Representative Matters

Boston Generating, LLC

Young Conaway served as counsel to the Special Committee of the Board of Managers of EBG Holdings LLC in the chapter 11 proceeding of Boston Generating, LLC, before the United States Bankruptcy Court for the Southern District of New York.

Hexion Specialty Chemicals, Inc., et. al. v. Huntsman Corp

Young Conaway’s Corporate Counseling and Litigation section recently assisted in the representation of Huntsman Corporation (a global manufacturer and marketer of differentiated chemicals) in the Court of Chancery of the State of Delaware. The court sided with Huntsman in its attempt to prevent Hexion Specialty Chemicals (a portfolio company of Apollo Management, L.P.) from withdrawing from a $10.6 billion merger agreement. The court also found that Hexion had breached a number of obligations and covenants under the Merger Agreement, and that such breaches were "knowing and intentional."

Pershing Square, L.P. v. Ceridian Corporation, Delaware Court of Chancery, C.A. No. 2780-CC (May 11, 2007)

A seemingly narrow books and records request made by a self-styled “activist” hedge fund in connection with an announced proxy contest raised interesting issues regarding proper purpose and confidentiality in the context of a 220 request. The decision also explored the limits of a stockholder’s ability to communicate with and obtain information from senior executives within a company. In this case, the plaintiff-stockholders sought disclosure of three confidential letters written by senior executives of Ceridian to its board of directors that allegedly raised concerns about Ceridian’s senior management. Plaintiffs learned of the existence of the two letters from a Ceridian executive who was opposed to Ceridian’s senior management. The Ceridian executive disclosed the existence of the letters during secret meetings with representatives of the plaintiffs at which Ceridian representatives were not also present. At the same meetings, the Ceridian executive pledged his support to plaintiff-stockholders in the proxy contest to unseat the current board and his services in the future should the proxy contest succeed.

The Court denied the plaintiffs’ Section 220 demand and found that the plaintiffs’ real -- and improper -- purpose for making their demand was to “find a legal vehicle by which [the plaintiff could] publicly broadcast improperly obtained confidential information.” The Court chastised the plaintiff for seeking the Court’s assistance in a scheme to unseat the current management – a scheme that included disclosure of confidential information by a company executive to the plaintiffs in furtherance of “improper and self-interested goals.” The Court also ruled that the letters were confidential and should be protected from disclosure to avoid a “harmful chilling of candid communications between executives and a board of directors.”

Young Conaway handled the litigation of this matter on behalf of Ceridian Corporation along with lawyers from Wachtell, Lipton, Rosen & Katz. Within the firm, litigation of the matter was conducted by partners David C. McBride, Rolin P. Bissell, and Christian Douglas Wright and associate Tammy L. Mercer of the Corporate Counseling and Litigation Section.


Express Scripts, Inc. v. Crawford, Delaware Court of Chancery, C.A. No. 2663-CC (Feb. 23, 2007)

In one of the most hotly contested takeover battles of the year, Express Scripts obtained a preliminary injunction in aid of its efforts to effect a hostile acquisition of Caremark for approximately $26 billion. Although Caremark's stockholders ultimately voted to approve an acquisition by CVS (after CVS upped its offer by an additional $3.3 billion), Express Scripts obtained significant judicial relief that increased its opportunity to achieve its business objectives. Additionally, the Delaware Court of Chancery issued important guidance respecting the nature of the disclosures required of a target company in a bidding contest and resolved an issue of first impression pertaining to the availability of appraisal rights where a merger is funded, in part, by a special dividend. The Court of Chancery also identified, but did not resolve, important issues respecting the validity and propriety of various deal protection measures adopted by Caremark and CVS.

Young Conaway handled the litigation of this matter and assisted Skadden, Arps, Slate, Meagher & Flom LLP in connection with advising Express Scripts on the transaction. Within the firm, the Corporate Counseling and Litigation Section carried the laboring oar, with the formal presentation in the Court of Chancery.


Hollinger international Inc. v. Black

Action by corporation against parent and controlling owner arising from attempted sale of parent by controlling owner, for breach of fiduciary duty (including usurpation of corporate opportunity), breach of contract, improper by-law amendments and declaration of propriety of corporation's rights plan (obtained preliminary injunction against sale of parent and declaration of propriety of rights plan).

Frontier Oil Corp. v. Holly Corp., C.A. No. 20502, Court of Chancery

After a proposed merger between Holly Corporation, a Delaware corporation, and Frontier Oil Corporation, a Wyoming corporation collapsed, Frontier sued claiming Holly "repudiated" the merger agreement and violated the "covenant of good faith" inherent in all contracts. Frontier sought damages in excess of $100 million.

Following an expedited trial, the Court of Chancery found that Holly did not repudiate or otherwise breach the merger agreement, while Frontier had breached it.

The Corporate Counsel and Litigation Section of Young Conaway, led by partner Bruce Silverstein, worked on the matter in both an advisory capacity in connection with the merger and in a litigation capacity following Frontier's filing of the suit. For the litigation, Young Conaway served as co-counsel with McKool Smith, P.C., of Dallas, Texas and Morris, Nichols, Arsht & Tunnell of Wilmington, Delaware. In advising on the transaction, Young Conaway served as co-counsel with Vinson & Elkins, Dallas, Texas.

HMG Courtland Properties Inc. v. Gray, et al., 749 A.2d 94 (Del. Ch. 1999)

Court of Chancery, State of Delaware, May 1999, Vice Chancellor Strine - Corporate governance dispute involving breach of duty of loyalty.