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- U.S. Supreme Court Gives Good News to Secured Lenders, Tempered with Words of Caution The U.S. Supreme Court offered some good news to secured lenders last week, tempered with words of caution. In Chicago v. Fulton, the Court held that a secured creditor does not violate Section 362(a)(3) of the Bankruptcy Code by merely continuing to hold property of its debtor after that debtor files a bankruptcy petition. The... Continue Reading...
- The Effect of the Uniform Commercial Code on Certain Limited Liability Company Transfer Restrictions in Louisiana The substantial flexibility afforded by the limited liability company structure has made it an increasingly popular business entity choice. Indeed, most of the default provisions in the Louisiana Limited Liability Company Law, La. R.S. 12:1301, et seq. (the "La LLC Law") may be altered or superseded by the articles of organization or operating agreement of... Continue Reading...
- Statutory Employer: A Louisiana Law Primer Under Louisiana law, workers' compensation is the exclusive remedy that an employee may assert against his employer or fellow employees for work-related injury, unless he was the victim of an intentional act. That exclusive remedy also extends to statutory employers. Workers' compensation legislation was enacted to provide social insurance to compensate victims of industrial accidents,... Continue Reading...
- Successor Liability: Considerations When Structuring Your Acquisition In targeting a company for purchase, many buyers prefer to purchase the assets of a company, as opposed to the stock (or other equity) of the company because, as a general rule, the buyer of assets in an asset acquisition does not automatically assume the liabilities of the seller. Accordingly, an asset acquisition generally allows... Continue Reading...
- Sandys v. Pincus: Expansion of the Rales Test and Lowering of Threshold for Lack of Independence in the Demand Futility Context In Sandys v. Pincus, the Delaware Supreme Court reversed a "thoughtful forty-two page opinion" by Chancellor Bouchard that dismissed a derivative action based upon the stockholder's failure to make pre-suit demand.[1] The court's opinion can be found here. The underlying Court of Chancery opinion can be found here. Expansion of the Rales Test for Demand Futility The authority... Continue Reading...
- Navigating the Uncertain Horizon of Post-Closing Indemnification Claims Helping sellers navigate the uncertain horizon of post-closing indemnification claims is a crucial part of a deal lawyer's job on the sell-side of any M&A transaction. According to a relatively recent study by Shareholder Representative Services (the "2013 SRS Study"), approximately 67% of private M&A transactions have "material post-closing issues."[1] While post-closing liability exposure is industry and deal specific, the empirical data presented... Continue Reading...
- Delaware Court of Chancery Provides Additional Guidance on the Application of the Business Judgment Rule in the Context of a Controller Buyout In In re Books-A-Million, Inc. Stockholders Litigation, the Delaware Court of Chancery dismissed a suit by minority stockholders (the "Plaintiffs") alleging that several fiduciaries breached their duties in connection with a squeeze-out merger (the "Merger") through which the controlling stockholders of Books-A-Million, Inc. (the "Company") took the Company private.[1] The decision, authored by Vice Chancellor J. Travis Laster, provides additional guidance... Continue Reading...
- Do Lenders and Borrowers Intend a Novation of Prior Agreements? A Cautionary Tale and the Need to be Crystal Clear in Drafting Amendments When lenders and borrowers want to modify the terms of an existing loan agreement, and the modifications are extensive and will affect many provisions of the agreement, the lender's lawyer will often choose to draft an "amended and restated agreement" in order to document those modifications. A single amended and restated agreement will often be... Continue Reading...
- ADA Access: "Drive By" or "Google" Lawsuits and the Americans with Disabilities Act? Disability access lawsuits have become a cottage industry and they have found their way into Louisiana, Texas and Arkansas. Most are brought by the serial litigants working with same law firm. These plaintiffs visit a business for the primary purpose of discovering an Americans with Disabilities Act (ADA) accessibility violation and then file a federal... Continue Reading...
- Protecting Attorney-Client Privileged Communications in M&A Agreements Recent cases have highlighted the importance of seller contractually protecting and retaining ownership over communications that, pre-closing, are subject to the attorney-client privilege. The absence of such language in a merger or asset/stock purchase agreement can lead a court to conclude that such communications are owned by the buyer/surviving corporation. Such was the result in... Continue Reading...
