Mergers and Acquisitions Deal Litigation under Delaware Corporation Law

Chapter 1. THRESHOLD CONSIDERATIONS

• § 1.01 Initial Filings
• § 1.02 Filing Considerations in the Delaware Court of Chancery

Chapter 2. INITIAL MOTION PRACTICE

• § 2.01 Initial Motion Practice
• § 2.02 Types of Initial Motions

Chapter 3. MOTIONS TO DISMISS

• § 3.01 Personal Jurisdiction
• § 3.02 Standing
• § 3.03 Derivative Claims
• § 3.04 Statute of Limitations and Laches
• § 3.05 Dispositive Motions Based on Conclusory Allegations
• § 3.06 Director Exculpation

Chapter 4. CLAIMS BY STOCKHOLDERS

• § 4.01 Fiduciary Duties and Standards of Review
• § 4.02 Claims Commonly Brought in Deal Litigation

Chapter 5. DISCLOSURE CLAIMS

• § 5.01 Claims Alleging False and Misleading Disclosures or Omissions
• § 5.02 Commonly Alleged Disclosure Deficiencies
• § 5.03 Information That May Generally Be Omitted From Disclosures

Chapter 6. CLAIMS BY ACQUIRORS, SELLERS, AND UNSUCCESSFUL BIDDERS

• § 6.01 Frequently Litigated Merger Agreement Provisions
• § 6.02 Is There a Contract?
• § 6.03 Claims by Unsuccessful Bidders

Chapter 7. STATUTORY PROCEEDINGS: INSPECTION, ADVANCEMENT, ELECTIONS, AND APPRAISAL

• § 7.01 Proceedings to Enforce Inspection Rights
• § 7.02 Summary Proceedings for Advancement of Litigation Expenses
• § 7.03 Proceedings to Determine Validity of Elections and Related Issues -- Section 225 Actions
• § 7.04 Statutory Appraisal Proceedings

Chapter 8. DISCOVERY

• § 8.01 General Discovery Considerations
• § 8.02 Discoverability of Electronic Information

Chapter 9. PRIVILEGE AND CONFIDENTIALITY

• § 9.01 Confidentiality Stipulations and Orders
• § 9.02 Privilege Issues

Chapter 10. ORAL ARGUMENT, EXPERTS, PRETRIAL MOTIONS, AND TRIAL PRACTICE

• § 10.01 Oral Argument Practice
• § 10.02 Expert Witnesses
• § 10.03 Pretrial Motions
• § 10.04 Trial Practice

Chapter 11. SETTLEMENT AND ATTORNEYS’ FEES

• § 11.01 Settlement Process and Procedure
• § 11.02 Attorneys’ Fees and Related Issues

Chapter 12. APPEALS PRACTICE

• § 12.01 Timing Considerations
• § 12.02 Practice and Custom in the Delaware Supreme Court
• § 12.03 Panel Configurations
• § 12.04 Security for Appeals
• § 12.05 Motion Practice in the Delaware Supreme Court
• § 12.06 Motion to Affirm
• § 12.07 Other Delaware Supreme Court Rules Special Provisions
• § 12.08 Briefs
• § 12.09 Argument

Chapter 13. PROCEDURAL CONSIDERATIONS FOR ACTIONS ARISING UNDER FEDERAL SECURITIES LAWS

• § 13.01 Overview
• § 13.02 Jurisdiction
• § 13.03 Preliminary Procedural Considerations Under the Private Securities Litigation Reform Act (PSLRA)

Chapter 14. PRIVATE RIGHTS OF ACTION UNDER THE FEDERAL SECURITIES LAWS

• § 14.01 Overview
• § 14.02 Limitations on the Applicability of the Federal Securities Laws to Claims Involving Mergers
• § 14.03 Securities Act of 1933
• § 14.04 Securities Exchange Act of 1934

APPENDIX 1. GUIDELINES TO HELP LAWYERS PRACTICING IN THE COURT OF CHANCERY

• Exhibit 1. Sample Scheduling Stipulation for Motion to Dismiss
• Exhibit 2. Sample Scheduling Stipulation for Cross-Motions on Summary Judgment
• Exhibit 3. Sample Scheduling Stipulation for Summary Proceeding
• Exhibit 4. Sample Scheduling Stipulation for a Motion for Preliminary Injunction
• Exhibit 5. Sample Scheduling Stipulation for a Plenary Action
• Exhibit 6. Sample Expert Discovery Stipulation
• Exhibit 7. Sample One-Tier Confidentiality Stipulation With Exhibit A
• Exhibit 8. Sample Two-Tier Confidentiality Stipulation With Exhibit A
• Exhibit 9. Sample Settlement Scheduling Order

APPENDIX 2. COURT OF CHANCERY GUIDELINES FOR PRESERVATON OF ELECTRONICALLY STORED INFORMATION

Table of Cases (Delaware Jurisdictions)

Table of Cases (Other Jurisdictions)

Table of Statutes

Index

Edward P. Welch is Managing Partner in the Delaware Office of Skadden, Arps, Slate, Meagher & Flom LLP as well as the leader of that office’s litigation practice. He received his J.D. in 1976 from Villanova University School of Law, where he was an editor of the Villanova Law Review. Mr. Welch is a member of the Delaware Court of Chancery Rules Committee and the Delaware Corporation Law Section of the Delaware Bar Association. His practice focuses on corporate and securities litigation in Delaware and courts throughout the country, including the defense of class and derivative actions, with an emphasis on mergers and acquisitions. He has been repeatedly selected for inclusion in Chambers USA: America’s Leading Lawyers for Business and The Best Lawyers in America, and he has been named as one of the 500 leading lawyers in the country by Lawdragon. Mr. Welch is co-author of Folk on the Delaware General Corporation Law.

Edward B. Micheletti is a Partner in the Delaware Office of Skadden, Arps, Slate, Meagher & Flom LLP. He received his J.D., summa cum laude , in 1997 from Widener University School of Law, where he graduated as Valedictorian and was the Editor-in-Chief of the Delaware Journal of Corporate Law. Mr. Micheletti is a former Delaware Court of Chancery clerk and has participated on committees that draft amendments to the Delaware General Corporation Law. He also frequently authors articles on Delaware Corporation Law and deal litigation issues. His practice focuses on deal litigation, as well as corporate governance, securities and complex commercial litigation in state and federal courts around the country. In 2011, Mr. Micheletti was one of five attorneys named to the securities section in Law360’s list of “Rising Stars” and he was selected as one of the "40 Under 40" by The M&A Advisor. Mr. Micheletti dedicates his efforts on this treatise to his wife, Melissa, and his four children.

Peter B. Morrison is a Partner in the Los Angeles Office of Skadden, Arps, Slate, Meagher & Flom LLP. He received his J.D. in 1999 from New York University School of Law. His practice focuses on takeover and securities litigation in federal and state courts. He advises corporations on matters involving both federal and state securities laws, duties of corporate directors, and contests for corporate control. He also has authored numerous articles on federal securities litigation. In 2011, Mr. Morrison was one of five attorneys named to the class action section in Law360’s list of “Rising Stars.”

Stephen D. Dargitz is a counsel in the Delaware Office of Skadden, Arps, Slate, Meagher & Flom LLP. He received his J.D. in 1997 from Yale Law School. Mr. Dargitz is a member of Skadden’s litigation department in Wilmington, Delaware. His practice focuses on complex commercial, corporate and securities disputes, with an emphasis on those relating to mergers and acquisitions. Mr. Dargitz also frequently provides advice on issues of corporate governance arising under Delaware law, including the fiduciary obligations of directors and officers. He has authored numerous articles on issues involving Delaware Corporation Law. He is a member of the Board of Editors of Folk on the Delaware General Corporation Law.