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DE Court Rules on Deficiencies in Proxy Materials
In In re Transkaryotic Therapies, Inc., 2008 WL 2462767 (Del. Ch., June 19, 2008), the Court of Chancery of Delaware recently granted summary judgment to Transkaryotic directors alleged to have breached their fiduciary duties of disclosure (also sometimes referred to as the duty of “candor”) and loyalty in connection with Shire Pharmaceuticals' acquisition of Transkaryotic. Chancellor Chandler's decision in noteworthy in two respects. First, with regard to the duty of disclosure, the court held that damages are not an appropriate remedy for material disclosure deficiencies and, once a stockholder vote has been taken and the transaction closed, it is too late to grant injunctive relief. Second, with regard to the duty of loyalty, the court refused to characterize engaged and active behavior of directors who had relationships with a major stockholder and the CEO of the acquiring company as disloyal, absent a showing of a material personal benefit or bias.
Background
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.