David Leinwand

Firm/Organization: Cleary Gottlieb Steen & Hamilton LLP
Blogs: Cleary M&A and Corporate Governance Watch

Latest Articles

Until Vice Chancellor Laster’s decision last week in Akorn Inc. v. Fresenius KABI AG,[1] no Delaware court had released an acquiror from its obligation to close a transaction as a result of the occurrence of a “Material Adverse Effect.”[2]  The cases previously adjudicated in Delaware all had required the acquiror to close, often despite a significant diminishment in target value and, in some, the court criticized the acquiror for seeking to avoid…
The general policy of the Delaware Limited Liability Company Act (the “Act”) is “to give the maximum effect to the principle of freedom of contract and to the enforceability of limited liability company agreements.”[1]  Specifically, with respect to duties, the Act provides that to the extent law or equity would impose a fiduciary or other duty on a member or manager of an LLC, that duty may be “restricted or eliminated by provisions…
Courts have long applied the exacting “entire fairness” standard to one-step, going-private merger transactions.  In Delaware, after years of agonizing by courts and commentators, this changed in 2013 in Kahn v. M&F Worldwide Corp. (“MFW”).[1]  MFW held that if certain procedural protections were observed in the course of the transaction the far more deferential business judgment standard would be applied.  The required safeguards included, most notably, negotiation and approval of the transaction by…
In two recent cases, the Delaware courts addressed the question of when a minority stockholder has sufficient influence over a corporation to be deemed a controlling stockholder.  The issue typically arises in the context of a transaction between the minority stockholder and the corporation, such as an attempt to acquire the corporation’s publicly held shares.  In such cases, the stakes for the minority stockholder can be quite high as transactions between a corporation and a…