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Westlaw Journal DELAWARE CORPORATE Litigation News and Analysis • Legislation • Regulation • Expert Commentary VOLUME 29, ISSUE 24 / JUNE 8, 2015

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Westlaw Journal DELAWARE CORPORATE Litigation News and Analysis • Legislation • Regulation • Expert Commentary VOLUME 29, ISSUE 24 / JUNE 8, 2015 Westlaw Journal DELAWARE CORPORATE Litigation News and Analysis • Legislation • Regulation • Expert Commentary VOLUME 29, ISSUE 24 / JUNE 8, 2015 PRE-SUIT DEMAND WHAT’S INSIDE PRE-SUIT DEMAND JPMorgan director duty in ‘London Whale’ debacle 9 It’s Wal-Mart shareholder plaintiffs’ last stand already decided, Delaware judge says in Delaware, 8th Circuit Shareholders cannot sue JPMorgan Chase & Co.’s In re Wal-Mart Stores Del. Derivative Litig. (Del. Ch.) directors in Delaware over the “London Whale” rogue trading fiasco because New York judges have already BREACH OF DUTY found in parallel cases that the directors were not 10 CEO siphons Sears’ assets to save self at investors’ negligent, a Chancery Court judge has ruled. expense, suit says Solak v. Lampert (Del. Ch.) Asbestos Workers Local 42 Pension Fund v. Bammann et al., No. 9772, 2015 WL 2455469 (Del. Ch. May 22, 2015). MERGER CHALLENGE In a May 22 revised opinion, Vice Chancellor Sam Glasscock III 11 AOL should hang up on Verizon’s $4.4 billion merger dismissed a pension fund’s derivative suit on the ground that the offer, shareholder says business-judgment rule protected the directors’ decision to bar Williams v. AOL Inc. (Del. Ch.) shareholder suits on behalf of JPMorgan over high-risk trading in complex securities called credit derivatives. BOOKS & RECORDS He said the issue has already been decided by New York state 12 AbbVie investor appeals and federal judges who dismissed two parallel cases after finding dismissal of records suit REUTERS/Mike Theiler over aborted Shire merger that the directors validly exercised their independent business The lawsuits said JPMorgan CEO Jamie judgment when they decided those shareholder actions were not in Dimon, shown here, caused the company to Se. Pa. Transp. Auth. v. hire a team of speculative traders headed AbbVie Inc. (Del.) the company’s best interests. In re JPMorgan Chase & Co. Derivative by London-based Bruno Iksil — the “London Whale” — and pushed them to make huge, CONTINUED ON PAGE 16 high-risk bets on credit derivatives. ADVANCEMENT 13 Judge orders Alpha to pay legal defense for Massey’s ex-CEO COMMENTARY COMMENTARY Blankenship v. Alpha Appalachia Holdings (Del. Ch.) Recent applications El Paso Corp. hit with MISREPRESENTATION of Daimler v. Bauman $171 million in damages 14 MoneyGram stock offering shrink jurisdiction over for defective related-party belied looming Wal-Mart foreign corporations transaction competition, suit says Iron Workers Dist. Council of Amiad Kushner and Richard Bodnar Transactional specialists Gardner Davis New England Pension Fund v. and Danielle Whitley of Foley & Lardner MoneyGram Int’l (D. Del.) of Lowenstein Sandler LLP provide a comprehensive update on the impact of examine a recent Delaware Chancery ALISON FRANKEL’S ON THE CASE the landmark 2014 U.S. Supreme Court Court opinion and explain how the failures 15 Financial advisers in decision in Daimler AG v. Bauman on of El Paso Corp.’s special committee and Rural Metro appeal: cases involving the personal jurisdiction investment banker cost it $171 million in We’re not M&A gatekeepers of corporations around the nation. a cautionary tale for those considering related-party transactions. SEE PAGE 3 SEE PAGE 5 41737810 TABLE OF CONTENTS Westlaw Journal Delaware Corporate Pre-suit Demand: Asbestos Workers Local 42 Pension Fund v. Bammann Published since November 1986 JPMorgan director duty in ‘London Whale’ debacle already decided, Delaware judge says (Del. Ch.) ..........1 Publisher: Mary Ellen Fox Commentary: By Amiad Kushner, Esq., and Richard Bodnar, Esq., Lowenstein Sandler LLP Executive Editor: Donna M. Higgins Recent applications of Daimler v. Bauman shrink jurisdiction over foreign corporations ............................... 3 Managing Editor: Phyllis Lipka Skupien, Esq. Commentary: By Gardner Davis, Esq., and Danielle Whitley, Esq., Foley & Lardner Senior Editor: Frank Reynolds El Paso Corp. hit with $171 million in damages for defective related-party transaction .................................5 [email protected] Managing Desk Editor: Robert W. McSherry Pre-suit Demand: In re Wal-Mart Stores Del. Derivative Litig. It’s Wal-Mart shareholder plaintiffs’ last stand in Delaware, 8th Circuit (Del. Ch.) ........................................9 Senior Desk Editor: Jennifer McCreary Desk Editor: Sydney Pendleton Breach of Duty: Solak v. Lampert CEO siphons Sears’ assets to save self at investors’ expense, suit says (Del. Ch.) ........................................ 10 Graphic Designers: Nancy A. Dubin Ramona Hunter Merger Challenge: Williams v. AOL Inc. AOL should hang up on Verizon’s $4.4 billion merger offer, shareholder says (Del. Ch.) ..............................11 Westlaw Journal Delaware Corprate (ISSN 2155-5869) is published biweekly by Books & Records: Se. Pa. Transp. Auth. v. AbbVie Inc. Thomson Reuters. AbbVie investor appeals dismissal of records suit over aborted Shire merger (Del.) ....................................12 Thomson Reuters Advancement: Blankenship v. Alpha Appalachia Holdings 175 Strafford Avenue, Suite 140 Judge orders Alpha to pay legal defense for Massey’s ex-CEO (Del. Ch.) ......................................................13 Wayne, PA 19087 877-595-0449 Misrepresentation: Iron Workers Dist. Council of New England Pension Fund v. MoneyGram Int’l Fax: 800-220-1640 MoneyGram stock offering belied looming Wal-Mart competition, suit says (D. Del.) ..................................14 www.westlaw.com Customer service: 800-328-4880 Alison Frankel’s On the Case Financial advisers in Rural Metro appeal: We’re not M&A gatekeepers .........................................................15 For more information, or to subscribe, please call 800-328-9352 or visit Chancery Court Cases Filed.............................................................................................................................17 west.thomson.com. For the latest news from Westlaw Journals, News in Brief .....................................................................................................................................................17 visit our blog at http://blog.thomsonreuters. com/westlawjournals. Case and Document Index ...............................................................................................................................18 Reproduction Authorization Authorization to photocopy items for internal or personal use, or the internal or personal use by specific clients, is granted by Thomson Reuters for libraries or other users regis- tered with the Copyright Clearance Center (CCC) for a fee to be paid directly to the Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923; 978-750-8400; www.copyright.com. How to Find Documents on Westlaw The Westlaw number of any opinion or trial filing is listed at the bottom of each article available. The numbers are configured like this: 2015 WL 000000. Sign in to Westlaw and on the “Welcome to Westlaw” page, type the Westlaw number into the box at the top left that says “Find this document by citation” and click on “Go.” 2 | WESTLAW JOURNAL n DELAWARE CORPORATE © 2015 Thomson Reuters COMMENTARY Recent applications of Daimler v. Bauman shrink jurisdiction over foreign corporations By Amiad Kushner, Esq., and Richard Bodnar, Esq. Lowenstein Sandler LLP In an era of increasing globalization, it is en banc panel of the 9th U.S. Circuit Court of v. Dollywood Co., the U.S. District Court for not surprising that foreign corporations are Appeals reversed. the Southern District of New York found routinely sued in U.S. courts, even if they The Supreme Court reversed the appeals that it lacked general jurisdiction over three have few if any operations in the forum state. court. The high court stated that in corporations that were not incorporated in Counsel for plaintiffs seeking redress from determining general jurisdiction over a New York and that did not have their principal 2 foreign corporations (as well as counsel for corporation, the proper inquiry was whether place of business in New York. the foreign corporations) would be well- the corporation’s “affiliations with the state Significantly, the court reached this advised to familiarize themselves with the are so continuous and systematic as to render conclusion notwithstanding that one of the U.S. Supreme Court’s January 2014 decision it essentially at home in the forum state.” defendants was registered to do business in in Daimler AG v. Bauman, which limited the The court identified two “paradigm” bases New York and paid taxes in New York. circumstances in which foreign corporations for general jurisdiction over a corporation: The court acknowledged that “[p]rior could be subject to general jurisdiction in its place of incorporation and principal place to Daimler, some courts concluded that 1 U.S. courts. This article reviews a number of of business. Applying those principles, the registering to do business in the state of recent decisions in the (now significant) body court found that the California court lacked New York automatically confers general of case law applying Daimler. general jurisdiction over Daimler because jurisdiction on that person or entity.” In Daimler, the plaintiffs (all residents of (even assuming that MB USA were Daimler’s The court concluded, however, that after Argentina) asserted tort claims against agent), Daimler and MB USA were not Daimler, “the mere fact of [the foreign DaimlerChrysler AG in California federal incorporated in California and did
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