Drafting Market-Based MAC and Termination Fee Clauses
March 28, 2008
Two types of contract clauses are commonly cited when a buyer or financing source desires not to make good on its commitment. These clauses are material adverse change (MAC) clauses and termination fee clauses. Several recent cases show that good draftsmanship and a clear understanding of their intended effect are essential in heading off disputes when implementing these provisions.
Quarterly State Compliance Review
March 28, 2008
This edition of the Quarterly State Compliance Review includes a look at legislation of interest to corporate lawyers, that recently went into effect in Delaware and California, and a look at recent decisions of interest dealing with derivative suits from the high courts of Delaware, New York and California.
The Cost of Security
March 28, 2008
With the ever-increasing focus on security, wage and hour class actions create potential liability for a variety of employers, from airport vendors to power plants to retailers. Fortunately for these employers and others, the recent, yet limited, case law has held that such time is not compensable. Moreover, general wage and hour principles support this conclusion.
Delaware Chancery Dismisses Globis v. Plumtree
February 26, 2008
While Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173,184 (Del. 1986) places paramount importance on directors' duty to seek the highest sale price once the board of directors determines their corporation is for sale, the fact that plaintiffs simply point to a less-than-ideal purchase price is not sufficient under Delaware law to trigger heightened scrutiny of the directors' actions during the sale process.
The Microsoft Decision
February 26, 2008
Microsoft's recent decision not to appeal the landmark ruling of the European Court of First Instance (CFI) regarding anti-competitive practices provides an opportunity for reflection and analysis. An assessment of the Microsoft saga for technology and other IP-rich businesses depends upon a clear understanding of what the European Commission and the CFI decided and, perhaps even more importantly, what they did not decide.
Counseling Corporations on Execution
February 26, 2008
Senior executives realize that they do not know how to change the firm's ability to execute their business plan and at some point search for some way to devise a successful plan that the current organization can implement. It is often unrecognized that the source of the disappointing performance is the corporation's failure to execute its current strategy.
The Stoneridge Decision
February 26, 2008
On Jan. 15, 2008, the U.S. Supreme Court handed down its decision in <i>Stoneridge Investment Partners v. Scientific Atlanta</i>, the case that has been called 'the most important securities law case to reach the Court this decade' and 'the securities lawyer's <i>Roe v. Wade</i>.' While the case had both domestic and international corporations concerned about its potential to dramatically expand the scope of 10b-5 claims in order to target third parties doing business with public companies that concern can now be laid to rest.
Special Committees and Protecting Privilege
February 26, 2008
How can a board discharge its fiduciary duties without waiving otherwise applicable privileges to the investigation and opening the door to discovery of investigation related materials by the government or by third party litigation adversaries? An analysis of recent rulings.
Supreme Court Won't Hear Wiretapping Case
February 19, 2008
The Supreme Court on Feb. 19 declined to take up the first legal challenge to the Bush administration's once-secret National Security Agency program of warrantless wiretapping.
