Articles by David Shaw's Profile | Directors & Boards Journalist

Delaware Supreme Court Validates Forfeiture-for-Competition Provision in a Partnership Agreement

Jan 30, 2024 | | Lexology

In Cantor Fitzgerald v. Ainslie (Jan. 29, 2024), the Delaware Supreme Court reversed the Court of Chancery’s decision that a “forfeiture-for-competition” provision in a limited partnership agreement was unenforceable because it was unreasonable. More importantly, the Supreme Court held that forfeiture-for-competition provisions in partnership agreements—which condition receipt of future payments on non-competition—are not subject to review for reasonableness at all.

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Lessons from Chancery on Dispute Resolution Provisions

Jan 19, 2024 | | Lexology

In Paul v. Rockpoint Group, LLC (Jan. 9, 2024), the Delaware Court of Chancery addressed the alternative dispute resolution mechanism set forth in a fund manager’s LLC agreement for calculating the share of proceeds to which a former managing partner was entitled upon the funds’ sale of portfolio companies.

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Court of Chancery Holds a Corporation’s Contractual Right in a Stockholders’ Agreement Was Subject to its Efforts Obligation-Chordia v. Lee

Jan 11, 2024 | | Lexology

In Chordia v. Lee (Jan. 4, 2023), the Delaware Court of Chancery interpreted a Stockholders’ Agreement (the “Agreement”), between Alphonso Inc. (the “Corporation”) and its founders and other key stockholders (the “Key Holders”), which had been entered into in conjunction with the acquisition of a majority stake in the Corporation by LG Electronics (“LGE”).

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Court of Chancery Confirms High Bar to Pleading Caremark Oversight Claims Against Officers-Segway v. Cai

Dec 18, 2023 | | Lexology

Earlier this year, in its McDonald’s decision, the Court of Chancery established for the first time that not only corporate directors but also officers have oversight duties under Caremark. In Segway v. Cai (Dec. 14, 2003), the court, for the first time since McDonald’s, has addressed officers' Caremark duties. Key Points The court confirmed that the same high bar to pleading a Caremark claim against a director also applies to pleading such a claim against an officer.

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FTC alleges improper Orange Book listing of drug delivery device patents

Nov 13, 2023 |

By Lisa Silverman, Brigid DeCoursey Bondoc, David Shaw , Qiwen Zhong

| Lexology

In the latest attempt to promote generic drug competition and reduce drug prices, and consistent with broader efforts to enforce the antitrust laws more aggressively, the Federal Trade Commission (FTC) announced on November 7, 2023, challenges to more than 100 patent listings by brand drug manufacturers in the Food and Drug Administration’s (FDA) Orange Book. The challenges implicate 62 unique patents and 18 FDA approved products.

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Chancery’s Disney Decision Provides Guidance for Boards When Responding to Political and Social Issues

Jul 05, 2023 | | Lexology

In Simeone v. The Walt Disney Company (June 27, 2023), a stockholder of The Walt Disney Company made a demand under DGCL Section 220 to inspect books and records of the company to investigate possible wrongdoing by Disney’s board and officers in connection with the company’s decision to speak out publicly against Florida legislation titled the “Parental Rights Act” (popularly dubbed the “Don’t Say Gay Law”).

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U.S. Bank Trust National Association, as Trustee of Igloo Series V Trust v. Unknown Heirs, Beneficiaries, Devisees, and all other Parties Claiming an Interest by, through or under the Estate of Maximin C. Cote et al

Jun 15, 2023 |

By David Shaw

| Justia Dockets & Filings

June 15, 2023 Filing 3 Summons Issued as to James Gerard Cote, Roxanne Renee Cote, Trisha Lee Cote, Jennifer Lynn Ferreira, Wells Fargo Bank Successor by Merger to Wells Fargo Bank Minnesota, N.A., as Indenture Trustee for MSCC HELOC Trust 2007-1.

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Chancery Reaffirms Very High Bar for Successful Challenge of Even “Terrible” Business Decisions by an Independent Board-Coral Springs v. Dorsey

May 25, 2023 | | Lexology

In City of Coral Springs Police Officers’ Pension Plan v. Jack Dorsey, Block, Inc., et al (May 9, 2023), the Delaware Court of Chancery dismissed a lawsuit against the directors of Block, Inc. (a tech company, originally called Square, Inc., led by former Twitter CEO Jack Dorsey) challenging Block’s $237.3 million acquisition in 2021 of an 86.23% stake in TIDAL, a music streaming company 27% owned by Shawn Carter (who is professionally known as Jay-Z).

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Non-Majority Stockholder’s Ability to Control a Transaction Did Not Render Him a Controller As He Did Not Try to Control-Oracle

May 22, 2023 | | Lexology

In In re Oracle Corporation Derivative Litigation (May 12, 2023), certain former stockholders of Oracle Corporation brought a derivative suit claiming that Oracle had overpaid when, in 2016, it acquired NetSuite Corporation for $9.3 billion.

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Court of Chancery Clarifies that Sophisticated Stockholders of a Delaware Corporation Can Waive Fiduciary Duties Under Certain Circumstances-Fugue

May 06, 2023 | | Lexology

In New Enterprise Associates 14, L.P. v. Rich (“Fugue”) (May 2, 2023), the Delaware Court of Chancery held that a contractual covenant by certain stockholders (the “Funds”) not to challenge a sale of the company that met specified criteria was enforceable (excluding only with respect to claims involving intentional breach of fiduciary duties, such as fraud or bad faith).

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M&A/PE Quarterly: Winter 2023

Mar 26, 2023 | | Lexology

To view this article you need a PDF viewer such as Adobe Reader. If you can't read this PDF, you can view its text here. Go back to the PDF .

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FTC Announces New Increased HSR Filing Thresholds for 2023

Jan 24, 2023 |

By Vishal Mehta, David Shaw , Megan Gerking, Jeff Jaeckel, Alexander Okuliar

| Lexology

On January 23, 2023, the Federal Trade Commission (FTC) published new, higher notification thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”). The HSR Act requires the FTC to adjust the thresholds annually to reflect changes in U.S. gross national product. The new reporting thresholds will likely go into effect in late February, thirty days after their publication in the Federal Register.

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FTC Takes Unprecedented Enforcement Actions Against Non-Compete Restrictions

Jan 17, 2023 |

By Lisa Phelan, Alexander Okuliar, Megan Gerking, David Shaw , Rob Manoso

| Lexology

On January 4, 2023, the Federal Trade Commission (“FTC”) announced settlements with three companies for their use of employee non-compete restrictions in alleged violation of Section 5 of the FTC Act. Specifically, the FTC claimed that the non-compete provisions in the companies’ employment contracts unlawfully restricted employees’ mobility and ability to earn higher wages, while also impeding other companies’ ability to compete for the affected employees.

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M&A/PE Quarterly, Winter 2022

Jan 10, 2023 | | Lexology

Register now for your free, tailored, daily legal newsfeed service. Questions? Please contact Register To view this article you need a PDF viewer such as Adobe Reader. If you can't read this PDF, you can view its text here. Go back to the PDF . USA January 10 2023 Where Things Stand at the End of 2022 In this Fried Frank M&A/PE Quarterly, we present our fourth annual end-ofthe-year summary of “Where Things Stand” in the M&A/PE world.

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Congress Increases Merger Filing Fees for Large Deals and Makes Other Significant Changes

Jan 10, 2023 |

By Alexander Okuliar, Megan Gerking, Vishal Mehta, David Shaw , KEVIN WANG

| Lexology

Congress passed the Consolidated Appropriations Act of 2023 (the “Act”) on December 22, 2022, and President Biden signed it into law on December 29, 2022. The Act significantly amends the Hart-Scott-Rodino Act (the “HSR Act”)[1] by increasing the filing fees for most transactions, with significant increases for mergers valued at over $1 billion, and generally decreasing fees for transactions valued at less than $500 million.

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The Flaw in ESG | Directors and Boards Original

Feb 04, 2022 |

By Charles Elson, Robert H. Rock, Richard De Rose, David Shaw

| Directors & Boards

The world of corporate governance has changed dramatically in just the past two COVID-dominated years — and, frankly, not for the better. The original thrust of the 30-year governance movement focused on better board composition, independence, power and structure. This created dramatic and positive change in the functioning of most American public, private and non-profit enterprises.

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Just Because You Can, Should You?

Jan 31, 2022 |

By David Shaw , Richard De Rose, Bill Hayes , Bruce F. Freed

| Directors & Boards

Just Because You Can, Should You? By David Shaw Pricing the risk and opportunity of political and social engagement. Corporations have the right to engage in political lobbying, and they have the right, through PACs, to make political donations. With these rights, though, comes the risk and responsibility for the outcomes of these activities. As the last few years have demonstrated, political and social engagement can be a positive or a negative, depending on who is judging that engagement.

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New Challenge for an Editor, Fresh Perspective for a Magazine

Jan 31, 2022 |

By Bill Hayes , Richard De Rose, David Shaw , Bruce F. Freed

| Directors & Boards

New Challenge for an Editor, Fresh Perspective for a Magazine By Bill Hayes Hello, my name is Bill Hayes, and I am the new managing editor of Directors & Boards and Private Company Director magazines. Eighteen years. That’s how long I served as the managing editor of the Pennsylvania CPA Journal, the flagship publication of the Pennsylvania Institute of Certified Public Accountants.

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Navigating the Risks of Corporate Political Spending

Jan 31, 2022 |

By Bruce F. Freed, Karl J. Sandstrom, David Shaw , Richard De Rose

| Directors & Boards

Navigating the Risks of Corporate Political Spending By Bruce F. Freed and Karl J. Sandstrom A model code of conduct may help companies stay safe. Today, companies face serious challenges navigating the heightened risks posed by political spending. Policies alone won’t suffice. What companies need is a broad framework to guide them in deciding how to handle political spending and in evaluating and managing the accompanying risks of this spending. Just look at the choices confronting companies.

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