Reynolds Holding

APRIL 2, 2024

Legislation proposing to amend the General Corporation Law of the State of Delaware (the “DGCL”) has been approved by the Council of the Corporation Law Section of the Delaware State Bar Association and is expected to be introduced to the Delaware General Assembly for consideration during its 2024 regular session. Moelis & Co. , — A.3d

Marketability 45

Marketability Compliance Finance Appraisal 45

Mogin Rubin M&A

FEBRUARY 7, 2024

Alston Opinion Changed Everything In NCAA v. The National Collegiate Athletic Association (NCAA) rules limiting education-related compensation violated Section 1 of the Sherman Act, the high court affirmed. Thanks to California Sports Lawyer Jeremy Evans for his valuable contributions to this article. Alston, 141 S.

59

59

ThomsonReuters

MAY 25, 2023

While administrators are not required to defer to treating physicians’ opinions, they must address such opinions—particularly those contrary to their own findings—and may not use the lack of an express requirement to “shirk their broad fiduciary responsibilities.” Contributing Editors: EBIA Staff.

Compliance 52

Compliance 52

Farrel Fritz

MARCH 18, 2024

The Amended LLC Agreement’s provisions include: Section 1.25 Section 13.2 Section 13.2 Section 13.3 defines “Member” as “any party to this Agreement owning a Membership Interest or any Person who otherwise acquires a Membership Interest and has executed the Joinder.”

Equity 59

Equity 59

Reynolds Holding

APRIL 17, 2024

Justice Sonia Sotomayor delivered the opinion for the Court. The Second Circuit had previously held that a failure to make an Item 303 disclosure constituted an actionable omission that can serve as the basis for a claim under Section 10(b). Moab Partners, L.P. This post comes to us from Skadden, Arps, Slate, Meagher & Flom LLP.

45

45

John Jenkins

JANUARY 24, 2023

A motion for attorneys’ fees may seem like an odd place to address the provisions of Section 242 of the DGCL that require separate class votes to approve certain matters submitted to stockholders of a Delaware corporation, but Vice Chancellor Zurn’s opinion in Garfield v. Boxed, Inc., (Del. 12/22), did just that.

40

40

Harvard Corporate Governance

AUGUST 24, 2023

Fourth, the rules will require advisers to obtain a fairness or valuation opinion when the adviser directs a fund to sell assets to another fund that the adviser also advises. Endnotes 1 Section 913(g)(2) of the Dodd-Frank Act added section 211(h) to the Advisers Act. (go

Corporate Finance 189

Corporate Finance Marketability Compliance Finance 189

Harvard Corporate Governance

FEBRUARY 7, 2023

The opinion reasoned that finding otherwise, that officers owe no oversight duties, “would undermine directors’ ability to fulfill their statutory obligation to direct and oversee the business and affairs of the corporation.” Related research from the Program on Corporate Governance includes Monetary Liability for Breach of the Duty of Care?

213

213

Farrel Fritz

SEPTEMBER 11, 2023

Last month, that court handed down a 35-page majority opinion affirming the lower appellate court’s decision upholding the oppression claim, but dismissing the claims for fiduciary breach and unjust enrichment. The plaintiff sought only compensatory damages in an amount to be determined at trial.

Dividends 59

Dividends Equity 59

Appraisal Rights

DECEMBER 23, 2020

With litigation over section 220 demands becoming more frequent and contentious, the Supreme of Court Delaware weighed in an en banc ruling and affirmed shareholders’ rights to inspect a company’s books and records. A pdf copy of the opinion is available here.

Compliance 52

Compliance 52

ThomsonReuters

FEBRUARY 24, 2022

In a footnote to its opinion, the court acknowledged the plan’s assertion that the price of the testing was too high and noted that its ruling did not foreclose a counterclaim challenging the propriety of the pricing. See also EBIA’s Self-Insured Health Plans manual at Section XIII.C.11 Contributing Editors: EBIA Staff.

98

98

Harvard Corporate Governance

FEBRUARY 2, 2024

Musk: Post-Trial Opinion Posted by Anna Restuccia (Harvard Law School), on Thursday, February 1, 2024 Tags: CEO , Delaware cases , Delaware law , Elon Musk , Executive Compensation , litigation , Tesla

Debt Financing 100

Debt Financing Banking Capital Structure Finance 100

ISA

DECEMBER 28, 2023

The Appraisal Standards Board (ASB) adopted a nondiscrimination section to the ETHICS RULE in the 2024 USPAP that focuses on core concepts from key antidiscrimination laws. As appraisers, we must promote and preserve the public trust inherent in appraisal practice by observing the highest standards of professional ethics.

Appraisal 75

Appraisal Compliance 75

Farrel Fritz

FEBRUARY 26, 2024

I refer to Section 713’s “guardrails” in counterpoint to the harsher common-law approach that preceded and eventually was displaced by BCL 713’s adoption in the early 1960s. According to the Fordham Law Review article, by the early 1900s, with a boost from Judge Benjamin Cardozo’s 1918 Court of Appeals opinion in Globe Woolen Co.

Compliance 59

Compliance 59

ThomsonReuters

JANUARY 28, 2021

EEOC Commission Opinion Letter: Individual Coverage Health Reimbursement Arrangements (ICHRA) under the ADEA (Jan. For more information, see EBIA’s Consumer-Drive Health Care manual at Sections XXV (“HRAs: COBRA, HIPAA, Health Care Reform, and Other Compliance Issues”) and XXVIII.B (“Individual Coverage HRAs (ICHRAs)”).

Compliance 98

Compliance 98

Farrel Fritz

OCTOBER 23, 2023

When a member of a New York LLC brings an action for judicial dissolution, as far as the dissolution statute, Section 702 , is concerned, the outcome presents the court with a binary choice: dissolve or don’t dissolve. The opening paragraph in the Mississippi Court of Appeals’ opinion in Colson v Warren , 2021-CA-01408-COA (Miss.

Banking 59

Banking Equity Technology 59

Internal Audit 360

MAY 25, 2023

It means, in my opinion, that it meets the needs of the organization. Break it Down into Manageable Pieces An audit that seeks to provide an opinion on the effectiveness of risk management would be a massive endeavor. Please leave your views and ideas on auditing risk management in the comments section below.

105

105

ThomsonReuters

DECEMBER 10, 2020

Accountant’s Opinion. The instructions for Schedule H, Part III (Accountant’s Opinion) have been updated in response to a new auditing standard (SAS 136) that allows the issuance of a form of unmodified opinion when an audit’s scope has been limited pursuant to certain DOL regulations.

Compliance 52

Compliance 52

Harvard Corporate Governance

JULY 22, 2022

Lessons from the Goldstein Opinion. Tags: Books and records , Delaware cases , Delaware law , DGCL Section 220 , Discovery , Merger litigation , Mergers & acquisitions , Securities litigation. Posted by Ethan Klingsberg, Meredith Kotler, and Victor Ma, Freshfields Bruckhaus Deringer LLP, on Saturday, July 16, 2022.

Marketability 206

Marketability 206

ThomsonReuters

SEPTEMBER 1, 2022

EBIA Comment: About two weeks before the court issued this opinion, the DOL, IRS, and HHS issued FAQ guidance making clear that plans must continue to provide coverage for FABM instruction without cost-sharing under the updated HRSA guidelines (see our Checkpoint article ). See also EBIA’s Self-Insured Health Plans manual at Section XIII.C.1

52

52

ThomsonReuters

FEBRUARY 9, 2023

Continuing litigation may cause the backlog to worsen as the agencies reconsider the regulations in light of the court’s opinion. For more information, see EBIA’s Health Care Reform manual at Section XII.B.3 3 (“Surprise Medical Billing: Emergency and Non-Emergency Services”).

52

52

Farrel Fritz

FEBRUARY 21, 2022

The appellate court’s opinion, finding that the purported succession without the consent of all the limited partners was invalid, also features the court’s rejection of the defendant siblings’ contention that the North Carolina court lacked subject matter jurisdiction to consider a claim for dissolution of a Delaware limited partnership.

Compliance 40

Compliance 40

ThomsonReuters

JUNE 23, 2022

The two dissenting justices observed that the Court’s opinion “tells plans they can do just that, so long as they target dialysis, rather than the patients who rely on it, for disfavored coverage.” See also EBIA’s Self-Insured Health Plans manual at Section XXV.C (“Coordination of Benefits With Medicare, TRICARE, and Medicaid”).

98

98

Farrel Fritz

MAY 16, 2022

In one of his subsequent opinions questioning the rule’s wisdom, Bamford v Penfold, L.P. , Delaware notably did not adopt a security-for-expenses statute, but it seems likely that the 1945 enactment of Section 327 was spurred by the New York initiative. through his wholly-owned company, Chelsey Capital, LLC.

Technology 52

Technology 52

Farrel Fritz

OCTOBER 17, 2022

Under Section 62 (2), a wrongful dissolution occurs when the partner by “express will” dissolves the partnership “in contravention of the agreement between the partners.”. Under Section 62 (2), a wrongful dissolution occurs when the partner by “express will” dissolves the partnership “in contravention of the agreement between the partners.”.

Fair Market Value 52

Fair Market Value Appraisal Start-ups Marketability 52

Chris Mercer

FEBRUARY 8, 2024

I said “practically” because I had not seen a specific requirement for business appraisers to follow USPAP; however, I did rely on the advice of a number of prominent gift/estate tax attorneys who had advised me that following USPAP was, in their opinion, required for IRS-related appraisals. Let’s address this.

Appraisal 52

Appraisal Business Valuation Business Enterprise Dividends 52

ThomsonReuters

APRIL 8, 2021

EBIA Comment: While the holding is not surprising given the precedent in Golden Gate , it is worth noting that the court rendered its opinion in five short paragraphs, perhaps signaling its desire to end these types of preemption challenges. For more information, see EBIA’s ERISA Compliance manual at Section XXXIX.H.25

Compliance 52

Compliance 52

ThomsonReuters

JULY 15, 2021

At trial, the employee and child argued that (1) the treatment was medically necessary under the plan’s terms; (2) the claims administrators incorrectly disregarded the opinions of the child’s treating physicians; and (3) the administrators did not articulate how they applied the plan’s terms to the child’s medical history or current condition.

Compliance 52

Compliance 52

Reynolds Holding

AUGUST 18, 2022

The decision also creates a split with the Fifth and Ninth Circuits, which previously held that retaliatory intent is not an element of a section 1514A claim, and raises the prospect that the issue will wind up before the Supreme Court. The Second Circuit Opinion. Background. was a pretext, in order to satisfy this element.”

45

45

Benzinga

SEPTEMBER 9, 2022

Bronner was the co-chair of the sub-committee that drafted the Model Stock Purchase Agreement with Commentary published by the American Bar Association, Business Section, Committee on Mergers and Acquisitions. This publication has become a primary source for M&A lawyers and is quoted often in judicial opinions.

Compliance 40

Compliance 40

Reynolds Holding

MAY 10, 2023

to provide prospective and committed investors with financial statements audited in accordance with GAAS, along with auditor opinion letters, confirming the adequacy of the company’s internal controls over financial reporting.” She would have the agency revise Regulation D to require these companies “to engage independent auditors and.

Marketability 64

Marketability 64

Reynolds Holding

SEPTEMBER 17, 2023

to provide prospective and committed investors with financial statements audited in accordance with GAAS, along with auditor opinion letters, confirming the adequacy of the company’s internal controls over financial reporting.” She would have the agency revise Regulation D to require these companies “to engage independent auditors and.

Marketability 59

Marketability 59

Farrel Fritz

JANUARY 23, 2023

In dismissing the deadlock-based petition, Justice Austin’s opinion, as he put it, refused to “import dissolution grounds from the Business Corporation Law” into the LLC Law. Too Cramped a Reading of Section 702? Austin in Matter of 1545 Ocean Avenue, LLC. 1545 Ocean Avenue involved an LLC owned by two 50/50 co-managing members.

Finance 52

Finance 52

ThomsonReuters

MAY 12, 2022

EBIA Comment: As noted in both opinions, at least two federal appellate courts have determined that pay during leave is a “right and benefit” protected by USERRA. See also EBIA’s COBRA manual at Section XXXVI (“Uniformed Services Employment and Reemployment Rights Act (USERRA)”). Contributing Editors: EBIA Staff.

52

52

Appraisal Rights

OCTOBER 28, 2020

The Court’s answer was clear, and the opinion unanimous: appraisal actions are not covered by D&O policies with this language. Appraisal cases are often in the company of Section 220 inspection rights demands, breach of fiduciary duty cases, disclosure violation cases, and even securities fraud allegations. See the opinion here [.pdf].

Appraisal 52

Appraisal 52

ThomsonReuters

JANUARY 13, 2022

However, the per-adoption-agreement fee increases from $700 to $1,000 for submissions postmarked on or after July 1, 2022, by pre-approved plan providers who request an opinion letter on a minor modification of a mass submitter’s basic plan document. For more information, see EBIA’s 401(k) Plans manual at Sections III.C.4

Compliance 52

Compliance 52

Internal Audit 360

APRIL 25, 2024

That means that they are not able to stop or change our audit reporting, our opinions, or our assessments. I can accept concurrence, but agreement is a better word in my opinion. Please leave your thoughts in the comments section below. We need to be able to operate without undue interference from management. What do you think?

Banking 52

Banking 52