In re Appraisal of Dell Inc.: Eliminating the Tension Between a Share-Tracing Requirement and the Continuous Record Holder Requirement

In a blog post written for the Delaware Journal of Corporate Law, DJCL Articles Editor Ashley Callaway discusses a resolution to the tension between the Continuous Holder Requirement and the 262 requirement that the shareholders voted not in favor of the merger.

Read more at http://www.djcl.org/blog.

Does the Equitable Mootness Doctrine Apply to Appeals from Chapter 7 Liquidations?

In a blog post written for the Delaware Journal of Corporate Law, DJCL Articles Editor Jennifer Penberthy Buckley discusses In re Nica, from the United States Court of Appeals for the Eleventh Circuit, which assessed an equitable mootness claim in the context of an appeal from a Chapter 7 liquidation. Given the traditional use of equitable mootness in the context of an appeal from confirmation of a Chapter 11 plan, the Court acknowledged that the applicability of equitable mootness to Chapter 7 appeals is questionable. This post briefly examines the policy justifications for the equitable mootness doctrine and argues that it could apply to Chapter 7 appeals in some cases.

Read more at http://www.djcl.org/blog.

Section 141(k) Mandatory Prohibition of For-Cause Removal of a Declassified Board

In a blog post written for the Delaware Journal of Corporate Law, DJCL Staff Member Kendra Rodwell discusses the Delaware Court of Chancery ruling that Delaware corporations with provisions in their corporation’s bylaws and charters directly conflicting with Delaware law would be stuck down.  In In re Vaalco Energy Shareholder Litigation, the Court of Chancery was asked to determine whether the Vaalco Energy’s provision that made directors of a non-classified board removable only for cause was valid in light of DJCL section 141(k) that required non-classified boards to be removed without cause.

Read more at http://www.djcl.org/blog.

One of These Things is Not Like the Other: Student Bar Loan Distinguished from Traditionally Nondischargeable Student Loan Debt

In a blog post written for the Delaware Journal of Corporate Law, DJCL Articles Editor Kaitlin E. Maloney analyzes a recent decision from the U.S. Bankruptcy Court for the Eastern District of New York.  In Campbell v. Citibank, the court distinguished a law school graduate’s bar loan from other nondischargeable student loan debt, and ruled that the bar loan was dischargeable in bankruptcy.  Though some believe that this will discourage lending institutions from extending bar loans to law students, Kaitlin argues that is unlikely due to the relatively low risk these loans present to lenders.

Read more at http://www.djcl.org/blog.

Applying Omnicare and Protecting Investors Under § 11 of the ‘33 Act

In a blog post written for the Delaware Journal of Corporate Law, DJCL Senior Staff Member Nicholas D. Picollelli, Jr. discusses how the Second Circuit’s recent decision in Tongue v. Sanofi is the most recent attempt to apply the U.S. Supreme Court’s Omnicare standard regarding § 11 of the Securities Act of 1933. Under specific circumstances, Omnicare expands § 11 liability to include omissions of fact relating to statements of opinion in a registration statement. The Omnicare standard and the Second Circuit’s application present issuers with a unique choice – costly drafting fees or potentially extravagant litigation.

Read more at http://www.djcl.org/blog.

EZCorp Deems Entire Fairness Standard Appropriate When Controlling Shareholder Receives Non-Ratable Benefits

In In re EZCorp, the Court of Chancery grappled with the appropriate standard of review for business transactions between a company and a controlling shareholder.  In a blog post written for the Delaware Journal of Corporate Law, DJCL Senior Staff member Helene Episcopo explains that the court  determined that the entire fairness standard of review was appropriate, and that it declined to apply Aronson beyond the demand futility context.

Read more at http://www.djcl.org/blog.

In Re Trulia, Inc. Stockholder Litigation: End to Disclosure Settlements?

In a blog post written for the Delaware Journal of Corporate Law, DJCL Senior Staff Member Erin Rogers discusses the Court of Chancery’s recent decision in In Re Trulia, Inc. Stockholder Litigation, and the effect decision will have on the future quantity of disclosure settlements and merger related litigation.  She argues that while the heightened standard for disclosure settlements set out in Trulia will certainly decrease the number of disclosure settlements and decrease the amount of merger related litigation, the extent of the decrease will depend on a number of factors discussed in the article.

Read more at http://www.djcl.org/blog.

The Impact of Obergefell on Employee Benefits in Delaware

On June 26, 2015, the landmark U.S. Supreme Court case Obergefell legalized same-sex marriage, but the impact of the decision on businesses and employee benefits has yet to be fully understood. In a blog post written for the Delaware Journal of Corporate Law, 3L Liz Miosi analyzes the implications of Obergefell on two Delaware businesses and how the decision will likely impact their employee benefits plans.

Read more at http://www.djcl.org/blog.

Puerto Rican Debt Crisis: A Proposal to Amend Federal Bankruptcy Law

Puerto Rico owes approximately 72 billion dollars to its creditors. Although the island is a United States territory, it is not considered a state for purposes of filing for Chapter 9 municipal bankruptcy. Although there have been several proposals to try to help Puerto Rico climb out of its debt, without amending the federal bankruptcy law to include Puerto Rico as a state for purposes of Chapter 9, the United States territory will collapse. In a blog written for the Delaware Journal of Corporate Law, DJCL Copy Editor Ashley DiLiberto argues that Puerto Rico deserves equal protection of the laws enjoyed by the several states; to hold otherwise reeks of discrimination and bias to our island brothers and sisters.

Read more at http://www.djcl.org/blog.

2016 Ruby R. Vale Corporate Moot Court Competition

Nugent

From Thursday March 10, 2016 to Sunday March 13, 2016, the Widener University Delaware Law School Moot Court Honor Society hosted the 28th Annual Ruby R. Vale Interscholastic Corporate Competition.  The competition is named for Ruby R. Vale, who lived in Milford, Delaware and practiced law in Philadelphia, specializing in corporation, banking, and insurance law.  It introduces participants to the cutting edge of corporate law, and as Delaware’s only law school, Delaware Law School is in a unique position to draw on the resources and experience of the distinguished Delaware corporate legal community.

Professor Lawrence Hamermesh authored this year’s competition problem, which focused on stockholder appraisal rights and the related, recent cases of Merion Capital LP v. BMC Software, Inc., In re Appraisal of Ancestry.com, and In re Appraisal of Dell Inc.  The issues centered around the question of the appropriate interpretation of the statutory term “stockholder of record,” and its effect on so-called “appraisal arbitrage,” in which purchasers of shares after the record date for voting on a merger seek judicial appraisal of their shares.  Eighteen teams from seventeen schools participated in the competition, which is the only corporate moot court competition in the country. The Ohio State University’s Moritz College of Law took home this year’s title, edging out a team from Mercer University School of Law before a panel comprised of Delaware Supreme Court Justice James T. Vaughn, Jr., Vice Chancellor Sam Glasscock of the Delaware Court of Chancery, and former Delaware Supreme Court Justice Jack B. Jacobs.  The winning team comprised of Patrick Schlembach and Susan Restrepo, who was also the Best Oral Advocate.   Marquette University School of Law won the Best Brief Award.

An integral part of the competition is the Distinguished Scholar Lecture.  The 2016 Distinguished Scholar was Eileen T. Nugent, Esquire, the co-head of Skadden, Arps, Slate, Meagher & Flom’s Global Transactions Practice.  As a mergers and acquisitions partner in the firm’s New York office, she has worked on a wide range of some of the most significant public and private M&A transactions since the mid 1980s.  Ms. Nugent is also the co-author of a well-known M&A treatise and is an adjunct professor at University of Virginia School of Law.

In her lecture entitled Living a Law School Exam Question: Issues Faced by a Practitioner in Applying Selected Provisions of Delaware Jurisprudence in Real Time, Ms. Nugent addressed the need for M&A practitioners to keep abreast of Delaware cases due to their “real time” application in structuring deal transactions.  Specifically, Ms. Nugent discussed the enforceability of fraud and non-reliance provisions as a remedy in acquisition agreements, and reviewed recent case law developments affecting disclosure-based settlements of stockholder class actions.  Ms. Nugent discussed how recent cases in those realms have shaped how buyers and sellers approach the issues when drafting merger agreements and proxy statements, and the perhaps peculiar outcomes they have created going forward, including the possibility that planners will have an incentive to withhold more important information so that it can justify settlement of litigation challenging the deal.