“Meeting the Expectations of the Court” Court of Chancery
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Biographies of Speakers
The Honorable Joseph R. Slights III, Vice Chancellor, Court of Chancery Lewis H. Lazarus, Esquire, Morris James LLP Peter J. Walsh, Jr., Esquire, Potter Anderson & Corroon LLP
Webpage to the Court of Chancery
http://courts.delaware.gov/chancery/
Program Materials *
Table of Content – Sample Forms, Standing Order and Statutes
* The forms included herein are samples only and may not be appropriate for any particular matter.
1 Vice Chancellor Joseph R. Slights III The Honorable Joseph R. Slights III was sworn in as a Vice Chancellor of the Court of Chancery on March 28, 2016. Before his appointment, Vice Chancellor Slights was a partner in the Delaware law firm Morris James LLP where he practiced corporate and business litigation and chaired the firm's Alternative Dispute Resolution practice group. Before that, he served a twelve year term as a Judge on the Superior Court of Delaware where, among other assignments, he was instrumental in forming the Court's Complex Commercial Litigation Division. Prior to his appointment to the Superior Court, Vice Chancellor Slights worked as a litigator in the Delaware law firms Sidney Balick PA and Richards, Layton & Finger PA.
Vice Chancellor Slights received his J.D. from Washington & Lee University School of Law in 1988, and his B.S. in Political Science from James Madison University in 1985. He is a member of the American Law Institute, the American Bar Association and the Delaware Bar Association. He is a Fellow of the American Bar Foundation and past- President of the Richard S. Rodney Inn of Court.
Lewis H. Lazarus Partner T: 302.888.6970 F: 302.571.1750 [email protected]
500 Delaware Avenue, Suite 1500 PO Box 2306 Wilmington, DE 19899-2306
Lewis H. Lazarus, Chair of the Corporate and Commercial Litigation Lewis has been praised for doing "an excellent job Group, focuses his practice on corporate governance and commercial advising on Delaware law as matters in the Delaware Court of Chancery. He has been lead counsel it applies to special in trials arising out of mergers and acquisitions, including cases committees, conflicts of involving the entire fairness standard of review, appraisal, books and interests and duties of records actions, actions to compel annual meetings, and actions to directors." - Chambers USA determine who rightfully are the managers of a Delaware entity. As a result of his knowledge and familiarity with these and related cases, Practice Areas
Lewis often advises special committees and boards in conflict-of- Alternative Entities interest transactions. He has counseled boards, companies, or special Business Litigation committees in conflict-of-interest transactions totaling over $4 billion in the last several years. Corporate and Fiduciary Litigation
Lewis has been praised for doing “an excellent job advising on Corporate Governance Counseling Delaware law as it applies to special committees, conflicts of interests, and duties of directors," for the ability to "communicate complex legal Data Privacy and Information Governance language in a businessmen's language," and for his “intricate knowledge of the issues and procedures in the Court of Chancery." He Special Committee Representation has also been commended as a “completely clear thinker" who “knows how to make a real case," and who "understands beyond the case and Blog(s) sees the bigger picture." - Chambers USA 2006-2015 Delaware Business Litigation In addition, Lewis, who speaks fluent Spanish, maintains a particular Report interest in matters involving Spanish, Mexican, and South American clients, and has traveled to Mexico, Europe, Canada, South America, Honors and the Middle East to discuss the advantages of Delaware law with Best Lawyers®, 2006-2017 business representatives. Best Lawyers® 2017 “Lawyer of the Year” for Corporate Law Governance Chambers USA - Recognized for work in the Delaware Court of Chancery, 2005-2016 Delaware Super Lawyers®, 2007-2016 Benchmark Litigation, Litigation
www.morrisjames.com Lewis H. Lazarus (Continued)
Star, 2008-2014 Delaware Today® "Top Lawyers," Experience 2014 Martindale-Hubbell, AV rating ● Mergers and other transactions where some directors are alleged Phi Beta Kappa Society to have conflicts of interest Delaware Volunteer Legal ● Inspection of books and records Services Pro Bono Honor Roll, 2009 ● Appraisal actions Office of the Child Advocate, Recognized for Ten Years of Pro ● Determination of a corporation’s officers and directors pursuant Bono Service, 2015 to Section 225 of the Delaware General Corporation Law
● Disputes involving managers and members of Delaware limited Admissions
liability companies Delaware, 1985 ● Claims arising out of Delaware statutory trusts and Delaware California, 1982 limited partnerships District of Columbia, 1989
● Breach of contract actions in various settings including the United States District Court, enforceability of covenants not to compete District of Delaware
Professional Affiliations Education
● Delaware Supreme Court Access to Justice Commission, Stanford Law School, J.D., 1982 Member and Chair, Subcommittee on Judicial Branch Swarthmore College, B.A., High Coordination in Helping Pro Se Litigants (2014 - Present) Honors, 1978
● Delaware Supreme Court, Board on Professional Responsibility, Languages 2007; Vice-Chair, 2008-2013 Spanish ● Delaware State Bar Association, Council of the Corporation Law Section
● American Bar Association, Business Law Section, Directors and Officers Liability Committee, Chair Emeritus (Chair, 2012-2015)
● Richard S. Rodney Inn of Court
● The Office of the Child Advocate, Delaware, Guardian ad litem on behalf of dependent and neglected children (2004-present)
● Federal Bar Association
Community Affiliations
● The Boys and Girls Clubs of Delaware, Inc., Director and Executive Committee Member
● Swarthmore College, Board of Managers (2011-2014)
● World Affairs Council of Delaware, Inc., Officer and Director
www.morrisjames.com Lewis H. Lazarus (Continued)
● Connecting Generations - Creative Mentoring, Inc., Mentor
● Read Aloud Delaware, Co-Chair, Champions for Literacy and Past Chair
Recent Representations Special Litigation Committee
Represented special litigation committee formed to investigate claims of breach of fiduciary duty arising out of a merger of affiliated companies based on an allegedly unfair exchange ratio
Special Negotiating Committees
Represented special negotiating committee of disinterested and independent directors in billion dollar sale and restructuring process of American manufacturing company
Represented special negotiating committee in $120 million debt to equity conversion
Breach of Fiduciary Duty Claims in Merger and other Transactions
Represented inside directors and oil and gas exploration company in defense of class action in Court of Chancery attacking $2.3 billion dollar conflict of interest merger transaction
Represented as Delaware counsel majority stockholders and directors and surviving entity in Court of Chancery in defense of unfair dealing and appraisal action alleging unfairness in merger transaction
Represented CEO and other officer and director of publicly-traded biotech company in Court of Chancery in defense of class action alleging breach of fiduciary duty in third-party merger transaction
Represented CEO and general counsel of major manufacturing company in District Court of Delaware in defense of derivative action alleging breach of fiduciary duty in connection with alleged failure to monitor patent infringement litigation claims
Stock Purchase Agreement Disputes
Represented as Delaware counsel in Court of Chancery buyer in $145 million stock purchase transaction alleging claims of fraudulent concealment of material information
Represented as Delaware counsel in Court of Chancery seller in stock purchase transaction in dispute over allocation of transaction-related expenses Other Representations
In Re Audiovox Corporation Derivative Litigation
Defended inside directors and acted as lead counsel in defense of derivative claim in Court of Chancery in which plaintiffs alleged excessive remuneration to the chair of the board of parent and president of subsidiary in a sale of assets transaction
Emerald Partners v. Berlin Represented defendant directors where the Delaware Supreme Court upheld Court of Chancery's post-trial determination that defendants proved price was fair and disclosures complete in transaction with controlling
www.morrisjames.com Lewis H. Lazarus (Continued)
stockholder
The Union Illinois 1995 Investment Limited Partnership v. Union Financial Group, Ltd. Lead counsel in defending respondent company in an appraisal action where Court of Chancery post-trial determined fair value to be merger price minus synergies, where merger price determined by third-party auction in transaction negotiated at arms-length
Arkema, Inc. v. Dow Chemical Company, et al. Delaware counsel for plaintiff which obtained mandatory temporary restraining order from Court of Chancery requiring defendant to comply with capacity reservation agreement
Healey v. Campbell Represented CEO and board chair of a publicly-traded technology company in defense of claims of breach of fiduciary duty
Appraisal Action Represented dissenting shareholders challenging fair value of merger consideration
Feldman v. Cutaia Defended corporation in derivative action where Court of Chancery found that exceptions did not apply to general rule that derivative claims are extinguished by a merger
Limited Liability Company Dispute Represented limited liability company and members in expedited litigation in the Court of Chancery with former member, involving claims of breach of fiduciary duties, breach of contract and misappropriation of trade secrets
In Re Siliconix Inc. Shareholders Litigation Defended an injunction claim in Court of Chancery against tender offer by majority stockholder
In Re Gaylord Container Corporation Shareholders Litigation Defended corporation as Delaware counsel where Court of Chancery entered summary judgment for defendants against claim that series of defensive measures violated Unocal standard
Zimmerman v. Tepas Represented class and derivative plaintiffs in Court of Chancery action challenging insider transactions including self-dealing in dividend allocation
Court of Chancery Appointments
● Custodian to sell Delaware corporation to resolve director and stockholder deadlock
● Trustee pursuant to Sections 273 and 279 of the Delaware General Corporation Law to sell pharmacy jointly owned by two 50% stockholders and resolve competing stockholder claims
● Special Master to resolve reasonableness of attorneys fees in appraisal action
● Discovery Master to resolve disputed assertions of attorney-client privilege on privilege log
www.morrisjames.com Lewis H. Lazarus (Continued)
Business Mediations and Arbitrations Numerous case outcomes achieved in alternative dispute resolution forums, both as a litigator and mediator
Articles & Publications Court: Derivative Claims Allowed to Be Asserted as Part of Merger Attack August 24, 2016 Delaware Business Court Insider
Chancery Declines to Require Buyer to Complete Merger Transaction July 6, 2016 Delaware Business Court Insider
Court Upholds Allegedly Unfair Master Limited Partnership Transaction May 18, 2016 Delaware Business Court Insider
Court Upholds but Limits Claims Arising From Merger Agreement April 6, 2016 Delaware Business Court Insider
Derivative Settlement With Benefit Personal to Plaintiff Rejected February 10, 2016 Delaware Business Court Insider
www.morrisjames.com Peter J. Walsh, Jr. Partner, Potter Anderson & Corroon LLP
Mr. Walsh practices primarily in the areas of corporate and commercial litigation. He has tried many corporate and commercial cases in the Delaware courts, including stockholder class and derivative actions, summary proceedings pursuant to the Delaware General Corporation Law, and hostile takeover proceedings. Mr. Walsh frequently counsels officers and directors and the Delaware corporations they serve in matters of Delaware corporate law, primarily as such matters bear upon ongoing or anticipated litigation.
Mr. Walsh has been recognized by Chambers USA: America's Leading Lawyers for Business as a leading Chancery litigator in Delaware, and was named in the most recent edition of The Best Lawyers in America.
Education
Washington & Lee University School of Law, J.D., 1986; Executive Editor, Washington & Lee Law Review Johns Hopkins University, B.A., 1983 Law Clerk to the Honorable Jack B. Jacobs, Delaware Court of Chancery, 1986-1987
Professional Activities
Delaware State Bar Association; Committee on Judicial Appointments; Committee on Professional Ethics American Bar Association; Member of Council; Former Chair, Business and Corporate Litigation Committee of the Business Section; Co-Chair, Task Force on Director and Officer Liability; frequent participant in ABA-sponsored corporate law programs Board President, Delaware Greenways, Inc.
Bar & Court Admissions
Delaware, 1986 United States District Court for the District of Delaware, 1987 BRIDGE THE GAP NOV. 12-13, 2015 COURT OF CHANCERY SAMPLE FORMS AND RELATED MATERIALS*
TAB 1 Rule 3(a) Supplemental Information Sheet (Form 4 to the Court’s Rules) 2 Judicial Action Form (Form 3 to the Court’s Rules) 3 Sample Affidavit for Class Action Complaint 4 Procedure and Forms for Special Process Server 5 Motion for Expedited Scheduling 6 Motion for Preliminary Injunction 7 Motion for Admission Pro Hac Vice 8 Motion to Dismiss 9 Confidentiality Stipulation and Order pursuant to Rule 5.1 10 Sample Scheduling Order 11 Motion for Certification of Interlocutory Appeal 12 Sample Pre-Trial Stipulation and Order 13 Court of Chancery of the State of Delaware Handbook for Guardians 14 Petition for Appointment of Guardian and Standing Orders Regarding Administration of Guardianships in the Court of Chancery and Attorney Ad Litem Fee Applications
15 Petition for Appointment of Receiver 16 Rule 89 Petition Prior to Proof of Will 17 Mediation Request 18 Inventory 19 Forms for Suits Enforcing Deed Covenants
* Effective April 1, 2014, Section III, Rule 10 of the Court of Chancery Rules was amended to require that all “[p]leadings, notice, motions, letters, affidavits, forms of order and other documents produced for filing” be double-spaced (except for quotations and footnotes), have margins of not less than 1 inch on all sides, and use Times New Roman 14-point typeface. The sample forms included herewith were created before this Rule became effective, and therefore, they may not comply with the provisions of Rule 10. In all events, it should be recognized that these are samples only, and that the circumstance of a particular case may warrant that the form be materially altered or not used at all.