Ken Nachbar’s practice focuses on cases involving mergers and acquisitions, control contests, shareholder class and derivative actions, and contractual disputes. 

He advises corporate clients and boards of directors with respect to litigation and transactional matters including structuring of corporate transactions, defensive mechanisms and representation of special negotiating committees and special litigation committees.

As both lead and co-counsel, Ken has litigated many of the seminal cases involving Delaware corporate law for clients such as FedEx Corporation, Oracle Corporation, Air Products and Chemicals, Inc. and KFC Corporation, as well as many private companies.  Ken has also advised special committees of the boards of many Fortune 500 companies in a wide variety of industries, including information technology, financial services, manufacturing and consumer products.

Ken is a Fellow of the American College of Trial Lawyers.  Chambers USA has listed Ken in its top band for Delaware Court of Chancery since its inception (2002-2021).  Clients and peers describe him as “a terrific Chancery Court lawyer” who has a “tremendous effect on the courts in Delaware.”  He “has the rare combination of a substantive command of the law and the ability to get up there and effectively argue cases.”  “You know you must bring your 'A' game when you are against him.”

Experience

Successfully argued certified questions of Delaware partnership law before the Delaware Supreme Court.  United States v. Sanofi-Aventis U.S. LLC, 226 A.3d 1117 (Del. 2020)

As co-lead counsel, is currently representing Williams Companies in litigation seeking to recover a $410 million termination fee.  Williams Companies v. Energy Transfer Equity L.P. (Delaware Court of Chancery trial held Spring 2021) 

Represented the acquirer in a case concerning claims of material adverse effect (MAE) on the target’s business due to the impact of COVID-19.  The target company sought specific performance to compel acquirer to close $1.6 billion two-step merger agreement in the wake of diminished performance.  Forescout Technologies, Inc. v. Ferrari Group Holdings, L.P., et al., Del. Ch., C.A. No. 2020-0385-SG (Del. Ch. 2020)

Successfully argued that the Maduro government had the legal right to control CITGO Petroleum Co.  Jimenez v. Palacios, 250 A.3d 814 (Del. Ch. 2019), aff’d, 237 A.3d 68 (Del 2020)

Successfully represented controlling member in defending a suit by minority members seeking to force the sale of the company – the trial court’s post-trial opinion requiring such a sale was reversed on appeal.  In re Oxbow Carbon LLC Unitholder Litig., 2018 WL 3655257 (Del. Ch. Aug. 1, 2018), rev’d, 202 A.3d 482 (Del. 2019)

As lead counsel, successfully represented respondent in dissolution case and ownership dispute involving cryptocurrency company, obtaining a favorable judgment that his client, a co-founder of Coinmint, LLC had properly exercised control of the Company and that there was no deadlock warranting judicial intervention.  In re Coinmint LLC, C.A. No. 2019-0983-MTZ (Del. Ch. May 18, 2021)

As lead counsel, secured dismissal of claims that controlling stockholders had breached fiduciary duties in recapitalizing the company, and successfully defended that result on appeal.  Urdan v. WR Capital Partners, LLC, 22019 WL 3891720 (Del. Ch. Aug. 19, 2019), aff’d, 244 A.3d 668 (Del. 2020)

As lead counsel, successfully represented seller in multiyear litigation in which seller successfully obtained approximately $30 million in withheld earnout and indemnity payments, successfully defended those results in two appeals.  Greenstar IH Rep LLC v. Tutor Perini Corp., 2017 WL 5035567 (Del. Ch. Oct. 31, 2017), aff’d, 186 A.3d 799 (Del. 2018); 2019 WL 6884752 (Del. Ch. Dec. 4, 2019), aff’d, 240 A.3d 1 (2020)

As lead counsel, obtained favorable decisions following trial concerning rights in a private LLC, and successfully defended that result on appeal. Terramar Retail Centers, LLC v. Marion #2-Seaport Trust, 2019 WL 2208465 (Del. Ch. May 22, 2019), aff’d, 222 A.3d 581 (Del. 2019)

Successfully argued the appeal in a case challenging the sale of a public company.  In re PLX Technology Inc. S’holders Litig., 211 A.3d 137 (Del. 2019)

As lead counsel, successfully prosecuted advancement claims on behalf of former officers and directors.  Weil v. VEREIT Operating Partnership, L.P., 2018 EL 834428 (Del. Ch. Feb. 13, 2018)

Negotiated a settlement of a high-profile proxy contest.  Mudrick Capital Management LP et al. v. Monroe III et al., Del. Ch., C.A. No. 2018-0699 (Del. Ch. 2018)

Secured a favorable decision on behalf of the Zohar Companies in a highly contentious action involving the disputed ownership of the companies’ stock. Zohar II 2005-1, Ltd v. FSAR Holdings, 2017 WL 5956877 (Del. Ch., Nov. 30, 2017) and successfully opposed a motion to vacate the favorable opinion after Defendants actions mooting the appeal.  Del. Supr. No. 6, 2008 (Del. Oct 13, 2020) (Order)

Successfully argued a motion to dismiss a derivative action against the directors of Duke Energy Corporation alleging that the directors acted improperly and caused Duke to suffer fines and other regulatory consequences as a result of a significant environmental incident in which coal ash entered the Dan River in North Carolina, and successfully defended a subsequent appeal. In re Duke Energy Corporation Coal Ash Deriv. Litig., 2017 WL 5256305 (Del. Ch. Dec. 8, 2016), aff’d 177 A.3d 47 (Del. 2017)

Successfully argued a motion to dismiss derivative claims accusing United Parcel Service Inc. directors of faulty oversight that led to an alleged scheme to haul untaxed cigarettes.  Horman v. Abney, 2017 WL 242571 (Del. Ch., Jan. 19, 2017)

Successfully argued for dismissal of a claim of “wrongful refusal” of a Rule 23.1 demand. Friedman v. Maffei, 2016 WL 1555331 (Del. Ch. Apr. 13, 2016)

Argued the insurers’ appeal of a several hundred-million-dollar asbestos coverage dispute, successfully obtaining certification to the NY Court of Appeals of a threshold issue on which the trial court had ruled against the insurers.  In re Viking Pump, Inc., 2015 WL 3618924 (Del. June 10, 2015)

Successfully argued threshold motions in connection with plaintiffs’ complaint seeking mandatory redemption of preferred stock. TCV VI, L.P. v. TradingScreen Inc., 2015 WL 1598045 (Del. Ch. February 26, 2015)

Successfully represented The Men’s Wearhouse in expedited litigation, leading to its acquisition of Jos. A Bank Clothiers, Inc.  The Men’s Wearhouse, Inc. v. Wildrick, et al., Del. Ch. No. 9383

Successfully argued the first Delaware case upholding a forum selection bylaw. Boilermakers Local 154 Retirement Fund v. Chevron Corp., 73 A.3d 934 (Del. Ch. 2013)

As co-lead counsel, advised Air Products in connection with a $7 billion takeover transaction, including trial of an action challenging the defensive tactics of the board of directors of Airgas and defense of an action by Airgas challenging certain bylaw amendments proposed by Air Products. Air Products and Chemicals, Inc. v. Airgas, Inc., 2010 WL 3960599 (Del. Ch.)

As lead counsel for the outside directors of Barnes & Noble, Inc. successfully defended through trial an action brought by an 18 percent stockholder seeking to invalidate Barnes & Noble’s rights plan. Yucaipa American Alliance Fund II, L.P. v. Riggio, 1 A.3d 310 (Del. Ch. 2010)

As lead counsel for the major sports leagues and the NCAA, successfully challenged Delaware’s proposed sports betting scheme. Office of the Commissioner of Baseball v. Markell, 579 F. 3d. 293 (3d Cir. 2009)

Successfully defended acquiror in trial seeking specific performance of a merger agreement. Frontier Oil Corp. v. Holly Corp., 2005 WL 1039027 (Del. Ch. 2005)

Successfully argued and obtained summary judgment in favor of Larry Ellison in $900 million insider trading case. In re Oracle Corp. Deriv. Litig., 867 A.2d 904 (Del. Ch. 2004)

News & Insights

Honors & Recognitions

Chambers USA: America’s Leading Lawyers for Business, ranked in Delaware Chancery, 2007-2021

The Legal 500 US, Leading Lawyer in M&A litigation, 2014-2019; Hall of Fame in M&A litigation 2020-2021

Benchmark Litigation, Local Litigation Star  in general commercial, 2013-2021

The Best Lawyers in America, listed in commercial and M&A litigation, 2006-2022; Delaware Lawyer of the Year for bet-the-company litigation, 2015, 2018, 2021

Lawdragon Magazine, 500 Leading Lawyers in America

Delaware Super Lawyers, listed in mergers and acquisitions, 2007-2021; listed in the “Top 10”, 2020-2021

Who’s Who Legal, listed in corporate governance, litigation and M&A,  2014-2020

Professional & Civic

American College of Trial Lawyers (Fellow)

American Bar Association

Delaware Board on Certified Court Reporters (Former Chairman)

Delaware State Bar Association

US District Court for the District of Delaware (Former member, Rules Committee)

Education

New York University School of Law, JD, 1981
New York University Review of Law and Social Change, member, 1980-1981

Haverford College, BA, economics, 1978

Admissions

  • Delaware, 1981
  • US District Court for the District of Delaware, 1982
  • US Court of Appeals for the Third Circuit, 1987
  • US Supreme Court, 2010

Clients and peers say Ken is an "absolute powerhouse"  who has a "tremendous effect on the courts in Delaware ... you know you must bring your  'A' game when you are against him." - Chambers USA

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