In two recent decisions written by Vice Chancellor Travis Laster, the Delaware Court of Chancery provided helpful judicial guidance on the application of the covenant of good faith in the context of related party transactions involving master limited partnerships (MLPs). In both decisions, the Court made clear that when dealing with limited partnerships, contractual terms control and that, once fiduciary duties are contractually eliminated as permitted by Delaware law, courts should not imply terms that would alter the contract or attempt to reconstruct outcomes that fiduciary duty analysis in the corporate setting would generate.An MLP is a publicly traded limited partnership with qualifying assets that is treated as a pass-through entity for federal income tax purposes.
Client Alert | August 11, 2014
Washington, D.C. partner Mark Perry and Palo Alto partner Jonathan Dickey are the authors of "Eight Propositions Regarding the Scope of Halliburton II" [PDF] published in the July 21, 2014 issue of Bloomberg BNA's Securities Regulation & Law Report.Reproduced with permission from Securities Regulation & Law Report, 46 SRLR 1403, 07/21/2014.
Client Alert | July 21, 2014
It almost goes without saying that the first half of 2014 brought with it the most significant development in securities litigation in decades: the U.S.
Client Alert | July 15, 2014
New York partner James Hallowell and associate Jefferson Bell are the authors of “Forum Selection Bylaws: One Year After Boilermakers” [PDF] published in the July 15, 2014 issue of the Delaware Business Court Insider.
Client Alert | July 15, 2014
Our mid-year report one year ago presented an exciting opportunity to discuss a time of great change at the SEC. A new Chair and a new Director of Enforcement had recently assumed the reins and begun making bold policy pronouncements.
Client Alert | July 14, 2014
I. INTRODUCTION It has been an explosive past six months in matters under the federal False Claims Act ("FCA"), 31 U.S.C. § 3729 et seq., which prohibits the knowing submission of false claims for payment to the government or false statements material to false claims.
Client Alert | July 9, 2014
As the debate continues over whether and how to punish companies for unlawful conduct, U.S.
Client Alert | July 8, 2014
Aggressive cross-border anti-corruption enforcement continued during the first half of 2014, as U.S. and foreign prosecutors pursued companies, individuals, and public officials across the globe for all manner of corruption-related offences.
Client Alert | July 7, 2014
New York partner Lee Dunst is the author of "City of Pontiac v. UBS AG: The Continued Limitation of the Extraterritorial Application of US Securities Laws" [PDF] published by the Wall Street Lawyer in July 2014 in Volume 18, Issue 7.
Client Alert | July 1, 2014
On June 23, 2014, the Supreme Court issued its much-anticipated decision in Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. ___ (2014) (Halliburton II).
Client Alert | June 23, 2014
San Francisco partner Marc Fagel is the author of "A new (old) enforcement tool for the SEC" [PDF] published in the June 5, 2014 issue of the Daily Journal.
Client Alert | June 16, 2014
On June 4, 2014, the United States Court of Appeals for the Second Circuit issued an important decision in United States Securities and Exchange Commission v.
Client Alert | June 5, 2014
Palo Alto partner Paul Collins is the author of "A Second Look at the Decision in Chen v. Howard-Anderson" [PDF] published by the Delaware Business Court Insider on June 4, 2014.
Client Alert | June 4, 2014
A recent decision of the Supreme Court of Delaware may give Delaware corporations an important tool to discourage meritless shareholder litigation. In ATP Tour, Inc.
Client Alert | May 13, 2014
On May 6, 2014, the U.S. Court of Appeals for the Second Circuit issued a ruling which continued the recent trend of further restricting the extra-territorial application of the U.S.
Client Alert | May 9, 2014
Washington, D.C. partner Joseph Warin and associates Brendan Fleming and J. Matt Williams are the authors of "2013 Year-End Update on Corporate Non-Prosecution Agreements and Deferred Prosecution Agreements (Part 2)" [PDF] published in the May 2014 issue of Westlaw Journal's White Collar Crime.Part 1 of this article was published in April 2014 (http://www.gibsondunn.com/publications/Pages/2013-Year-End-Update-on-Corporate.aspx).
Client Alert | May 1, 2014
On April 16, 2014, the public comment period for the Federal Reserve's Advance Notice of Proposed Rulemaking (ANPR) relating to the physical commodities activities of U.S.
Client Alert | April 28, 2014
New York partner Aric Wu and associate Jefferson Bell are the authors of "Entire Fairness Revlon Standards When Control Group Is Involved" [PDF] published by the Delaware Business Court Insider on April 16, 2014.
Client Alert | April 16, 2014
On April 8, 2014, Vice Chancellor Laster of the Delaware Court of Chancery issued an opinion addressing the reasonableness of a "market check" as well as required proxy disclosures to stockholders in M&A transactions.
Client Alert | April 14, 2014
Washington, D.C. partner Joseph Warin and associates Brendan Fleming and J. Matt Williams are the authors of "2013 Year-End Update on Corporate Non-Prosecution Agreements and Deferred Prosecution Agreements (Part 1)" [PDF] published in the April 2014 issue of Westlaw Journal's White Collar Crime.
Client Alert | April 1, 2014
On March 14, 2014, the Supreme Court of Delaware handed down an important decision in Kahn, et al., v. M&F Worldwide Corp., et al., No. 334, 2013 (Del.
Client Alert | March 17, 2014
Nearly two years ago, on April 5, 2012, President Obama signed the Jumpstart Our Business Startups Act ("JOBS Act") into law. As part of the law's effort to encourage U.S.
Client Alert | March 12, 2014
On February 26, 2014, the Supreme Court decided Chadbourne & Parke LLP v. Troice, 571 U.S. ___ (2014), ruling by a 7-2 vote that the Securities Litigation Uniform Standards Act of 1998 ("SLUSA") does not bar state-law securities class actions in which the plaintiffs allege that they purchased uncovered securities that the defendants misrepresented were backed by covered securities.
Client Alert | February 28, 2014
Los Angeles partner Michael Farhang and associate Chris Jung are the authors of "The Interplay Between Government Investigations and Civil Securities Litigation" [PDF] published by The Review of Securities and Commodities Regulation on February 19, 2014.
Client Alert | February 19, 2014
San Francisco partner Marc Fagel and New York associate Mary Kay Dunning are the authors of "Implications Of The SEC's Recent Trial Losses" [PDF] published by Law360 on February 5, 2014 at www.law360.com.
Client Alert | February 5, 2014
Orange County partner James Moloney and associate Michael Titera are the authors of “Inside the SEC: Highlights from the 41st Annual Securities Regulation Institute” [PDF] published in the February 2014 issue of Aspen's Insights.
Client Alert | February 1, 2014
2013 proved to be a watershed year for securities litigation, and 2014 is shaping up to be a "career killing" year for plaintiffs' lawyers specializing in 10b-5 class actions.
Client Alert | January 21, 2014
I. Introduction 2013 proved to be a year of major change for SEC enforcement. As detailed in our July mid-year update, Chair Mary Jo White came on board in April 2013, and shortly thereafter named Andrew Ceresney and George Canellos as Co-Directors of the Division of Enforcement.
Client Alert | January 13, 2014
$3.8 Billion—That is the approximate amount recovered by the federal government last year alone in settlements and judgments under the False Claims Act, 31 U.S.C.
Client Alert | January 8, 2014
Since their emergence in the early 1990s, and especially in the past decade, Non-Prosecution Agreements (“NPAs”) and Deferred Prosecution Agreements (“DPAs”) (collectively, “agreements”) have become embedded in the toolbox of U.S.
Client Alert | January 7, 2014
2013 marked another year of vigorous international anti-corruption enforcement. Gibson Dunn provides a comprehensive look at developments and trends.
Client Alert | January 6, 2014
San Francisco partner Thad Davis and associate Leslie Wulff are the authors of “Comparing Strategies in MFW Shareholders and Siga v. PharmAthene” [PDF] published in the December 25, 2013 edition of the Delaware Business Court Insider.
Client Alert | December 25, 2013
Almost three years and five months after the enactment of the Dodd-Frank Act, and about two years and two months after its implementing proposal was issued, the Volcker Rule is now final.
Client Alert | December 13, 2013
On October 23, 2013, the Securities and Exchange Commission (the SEC or the Commission) approved the release of proposed "crowdfunding" rules implementing Title III of the 2012 Jumpstart Our Business Startups Act (the JOBS Act).
Client Alert | November 11, 2013
Los Angeles partner Michael Farhang and associate Aaron Bloom are co-authors of "Financial Due Diligence and the Specter of Fraud in the Private M&A Context" [PDF] published in the October 21, 2013 issue of Bloomberg/BNA’s Securities Law Daily Bulletin.
Client Alert | October 21, 2013
On September 6, 2013, the Securities and Exchange Commission (SEC) announced that it had brought -- and settled -- a cease-and-desist case under Regulation Fair Disclosure (Reg. FD), which requires that public companies broadly disclose material nonpublic information to the public that their covered officers and employees intentionally or inadvertently disclose to market professionals and stockholders.
Client Alert | September 12, 2013
Century City partner Joel Feuer and Los Angeles associate Benyamin Ross are the authors of “The Meaning of Contractual Good Faith” published in the September 11, 2013 issue of the Delaware Business Court Insider.
Client Alert | September 11, 2013
New York partner Lee Dunst is the author of "Evidentiary disclosures in parallel criminal and civil cases in the United States" [PDF] published in the September 2013 issue of the Newsletter of the International Bar Association Legal Practice Division.
Client Alert | September 1, 2013
Palo Alto partner Paul Collins is the author of “The Chancery Court as ‘Gatekeeper’ in M&A Litigation” [PDF] published in the August 21, 2013 issue of the Delaware Business Court Insider.
Client Alert | August 21, 2013
Los Angeles partner Michael Farhang and Palo Alto associate Susannah Wright are the authors of "When a Whistleblower Walks: Dodd-Frank and the Challenges That Employee Departures Present" [PDF] published in the August 19, 2013 issue of Bloomberg BNA's Pension & Benefits Daily.Reproduced with permission from Pension & Benefits Daily, 160 PBD, 08/19/2013.
Client Alert | August 19, 2013
Washington, D.C. partner Mark Perry and associate Geoffrey Weien are authors of “Issue Preclusion in Multijurisdictional Shareholder Derivative Litigation” [PDF] published in the August 2013 issue of Insights.
Article | August 1, 2013
Washington, D.C. partner John Olson, New York partner Jonathan Dickey, Washington, D.C. partner Amy Goodman and Washington, D.C. of counsel Gillian McPhee are authors of “Current Issues in Director and Officer Indemnification and Insurance” [PDF] published in the July 2013 issue of Insights.
Client Alert | July 31, 2013
At an Open Commission Meeting on July 10, 2013, the SEC adopted long-awaited final rules to allow advertising of private securities offerings, as required by the Jumpstart Our Business Startups Act (the JOBS Act).
Client Alert | July 22, 2013
New York partner Aric Wu is the author of “Anti-Suit Injunction Within Chancery’s Jurisdiction” [PDF] published in the July 17, 2013 issue of the Delaware Business Court Insider
Article | July 17, 2013
We are pleased to share with you our mid-year update on significant developments in securities litigation. Filing and settlement trends continue to show a steady state of new cases and increasingly more expensive settlements.
Client Alert | July 16, 2013
More than four years after the financial crisis, exposure to investigations and lawsuits remains real for individuals serving as directors and officers of public companies. Fortunately, the general rule still holds true that directors and officers rarely contribute to settlements and judgments out of their personal assets. However, the last four years have brought a steady wave of litigation and an increased enforcement focus from regulators. In addition to ongoing litigation stemming from the financial crisis, public companies have faced an uptick in shareholder litigation involving M&A transactions, claims brought in foreign jurisdictions, lawsuits challenging their executive compensation practices and proxy disclosures, and record levels of enforcement activity und
Client Alert | July 15, 2013
I. Overview of the First Half of 2013The first six months of 2013 represented a time of transition for the SEC's enforcement program, with a new Chairman and new Co-Directors for the Division of Enforcement at the helm. It is too soon to predict exactly how they may reshape the program – in contrast with this period four years ago, when Chairman Mary Schapiro and Enforcement Director Robert Khuzami assumed their positions in the wake of Madoff and the financial crisis and with a mandate for major reform, the new team is moving more incrementally. However, there can be little doubt that, when it comes to enforcement, the new leadership will be striking an aggressive tone. For the first time in the Commission's history, the Chairman and the Enforcem
Client Alert | July 15, 2013
$5 Billion! That's the approximate amount recovered by the federal government from settlements and judgments in cases filed under the federal False Claims Act, 31 U.S.C.
Client Alert | July 10, 2013
Deferred Prosecution Agreements ("DPAs") and Non-Prosecution Agreements ("NPAs") (collectively, "agreements") continue to be a consistent vehicle for prosecutors and companies alike in resolving allegations of corporate wrongdoing. In the two decades since their emergence as an alternative to the extremes of indictment and outright declination, DPAs and NPAs have risen in prominence, frequency, and scope. Such agreements are now a mainstay of the U.S.
Client Alert | July 9, 2013
On June 27, 2013, the United States Court of Appeals for the Second Circuit issued an opinion addressing the "unsettled question" of whether the tolling principles of American Pipe & Construction Co.
Client Alert | July 8, 2013