Product Description

Developments in Delaware corporate law are critically important to lawyers in Massachusetts and elsewhere because of the large percentage of Delaware corporations and other entities formed and represented by these lawyers. Recent changes in Delaware statutory and decisional law are significant. The standards of judicial review of fundamental and interested party transactions are evolving. Delaware amendments that permit validation of defective corporate actions are increasingly being used. Applying fiduciary duties to non-corporate entities and limiting or eliminating those duties is seeing continued development. Appraisal as a remedy, with associated uncertainties and approaches to valuation, is an emerging area. Grappling with disclosure-only claims challenging fundamental transactions has become commonplace. Lawyers dealing with Delaware corporate law must be adept at navigating these changes.

An experienced panel comprised of a Delaware corporate counsellor, a Delaware corporate litigator, a Delaware corporate academic, and a Massachusetts corporate lawyer who frequently confronts Delaware law issues analyze the latest developments affecting corporate practice.

Agenda & Materials

• 2:00 - 2:10 pm

  Welcome and Introduction

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  • Introduce Faculty
  • Brief Overview

  Stanley Keller, Esq., Troutman Pepper Locke LLP , Boston
  
• 2:10 - 2:50 pm

  Evolving Standards of Judicial Review of Breach of Fiduciary Duty Claims and Effect on Transactions

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  • Basic duties of care and loyalty- have not changed
  • Three standards of review- key development has been circumstances when business judgment replaces entire fairness
  • M&F Worldwide alternative for controller transaction
  • when it is used and how frequently
  
  
  • Corwin standard based on fully informed, uncoerced vote of disinterested stockholders
  • What are remedies before stockholder vote- C&J Energy
  • When does Corwin apply and when not
  • How does Corwin affect transcripts

  
  

  Patricia O. Vella, Esq., Morris, Nichols, Arsht & Tunnell LLP , Wilmington
  
• 2:50 - 3:05 pm

  Developments in M&A Litigation and Dealing with Disclosure-Only Claims

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  • What was the M&A litigation problem being solved
  • Impact of Trulia on disclosure-only claims
  • Effect of changes to standard of review on M&A litigation strategy
  • selection of forum
  • Nature of claims and grounds of attack (disclosure failures, coercion, breach of loyalty
  • Use of §220 demands

  A. Thompson Bayliss, Esq., Abrams & Bayliss LLP , Wilmington
  
• 3:05 - 3:30 pm

  Issues Surrounding Appraisal as a Remedy

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  • What was the appraisal arbitrage problem
  • How was it statutorily addressed and not addressed
  • How has the Delaware judicial approach to appraisal valuation changed
  • Application of deal price- Dell and DFC
  • Use of Market Price - Aruba
  • Exclusion of Synergies
  • Role of DCF analysis
  • Effect on transactions

  A. Thompson Bayliss, Esq., Abrams & Bayliss LLP , Wilmington
  
• 3:30 - 3:40 pm

  Networking and Refreshment Break
• 3:40 - 4:05 pm

  Application of Fiduciary Duties to Non-Corporate Entities

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  • Default fiduciary duties in non-corporate entities
  • Varying these by contract
  • Limitations on private ordering - Dieckman
  • Operation of the implied covenant - HCP
  • Application of contractual duties - MHS Capital

  Lawrence A. Hamermesh, Esq., Widener University Delaware Law School , Wilmington
  
• 4:05 - 4:25 pm

  Dealing with Director and Officer Compensation

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  • Entire fairness review
  • Limits of stockholder ratification- Investor Bootcamp
  • Fixed v. discretionary plans - what is being done in practice

  Patricia O. Vella, Esq., Morris, Nichols, Arsht & Tunnell LLP , Wilmington
  
• 4:25 - 4:45 pm

  Validating Defective Corporate Actions

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  • Ability to retroactively validate defective corporate acts
  • When and why is this important
  • Limitations on use of §204 - Nguyen and the legislative response
  • What are the remaining limits

  Lawrence A. Hamermesh, Esq., Widener University Delaware Law School , Wilmington
  
• 4:45 - 5:00 pm

  Key Takeaways and "Ask the Experts" Q&A Session

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Please Note

MCLE webcasts are delivered completely online, underscoring their convenience and appeal. There are no published print materials. All written materials are available electronically only. They are posted 24 hours prior to the program and can be accessed, downloaded, or printed from your computer.

Chair

Faculty