In Houseman v. Sagerman, the Delaware Chancery Court’s dismissal of the stockholder plaintiff’s claim for breach of fiduciary duty underscores the heightened pleading standard necessary to support such a claim by plaintiffs against a corporation’s directors arising out of allegations that the directors breached their duty in the process taken to approve the transaction. The…

Last week I did a presentation on Patagonia that I obtained from the Berkeley-Haas Case Series. I prepared a Prezi presentation on it which I link to here. Enjoy. Patagonia’s Background and Early History Between 2009 and 2013, Patagonia’s revenue doubled to over $500 million, and by 2015 surpassed $600 million with over 2,000 employees. …

  This is the draft of a paper I hope to continue developing. I hope to eventually publish it.  Therefore, this is the first of several posts about delisting and deregistering your public company. Introduction The Securities and Exchange Commission (the “SEC”) permits certain issuers to voluntarily “opt-out” of the public company reporting system when its…

First of all, an auditor’s dismissal, declination, or resignation triggers Item 4.01 of Form 8-K, meaning the Company will need to file an 8-K within four days of dismissal or resignation. You can do it one or two 8-Ks, meaning you can announce the auditor’s resignation in an 8-K and then file another 8-K when…

This post provides broad general advice on (i) the duties owed by a director of a corporation in the U.S., and (ii) the steps directors should take to minimize the risk of a claim for breach of these duties. Given that most of my clients are Delaware corporations, I have focused primarily on Delaware law and…

Today I decided to study the constitutional origins of corporate rights. SCOTUS has extended constitutional rights to corporations in controversial recent cases like Citizens United and Hobby Lobby, and, admittedly, since it is election season, I wanted to see if Mitt Romney’s statement during the last election cycle that “corporations are people” was correct.  It turns…

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: LYONDELL CHEMICAL COMPANY, et al., Debtors. EDWARD S. WEISFELNER, AS LITIGATION TRUSTEE OF THE LB CREDITOR TRUST, Plaintiff, v. FUND 1., et al., Defendants. Chapter 11 Case No. 09-10023 Jointly Administered Adversary Proceeding  Case No. 10-4609 (REG) DECISION AND ORDER ON MOTIONS TO DISMISS APPEARANCES: BROWN…

The Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act) established, among other things, premerger notification thresholds that would trigger the necessity of some companies to notify the Federal Trade Commission (FTC) and observe a waiting period prior to consummation of certain corporate transactions.  Each year the FTC adjusts this threshold according to the gross national…

Former Lyondell shareholders may be set back by recent developments in the Lyondell bankruptcy case leaving Lyondell shareholders open to creditor fraudulent conveyance claims. Law360, New York (January 27, 2014, 1:17 PM ET).  Lisa Schweitzer writes, “On Jan. 14, 2014, the U.S. Bankruptcy Court for the Southern District of New York held that the Bankruptcy…

Recent News on the Lyondell Clawback Litigation from Cadwalader, Wickersham & Taft: On January 14, 2014, Judge Robert E. Gerber of the United States Bankruptcy Court for the Southern District of New York in Weisfelner v. Fund 1. (In re Lyondell Chemical Co.), Adv. Proc. No. 10-4609 (REG), 2014 WL 118036 (Bankr. S.D.N.Y. Jan. 14, 2014) held that…

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