gavel1In response to concerns that virtually every merger transaction was attracting at least one lawsuit, Delaware’s legislature and judiciary acted to try to cut down on the merger objection litigation in the state’s courts. In 2015, Delaware’s legislature adopted a provision expressly allowing corporations organized under the state’s law to adopt bylaw provisions designating Delaware’s courts as the exclusive forum for shareholder disputes. Delaware’s courts, in a series of decisions culminating in Chancellor Bouchard’s January 2016 decision in Trulia, made it clear that in most cases the courts will no longer support the kind of disclosure-only settlements by which these cases frequently were resolved.

 

But what has the impact of these changes been? That is the subject of a February 23, 2017 paper entitled “The Shifting Tides of Merger Litigation” (here) written by Matthew Cain of the SEC; U. Penn. Law Professor Jill Fisch; U.Cal. Berkeley Law Professor Steven Davidoff Solomon; and Vanderbilt Law Professor Randall Thomas. The authors conclude that there has been “a tidal wave of change in the merger objection litigation industry.” Continue Reading A “Tidal Wave of Change” in Merger Objection Litigation

granaThe massive Petrobras bribery scandal has long since spread beyond just the Brazilian petroleum company itself to encompass a number of different other companies. As I have previously noted on this blog, many of the Brazilian companies caught up in these investigations have been hit with securities class action lawsuits in the U.S. Among the companies caught up in the growing anti-corruption scandal is the Brazilian-based multinational construction company, Odebrecht. Investigations based on the Odebrecht scandal having now spread to companies in other Latin American countries, including, among others, Peru. As discussed below, plaintiffs’ lawyers have now filed a U.S. securities class action lawsuit against one of the Peruvian companies caught up in the Odebrecht scandal, showing that the potential fallout from the corruption investigation that began in Brazil now represents a significant liability risk exposure for companies and their executives throughout Latin America. Continue Reading Brazilian Corruption Scandal Leads to Liability Exposures in Other Latin American Countries

Joe Crace
Joseph B. Crace, Jr.
Britt Latham
Britt K. Latham

One of the interesting recurring issues arising in M&A transactions is the question of the extension of attorney client privilege to information shared during transactional due diligence. In the following guest post, Joseph B. Crace, Jr. and Britt K. Latham take a look a recent New York Court of Appeals decision examining the question of the extension of the common interest doctrine to privileged information shared between parties to a prospective merger. A version of this article was originally published by Bass, Berry & Sims in the firm’s annual “Securities & Shareholder Litigation 2017: A Look Ahead” (here). I would like to thank Joe and Britt for their willingness to publish their article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Joe and Britt’s guest post. Continue Reading Guest Post: Pitfalls of Sharing Privileged Information During Due Diligence

072aThe D&O Diary’s Asia Pacific mission continued at the end of last week with a stop in Sydney, for the meetings that were the primary reason for my Asia Pacific trip.  I have been to Sydney several times now, but the city has lost none of its charm for me. If anything, I think I appreciate Australia’s largest city more each time I visit. Continue Reading A Summer Visit to Sydney

canadian flagAs I have previously detailed (here), 2016 was a record year for securities class action litigation in the U.S. The number of class action lawsuits filed in Canada more than doubled in 2016 compared to the year before, but the filing pace during the year was still below the pace during the period from 2010 to 2014, according to a new report from NERA Economic Consulting. The February 22, 2017 report, entitled “Trends in Canadian Securities Class Actions: 2016 Update,” which sets out a comprehensive overview of Canadian securities class action filing and case resolution trends, can be found here. NERA’s February 22, 2017 press release about the report can be found here. Continue Reading Canadian Securities Class Action Litigation: On the Rebound?

094aTasmania. Ten thousand miles away and about as far away from home as you can get. Tasmania — an island state off the southeastern coast of Australia and about an hour’s plane flight from Melbourne. Its capital city, Hobart, is located on the River Derwent and nestled below the rugged peak of Mt. Wellington. I was there for a brief two day visit this week. My visit to the city was short, but long enough to confirm that Tasmania is not just far away but beautiful as well. Continue Reading Tasmania, Baby. (Seriously. Tasmania.)

Columbia Law School Professor John C. Coffee, Jr.

On February 10, 2017, as I noted in a recent post, Rep. Bob Goodlatte of Virginia introduced a bill in Congress seeking to introduce a number of reforms to class action litigation. In the following guest post, Columbia Law School Professor John C. Coffee, Jr. provides his views regarding the reforms proposed in the bill. A version of this article previously appeared on the CLS Blue Sky Law blog (here). I would like to thank Professor Coffee for his willingness to publish his article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Professor Coffee’s article. Continue Reading Guest Post: How Not to Write a Class Action “Reform” Bill

030aThe D&O Diary is on assignment in Australia this week, for meetings and for a little bit of a look around. The first stop on this sojourn Down Under was in Melbourne, in the Australian state of Victoria, on the southeastern quadrant of the Australian continental landmass. Melbourne is a surprisingly large city. Its metropolitan area population of over 4.5 million makes it the country’s second most populous city. At about 37 degrees southern latitude, it is about as far south as Richmond, Virginia is north. A huge sprawling city like Melbourne is hard to sum up in just a few words, but here’s what you really need to know: in February, it’s summer there. What a great concept. Continue Reading Melbourne

life sciences1As I noted in my survey of 2016 securities class action litigation (here), one of the factors contributing to the rise in securities litigation last year was the volume of litigation filed against companies in the life sciences sector. According to an analysis of life sciences-related securities suits by the Dechert law firm, the annual number of securities suits filed against companies in the sector rose by over 70% between 2014 and 2016. The law firm’s February 17, 2017 report, entitled “Developments in Securities Fraud Class Actions Against U.S. Life Sciences Companies,” can be found here. Continue Reading A Closer Look at Securities Litigation Involving Life Sciences Companies

fedsecurities-binderThe interpretation and application of the federal securities laws has in recent years proven to be a rapidly changing arena. For that reason, it is a particularly welcome development that the authors of the “Federal Securities Litigation: A Deskbook for the Practitioner” have released the latest update of their single-volume resource on litigation under the U.S. federal securities laws. The authors – Daniel Kramer and Audra Soloway of the Paul Weiss law firm, Jeff Hammel and David Brodsky of the Latham & Watkins law firm – have produced a fully updated version of the book, with changes reflecting important recent developments in the securities case law. The result is an updated volume that is clear, concise, and well-organized. Information about the 2016 update can be found here. Continue Reading Book Review: Federal Securities Litigation