FINAL JUDGMENT: that the following Defendants are liable for the following claims arising from the purchase and sale of the NAA 2005-AR6 3A1, NHELI 2006-FM1 1A, NHELI 2006-HE3 1A1, NHELI 2006-FM2 1A1, NHELI 2007-1 IIA1, NHELI 2007-2 1A1, and NHELI 2007-3 1A1 certificates (the “Certificates”), as further set forth in this judgment…
See also Federal Housing Finance Agency v. Nomura Holding America, Inc., 2015 WL 2183875 (S.D.N.Y. May 11, 2015)
Quadrant Structured Products Co. v. Vertin, 2015 WL 2062115 (Del. Ch. May 4, 2015):
Plaintiff Quadrant Structured Products Company, Ltd. (“Quadrant”) owns debt securities issued by defendant Athilon Capital Corp. (“Athilon” or the “Company”), a Delaware corporation. Quadrant contends that Athilon is insolvent and has asserted derivative claims for breach of fiduciary duty against the individual defendants, who are members of Athilon’s board of directors (the “Board”).
To bring a derivative action, a creditor-plaintiff must plead and later prove that the corporation was insolvent at the time the suit was filed. This decision also rejects the defendants’ attempt to establish irretrievable insolvency as the metric for determining when a creditor has standing to sue derivatively. To bring a derivative action, the creditor-plaintiff must plead and later prove insolvency under the traditional balance sheet or cash flow tests. See
For purposes of summary judgment, there is evidence which, when viewed in favor of the non-moving party, supports a reasonable inference that Athilon was insolvent at the time Quadrant filed suit. The defendants’ motion for summary judgment on the breach of fiduciary duty claims is therefore denied.
Gibson, Dunn & Crutcher LLP writes:
We reviewed 38 Delaware public M&A deals announced after the Court’s decision in City of Providence.  In 17 of the 38 acquisitions, the target announced that it had adopted exclusive forum bylaws at the same time it announced the deal. Targets had adopted exclusive forum bylaws prior to the deal in an additional 10 acquisitions.
Our research indicates that Delaware targets involved in public M&A transactions had exclusive forum bylaws in place in over 70% of recent transactions. If a Delaware target did not have exclusive forum bylaws in place prior to the public announcement of a transaction, it adopted such bylaws at the time of such announcement over 60% of the time.