- 06.22.2020Client AlertState of Delaware Provides Additional 30 Days - Until July 18, 2020 - for Companies to Enter Its Voluntary Disclosure Program: Audit Notices Will Be Sent to Those Who Do Not Enter the Program
On June 18, 2020, the administrators of Delaware’s unclaimed property program sent letters to companies who failed to respond to a February 2020 invitation to enroll in the Delaware Secretary of State's voluntary disclosure agreement (“VDA”) program establishing July 18, 2020 as the final date to enter the voluntary program prior to being placed under audit by the Department of Finance.
- 06.15.2020Client Alert
- 05.27.2020Client Alert
The U.S. District Court for the District of Delaware modified its COVID-19 standing order today. Although the Court remains open, all jury trials scheduled to begin before June 30, 2020, are continued under the revised order. Jury proceedings affected by the order will be reset by further order of the assigned judge.
- 05.26.2020Client AlertCourt of Chancery Holds Delaware Has the Power to Compel Holders to Produce Information Sought in Unclaimed Property Audits
On May 21, 2020, the Delaware Court of Chancery issued an opinion in Univar denying a holder’s ripeness challenge to an administrative subpoena for documents issued by the Delaware Department of Finance pursuant to the amended provisions of the State’s abandoned and unclaimed property law.
- 05.08.2020Client Alert
The first quarter of 2020 has brought interesting Delaware law developments for private, venture-backed companies. As is often the case, arising issues for companies in the venture capital and private equity space have had a different emphasis from the public company area. While public companies may be considering issues such as “virtual” stockholder meetings, delayed dividends and MACs in merger agreements, we have identified five main Delaware law highlights below in the VC/PE space.
- Spring 2020ArticleUnclaimed Property: A Delicate Balance for Delaware - Enforcing the Law in the Face of Ongoing Legal Challenges and Economic Uncertainty
For Delaware, the legal home to thousands of “holders,” collection of, and fiscal reliance on, unclaimed property has always been tricky.
- Spring 2020Article
One of the many significant developments in the field of trust lawover the past decade has been the increasing popularity of so called “silent trusts”. The term “silent trust” generally describes an arrangement in which a trustee is prohibited under the terms of a governing instrument from providing information to the trust’s beneficiaries, or where the trustee is relieved from its common law duty to provide information to beneficiaries, so that information is only shared when it’s deemed appropriate.
- 04.27.2020ArticleDelaware Estate Tax Q&A, Delaware Durable Power of Attorney & Delaware Advance Health-Care Directive
Morris Nichols attorneys Todd Flubacher and J. Zachary Haupt authored three guides on Delaware law for Practical Law. Their Delaware Estate Tax Q&A guide addresses whether a jurisdiction has any estate tax or other similar taxes imposed at death and, for jurisdictions currently imposing a state estate tax.
- 04.17.2020Client Alert
The U.S. District Court for the District of Delaware modified its COVID-19 standing order today. Although the Court remains open, all jury trials scheduled to begin before May 31, 2020, are continued under the revised order. Jury proceedings affected by the order will be reset by further order of the assigned judge.
- 04.16.2020Client Alert
As COVID-19 continues to affect the legal community and the world in various ways, Delaware courts and state agencies have issued orders concerning COVID-19 measures. Here, we have consolidated key Delaware law resources on the unfolding situation. Our attorneys are committed to serving our clients through this challenging time.
- 04.07.2020Client AlertDelaware Governor Modifies State of Emergency Declaration to Address Annual Meetings of Stockholders
In light of the health risks posed by COVID-19, on April 6, 2020, Delaware Governor John C. Carney issued a modification of Delaware’s state of emergency first declared on March 12, 2020, to provide some flexibility to Delaware public corporations that have already sent notice of meetings to be held at a physical location.
- 04.03.2020Client Alert
On February 20, 2020, Delaware’s VDA Administrator mailed invitations to enter into the State’s Abandoned and Unclaimed Property Voluntary Disclosure Agreement Program (“VDA Program”) to more than 100 companies identified as likely being out of compliance with Delaware’s Unclaimed Property Laws. By statute, an invitee has 60 days from the invitation’s mailing to enroll in the VDA Program or the company will be referred to the State Escheator for audit.
- 04.01.2020ArticleDelaware Bankruptcy Judge Holds That Increased Chapter 11 U.S. Trustee Fees Pass Constitutional Muster
“It costs a lot of money to go broke. In the case of a chapter 11 bankruptcy, the cost includes quarterly fees payable to the Office of the United States Trustee (the “UST”), a component of the Department of Justice that oversees bankruptcy cases.
- 03.25.2020Client AlertDelaware Supreme Court Holds Federal Forum Selection Provisions for Claims Arising Under the Securities Act of 1933 Are Facially Valid
The Delaware Supreme Court issued an important opinion holding that federal forum selection provisions adopted by Delaware corporations requiring that stockholders file actions arising under the Securities Act of 1933 (1933 Act) in federal court - and not state court - are facially valid.
- 03.22.2020Client Alert
In an Order issued Saturday, March 21, 2020, the U.S. District Court for the District of Delaware announced that it would reopen the J. Caleb Boggs Courthouse and Federal Building on Monday, March 23, 2020, at 8:00 a.m. Per the Order, “[a] thorough deep-cleaning of the affected areas was performed this weekend.”
- 03.20.2020Client Alert
As we collectively respond to the Coronavirus (COVID-19) outbreak in our country, many have turned their attention to completing estate planning documents. Because clients, especially seniors, are socially-isolated and unable to obtain witnesses and notarization of signatures, we have been fielding numerous questions about the legal requirements for validly executing Delaware trust agreements.
- 03.19.2020Client Alert
COVID-19’s disruption to the economy has prompted a number of questions from Delaware corporations about their ability to preserve capital if they have already declared a cash dividend. This memo, released jointly by the Delaware firms listed at the bottom, addresses some of the issues a board of a Delaware corporation might consider in such circumstances.
- 03.19.2020Client Alert
Effective immediately, the U.S. District Court for the District of Delaware is closing the J. Caleb Boggs U.S. Courthouse and Federal Building until further notice.
- 03.18.2020Client Alert
On March 16, 2020, the United States Bankruptcy Court for the District of Delaware implemented a General Order in response to the outbreak of COVID-19. As part of our effort to help our clients and friends navigate this challenging time, the Morris Nichols Business Reorganization & Restructuring Group has summarized this important announcement from the Delaware Bankruptcy Court.
- 03.18.2020Client AlertDistrict of Delaware Continues All Jury Trials Scheduled to Begin Before April 30 and Issues Additional Guidance Regarding Other Proceedings
The U.S. District Court for the District of Delaware remains open during the coronavirus outbreak, but the Court issued a new Standing Order today continuing jury selections and jury trials scheduled to begin before April 30, 2020. Jury proceedings affected by the Order will be reset by further order of the assigned judge.
- 03.17.2020Client Alert
The U.S. District Court for the District of Delaware remains open during the coronavirus outbreak, but has implemented procedures to restrict access to the courthouse and protect Court personnel, attorneys, and litigants.
- 02.20.2020Client AlertNew Unclaimed Property Litigation Filed Against the State of Delaware Does Not Delay Another Round of VDA Invitations
The State of Delaware’s unclaimed property program faces continued legal challenges from the holder community. In December 2019 alone, four new holders filed complaints in the U.S. District Court for the District of Delaware raising a series of constitutional challenges to Delaware’s conduct of its unclaimed property audits.
- 01.29.2020PublicationMorris Nichols Partner Eric Klinger-Wilensky Serves as Co-Editor of New ABA Publication: The Model Tender Offer Agreement
The American Bar Association (“ABA”) Business Law Section has published a new resource for M&A transaction planners entitled, The Model Tender Offer Agreement. Morris Nichols partner Eric S. Klinger-Wilensky co-edited the book with Michael G. O’Bryan of Morrison & Foerster LLP.
The dominance of Delaware in entity formations, especially corporations, is well known. But why is this the case, what goes into making - and keeping - the “Delaware Brand?”
Morris Nichols partners Robert J. Dehney and Matthew B. Harvey co-authored a book chapter, “Seeing the Future: The Case of Seegrid Corporation” in Global Restructuring Review’s new book The Art of the Pre-Pack.
Morris Nichols partners Lou Hering, David Harris, and Jason Russell are coauthors of the Bloomberg BNA Corporate Practices Series Portfolio, Limited Liability Companies: Legal Aspects of Organization, Operation, and Dissolution. Morris Nichols attorneys Sean Sullivan and Melanie Young are also acknowledged for their significant contributions.
In its 2019 session, the Delaware legislature passed a number of amendments to the Delaware General Corporation Law and the Delaware “alternative entity” statutes - the Delaware Limited Liability Company Act, the Delaware Revised Uniform Limited Partnership Act, and the Delaware Revised Uniform Partnership Act.
Understanding and Optimizing Delaware’s Benefit Corporation Governance Model
In June, Delaware enacted its latest installment of annual trust legislation. Trust Act 2019 includes many revisions and clarifications, but two new statutes, Sections 3343 and 3344 of Title 12 of the Delaware Code, represent material advancements in the law.
- 08.01.2019Article2019 Q&A on the Delaware Law Amendments Relating to Registered Series of Limited Liability Companies
The DLLCA is amended annually to ensure that it is the preeminent statute governing LLCs and to ensure that the DLLCA addresses the needs of practitioners and persons using the LLC form, including the needs of M&A practitioners. The amendments that took effect on August 1, 2019 provide for creation of “registered series” (Amendments), among other things.
- 08.01.2019Client Alert
The U.S. District Court for the District of Delaware continues to consider the best allocation of judicial resources now that it has a full complement of four District Court Judges and four Magistrate Judges, following the swearing in of new U.S. Magistrate Judge Jennifer L. Hall.
- 07.18.2019Client Alert
Delaware Governor John C. Carney has signed House Bill 72 into law (“Trust Act 2019”). The legislation further improves and modernizes Delaware trust law.
Congress designed Chapter 11 to be flexible to promote the twin goals of rehabilitating distressed businesses and maximizing stakeholder returns. Several recent decisions from the U.S. Bankruptcy Court and District Court for the District of Delaware highlight how Chapter 11’s inherent flexibility promotes these goals.
- 05.21.2019Client AlertUnclaimed Property Audit Alert: New Round of Delaware Voluntary Compliance “Invitations” Will Be Issued This Week
On Monday, May 20th, the Delaware Secretary of State issued a notice announcing that the State will distribute letters this week inviting companies to enter the Abandoned or Unclaimed Property Voluntary Disclosure Agreement Program (“VDA Program”). This is a continuation of the State’s heightened enforcement initiative that we highlighted earlier this year. We believe this round of invitations will be targeted at privately held Delaware incorporated companies with an apparent history of little or no prior reporting of unclaimed property to Delaware.
- 05.07.2019PublicationMorris Nichols Partner Patricia Vella Serves as Editor of New Governance Handbook on “The Role of Directors in M&A Transactions”
The American Bar Association Business Law Section has published a new book titled, The Role of Directors in M&A Transactions: A Governance Handbook for Directors, Management and Advisors. Morris Nichols partner Patricia O. Vella is one of four editors of the Handbook that gives directors, management, and legal and financial advisors a framework for providing effective oversight of merger and acquisition deals.
- Spring 2019Article
The U.S. Supreme Court will soon render a decision that could have a significant impact on the manner in which some states tax income accumulated in nongrantor trusts.
- 04.25.2019Client Alert
If approved by the legislature and signed by the Governor, the amendments will become effective on August 1, 2019.
- 03.11.2019Client Alert
For those who thought the State of Delaware had gone out of the unclaimed property business - think again. After a 2017 overhaul of Delaware’s unclaimed property laws and an increased emphasis on voluntary compliance with those laws, Delaware is sending out dozens of “invitations” to companies to enter its Abandoned or Unclaimed Property Voluntary Disclosure Agreement Program (the “VDA Program”).
In recent years, many states have enacted pre-mortem validation statutes enabling testators or settlors to take proactive steps to avoid will or trust contests.
- 02.28.2019Client Alert
On February 28, 2019, the United States District Court for the District of Delaware announced the selection of Jennifer L. Hall to fill a newly created fourth Magistrate Judge position on the Court. When Ms. Hall joins the bench, the District of Delaware will have four magistrate judges to serve alongside the Court’s four district court judges.
Morris Nichols maintains a Cumulative Survey of Delaware case law relating to alternative entities that is updated annually, organized by subject area and includes most cases that address significant alternative entity issues.
In Oxbow Carbon & Minerals Holdings, Inc. v. Crestview-Oxbow Acquisition, LLC, the Delaware Supreme Court affirmed in part and reversed in part a decision by the Court of Chancery that used the implied covenant of good faith and fair dealing to permit minority members (the “Minority Members”) of a Delaware limited liability company (the “LLC”) to cause a sale of the LLC despite the right of certain holders (the “Small Holders”) to block the sale.
- 01.16.2019Client Alert
On January 16, 2019, the U.S. District Court for the District of Delaware released a Notice regarding Court operations during the current lapse in appropriations.
On August 1, 2018, the Delaware Limited Liability Company Act (DLLCA) was amended to add, among other things, a division statute (Amendments). The Amendments included new Section 18-217 which permits a Delaware limited liability company (LLC) to divide into two or more LLCs (each a Division company).
Over the last decade, trust law has evolved so the role of trustee can better reflect the open architecture that modern families desire. It’s now commonplace for trust settlors to design so-called “directed trusts,” and existing trusts are frequently transferred to new jurisdictions to be modified through the use of techniques such as decanting, non-judicial settlements agreements, consent modifications, court orders and trust mergers so they can become directed trusts.
- 10.01.2018Client Alert
On October 1, 2018, the U.S. District Court for the District of Delaware provided an update on case assignments and magistrate judges. The announcement was issued a month and a half after the Court welcomed new Judges Colm F. Connolly and Maryellen Noreika and eliminated the vacant judgeship docket.
The 2018 amendments to the Delaware General Corporation Law (the "DGCL") were recently enacted. The amendments update the ratification statute, Section 204, to address recent case law. Nonstock or "membership" corporations are now also permitted to use the statutory ratification provisions to cure corporate defects.
- 09.18.2018Client Alert
Recently enacted legislation (“Trust Act 2018”) provides settlors, beneficiaries, fiduciaries and nonfiduciary powerholders with an even greater ability to accomplish their objectives using Delaware trusts.
Delaware recently passed amendments to the Delaware Limited Liability Company Act that enable a new type of series of an LLC known as a “registered series.” The changes address historical uncertainty among lenders seeking to perfect a security interest with respect to a secured lending transaction involving a series of a Delaware limited liability company as a borrower.
In its last session, the Delaware legislature passed a number of amendments to the Delaware General Corporation Law (the “DGCL”) and the Delaware “alternative entity” statutes - the Delaware Limited Liability Company Act (the “DLLCA”), the Delaware Revised Uniform Limited Partnership Act (the “DRULPA”), the Delaware Revised Uniform Partnership Act (the “DRUPA”) and the Delaware Statutory Trust Act (the “DSTA”).