In an opinion last week, the Delaware Court of Chancery, following other recent decisions from that Court, strongly signaled that stockholder lawsuits in Delaware attacking mergers may no longer be resolved by a corporate defendant providing additional disclosures to stockholders in exchange for a broad release of claims against all defendants. Signaling the end to what has become common practice in stockholder litigation routinely challenging mergers, Vice Chancellor Glasscock noted in his decision approving a settlement in In re Riverbed Technologies that, "in light of this Memorandum Opinion," expectations that the court will approve such broad releases in exchange for additional disclosures "will be diminished or eliminated going forward."The settlement arose
Client Alert | September 24, 2015
Los Angeles partner Michael Farhang is the author of “DOJ Authority to Strike Deals With Defendants Limited” [PDF] published by the Daily Journal on September 23, 2015.
Article | September 23, 2015
Los Angeles partner Michael M. Farhang and Orange County associate Colin B. Davis are the authors of “Flawed Process Results in Flawed Valuation Determination” [PDF] published on September 16, 2015 by Delaware Business Court Insider.
Article | September 16, 2015
Washington, D.C. partners F. Joseph Warin, John W.F. Chesley and associate Stephanie Connor are authors of "2015 Mid-Year FCPA Update (Part 2)" published on August 31, 2015 by Westlaw Journal's Government Contract. The article is the second installment of a two-part series providing an overview of the FCPA as well as domestic anti-corruption enforcement, litigation, and policy developments in the first half of 2015
Article | August 31, 2015
New York partner Aric H. Wu and associate Jefferson E. Bell are the authors of "Chancery Clarifies Scope of 'Equitable Standing' in Derivative Actions" [PDF] published on August 19, 2015 by Delaware Business Court Insider.
Article | August 19, 2015
Washington, D.C. partners F. Joseph Warin, John W.F. Chesley and associate Stephanie Connor are authors of "2015 Mid-Year FCPA Update (Part 1)" published on August 17, 2015 by Westlaw Journal's Government Contract. The article is the first installment of a two-part series providing an overview of the FCPA as well as domestic anti-corruption enforcement, litigation, and policy developments in the first half of 2015.
Article | August 17, 2015
On July 27, 2015, the U.S. District Court for the Northern District of Texas issued its anticipated decision on remand from Halliburton, Co. v. Erica P.
Client Alert | July 29, 2015
San Francisco partners Thad Davis and Michael Li-Ming Wong and associate Nicola Paterson are the authors of “The Data Security Governance Conundrum: Practical Solutions and Best Practices for the Boardroom and the C-Suite” [PDF] published in Volume 2015 of the Columbia Business Law Review.
Article | July 21, 2015
On July 2, 2015, in Hill International, Inc. v. Opportunity Partners L.P., No. 305, 2015, the Delaware Supreme Court affirmed a Court of Chancery decision that Opportunity Partnership L.P.
Client Alert | July 16, 2015
Progress on Some Fronts, But Significant Dangers Remain, and New Dangers EmergeE-discovery remains an incredibly rich and rapidly developing field, as the many developments on which we report from just the first half of 2015 attest.
Client Alert | July 15, 2015
San Francisco partner Brian Lutz and New York associate Jessica Sommer are the authors of “Chancery Court Looks Beyond Deal Price to Determine ‘Fair Value’” [PDF] published on July 15, 2015 by the Delaware Business Court Insider.
Article | July 15, 2015
The first half of 2015 has proved yet another eventful period in securities litigation. Chief among significant developments in the first half of the year is the U.S.
Client Alert | July 14, 2015
Midway through the 2015 calendar year, the SEC Enforcement program has often been finding itself garnering more public attention for the manner in which it sources, litigates, and resolves cases than for the cases themselves.
Client Alert | July 13, 2015
2015 came in like a lion, bringing with it remarkable policy changes regarding corporate non-prosecution agreements ("NPA") and deferred prosecution agreements ("DPA").
Client Alert | July 8, 2015
I. INTRODUCTION There is no end in sight to the False Claims Act gold rush. After a record-setting 2014, which saw $5.7 billion in recoveries under the federal False Claims Act (FCA), 31 U.S.C.
Client Alert | July 8, 2015
For years, U.S. regulators have been encouraging their foreign counterparts to pick up the mantle of international bribery enforcement and more evenly distribute the balance of prosecutions. With 2015 potentially shaping up to be a year in which transnational bribery prosecutions by foreign authorities match if not exceed U.S.-initiated actions under the Foreign Corrupt Practices Act ("FCPA"), it appears that their calls have been heeded. But the shifting balance between domestic and foreign regulators does not portend a lull for U.S.
Client Alert | July 6, 2015
San Francisco partner Thad Davis and associate Nicola Paterson are the authors of “’Equalizing’ the Negotiation Process with a Trial-Ready SEC” [PDF] published in the Summer 2015 issue of American Bar Association’s Criminal Litigation.
Article | June 29, 2015
On June 24, 2015, in a highly anticipated move, the State of Delaware enacted legislation that (1) allows corporations to require that internal corporate claims be brought in the courts of Delaware while also prohibiting the use of any other jurisdiction as the exclusive jurisdiction and (2) prohibits stock corporations from including fee-shifting provisions for internal corporate claims in their certificates of incorporation or bylaws.
Client Alert | June 26, 2015
Dallas partner Robert Little and associate Madison Jones are the authors of “Chancery Describes Standard of Review for Demand Refusal Decision” [PDF] published on June 17, 2015 by Delaware Business Court Insider.
Article | June 17, 2015
On May 28, 2015, Chancellor Bouchard of the Delaware Court of Chancery issued an opinion clarifying and strengthening the rights of a former director and officer to receive mandatory advancement under a corporation's charter.
Client Alert | June 1, 2015
On May 6 and 18, 2015, in what will certainly become landmark decisions, the criminal court of Paris ruled that a same person may no longer be prosecuted and condemned twice with respect to market abuse offences for the same facts by both the Autorité des marchés financiers' (French financial markets authority) Commission des sanctions (Enforcement Committee) and a French criminal court.
Client Alert | May 19, 2015
On May 14, 2015, the Delaware Supreme Court reversed two rulings by the Court of Chancery and held that a "plaintiff seeking only monetary damages must plead non-exculpated claims against a director who is protected by an exculpatory charter provision to survive a motion to dismiss, regardless of the underlying standard of review for the board's conduct--be it Revlon, Unocal, the entire fairness standard, or the business judgment rule." In re Cornerstone Therapeutics Inc.
Client Alert | May 19, 2015
On April 30, 2015, Chancellor Bouchard of the Delaware Court of Chancery issued an important decision regarding the fiduciary duties of board compensation committees in awarding compensation to non-employee directors. In Calma v. Templeton, the Court, drawing on its prior opinion in Seinfeld v. Slager, denied the defendants' motion to dismiss, under Rule 12(b)(6), a claim that the members of Citrix Systems, Inc.'s ("Citrix" or the "Company") board of directors breached their fiduciary duties in awarding compensation to non-employee directors under Citrix's equity incentive plan. In reaching this decision, the Court applied the entire fairness standard of review to the compensation committee of the board of directors' (the "Compensation Commit
Client Alert | May 11, 2015
The Delaware Court of Chancery's endorsement of exclusive forum bylaws--bylaw provisions establishing that certain types of lawsuits relating to internal corporate governance matters may only be pursued in a designated forum--has led to the extensive use of these bylaws as a way to manage the litigation that commonly accompanies public mergers and similar transactions. In particular, following the decision in City of Providence v.
Client Alert | May 4, 2015
On March 25, 2015, in a unanimous vote, the U.S.
Client Alert | April 22, 2015
On March 24, 2015, the Supreme Court of the United States issued its long-awaited decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 575 U.S.
Client Alert | March 25, 2015
New York partner Brian M. Lutz and associate Jefferson E. Bell are authors of "Hurdles in Appraisal Actions for Companies Sold in ‘Robust’ Auction" [PDF] published on February 17, 2015 by the Delaware Business Court Insider.
Article | February 17, 2015
San Francisco partner Brian Lutz is the author of "Delineating a board's duty to find the highest value" [PDF] published in the February 12, 2015 issue of the Daily Journal.
Article | February 12, 2015
On January 23, 2015, the Division of Corporation Finance of the SEC issued a no-action letter permitting issuers (or their parents or wholly-owned subsidiaries) to conduct five business day tender offers for any and all non-convertible debt securities when certain conditions were met.
Client Alert | February 3, 2015
New York partner Adam H. Offenhartz and associate Peter M. Wade are authors of "Preliminary Injunctions and Share Counts in Merger Context" [PDF] published in the January 27, 2015 issue of Delaware Business Court Insider.
Article | January 27, 2015
On January 12, 2015, the United States Court of Appeals for the Second Circuit issued an unprecedented decision holding that a company's failure to disclose a known trend or uncertainty in its Form 10-Q filings, as required by Item 303 of SEC Regulation S-K, can give rise to liability under Section 10(b) of the Securities Exchange Act of 1934.
Client Alert | January 22, 2015
Shareholder activism continues to dominate the corporate landscape and attract daily headlines in the financial press. And, as the pace of activism accelerates in 2015, a number of legal battles over the last two years between companies and activists has put in the spotlight the permissible scope and function of advance notice bylaws--a term that we broadly define for these purposes to cover bylaw provisions establishing timing, procedural and informational requirements for shareholders seeking to present director nominations and other business proposals to a shareholder vote.
Client Alert | January 22, 2015
In our Mid-Year E-Discovery Update, we reported that 2014 was shaping up to be the "year of technology" in e-discovery. The remainder of the year more than lived up to those expectations.
Client Alert | January 20, 2015
The close of 2014 saw the SEC's Division of Enforcement take a victory lap. Following the release of the statistics for the fiscal year ended September 30, Division Director Andrew Ceresney touted a few records -- the largest number of enforcement actions brought in a single year (755); the largest total value of monetary sanctions awarded to the agency (over $4 billion); the largest number of cases taken to trial in recent history (30).
Client Alert | January 12, 2015
Just two years ago we noted the staggering level of the federal government's recovery-- approximately $5 billion--under the False Claims Act, 31 U.S.C.
Client Alert | January 7, 2015
The U.S. Department of Justice ("DOJ") and the U.S. Securities and Exchange Commission ("SEC") continue to deploy DPAs and NPAs aggressively. This past year left no doubt that such resolutions are a vital part of the federal corporate law enforcement arsenal, affording the U.S.
Client Alert | January 6, 2015
In this alert, Gibson Dunn lawyers describe five trends in FCPA enforcement they observed between 2005 and 2015.
Client Alert | January 5, 2015
On December 19, 2014, the Delaware Supreme Court issued a ruling reversing an order of the Court of Chancery granting a preliminary injunction that would have enjoined an agreed-to merger and required a mandatory post-signing 30-day go-shop period. In C&J Energy Services, Inc. v.
Client Alert | December 22, 2014
New York partner James L. Hallowell and associate Brian R. Morgenstern are authors of "A Reminder to Focus on Form in Assessing Limits of Business Entities" [PDF] published in the December 17, 2014 issue of Delaware Business Court Insider.
Client Alert | December 17, 2014
On December 10, 2014, the United States Court of Appeals for the Second Circuit issued its much-anticipated decision in United States v. Newman, which vacated the convictions of and dismissed with prejudice the indictments against two high-profile insider trading defendants--Anthony Chiasson and Todd Newman. In overturning their convictions the Second Circuit both clarified the heavy evidentiary burden needed to convict downstream tippees who are several levels removed from the original tipper, and returned life to the "personal benefit" test for when a tipper breaches a fiduciary duty. This ruling likely will have significant repercussions for criminal and civil insider trading cases in the Second Circuit. The Trial and ConvictionsChiasson and Newman were succe
Client Alert | December 15, 2014
San Francisco Partner Thad A. Davis and associate Nicola Paterson are authors of "Lessons in Control and Conflict Analysis" [PDF] published in the November 26, 2014 issue of the Delaware Business Court Insider.
Client Alert | November 26, 2014
Twenty months after proposing regulations to minimize incidents of disruptive trading and potentially catastrophic trading malfunctions, the SEC, on November 19, 2014, adopted Regulation Systems Compliance and Integrity ("Regulation SCI") to enhance confidence in U.S.
Client Alert | November 25, 2014
Gibson Dunn partner Joel M. Cohen and associates Mary Kay Dunning, Darcy Harris and Genevieve Quinn are the authors of the following article published in a recent issue of the Review of Securities & Commodities Regulation. The team, who represented Nelson Obus in SEC v.
Client Alert | November 20, 2014
New York partner Adam H. Offenhartz and associate Peter M. Wade are authors of "Exclusive Delaware and Non-Delaware Forum Bylaw Amendments" [PDF] published in the October 15, 2014 issue of Delaware Business Court Insider.
Client Alert | October 15, 2014
San Francisco partner Thad Davis and associate Leslie Wulff are the authors of "Lessons of 2013: The Perils of 'Ready, Fire, Aim' and the Importance of an Integrated Litigation Strategy in Corporate Governance Matters" [PDF] published in the October 2014 issue of Pepperdine University School of Law’s Journal of Business, Entrepreneurship, & the Law.
Client Alert | October 1, 2014
Los Angeles partner Michael Farhang and associate Patrick Doust are the authors of “Demand Futility Standards in the Executive Compensation Context” [PDF] published in the September 24, 2014 issue of Delaware Business Court Insider.
Article | September 24, 2014
New York partner Joel Cohen and associates Mary Kay Dunning, Darcy Harris and Genevieve Quinn are the authors of “SEC Plans to Play Insider-Trading Cases on Home Court” [PDF] published in the September 16, 2014 issue of the National Law Journal.
Client Alert | September 16, 2014
New York partner Jennifer Rearden and associate Sharon Grysman are the authors of “Nonparty Depositions: From ‘Potted Plant’ Rule to Venus Fly Traps” [PDF] published in the September 8, 2014 issue of New York Commercial Litigation Insider.
Client Alert | September 15, 2014
San Francisco partner Thad Davis and associate Leslie Wulff are the authors of “When Federal Agencies Are the ‘Same Party’ under FRE 804(b)(1)” [PDF] published in Criminal Litigation, Summer 2014, Vol.
Client Alert | September 11, 2014
On August 15, 2014, the U.S. Court of Appeals for the Second Circuit issued a ruling limiting the extraterritorial application of Section 10(b) of the Securities Exchange Act of 1934 in the wake of the Supreme Court's landmark opinion in Morrison v. National Australia Bank Ltd.
Client Alert | August 25, 2014