Lewis H Lazarus

November 27, 2013 | Delaware Business Court Insider

If there is a dispute over the identity of the directors of a Delaware corporation, the corporation, its stakeholders and those with whom it does business require prompt certainty as to who is in charge. For that reason, Section 225 of the Delaware General Corporation Law provides for a summary proceeding to determine who rightfully comprises the board and officers of a Delaware corporation.

By Lewis H. Lazarus

9 minute read

October 23, 2013 | Delaware Business Court Insider

Two important aspects of merger agreements are the price and the nature of the post-closing obligations of the sellers to defend or indemnify the buyer for claims arising out of presale conduct.

By Lewis H. Lazarus

9 minute read

July 10, 2013 | Delaware Business Court Insider

Roscoe Pound once wrote that "law must be stable and yet it cannot stand still." The Delaware Supreme Court in Unocal v. Mesa Petroleum, 493 A.2d 946, 957 (Del. 1985), likewise noted that "our corporate law is not static." Circumstances change and the law cannot be so inflexible as to require the law to stand still. Recently, the burden and expense of stockholder litigation in multiple forums, particularly in merger cases, has increased, creating the additional risk that a court other than the appellate court in the state of incorporation will resolve novel and fundamental questions affecting the internal affairs of a corporation.

By Lewis H. Lazarus

6 minute read

June 05, 2013 | Delaware Business Court Insider

The Delaware Court of Chancery has long expressed its preference that the time to bring a disclosure claim regarding a proposed merger is before the stockholders vote and the deal closes. Such prompt pleading enables the court to fix any potential harm before the merger occurs.

By Lewis H. Lazarus

5 minute read

June 08, 2011 | Delaware Business Court Insider

A plaintiff who pleads successfully that a transaction under attack is governed by the entire fairness standard of review instead of business judgment generally stands a good chance of defeating the defendant's motion to dismiss. That is because when a transaction is reviewed for entire fairness, defendants bear the burden in the first instance of proving at trial the fairness of the process and price.

By Lewis H. Lazarus

5 minute read

September 28, 2011 | Delaware Business Court Insider

In 2009, Delaware's General Assembly passed and Gov. Jack Markell signed legislation enabling arbitration in the Court of Chancery. In 2010, the Court of Chancery adopted rules governing arbitration. As the statutes - 10 Del. C. §§ 349 and 351 - and rules - Court of Chancery Rules 96-98 (Arbitration Rules) - are new and arbitration requires mutual agreement, arbitration may become a more prevalent means of resolving disputes as deal lawyers increasingly require Court of Chancery arbitration for disputes arising out of merger and other agreements.

By Lewis H. Lazarus

3 minute read

June 15, 2011 | Delaware Business Court Insider

A plaintiff who pleads successfully that a transaction under attack is governed by the entire fairness standard of review instead of business judgment generally stands a good chance of defeating the defendant's motion to dismiss. That is because when a transaction is reviewed for entire fairness, defendants bear the burden in the first instance of proving at trial the fairness of the process and price.

By Lewis H. Lazarus

5 minute read

September 25, 2013 | Delaware Business Court Insider

Delaware law has long required that a stockholder own shares on the date of an alleged wrongful act of which he or she complains and continue to own shares during the course of a derivative action.

By Lewis H. Lazarus

7 minute read

April 11, 2012 | Delaware Business Court Insider

When a defendant engages in arguably unlawful conduct, a plaintiff files an action to complain about and seek relief prohibiting the unlawful conduct, and the defendant thereafter changes its practices and moots the plaintiff's complaint, a plaintiff may be entitled to attorney fees based upon the benefit conferred. Absent such a rule, a plaintiffs counsel could undertake a contingent-fee case, incur fees to investigate and file the action and then wind up with no case and no compensation, even though the defendant had changed its practices in a manner consistent with the plaintiff's demand.

By Lewis H. Lazarus

8 minute read

December 07, 2011 | Delaware Business Court Insider

When is a holder of preferred shares of a Delaware corporation entitled to have the corporation redeem its investment? In SV Inv. Partners LLC v. ThoughtWorks Inc. , Nov. 15, the Delaware Supreme Court reaffirmed that question is answered by reference to the terms of the certificate of incorporation that establish the rights of the preferred stockholder and to the proof at trial.

By Lewis H. Lazarus Special to the DBCI

5 minute read