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Commentary

07/03/20 [UPDATED] Board Diversity

NEW:  Keith Bishop discusses a bill introduced in the California legislature that would require domestic and foreign publicly held corporations having their principal place of business in California to include individuals who are African-American, Hispanic, or Native American on their board of directors in Bill Would Impose Minimum Number Of “Directors From An Underrepresented Community”.

The New York City Office of the Comptroller discussed progress of its Boardroom Accountability program in obtaining commitments from companies with which it does business to engage in search processes that ensure that women and people of color are considered for executive and board positions in NYC Comptroller’s Boardroom Accountability 3.0 Results.

Shearman & Sterling reports that a recent amendment to Washington State corporation law require that public companies have a “gender-diverse board” by January 1, 2022 or provide board diversity disclosures in Washington State Becomes Next to Mandate Gender Diversity on Boards.

Jackson Lewis discusses measures that twelve states have enacted or are considering to enhance diversity on corporate boards in States are Leading the Charge to Corporate Boards: Diversify!

Cooley discusses research suggesting that, despite recent efforts to promote diversity on corporate boards, diversity in corporate executive positions remains low, in The sorry state of C-suite diversity.

Wachtell reports the dismissal of a lawsuit challenging California’s law mandating gender diversity on corporate boards for lack of standing in Creighton Meland v. Alex Padilla, C.A. No. 19-2288, compl. (E.D. Cal. Nov. 13, 2019), noting that plaintiff has already appealed the ruling, in Federal District Court Dismisses Challenge to Board Diversity Statute.

Davis Polk reports that the New York City Comptroller announced 75% of companies have approved stockholder proposals establishing diversity search policies seeking to increase board representation by women and people of color, submitted by the New York City Retirement Systems as part of the city’s Boardroom Accountability Project 3.0, which seeks to foster diversity in leadership of companies in which the Retirement System invests, in NYC Comptroller Stringer Reports Progress on Project to Boost Board/CEO Diversity.

Cooley reports that Creighton Meland v. Alex Padilla, C.A. No. 19-2288, compl. (E.D. Cal. Nov. 13, 2019), a lawsuit challenging the constitutionality of California’s board gender diversity statute filed by a conservative legal organization on behalf of a public company stockholder has been dismissed for lack of standing in  Federal District Court dismisses a challenge to California board gender diversity statute.

Cooley reports findings that California’s California’s SB 826 board gender diversity statute has led to significant gains in board diversity, and discusses other states that have introduced similar legislation in Will other states follow California in adopting board gender diversity mandates?

Reuters reports Goldman Sachs’ announcement that from June 30, it will only help take companies having at least one diverse member company, citing superior performance of such companies after going public, in Goldman Sachs to companies: Hire at least one woman director if you want to go public.

Spencer Stuart discusses key takeaways from the 2019 U.S. Spencer Stuart Board Index finding that boards have increasingly added new directors with diversity of gender, age, race/ethnicity and professional backgrounds, but that board turnover remains low, with new directors representing only 8% of all S&P 500 directors. 2019 U.S. Spencer Stuart Board Index.

Deloitte discusses the latest statistics on global boardroom diversity, efforts to increase gender diversity in 66 countries, and political, social, and legislative trends. Women in the Boardroom: A Global Perspective.

Keith Paul Bishop discusses a study of negative effects of California’s SB 826, imposing gender quotas on the boards of publicly traded companies headquartered in California. Business Professors Find “Large Negative Stock Market Reaction” To California’s Board Quota Law.

The New York City Comptroller calls on boards of directors to adopt a policy requiring that searches for director and officer candidates include qualified female and racially/ethnically diverse candidates, and candidates from non-traditional environments such as government, academic, or non-profit. NYC Comptroller Boardroom Accountability 3.0.

Davis Polk’s Betty Moy Huber and Paula H. Simpkins report findings from the 2019 U.S. Spencer Stuart Board Index that S&P 500 companies are accelerating the addition of women and minority directors. Spencer Stuart Shows How Boards Are Transforming.

07/03/20 [UPDATED] Stockholder Meetings

NEW:  Soundboard Governance discusses use of remote, virtual platforms to conduct stockholder meetings following recent increases in use in Key Takeaways and Best Practices from Virtual Shareholders Meetings in 2020.

Vorys discusses the use of virtual board meetings, their management, and how mitigate  additional risks they pose in Virtual board meetings and risk mitigation during Covid-19.

Broadridge provides statistics on virtual stockholder meetings it hosted between January 1 and May 22, 2020, representing a more than 6X increase over the same period in 2019, at Broadridge Virtual Shareholder Meetings (“VSMs”): Preliminary Statistics.

Wachtell discusses increases in the use of virtual annual meetings during the coronavirus meeting, and the first virtual meeting used in a proxy contest in Lessons From the Future – The First Contested Virtual Annual Meeting.

Cleary Gottlieb reports that New York’s Governor Cuomo has issued Executive Order 202.18, Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency (New York, Apr. 16, 2020), extending his previous Executive Order 202.8, Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency (New York, Mar. 23, 2020), which suspended New York’s Business Corporation Law Sections 602(a) — requiring physical stockholder meetings — and 605(a) and (b) — requiring prior notice of annual meetings and adjournments — “to the extent they require meetings of shareholders to be noticed and held at a physical location.” Cuomo Executive Order Gives New York Corporations Relief on Physical Annual Meetings.

Olshan discusses Delaware Governor Carney’s a Tenth Modification of the Declaration of a State of Emergency for the State of Delaware Due to a Public Health Threat (Apr. 6, 2020), which authorized Delaware corporations to switch noticed in-person stockholder meetings to remote virtual meetings of adjourn them in favor of a later remote meeting, which it commended as preferable to a proposed emergency amendment to 8 Del. C. § 110, which would give broads discretion to postpone annual meetings irrespective of whether an emergency prevented a quorum from being convened in Delaware Emergency Order: Remote Shareholder Communication Meetings.

Sheppard Mullin discusses considerations regarding the use of virtual stockholder meetings, including hybrid meetings that can be attend either in-person or remotely, in Virtual and Hybrid Shareholder Meetings in the Era of COVID-19: What Public Companies Need to Know.

UCLA Law Professor Stephen Bainbridge discusses recent sources of authority for conducting virtual stockholder meetings, and suggests a platform offered by Broadridge for conducting virtual meetings in Conducting the Annual Shareholder Meeting during the COVID19 Pandemic.

ISS discusses SEC guidance regarding the conduct of virtual stockholder meetings in Annual General Meetings & COVID-19.

Delaware Governor John Carney, in a Tenth Modification of the Declaration of a State of Emergency for the State of Delaware Due to a Public Health Threat (Apr. 6, 2020), noting that the Delaware General Corporation Law does not address certain aspects of stockholder meetings implicated by a public health emergency, provides rules governing notice of changes of physical meetings to meetings conducted by remote communications, and adjournment of scheduled meetings.

Cleary Gottlieb discusses adjournment of scheduled stockholder meetings and conversion of scheduled stockholder meetings to virtual meetings, and related notice and procedural requirements under Delaware and New York law in Coronavirus & Postponing/Adjourning Annual Meetings and Coronavirus & Virtual Annual Meetings.

07/03/20 [UPDATED] M&A and Antitrust

NEW:  Wachtell discusses the Federal Trade Commission’s updates to guidance on antitrust implications of vertical mergers in U.S. Antitrust Agencies Issue New Vertical Merger Guidelines.

Perkins Coie discusses vague terms in antitrust covenants, noting increases in lawsuits following terminated mergers, in “Reasonableness” Is in the Eye of the Beholder: Vague Contracts Clauses Invite Litigation.

Sidley discusses increasing scrutiny of non-compete provisions in acquisition agreements by antitrust authorities in FTC Targets M&A Agreements in Continued Campaign Against Noncompete and No-Poach Clauses.

Sullivan & Cromwell summarizes draft Department of Justice and Federal Trade Commission guidelines on antitrust analysis of vertical mergers (between companies at different levels of a common supply chain) in U.S. Antitrust Regulators Publish Significant Guidance Concerning Vertical Mergers — 30-Day Public Comment Period.

07/03/20 [UPDATED] ESG

NEW:  Wachtell discusses proposed Department of Labor rules that would limit Employee Retirement Income Security Act-governed investment based on Environmental, Social, & Governance factors rather than solely on stockholder returns, noting that ESG funds have demonstrated superior performance, and speculating that the proposed rules would increase demand for ESG-related data to support investment decisions in DOL Proposes New Rules Regulating ESG Investments.

Tulane Law’s Professor Ann Lipton notes that the Department of Labor approved inclusion of private equity investments in 401(k) plans and proposed new rules that discourage Employee Retirement Income Security Act-regulated retirement plan investment based on Environmental, Social, & Governance factors by requiring that investments be based “solely on pecuniary factors that have a material effect on the return and risk of an investment” in Private Equity In, ESG Out.

FTI Consulting reports, based on communications with companies and investors, that attempts to address “Social” considerations under an Environmental, Social, & Governance framework have contributed to business risk and caused reputational damage in Time to Rethink the S in ESG.

The New York Times reports that the Department of Labor has proposed rules governing investments under the Employee Retirement Income Security Act preventing investments based on Environmental, Social, & Governance factors that “subordinate return or increase risk for the purpose of nonfinancial objectives” in Labor Dept. seeks to Restrict Social Goals in Retirement Investing.

Davis Polk discusses a proposed Department of Labor rule proposed rule governing investments under the Employee Retirement Income Security Act requiring that only “pecuniary factors” be used to evaluate investments, to the exclusion of Environmental, Social, & Governance factors that sacrifice return or increase costs or risk in Department of Labor Proposes Investment Duties Rule Affecting ESG Investments.

The Need for Employee Buy-in for ESG to Work examines the relationship between Environmental, Social, & Governance considerations, employee satisfaction, and financial value, finding that neither ESG practices nor employee satisfaction alone improve financial value, but the combination of ESG practices and employee satisfaction had a large effect on financial value.

Wachtell’s Kirby Smith and Leo E. Strine, Jr. propose the use of compensation committees having responsibility for a company’s entire workforce rather than just senior management, tasked with ensuring that workers are fairly compensate in How A Reconceived Compensation Committee Can Help Tackle Inequality.

The Board Director Training Institute of Japan’s Nicholas Benes discusses possible means of effecting sustainability-oriented corporate governance, noting potential limitations of Environmental, Social, & Governance as insufficiently tied to incentives, and proposing inventive-based reforms in Redesigning Corporations: Incentives Matter.

Wachtell discusses how corporate directors should incorporate Environmental, Social, & Governance and stakeholder-oriented considerations into board decision-making processes in A Framework for Management and Board of Directors – Consideration of ESG and Stakeholder Governance.

Is Stakeholderism Bad for Stakeholders? responds to recent academic arguments that corporate focus on stakeholder interests will harm stakeholders and that shareholder value maximization remains the proper purpose of the corporation, asserting that objections are not inherently harmful to stakeholders, and depend on proper implementation of stakeholder-oriented reforms.

How Corporate and Securities Laws Affect Social Responsibility and Corporate Purpose discusses the role of state corporate law and federal securities regulation in promoting the role of corporates social responsibility and environmental, social, and governance concerns, and advocates for ways in which the law can better accommodate corporate promotion of such concerns.

UCLA’s Professor Stephen Bainbridge discusses research in Environmental & Social Voting at Index Funds, which supports the conclusion that passively managed index funds, despite touting commitments to Environmental, Social, and Governance objectives, do not meaningfully participate in ESG activism in ESG Voting by Index Funds.

How Committed Are Active-Investment Managers to ESG? examines active fund managers’ commitments to Environmental, Social, and Governance principles based on compliance with voluntary commitments to the United Nations 2006 Principles for Responsible Investment, concluding that only certain funds improve ESG while many others use their commitment to the Principles for Responsible Investment to attract capital without notable changes to ESG, and suggest the need of metrics to assess compliance, greater investor oversight of investment managers, and greater transparency by investment managers.

Wachtell discusses Environmental, Social, and Governance-related scenario analysis disclosures and the need to take precautions to ensure that such disclosures are not misleading, providing examples of such disclosures in ESG Disclosures and Litigation Concerns.

Schulte Roth & Zabel discusses the EU regulation on Sustainability-Related Disclosures, scheduled to take effect in March 2021, and related legislation that establishes a framework for classifying financial products as “sustainable investments,” in New ESG Disclosure Obligations.

Is Managerial Entrenchment Always Bad and Corporate Social Responsibility Always Good? examines simultaneous adoption of managerial entrenchment and corporate social responsibility governance provisions, finding evidence that in the absence of entrenchment provisions, market discipline reduces managers’ incentives to invest in long-term relationships with stakeholders and increases incentives to spend company resources generously on symbolic CSR activities.

ShareAction explores the role and influence of proxy advisors, analyzing their recommendations on Environmental, Social, & Governance shareholder resolutions compared to asset managers’ voting decisions in Another Link in the Chain: Uncovering the Role of Proxy Advisors in Investor ESG Voting.

Wachtell responds to The Illusory Promise of Stakeholder Governance — a critical analysis of stakeholder primacy proposed in the Business Roundtable’s 2019 Statement that questions its efficacy and warns against its adoption — in Professor Bebchuk’s Errant Attack on Stakeholder Governance.

Cooley discusses a recent report by Morningstar — Proxy Voting by 50 U.S. Fund Families — on institutional investor voting on Environmental, Social, and Governance-related proposals, noting that support has increased over a five-year period but the largest funds have consistently voted against such proposals in How do the largest fund families vote on shareholder proposals related to ESG?

The Illusory Promise of Stakeholder Governance critically examines stakeholder primacy proposed in the Business Roundtable’s 2019 Statement, distinguishing between two versions of “stakeholderism” — “enlightened shareholder value” and “pluralistic” — and conducts economic and empirical analyses of their expected consequences, concluding that stakeholderism will not benefit stakeholders, but would impose substantial costs on shareholders, stakeholders, and society (disagreeing with academics signatories of the Corporate Governance for Sustainability Statement).

NEW: Wachtell discusses board legal obligations, and adjustment to board functions, communications, and engagement in response to increasing investor concern over Environmental, Social, & Governance, stakeholder interests, and sustainable long-term investment strategies in Spotlight on Boards.

NEW: FTI Consulting discusses issues of likely importance to companies in connection with anticipated adoption of Environmental, Social, & Governance-related practices in Top 10 ESG Trends for the New Decade.

Wachtell discusses the relevance of corporate income tax to Environmental, Social, and Governance disclosure, noting the likelihood of tax arbitrage — shifting profit among jurisdictions — as a focus, and possible governance risks that may arise in response to aggressive tax planning in Tax and ESG.

Morrow Sodali’s John Wilcox discusses approaches to defining corporate purpose and corporate culture in the evolving governance environment that increasingly emphasizes Environmental, Social, and Governance, sustainability, and stakeholder interests in Corporate Purpose and Culture.

Wachtell suggests that Environmental, Social, and Governance considerations will increasingly impact M&A activity, discussing their relevance to due diligence and communications regarding transactions, as well as differential concerns between acquirer and target concerns, and the relationship between ESG performance and cost of capital in The Coming Impact of ESG on M&A.

Stewardship and Collective Action: The Australian Experience discusses collective action of investors in promoting corporate stewardship utilizing Australian stewardship codes, and suggests considerations for development of policy guiding investor participation in corporate governance in other jurisdictions.

Eric Scheiner and Jennifer Quinn Broda of Kennedys discuss risks that companies may assume in efforts to satisfy or failure to meet corporate social responsibility objectives having potential implications for D&O insurers and policyholders in Potential D&O Risks Arising from Corporate Social Responsibility.

Wachtell discusses BlackRock’s recent announcements regarding its commitment to sustainability as a key focus of its investment strategy in Sustainability in the Spotlight.

The CFA Institute discusses the results of surveys addressing how finance professionals and investors believe investments can support environmental, social, and governance objectives without undermining their monetary value in Sustainable Value for Money: How to reconnect finance with the needs of society.

McKinsey discusses socioeconomic risks attributable to climate change, and considerations for companies and governments Integrating climate risk into decision-making in Climate risk and response: Physical hazards and socioeconomic impacts.

Cooley discusses a McKinsey study of the economic effects of climate change as a possible impetus supporting increased focus of financial investors on issues of sustainability in McKinsey looks at socioeconomic impact of climate risk.

BlackRock discusses the ways in which it is accelerating integration of sustainability into technology, risk management, and investment in Sustainability as New Standard for Investing.

Cooley discusses BlackRock’s recent announcements regarding its commitment to sustainability as a key focus of its investment strategy in BlackRock puts sustainability at the center of investment strategy, expects more transparency in sustainability disclosure.

BlackRock discusses the economic consequences of climate change and its commitment to making sustainability the center of its investment strategy in A Fundamental Reshaping of Finance.

The Role of ESG in the Financial Performance of Banks finds a positive correlation between the return on assets and Environmental, Social, & Governance performance for European banks.

ISS discusses the link between Environmental, Social, & Governance performance and financial performance, presenting evidence that firms with favorable ESG performance ratings are more profitable, less volatile, good allocators of capital, and less cyclical, in ESG Matters.

Morningstar discusses “encouraging” findings from proxy votes of large asset managers in 2019 demonstrating support for shareholder-proposed sustainability resolutions, while noting that the largest fund providers were significantly less supportive of such resolutions, in How Can Fund Providers Protect the Future for Worker-Investors?

State Street discusses the results of a global survey of Environmental, Social, & Governance investing, noting factors affecting adoption and barriers to adoption of ESG factors by institutional investors Into the Mainstream: ESG at the Tipping Point.

07/02/20 [UPDATED] MAE/MAC Clauses

NEW:  Vinson & Elkins discusses current disputes involving Material Adverse Change / Material Adverse Effect clauses, force majeure clauses, and other grounds asserted for terminating or renegotiating contracts in the wake of the coronavirus pandemic in 6 Things To Know About Handling Contract Disputes In The COVID-19 Era.

Williams Mullen discusses recent lawsuits disputing acquirer’s entitlement to terminate mergers by invoking the coronavirus pandemic as having triggered material adverse effect clauses in MAEs and COVID-19: The Latest on Case Law.

Vinson & Elkins notes an anticipated increase in attempts to renegotiate or terminate transactions due to the economic effects of coronavirus, providing an overview of  Material Adverse Change / Material Adverse Effect clauses and Delaware case law interpreting such clauses, in Material Adverse Effect Clauses In An Economic Downdraft.

Case Western professors Anat Alon-Beck and Charles Korsmo discuss the coronavirus pandemic as a material adverse change / material adverse effect under Delaware law requiring that its economic effects be both sufficiently and durationally significant, in Will the Pandemic Sink Deals?

Winstead discusses Delaware and New York law interpreting Material Adverse Change / Material Adverse Effect clauses in merger agreements, and other authorities addressing lenders’ assertion of purported material adverse changes to avoid funding loans or as events of default in What a Business Should Know Before Triggering a MAC Clause Based on COVID-19.

Israeli business daily Globes discusses whether the coronavirus epidemic could be a material adverse effect that would permit a party to withdraw from a transaction under Israeli law in The Covid-19 black swan muddies the M&A lake.

Troutman Sanders discusses recently-filed lawsuits involving obligations to close transactions that implicate the effects of the coronavirus pandemic, including whether it constitutes a material adverse change or material adverse effect, in Shots Fired: Recent Claims to Terminate M&A Deals Over COVID-19 MAEs.

Fried Frank discusses the possibility that the coronavirus pandemic might constitute a material adverse change or material adverse effect under existing merger or financing agreements, noting that some parties have recently entered agreements that expressly exclude the coronavirus pandemic, and discusses Delaware case law interpreting MAE / MAC clauses in COVID-19 As A Material Adverse Change In M&A Agreements.

$$$ Law360 discusses the possibility that parties to mergers may seek termination by asserting that material adverse effect clauses were triggered by coronavirus in Why Material Adverse Effect Clauses Aren’t Escape Hatches.

Professors Matthew Jennejohn, Julian Nyarko, and Eric Talley forewent learning to paint like Bob Ross and devoted some coronavirus-avoidant downtime to updating their previous  analysis of material adverse change / material adverse event provisions from historical M&A transaction documents (incorrectly described in a prior mention on chanceryblog as an analysis of pending transaction documents) to discern trends in use of terns likely to be triggered by a viral pandemic, to also examine transaction documents for pending deals in A “Majeure” Update on COVID-19 and MAEs.

Professors Matthew Jennejohn, Julian Nyarko, and Eric Talley use machine learning techniques to analyze material adverse change / material adverse event provisions in 150 pending M&A transaction documents, and consider whether common terms are likely to be triggered by a viral pandemic in Coronavirus Is Becoming a “Majeure” Headache for Pending Corporate Deals.

Nixon Peabody discusses the results of its annual survey of the terms of Material Adverse Change clauses in merger agreements in its 2019 MAC Survey.

07/02/20 [UPDATED] Mergers & Acquisitions

NEW:  Davies Ward Phillips & Vineberg discusses Canadian public M&A activity from 2012-2019, assessing the impact of May 2016 changes to Canadian securities regulations governing takeover bids that increased the power of target boards in The Hostile Bid Is Dead. Long Live the Hostile Bid?

Reuters reports that M&A activity dropped to the lowest level in a decade, but cite accounts that activity may be gradually increasing in Coronavirus strikes down global M&A as companies keep their distance.

Freshfields discusses the potential long-term impact of the coronavirus pandemic on mergers and acquisitions in Beyond the pandemic: the future of M&A.

White & Case reports that although coronavirus has caused a sharp decline in M&A activity, its impact on pending transactions is less than expected, citing examples of consensual delays in closing, mutual termination, and purchase price adjustments, as well as examples of buyers attempting to unilaterally delay or terminate transactions in Most pending US M&A deals are proceeding as agreed, despite COVID-19.

Reuters reports that, symptomatic of coronavirus’ economic effects, no merger worth more than $1 billion was announced during the week of April 13, 2020, and year-to-date worldwide merger activity is down 33% from the same period in 2019, but that a majority of business executives surveyed globally, looking beyond current conditions to post-crisis growth opportunities, anticipated an acquisition in the next 12 months, in Coronavirus takes toll on global M&A as $1 billion deals disappear.

Seyfarth Shaw surveys key terms of 100+ private target M&A transactions with a purchase price less than $1 billion in 2019 in its 2020 Middle Market M&A SurveyBook.

DealLawyers.com discusses Xerox’s tender offer for Hewlett-Packard, which is conditioned upon agreement to a merger without stockholder approval, noting that judicial review of such an agreement is likely to be subject to enhanced scrutiny under Delaware law, in Frenemies: Xerox’s Not Particularly Hostile Bid for HP.

McMillan discusses issues of privilege under the law of Canada and other jurisdictions applicable in the context of mergers and acquisitions in “Can I Tell You Something In Confidence?” Legal Privilege In M&A Transactions.

Latham & Watkins summarizes considerations for a non-US acquirer of a public US company in Acquiring a US Public Company: An Overview for the Non-US Acquirer.

Cooley discusses the use of Representation and Warranty insurance in mergers and acquisitions in Representation & Warranty Insurance — Current Market Trends.

07/02/20 [UPDATED] Disclosures

NEW:  Cooley discusses recent research regarding company disclosures regarding business impact of the coronavirus pandemic in Study looks at COVID-19 disclosure.

Reuters reports that a study of corporate disclosures on management of social and environmental risk required under the European Union’s 2018 Non-Financial Reporting Directive revealed “big gaps between many companies’ words and action,” in Sustainability disclosures by European companies generally poor: study.

ESG Performance and Disclosure: A Cross-Country Analysis examines the relationship between ESG factors, disclosure, and financial performance across countries with varying policies imposing ESG disclosure requirements, finding correlation between quantity of disclosures and quality of data, and no relationship between ESG and risk-adjusted returns, but a small effect on volatility.

The U.S. Chamber of Commerce discusses proposed guidelines for Environmental, Social & Governance disclosures in ESG Reporting Best Practices.

Ernst & Young discusses corporate disclosures relating to human capital and culture in How and Why Human Capital Disclosures are Evolving.

Davis Polk discusses best practice guidelines for Environmental, Social & Governance disclosures proposed by the U.S. Chamber of Commerce. Chamber of Commerce Releases Best Practices for Voluntary Environmental, Social & Governance (ESG) Disclosure.

06/30/20 [UPDATED] Delaware Courts

The Delaware Court of Chancery issued a March 6, 2020 standing order, Standing Order Concerning COVID-19 Precautionary Measures, order (Del. Ch. Mar. 6, 2020), implementing procedural precautions, particularly the use of telephonic rather than live hearings, to help prevent coronavirus transmission.  On March 11, the Delaware Division of Public Health announced the first case of coronavirus infection in the State, and on March 13, the Delaware Supreme Court issued an Order Declaring a Judicial Emergency, order (Del. Mar. 13, 2020) encouraging telephonic proceedings. The Supreme Court subsequently ordered closure of the State Courthouses to the public effective March 23, and ordered an extension of the closure to June 13, 2020. In re COVID-19 Precautionary Measures, order (Del. May 14, 2020). The Courts have established a designated webpage — The Delaware Judiciary Response to Coronavirus Disease (COVID-19) — to publish the latest developments.

NEW: Fox Rothschild notes the Tenth Anniversary, in May 2020, of the creation of the Delaware Superior Court’s Complex Commercial Litigation Division, and discusses procedural and strategic considerations for litigating business disputes in the CCLD in – Adjudicating Business Disputes in Delaware’s Complex Commercial Division.

Skadden reports that Delaware Supreme Court and Court of Chancery are operational and pending corporate litigation has continued with minimal interruption, and discusses the courts’ current status and procedures in Checking In With Delaware Courts Amid the COVID-19 Crisis.

The News Journal discusses the Delaware Supreme Court’s extension of its prior order closing the state’s courthouses to the public in Delaware courts will continue to operate virtually for now.

Law360 discusses the Delaware Court of Chancery’s changes in procedure to continue to handle corporate disputes during the coronavirus pandemic in Del. Chancery Is Uniquely Suited For Coronavirus Response.

Seyfarth Shaw discusses the responses of various Courts, including the Delware Court of Chancery, in COVID-19: Business Courts’ Response to the Crisis.

Francis Pileggi discusses closure of Delaware courthouses and postponements of hearings and other deadlines in More Closures in Delaware Due to Pandemic.

Law360 discusses court closures and the Court of Chancery’s rescheduling of proceedings and adoption of teleconferencing technology in Delaware Largely Closes All Courts For ‘Stay-At-Home’ Order.

The News Journal discusses the recent cancellations and changes in How coronavirus is impacting Delaware: Monday cancellations, schedule changes.

Law.com discusses updates with the Delaware Superior Court in Del. Superior Court Suspends Jury Trials, Chancery Court Postpones In-Person Hearings.

Fox Rothschild discusses the latest updates in Chancery Court in Chancery Hearings and Trials to be Held Telephonically for 30 Days.

Francis Pileggi discusses responses to the first confirmed case in Delaware Supreme Court Declares Judicial Emergency Due to Coronavirus.

Delaware Business Now discusses emergency status and updates to standing orders in Updated: Jury trials delayed in Delaware Superior Court as emergency order is broadened.

Fox Rothschild discusses the Courts’ actions in The Delaware Judiciary’s Response to the Coronavirus (COVID-19).

The News Journal discusses current coronavirus-related Orders and the status of the Courts in Coronavirus and Delaware courts: What jurors, others need to know.

Francis Pileggi discusses current standing orders and other coronavirus-related concerns in Delaware Courts’ Response to the Coronavirus.

Morris James comments on the precautionary concerns in Delaware Courts Issue Standing Orders Addressing Coronavirus Concerns.

Bloomberg Law comments on this matter of public health in the freely-accessible Delaware’s Chancery Increasing Dial-In Court Due to Coronavirus.

$$$ Law360 advises the public of the situation from behind a paywall in Chancery Eyes Remote Hearings To Stem Coronavirus Risk.

06/26/20 [UPDATED] Securities Litigation

NEW: Cleary Gottlieb discusses the U.S. District Court for the District of Connecticut’s decision in Selwyn Karp v. SI Financial Group, Inc., et al., C.A. No. 19-199-MPS, order (D. Conn. Apr. 16, 2020), dismissing claims under Section 14 of the Securities Exchange Act challenging the sufficiency of disclosures in a preliminary proxy statement issued in connection with a proposed merger, where defendants declined to issue supplemental disclosures in response to plaintiff’s complaint, finding that allegedly omitted information, though helpful to investors, was insufficient to state a claim, in Rare Federal Court Decision Casts Doubt On Merger Disclosure Claims, But Will It Change Anything?

Wilson Sonsini discusses strategies for limiting securities liability in connection with initial public offerings, including direct listings and carve-outs to IPO lock-up agreements, in Carving Out IPO Protections.

05/14/2020 [UPDATED] Appraisal

NEW:  $$$ Law360 discusses the treatment of size premiums when valuing companies under recent Delaware appraisal decisions in It’s Time For Valuation Experts To Let Go Of The Size Premium.

Skadden discusses methods of valuation used in recent decisions of the Delaware Court of Chancery in statutory appraisal proceedings in Court of Chancery Continues To Rely on Market-Based Metrics in Appraisal Decisions.

Ben Lucy discusses the Delaware Supreme Court’s treatment of the Efficient Capital Markets Hypothesis and agency cost reductions for purposes of determining fair value under DFC, Dell, and Aruba, in Defining Appraisal Fair Value.

Andrew D. Campbell of Novack & Macey discusses appraisal rights under Illinois law in Illinois Appraisal and Valuation Rights: An Overview.

Sutter Securities discusses “market exception” / “market-out” in 38 state appraisal statutes that deny appraisal rights to stockholders of public companies in The “Market Exception” in Appraisal Statutes.

Tulane’s Professor Ann Lipton discusses proposed terms of Xerox’s proposed takeover of Hewlett Packard under 8 Del. C. § 251(h) via tender offer followed by second-step merger pursuant to which stockholders would under various contingent circumstances either be permitted to choose ore required to receive consideration in cash, stock, or both, noting that Delaware’s appraisal statute does not clearly provide stockholders with appraisal rights under the various scenarios because it lacks a coherent statutory scheme  in In these uncertain times, we can take comfort in normalcy: Appraisal law makes no sense.

Lowenstein Sandler excerpts commentary regarding Delaware appraisal law from Sullivan & Cromwell’s M&A Hot Topics January 14, 2020 (discussing various topics) in Law Firm Recaps the “Post-Aruba” Appraisal Landscape.

Lowenstein Sandler discusses services offered by the Depository Trust Company that may assist stockholders seeking to perfect appraisal rights at Reviewing the Mechanics: DTCC’s Proxy Services.

Duane Morris’s Stephen M. Honig discusses recent developments in Delaware case law involving appraisal and Caremark claims, and former Chief Justice Strine’s views on the purpose of the corporation in It’s Been a Busy Season for Delaware Corporate Law.

Lowenstein Sandler discusses a merger in which consideration terms were amended to replace a cash component with equity, suggesting that the amendment could have been intended to avoid appraisal rights in Case is a Reminder That Delaware All Stock Deals Do Not Have Appraisal Rights.

Lowenstein Sandler discusses articles that address calculation and treatment of synergies, and relevance of synergies in view of a sales process, in appraisal in Valuation Firm: “The Treatment of Synergistic Value in Dissenting Shareholder Appraisal Matters”.

Skadden discusses recent decisions of the Delaware Court of Chancery in statutory appraisal proceedings in Delaware Appraisal Decisions Chart Separate Courses From Aruba