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Aiding and abetting breach of fiduciary duty pennsylvania map

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Connect with us on. Washington, D. The court determined that plaintiffs had not sufficiently pled facts to support a finding that the directors were grossly negligent. Because there was no predicate breach of fiduciary duty, the aiding and abetting claim against the financial advisor was dismissed.

For more, click here. On appeal, the Delaware Supreme Court affirmed Zale II 's ruling that a fully informed, uncoerced vote of the disinterested stockholders invoked the business judgment rule standard of review and that the case should be dismissed.

The Supreme Court's ruling is significant because it reiterates that Delaware courts will continue to dismiss cases challenging mergers approved by a fully informed, uncoerced vote of disinterested stockholders even where a plaintiff has alleged misconduct by a financial advisor, and suggests that, in the absence of allegations of egregious misconduct by a financial advisor, Delaware courts will not find scienter sufficient to support an aiding and abetting claim against a financial advisor.

The four additions will form the foundation for the new Paul, Weiss…. The program, which drew over attendees from various private funds, was moderated by corporate partner Lindsey Wiersma and included, as panelists, corporate partner Amran Hussein and associate Robert Tananbaum and litigation…. Litigation partner Jennifer H.

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The SEC recently adopted amendments to modernize important aspects of the Rule 14a-8 process for shareholder proposals to be included in domestic SEC reporting company proxy statements. These amendments adopt a tiered system of…. On May 20, , the Treasury Department issued proposed regulations to fundamentally change the mandatory filing requirement related to a foreign person acquiring control over, or making a covered investment in, a U.

The Treasury Department recently released final regulations that fundamentally change the mandatory filing requirement related to a foreign person acquiring control over, or making a covered investment in, a U. The Third Circuit recently affirmed confirmation of Tribune Co. The Department of Labor has issued additional guidance on critical issues regarding wage and hour, family and medical leave, discrimination, and returning furloughed employees to work as businesses reopen amid the COVID pandemic.

The waiver applies to equity issuances to related parties…. The suspension affects foreign nationals who expected to rely on visas …. Businesses are encouraged to reopen in three phases, addressing and…. The key message in the guidance is …. In response to the political impasse over access by U. The Federal Reserve has issued a number of legal forms and agreements, with accompanying instructions, that must be submitted by eligible borrowers and lenders participating in the Main Street New Loan Facility, Main Street Expanded….

Oak Hill Capital Partners that a controlling stockholder and its board designees did not breach their fiduciary duties in connection with the…. Within each region that meets the public health…. On April 30, the Fed issued revised term sheets for the two previously announced Main Street lending facilities, as well as a term sheet for the new Main Street Priority Loan Facility.

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On March 26, UK regulatory bodies granted temporary relief and issued guidance to listed companies and auditors as a result of the increasing challenges posed by COVID With the passage of the Coronavirus Aid, Relief, and Economic Security Act now imminent, we summarize key provisions of the emergency stimulus package, including relief for small businesses; emergency funding for companies suffering….

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In recent days, scores of companies have either withdrawn or revised downward previously issued guidance due to the continuing adverse impacts of the COVID pandemic, with most opting to withdraw. We highlight important areas to…. We summarize key provisions of the bill, including criteria for employee eligibility, qualifying employers and….

It advises U. On March 18, the Senate approved an emergency relief bill to provide financial support for individuals affected by the COVID pandemic. Significantly, the U. As the coronavirus COVID pandemic continues to slow commerce, most companies face serious challenges in almost all areas of their businesses. The recent turmoil and volatility of public financial markets has resulted in many….

The coming weeks and months are likely to bring many assertions of force majeure in response to COVIDrelated impacts. The UK and Ireland have been added to the existing ban on entry into the U. The February 28 newsletter by the American Investment Council, a leading private equity advocacy and resource organization, featured an article by corporate partners Marco Masotti and Conrad van Loggerenberg and associate Victoria…. As the coronavirus COVID continues to spread, SEC reporting companies and their boards need to consider the impacts of the outbreak not just from business continuity and risk management perspectives, but also on their public….

The Delaware Court of Chancery recently confirmed in Salladay v. Lev that conditioning a conflicted but non-controller transaction upon approval by a fully empowered, disinterested and independent special committee can restore the…. On March 3, , the U. Supreme Court will hear oral argument to determine the constitutionality of the Consumer Financial Protection Bureau.

An article published on February 25 in Private Equity International , a leading industry news source, highlights recent research findings by the Paul, Weiss private funds group. The Securities and Exchange Commission recently addressed financial reporting considerations and potential SEC relief in light of the effects of the novel coronavirus. These effects may be important to SEC-reporting companies that….

Saba Capital Master Fund, Ltd. The U. The Private Funds Regulatory Compliance Calendar covers certain but not all regulatory obligations of a typical U. In the latest turn in the Sun Capital litigation, the First Circuit Court of Appeals reversed the decision of the District Court for Massachusetts, and held that three private equity funds managed by Sun Capital were not liable…. Last week, the Securities and Exchange Commission voted to propose amendments to its proxy solicitation rules as applicable to proxy voting advice and its Rule 14a-8 shareholder proposal procedures.

On September 26, the U. In a video interview with The Deal 's Tom Terrarosa, corporate partner Steve Williams discusses the prevalence of settlements in activism campaigns, why it's so common to settle and some of the most common settlement terms. Recently in Arkansas Teacher Retirement System v. The rules were introduced with a goal of improving the quality and timeliness of…. Funds partners Marco Masotti, Matthew Goldstein, Conrad van Loggerenberg and Lindsey Wiersma are extensively quoted in part 2 of a Private Equity Law Report article discussing various issues arising in the private equity landscape,….

Funds partners Marco Masotti, Matthew Goldstein, Conrad van Loggerenberg and Lindsey Wiersma are extensively quoted in a Private Equity Law Report article discussing the concerns of sponsors and the evolution of the relationship with…. In Olenik v. Lodzinski , the Delaware Supreme Court held that plaintiffs had sufficiently pled facts that the dual protections of a special committee and majority-of-the-minority-vote under the MFW roadmap was not in place before the…. Legal Developments….

In this issue of the Private Equity Digest, we take a look at private equity trends in and possible developments for As the federal government shutdown is poised to enter a fourth week, its impact on companies and their corporate operations grows. To help our clients and other interested parties navigate these developments, below is an update on….

In mid-December , speakers and panelists representing regulatory and standard-setting bodies as well as auditors, registrants, securities counsel and other industry experts gathered in Washington D. Recently in In re Xura, Inc. Frey, Matthew B. Stockholders Litigation that directors who approved a sale of the company were not entitled to business judgment protection under Corwin v. In this issue of the Private Equity Digest, we look at four ways PE firms have adapted to the current competitive environment: i engaging in more buy-and-build approaches or add-on acquisitions, ii investing in early-stage….

In Flood v. Synutra International, Inc. This memorandum discusses the legal and business…. In this video, London-based corporate partners Mark Bergman and David Lakhdhir discuss key issues, including the possible scenarios for the UK leaving the EU and the implications of the splits within Prime Minister May's cabinet, the….

The recent Delaware Court of Chancery opinion in Olenik v. Lodzinski held that the parties to an acquisition had met the now well-known roadmap for controller transactions to receive business judgment review under Kahn v. This edition of the Paul, Weiss Private Equity Digest continues our discussion of key considerations for private equity transactions resulting from the new tax law.

Corporate partner Eric Goodison and practice management counsel Margot Wagner published an overview of covenant-lite loans on the Thomson Reuters Practical Law website. The series covers various high profile cases and topics …. Recently the Delaware Court of Chancery dismissed claims that a private equity firm and affiliated funds misappropriated trade secrets acquired from their portfolio company via their director designees and then misused the information ….

Recently in In re Hansen Medical, Inc. In this edition of the Paul, Weiss Private Equity Digest, we discuss key considerations for private equity transactions resulting from the new tax law. This is part one of a two-part article. Less than a week after the U. Senate voted to approve a full slate of new commissioners to the Federal Trade Commission FTC , four of those appointees were sworn in to their new positions.

Two new European regulatory regimes came into force in January , bringing about sweeping changes for many market participants involved in offers and sales of financial instruments in Europe. As the possibility of trade and other protectionist policies looms in the U. In this edition of the Paul, Weiss Private Equity Digest, we discuss the complex issues that can arise when parties in private transactions negotiate how to split transaction tax deductions, as illustrated by the recent Delaware….

The SEC recently provided updated guidance on cybersecurity-related disclosure obligations. Aruba Networks, Inc. Administration on businesses in Asia. The court…. The calendar covers certain but not all regulatory obligations of a typical U. Please note that any words…. Recently in van der Fluit v. Yates , the Delaware Court of Chancery dismissed fiduciary duty claims against the board of a company stemming from its acquisition, even though the court concluded that business judgment review did not….

Grieve, Kyle J. Kimpler, Lindsay B. Parks and Ramy J. The Department of the Treasury recently issued a report outlining proposed changes to U. The reforms, including several aimed at expanding and…. In this issue of Private Funds Spotlight, corporate…. The European Commission recently issued a proposed regulation establishing a framework for screening foreign investments into the European Union.

The regulation, if adopted, would authorize EU member states, as well as the Commission…. The amendments require additional information…. Recently, the Delaware Court of Chancery extended the Kahn v. Cardozo School of Law.

The …. President Trump recently signed into law H. In December , the China Insurance Company Regulatory Commission CIRC released draft measures for the administration of equity interests in insurance companies, as we noted in previous updates here and here. In a sweeping new rule published today in the Federal Register , the CFPB barred providers of consumer financial products and services from entering into or enforcing contracts that include arbitration clauses precluding class action….

The SEC will allow all issuers to submit for review IPO draft registration statements and certain other registrations on a confidential basis beginning July This first report….

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Recently in In re Xura, Inc. Frey, Matthew B. Stockholders Litigation that directors who approved a sale of the company were not entitled to business judgment protection under Corwin v. In this issue of the Private Equity Digest, we look at four ways PE firms have adapted to the current competitive environment: i engaging in more buy-and-build approaches or add-on acquisitions, ii investing in early-stage….

In Flood v. Synutra International, Inc. This memorandum discusses the legal and business…. In this video, London-based corporate partners Mark Bergman and David Lakhdhir discuss key issues, including the possible scenarios for the UK leaving the EU and the implications of the splits within Prime Minister May's cabinet, the…. The recent Delaware Court of Chancery opinion in Olenik v.

Lodzinski held that the parties to an acquisition had met the now well-known roadmap for controller transactions to receive business judgment review under Kahn v. This edition of the Paul, Weiss Private Equity Digest continues our discussion of key considerations for private equity transactions resulting from the new tax law.

Corporate partner Eric Goodison and practice management counsel Margot Wagner published an overview of covenant-lite loans on the Thomson Reuters Practical Law website. The series covers various high profile cases and topics ….

Recently the Delaware Court of Chancery dismissed claims that a private equity firm and affiliated funds misappropriated trade secrets acquired from their portfolio company via their director designees and then misused the information …. Recently in In re Hansen Medical, Inc. In this edition of the Paul, Weiss Private Equity Digest, we discuss key considerations for private equity transactions resulting from the new tax law.

This is part one of a two-part article. Less than a week after the U. Senate voted to approve a full slate of new commissioners to the Federal Trade Commission FTC , four of those appointees were sworn in to their new positions. Two new European regulatory regimes came into force in January , bringing about sweeping changes for many market participants involved in offers and sales of financial instruments in Europe. As the possibility of trade and other protectionist policies looms in the U.

In this edition of the Paul, Weiss Private Equity Digest, we discuss the complex issues that can arise when parties in private transactions negotiate how to split transaction tax deductions, as illustrated by the recent Delaware…. The SEC recently provided updated guidance on cybersecurity-related disclosure obligations. Aruba Networks, Inc. Administration on businesses in Asia. The court…. The calendar covers certain but not all regulatory obligations of a typical U.

Please note that any words…. Recently in van der Fluit v. Yates , the Delaware Court of Chancery dismissed fiduciary duty claims against the board of a company stemming from its acquisition, even though the court concluded that business judgment review did not…. Grieve, Kyle J. Kimpler, Lindsay B. Parks and Ramy J. The Department of the Treasury recently issued a report outlining proposed changes to U.

The reforms, including several aimed at expanding and…. In this issue of Private Funds Spotlight, corporate…. The European Commission recently issued a proposed regulation establishing a framework for screening foreign investments into the European Union.

The regulation, if adopted, would authorize EU member states, as well as the Commission…. The amendments require additional information…. Recently, the Delaware Court of Chancery extended the Kahn v. Cardozo School of Law.

The …. President Trump recently signed into law H. In December , the China Insurance Company Regulatory Commission CIRC released draft measures for the administration of equity interests in insurance companies, as we noted in previous updates here and here. In a sweeping new rule published today in the Federal Register , the CFPB barred providers of consumer financial products and services from entering into or enforcing contracts that include arbitration clauses precluding class action….

The SEC will allow all issuers to submit for review IPO draft registration statements and certain other registrations on a confidential basis beginning July This first report…. London partner Alvaro Membrillera held a seminar on the legal aspects of private equity for more than 60 MBA students. The event took place at the London Business School on June 3.

The new audit standard is subject to approval by the SEC. Two decisions by the Delaware Court of Chancery in the past two weeks reached seemingly disparate outcomes on fair value for the companies involved, but together stand for the general trend of recent appraisal decisions that deal….

In this edition of the Paul, Weiss Private Equity Digest, we discuss appraisal risk in private equity transactions and possible ways to address this risk. As the UK and the EU prepare for upcoming negotiations over a withdrawal agreement and the terms of access by the UK to EU markets for goods and services, it is clear that the parties are extremely far apart, which could have….

For many businesses, knowing the contours of the eventual Brexit deal is critical to evaluating what contingency plans may be required and, if required, by what point in time. In this memorandum, we examine the British and EU…. In a recent decision in In re Investor Bancorp, Inc. Stockholder Litigation , the Delaware Court of Chancery held that a fully informed stockholder vote approving adoption of an equity incentive plan also ratified subsequent equity….

The Securities and Exchange Commission has issued a notice with new disclosure requirements that further modernize reporting standards. Following a recent judgment by the D. In a recent decision in In re Saba Software, Inc. Stockholder Litigation, the Delaware Court of Chancery demonstrates the limits of the application of the business judgment rule under Corwin v.

In a split decision in The Williams Cos. Energy Transfer Equity, L. Total deal volume, as measured by dollar value, decreased globally by Secretary Johnson delivered a keynote speech to a capacity audience at the Oxford Union on March 8. Paul, Weiss is a close-knit community with a distinct culture and shared values. In this video from our Alumni Reception, current and former Paul, Weiss lawyers share their thoughts on the firm and their ongoing connections to its….

On February 14, President Trump signed a joint resolution of Congress passed under the Congressional Review Act eliminating an SEC rule requiring resource extraction issuers to disclose payments made to the U. The measures, expected to be finalized and implemented soon, will affect future…. Brexit has moved one step closer, as Britain's lower house of Parliament has passed legislation to allow Prime Minister Theresa May to officially begin the process.

On February 7, the SEC's Office of Compliance Inspections and Examinations identified five areas of compliance deficiencies or weaknesses frequently found during the staff's examinations of registered investment advisers. In the…. The tension between environmental regulation and bankruptcy law makes environmental liability an issue that must be considered as part of any bankruptcy strategy. Deputy chair Valerie Radwaner and litigation associate Jeremy Benjamin will discuss implicit bias in the legal profession and practical strategies to counter its effects at the New York State Bar Association's upcoming annual meeting.

In In re United Capital Corp. Stockholders Litigation , the Delaware Court of Chancery granted the defendants' motion to dismiss a complaint filed by a former minority stockholder of United Capital Corporation seeking "quasi-appraisal" …. Chinese media have recently reported delays in remittance of funds for outbound direct investment transactions, as well as certain other forms of repatriations of funds out of China due to enhanced enforcement of foreign exchange….

Total deal volume in the U. All are resident in Paul, Weiss's New York office. In this client memorandum, we summarize key policy changes. The changes show a consensus in approach…. The Consumer Financial Protection Bureau recently published a bulletin outlining a demanding compliance standard for companies that use incentive programs as part of employees' compensation arrangements.

In light of the bulletin and…. The uncertainty around Brexit has only increased in the wake of the U. High Court's recent ruling that the process cannot begin without approval from Parliament. Please note that any…. Total deal volume…. High Court today held that the U. Secretary of State does not have the power to give notice pursuant to Article 50 of the Treaty on the European Union for the nation to withdraw from the European Union.

According …. On October 24, , U. Stockholders Litigation , the Delaware Court of Chancery dismissed the fiduciary duty claims of former minority stockholders following a going-private, squeeze-out merger because the transaction…. In Nguyen v. Barrett , the Delaware Court of Chancery dismissed post-closing claims that the board acted disloyally or in bad faith by failing to make the challenged disclosures. In Larkin v.

Shah issued last week, the Delaware Court of Chancery dismissed a stockholder challenge to a merger due to the cleansing effect of fully informed stockholder approval, applying the Delaware Supreme Court's recent…. Deal volume, as measured by dollar value, decreased in the U.

The total number of deals…. In this video, corporate partner Ariel Deckelbaum discusses the latest changes in U. On July 13, , the Securities and Exchange Commission proposed amendments to certain of its disclosure requirements that may have become redundant, duplicative, overlapping, outdated or superseded, in light of other SEC…. In In re Volcano Corporation Stockholder Litigation , the Delaware Court of Chancery held that the acceptance of a first-step tender offer by fully informed, disinterested, uncoerced stockholders representing a majority of a….

In The Williams Companies, Inc. By a vote of On June 14, , the U. Hess Memorial Lecture. Stockholder Litigation , the Court of Chancery dismissed claims that the board of a target company acted in bad faith and breached its duty of loyalty by instructing its financial…. Counsel Peter Jaffe will speak on two panels at the Compliance Week conference. The first discussion, titled "Compliance Officer as Strategic Business Partner," will look at how the value of compliance can go far beyond….

Attenborough , the Delaware Supreme Court upheld the dismissal of breach of fiduciary duty claims against directors of a target corporation and aiding and abetting claims against the target's financial advisor in…. On May 5, , the Consumer Financial Protection Bureau CFPB released a page notice of proposed rulemaking that would prohibit, going forward, banks and a variety of other companies from including in contracts arbitration….

Real estate partner Meredith Kane authored the "United States" chapter in the latest edition of The Real Estate Law Review , an international legal reference publication covering developments in real estate law in 33…. In this video, corporate partner Ross Fieldston speaks with The Deal 's David Marcus at the 28th annual Tulane Corporate Law Institute, one of the premier corporate and securities law conferences in the U. Private equity funds should consider the impact of a March 28 lower court decision in the Sun Capital case, which may increase the risk that funds will be held responsible for ERISA obligations of portfolio companies.

Women In Law Hong Kong WILHK , hosted a launch event of the first cross-firm mentoring program for legal professionals as part of its commitment to enhancing the profiles, skills and networking opportunities available to women in the …. Corporate partner Marco Masotti will speak at the sixth annual Global Fund Finance Symposium, which will address key developments and trends in the subscription credit facility and fund finance markets.

Corporate partner Bob Zochowski spoke on a panel at the ABS Vegas , the largest capital markets conference in the world. On May 18, corporate of counsel Jerome Cohen, a pioneering scholar of Chinese business and human rights law, was presented with his third degree from Yale University: an honorary Doctor of Law. The firm was recognized for its representation of China-based utilities company State Grid International Development Limited in…. Brad and Ted were selected as MVPs in the sports practice….

Litigation partner Richard Rosen and corporate partner Udi Grofman were recognized among the finest law firm writers of with Burton Awards for their article, "Political Intelligence and U. Insider Trading Regulations. Real estate partner Salvatore Gogliormella and litigation partner Roberto Gonzalez have been named to Law 's Rising Stars for in the Real Estate and Banking categories, respectively. Deckelbaum Ross A. Fieldston Stephen P. The United States Court of Appeals for the Third Circuit has certified two questions to the Pennsylvania Supreme Court regarding the scope and availability of the in pari delicto defense to claims against a corporation's auditors for professional negligence, breach of contract and aiding and abetting a breach of fiduciary duty.

July 1, Ultimately, AHERF's strategy failed, and the company suffered substantial operation losses in and Faced with these losses, AHERF's senior management admitted to knowingly misstating the company's finances and to providing those false financial figures to the company's auditor. In , AHERF's board of directors learned of the company's true financial condition and filed for bankruptcy protection.

The auditor filed a motion for summary judgment on all three claims based on the in pari delicto defense, which precludes courts from becoming involved in disputes between two parties that are equally at fault. The district court granted summary judgment in favor of the auditor, finding that AHERF senior management's fraud could be imputed to the company and because the committee stands in the shoes of the company, the in pari delicto defense prevents the creditors committee from recovering from the auditor.

On appeal, the creditors committee first asserted that the fraudulent acts of senior management could not be imputed to AHERF because they acted for their own benefit and not with the intent to serve the company's interests. In contrast, the auditor argued, and the district court found, the relevant test should not focus on the subjective intent of senior management but rather whether the company received any benefit from management's conduct.

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The court noted that to withstand a motion to dismiss with regard to an intentional fraudulent conveyance claim, a plaintiff must meet the heightened pleading standard requirements under Rule 9 b and must demonstrate that the facts support an inference of fraudulent intent. In addition, the court found that the facts supported an inference of fraudulent intent. Importantly, the court reached a different conclusion regarding the non-officer employee defendants who also received change of control payments.

While the news from Nine West may be distressing for directors, the holdings are decidedly more mixed for officers and perhaps even promising for employees. On the positive side of the ledger, officers will not be held to the same high standard as directors in terms of their potential liability for the post-sale insolvency of the company. Instead, as long as officers do not have decision-making power over a transaction or the power to prevent the transaction, they may avoid liability.

In most cases, being an officer, as opposed to a director, may be enough to satisfy this rule. This does not mean that officers should shirk responsibility over the decision-making process — and it may be prudent to bring up any potential hesitations regarding a transaction beforehand. However, when the transaction backfires and officers helped the transaction along in ministerial ways without voicing an objection, officers will be relieved to know that they may not face liability for their silence, unlike their director friends.

Alternatively, greater cause for concern exists for officers in connection with change of control payments. This decision confirms that change of control payments may be avoided as fraudulent conveyances if the company is deemed insolvent at the time of the transfer and if the trustee can also prove lack of fair consideration or reasonably equivalent value, as it is more often described. The implications of this element of the ruling could be far-reaching in that officers may now scrutinize potential transactions more carefully prior to advancing them up the corporate ladder.

Perhaps this will have the effect of preventing unwise deals, as officers grow to fear the potential of losing payments for which they negotiated. Finally, it is worth reiterating the procedural posture of the case. The court here was only ruling on whether or not to dismiss the claims brought by the Litigation Trustee. This means that the court had to take all of the facts alleged by the Litigation Trustee as true, and see if such pleadings were sufficient to justify a claim under the particular statutes implicated.

To be sure, discovery and further litigation will likely be costly, and the parties may decide to settle, but this ruling in no way means that any party has been found liable as to any claim alleged. Contributor s. Ronit J. Teddy Cohan. Breach of Fiduciary Duty Under Pennsylvania law, which governed the transaction because the Jones Group was a Pennsylvania corporation, officers owe a duty to act in good faith, in the best interests of the corporation, and with such care as an ordinary prudent person in similar circumstances.

Takeaways from SDNY Decision for Officers While the news from Nine West may be distressing for directors, the holdings are decidedly more mixed for officers and perhaps even promising for employees. Bio on Weil. Cohan weil. More from the Bankruptcy Blog.

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Court of Appeals for the Third Circuit recently reinstated a dismissed lawsuit and held that minority shareholders who dissented to a merger were not limited to state appraisal proceedings as their sole post-merger remedy. Mitchell Partners, L. Irex Corp. The Third Circuit predicted that the Supreme Court of Pennsylvania would hold that Pennsylvania's appraisal statute does not prevent a shareholder from pursuing a separate, post-merger lawsuit for breaches of fiduciary duty.

The plaintiff was a substantial minority shareholder the "Minority Shareholder" , but it was not among the favored insider shareholders. The corporation formed a special committee the "Special Committee" to review the proposed merger and to negotiate on behalf of all minority shareholders. However, according to the Minority Shareholder, the insider directors influenced and controlled the Special Committee's consideration of fair value for the minority stock in several ways, thereby breaching the fiduciary duties they owed to all minority shareholders.

At the time of the shareholder vote, the holding company held 71 percent of the corporation's shares and voted those shares in favor of the merger. The Minority Shareholder and one other shareholder dissented and did not vote in favor of the merger; the transaction closed 10 days later. Pennsylvania law provides a shareholder who dissents to a merger the right "to obtain payment of the fair value of his shares. Three months after the transaction closed, the corporation filed an appraisal action against the Minority Shareholder and the other dissenter in the Pennsylvania Court of Common Pleas.

While the appraisal proceeding was still pending, the Minority Shareholder filed a class action complaint in federal court alleging breach of fiduciary duty; aiding and abetting breach of fiduciary duty; and unjust enrichment against the corporation, the holding company, the individual insider directors and officers, and the Special Committee members.

The defendants contended, and the federal district court agreed, that the federal action was foreclosed by Pennsylvania state law—namely 15 Pa. The Minority Shareholder appealed the dismissal of the complaint. Because the Pennsylvania federal courts heard the lawsuit under their "diversity of citizenship" jurisdiction, the district court and the Third Circuit needed to apply the law as established by the Pennsylvania Supreme Court.

While some Pennsylvania state court opinions the " Jones opinions" have held that dissenting shareholders could not challenge the validity of mergers in a state court appraisal proceeding and that the sole issue over which an appraisal court had jurisdiction was the appraisal itself, 6 the Pennsylvania Supreme Court had never addressed the narrow issue of whether a separate, post-merger suit for breach of fiduciary duties could be litigated. While there was Third Circuit precedent the " Herskowitz opinion" entitling a shareholder to bring, prior to the merger, a separate claim for a breach of fiduciary duty, 7 there was no Third Circuit precedent specifically holding that a minority shareholder could bring a breach of fiduciary duty claim post-merger , as the Minority Shareholder attempted to do.

The Third Circuit reached this prediction for several reasons:. Thus, a minority shareholder who dissents to a merger would not be limited to an appraisal proceeding as his or her sole remedy in Pennsylvania courts. Where a minority shareholder believes majority shareholders breached fiduciary duties in consummating a merger, a separate post-merger lawsuit would be permitted by the Pennsylvania federal courts—and, as the Third Circuit predicted, by the Pennsylvania state courts as well.

If you have any questions about this Alert , please contact Wayne A. Mack , Matthew M. Ryan, any member of the Commercial Litigation Practice Group or the attorney in the firm with whom you are regularly in contact. Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

Alerts and Updates Subscribe. Many states, including Delaware, adopt these four elements almost to the letter. See , e. Townson , A. Other states, such as New York, recite only three elements but leave intact the same basic requirements of breach by another, knowing participation by defendant, and damages to plaintiff. See, e. Citibank , F. What Lawyers and Clients Should Know Recent Delaware and New York decisions illuminate key lessons lawyers should be equipped to share with clients and heed themselves.

Singh v. Attenborough , A. Kaufman v. Cohen , A. The Supreme Court of Delaware rejected this requirement, which it felt inappropriately broadened the claim. Jervis , A. Final Thoughts Though the aiding and abetting breach of fiduciary duty claim continues to gain traction, the conduct underlying these alleged violations is conduct that could give rise to liability even absent the state common law aiding and abetting breach of fiduciary duty claim.

Some scholars have questioned whether the claim is a necessary enforcement mechanism, given its overlap with other claims.