the National Association of Corporate Directors, called Directorship, features highlights of a recent Delaware Court of Chancery decision that addresses claims that directors breached their fiduciary duty of loyalty by approving side deals that unduly benefitted them personally in connection with a merger. That opinion styled … Continue Reading

Commentary from the Delaware Bench on Contractual Alternatives to Fiduciary Duties

Useful insights from the Delaware Bench were provided on the topic of contractual definitions, or limitations, on fiduciary duties in LLCs and LPs at a recent seminar. The program was moderated by Catherine Dearlove of the Delaware Bar.  Other panel members included Chief Justice Leo Strine, Jr. of the Delaware Supreme Court.  The program was … Continue Reading

U.S. Supreme Court Justice Clarence Thomas

Although the focus of this blog for nearly 13 years has been, and continues to be, Delaware corporate and commercial law, along with related practice topics such as legal ethics, the topic of the U.S. Supreme Court transcends that niche and in many instances controls state law decisions even on corporate and commercial law issues. That prelude is … Continue Reading

Court of Chancery Jurist Co-Authors Article on Drafting

Vice Chancellor J. Travis Laster of the Delaware Court of Chancery co-authored with Ken Adams, an article about agreements that attempt to preempt judicial discretion.  Copious footnotes to court decisions and treatises support the helpful analysis and drafting tips provided. The article should be required reading for anyone litigating the meaning of an agreement in the … Continue Reading

Fiduciary Duties in Limited Partnerships

For my latest column in Directorship, the publication of the National Association of Corporate Directors, I discuss a recent Delaware Supreme Court decision that addresses fiduciary duties as modified in the context of a limited partnership agreement. The case of Brinckerhoff v. Enbridge Energy Company was previously highlighted on these pages, but the opinion remains … Continue Reading

M&A Litigation: Standards of Review

A member of the Delaware Court of Chancery has penned a chapter for an upcoming book on stockholder litigation. An overview of the chapter was recently published on the Harvard Law School Corporate Governance Blog. This scholarly writing by Vice Chancellor J. Travis Laster is entitled: Changing Attitudes: The Stark Results of Thirty Years of Evolution … Continue Reading

Call for Scholarship on New Legal Ethics Rule

Some readers may be aware that for the last 20 years, I have written an ethics column for The Bencher, a publication of the American Inns of Court. One of my recent columns, on the newly adopted Model Rule of Professional Conduct 8.4(g), generated an unusual “letter to the editor” from the current president of the … Continue Reading

Scholarship on Duties of Corporate Officers

Professor Lyman Johnson, whose scholarship on corporate law has been cited in Delaware court opinions, and frequently referred to on these pages, has published a paper on the implications and consequences of the paucity of Delaware case law on the duties of corporate officers–especially when compared to the plethora of case law defining the contours … Continue Reading

New Chapter on Advancement and Indemnification of Directors

As we have written on these pages for several years, in my capacity as the Chair of the American Bar Association’s Advancement and Indemnification Subcommittee of the Business Law Section’s Corporate Litigation Committee, yours truly co-authors a chapter each year that highlights the most noteworthy court decisions on advancement and indemnification of directors and officers, as part of an … Continue Reading

Thank You Justice Holland

The Honorable Randy Holland retired on March 31 after 30 years as a Justice on the Delaware Supreme Court. He deserves praise and gratitude for this 30 years of service on Delaware’s high court. He was the author of many important corporate law opinions, in addition to authoring many opinions, books and articles on a … Continue Reading

Chancery Orders Predictive Coding to Assist E-Discovery Process

Alexandra D. Rogin, an Eckert Seamans associate, prepared this overview. The Chancery Daily recently reported on the Court’s order in OSI Restaurant Partners, LLC v. United Ohana, LLC, C.A. No. 12353-CB (Del. Ch. Jan. 27, 2017) (Order), requiring the parties to use predictive coding to assist the plaintiff in expeditiously producing responsive documents. As is … Continue Reading

Military Generals and Boards of Directors

The National Association of Corporate Directors is hosting a seminar later this week for retired, or nearly retired, generals in the U.S. armed services who aspire to be on a board of directors. The goal of the two-day seminar is to provide the basic information that one should know in order to be better prepared to become a director. I’m honored to be … Continue Reading

Can Delaware Be Dethroned?

A symposium at UCLA Law School on Feb. 17 and 18 will bring together corporate law professors and corporate litigation practitioners from around the country to address the perennial issue regarding whether Delaware can maintain its dominance in the corporate law world. Professor Stephen Bainbridge has organized a formidable assemblage of panels, the members of which will … Continue Reading

Scholarship on Limited Liability

Professor Stephen Bainbridge, a nationally-recognized corporate law scholar whose scholarship has been cited in the opinions of Delaware courts, has added another book to the list of his prolific publications. He has co-authored with Professor Todd Henderson, a book entitled “Limited Liability: A Legal and Economic Analysis“. It has been favorably reviewed in The Economist magazine, and the publisher’s … Continue Reading

New Chair of ABA Business Law Section

Congratulations to Delaware attorney Bill Johnston on becoming the new chair of the American Bar Association’s Business Law Section. Bill is a partner at Young Conaway Stargatt & Taylor in Wilmington where he concentrates on corporate and other business counseling and litigation, with an emphasis on Delaware Chancery Court practice and Delaware Superior Court Complex Commercial … Continue Reading

Corporate Law Seminar

I have been asked to provide information about the following seminar on corporate law at Rutgers Law School-Camden: The Rutgers Center for Corporate Law and Governance is presenting a conference on corporate compliance on Friday, May 20, 2016, from 8:30 AM to 3:30 PM, entitled New Directions in Corporate Compliance. The conference will take place … Continue Reading

CEOs as Social Justice Warriors

Yesterday’s Wall Street Journal featured a front page article about an apparently increasing number of CEOs of public companies who use their companies’ resources, and wield their companies’ resources as a sword, to advocate in their official corporate capacities to advance their favorite social agendas–or to oppose legislation on social policies that they disfavor. Courtesy of highly-regarded corporate law scholar … Continue Reading

Supreme Court Expands Basis to Sue Directors and Officers in Delaware

The Delaware Supreme Court recently interpreted the statutory basis for imposing jurisdiction over directors and officers of Delaware corporations in a manner that is broader than the interpretation that previously prevailed in Delaware courts for the last 30 years. Hazout v. Tsang, No. 353, 2015 (Del. Supr., Feb. 26, 2016). Directors and officers of Delaware … Continue Reading
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