Litigation – Taking Care of Business

M&A Risk Allocation: Drafting and Litigation Considerations in the Era of COVID-19

May 4, 2020

By: Marc S. Casarino, Thomas B. Fiddler, Lori S. Smith and Eric B. Porter

Risk allocation between parties is a key consideration in the negotiation of merger and acquisition (M&A) agreements. These contractual provisions are garnering even more attention as deal challenges continue to arise from business disruptions caused by or related to the COVID-19 pandemic. As previously discussed, several lawsuits recently filed in the Delaware Chancery Court reflect key battle lines over whether, and how, pandemic-related operational challenges square with clauses covering material adverse effect (MAE), ordinary course of business covenants, specific performance and other provisions of these agreements. In the past few days, several additional cases have been filed which continue to highlight these issues as well as others, such as failure to provide access to diligence.

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M&A Litigation Rising Amidst COVID-19 Uncertainty: Considerations for Litigators and Deal-Makers

Apr 14, 2020

By: Marc Casarino, Thomas Fiddler, Lori Smith and William Fedullo

Just as no human being is naturally immune to the COVID-19 virus, no industry is immune to its economic effects—and related M&A activity across all industries proves no exception. In the weeks following the issuance of stay-at-home orders in states across the country, multiple lawsuits have been filed by parties to agreements whose terms have been rendered economically dubious, impracticable or contrary to the fundamental assumptions on which the parties relied because of the pandemic: in the Delaware Court of Chancery alone, WeWork has filed suit to compel a Japanese investor to close a $3 billion tender offer; Bed Bath & Beyond has attempted to force 1-800-Flowers to complete a $252 million purchase of its subsidiary, PersonalizationMall.com; and a franchisee has sued its franchisor, CorePower Yoga LLC, for specific performance of a pre-pandemic agreement to buy its thirty-four yoga studios. Though all three of these cases are in the early stages of litigation—only the complaints have been filed—they involve issues and circumstances that are certain to recur in actions throughout the country. These cases represent only the tip of the iceberg when considering the types of litigation that are likely to arise from both pending and closed M&A deals and the issues that M&A attorneys and commercial litigators should be considering in addressing upheaval to the deal market caused by COVID-19. (more…)

EPA to Relax Environmental Legal Enforcement During the COVID-19 Pandemic

Mar 31, 2020

By: Ryan Udell, Shane Heskin and Gwenn Barney

The Environmental Protection Agency (EPA) announced in a memo released on Thursday, March 26, 2020 that it will relax its enforcement of environmental legal obligations under certain circumstances during the COVID-19 pandemic.

Applicable retroactively to March 13, 2020, the EPA will use enforcement discretion in specific situations where a company or governmental entity is unable to comply with an obligation usually required by the EPA due to the consequences of the COVID-19 pandemic, if the company takes certain steps to mitigate and document its noncompliance. This enforcement discretion only applies to civil violations of environmental legal obligations and explicitly does not extend to any criminal violations or conditions of probation in criminal sentences, activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments or imports.

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Second Circuit: Insider Trading Conviction Does Not Require a Finding of Personal Benefit

Jan 13, 2020

By: Jay Shapiro and Patrick Devine

On December 30, 2019, the Second Circuit issued its landmark decision in United States v. Blaszczak,^[1] which widened the berth for federal prosecution of insider trading activities under Title 18 of the United States Code. The court ruled that, unlike Title 15 securities fraud convictions, federal wire fraud and Title 18 securities fraud convictions do not require any proof that an insider received a personal benefit in exchange for the material, nonpublic information that he or she disclosed.^[2]

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Delaware Court Of Chancery Extends <i> MFW </i> Framework to Board Decisions on Controlling Party Compensation

Delaware Court Of Chancery Extends MFW Framework to Board Decisions on Controlling Party Compensation

Sep 27, 2019

By: Marc Casarino, Lori Smith and Ryan Udell

It is a basic precept of Delaware corporate law that a corporation is managed by its board of directors. One of the board’s key managerial functions is the determination of executive compensation levels – a decision typically entitled to great judicial deference. When the board’s decision as to executive incentive compensation is submitted to stockholders for approval, and such stockholder approval is given, the decision is entitled to even greater deference. However, in Tornetta v. Musk, et al., C.A. No. 2018-0408-JRS, decided September 20, 2019, The Court of Chancery highlights an important exception to the general rule when the recipient of the compensation package is also a controlling stockholder.

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Economic Nexus Laws: Following Wayfair, US States Take Action

Apr 25, 2019

By: Franca Tavella

On June 21, 2018, the United States Supreme Court decided South Dakota v. Wayfair Inc., et al., which upheld South Dakota’s economic nexus law allowing the state to impose sales tax upon online retailers who sell goods into South Dakota but do not have a physical nexus with that state – i.e., property or employees in the state. In doing this, the Supreme Court overruled the physical presence requirement set forth in Quill Corporation v. North Dakota in 1992.

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The Dangers of Transactional Precedent – The Times They Are-A-Changing

Mar 13, 2019

By: Lori Smith

The other day I had a client ask me to review some form documents that another party wanted to use in connection with the client’s website. The basis of the request was that he thought I had prepared, or at least reviewed, these documents when they were originally created – over 10 years ago (coincidentally I had reviewed them, but had been somewhat critical, in part, at that time as off-market). This got me thinking about how many companies (and lawyers) rely on templates or precedential deal documents collected over many years, without thinking about the specific facts and circumstances of the deal they are doing or the passage of time and how that might implicate the need for updates and revisions.

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Third Circuit Affirms Six-Figure Award Against Employees in FLSA Case

Jan 22, 2019

By: George Morrison

A recent Third Circuit Court of Appeals decision serves as an important reminder for “prevailing parties,” even employers in wage and hour matters, to seek certain costs incurred as part of litigation.

In Camesi, et al. v. University of Pittsburgh Medical Center (UPMC), et al., the Third Circuit Court of Appeals recently affirmed the Western District of Pennsylvania’s decision to award UPMC over $300,000 in costs in a collective Fair Labor Standards Act matter filed by four employees. The employees’ underlying claims related to an alleged failure to pay wages, due to a policy that automatically deducted time for meal breaks. (more…)

Delaware Chancery Court Orders Papa John’s to Deliver Materials Responsive to a Director’s Books and Records Demand

Jan 17, 2019

By: Marc Casarino

On January 15, 2019, the Delaware Court of Chancery ruled that Papa John’s International, Inc. must allow its director John Schnatter access to materials responsive to his demand pursuant to the books and records inspection statute, 8 Del. C. § 220, subject to certain restrictions on use of the materials.^[1] Schnatter is Papa John’s founder, its largest stockholder and a director on its board. Until recently, he served as the company’s Chairman of the Board, CEO and spokesman. He resigned as Chairman and CEO following much publicized reports of his commentary on the NFL’s handling of player protests and his use of a racially charged term during a company training session. His spokesman role was terminated following recommendations by a special committee comprised of his fellow board members.
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Delaware Chancery Court Invalidates Charter Provisions Requiring Federal Forum Selection for Claims Under The Securities Act Of 1933

Dec 21, 2018

By: Marc Casarino

On December 19, 2018, The Delaware Court of Chancery held in Sciabacucchi v. Salzberg ^[1] that Delaware corporations cannot use charter or bylaw provisions to mandate that claims under the Securities Act of 1933 (‘33 Act) must be pursued in federal court. Such federal forum selection provisions have become a frequent component of corporate constitutive documents. This largely has been in response to increasing pursuit of state court actions asserting ‘33 Act claims and particularly after the Supreme Court’s decision in Cyan, Inc. v. Beaver County Employees Retirement Fund ^[2] – which clarified that ‘33 Act claims may be pursued in either state or federal court.

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