Corporate Insights
Analysis and practical guides on corporate.
174 articles, checklists, and guides on corporate law, written by the attorneys at MC Law. Every piece is general information, not legal advice—for a specific matter, contact the firm.
Books-and-Records Toolkit: Demand Letters, Production Protocols, and Confidentiality Orders
This toolkit supplies the operative documents of a books-and-records matter in drafting-ready form, annotated with the failure each provision prevents. For the stockholder it provides a full demand letter with a purpose statement and bounded categories, a stockholder list demand, and a second-request letter seeking electronic communications. For the company it provides a preservation hold notice, a response letter that negotiates rather than refuses, and a completeness statement. A confidentiality and use agreement with an incorporation-by-reference clause, a production protocol, and a privilege log format complete the set. The annotations focus on the handful of terms that determine whether a production is usable and whether a later complaint survives.
Books-and-Records Demands: Section 220, Proper Purpose, and the Documents You Actually Get
A books-and-records demand is the cheapest and most consequential tool a stockholder has, and Delaware has spent two decades calibrating how much it should yield. This article explains what a stockholder must show to obtain inspection, how the "credible basis" standard actually operates, and why the scope fight now matters more than the entitlement fight. It works through the categories of documents courts order produced, the increasingly contested question of when emails and text messages are available, the confidentiality restrictions that accompany production, and the incorporation-by-reference consequence that makes produced documents part of a later complaint. It then covers the defense side, where the strategic question is rarely whether to produce but how much, how fast, and on what terms. Worked examples follow a demand from letter through production and into the derivative complaint it enables.
Books-and-Records Demand Checklist
A books-and-records demand succeeds or fails on details that are easy to get right and easy to overlook. This checklist covers the stockholder's side from standing evidence through category drafting and service, then the company's side from the day-one preservation hold through the honest assessment, the board briefing, and the scope negotiation. Separate sections cover the production itself, including privilege handling and the completeness statement, and the post-production steps for each side. It also covers stockholder list demands and director inspection demands, which run on different rules. A red-flag section identifies the defects that cost weeks.
Board Sale Process Checklist: A Practical Checklist
A working checklist for a board selling the company, sequenced the way a reviewing court will read the record. It begins with the standard of review determination and the conflicts mapping that must happen in week one, then covers committee formation and empowerment, advisor selection and conflicts disclosure, the market check, projections discipline, negotiation, deal protections, and the proxy. A separate section walks the MFW sequence for controller transactions, where an ordering error forfeits the protection entirely. Closing sections address private company adaptations, the documentation file, and a pre-signing sign-off. Every item is written so that a "no" tells you what to do next.
Beneficial Ownership Reporting Checklist
Ownership reporting failures are almost never analytical; they are administrative, and they are caught by checklists rather than by research. This checklist covers threshold monitoring and schedule selection for large holders, the drafting review for a Schedule 13D with particular attention to the purpose and arrangements items, the group analysis, and then the full Section 16 program: officer determination, onboarding, attribution, exemption approvals, pre-clearance, and the filings. Separate sections cover what to do when a filing is late and how to respond to a short-swing demand. It is written to be worked through with dates and initials.
Beneficial Ownership Reporting and Section 16: Schedules 13D and 13G, Group Formation, and Short-Swing Profits
Two disclosure regimes govern who owns large stakes in public companies, and they are more different than their adjacency suggests. Sections 13(d) and 13(g) require anyone crossing five percent to say who they are and what they intend, on a timetable that depends on whether they are activist or passive. Section 16 requires officers, directors, and ten percent holders to report every transaction and to disgorge profits from any purchase and sale within six months, regardless of intent or knowledge. This article explains both, with attention to the questions that actually cause trouble: when informal coordination becomes a group, whether cash-settled derivatives create beneficial ownership, how the short-swing rule is calculated to maximize recovery, and which exemptions actually work. Worked examples follow an activist accumulating a position and an executive who inadvertently owes a profit back.
Asset Deals, Stock Deals, and Successor Liability: What Follows the Business and What Stays Behind
The oldest rule in acquisitions is that an asset buyer takes the assets and leaves the liabilities behind, and the rule has so many exceptions that relying on it without analysis is malpractice. This article explains the four traditional common law exceptions, the product line and continuity-of-enterprise doctrines some states have added, and the federal regimes that impose successor obligations regardless of structure: CERCLA, ERISA withdrawal liability, the WARN Act, labor law successorship, and employment discrimination. It covers what a Section 363 sale actually clears and what survives it, how fraudulent transfer law reaches an underpriced deal, and where bulk sales and tax clearance rules still bite. It closes with the structuring decisions that actually reduce exposure and the ones that only appear to.
Appraisal Rights and Controller Going-Private Transactions: Fair Value, MFW, and the Price That Sticks
Appraisal is the statutory right of a dissenting stockholder to have a court decide what a share was worth, and it is the only remedy in corporate law that ignores what the parties agreed to. This article explains what fair value means after the Delaware Supreme Court's DFC-Dell-Aruba trilogy pushed the analysis toward market evidence, and when a discounted cash flow model still carries the day. It then turns to the transaction where appraisal matters most: the controller going-private deal, where the buyer sits on both sides and entire fairness is the default. It works through the six MFW conditions, the ab initio timing requirement that Flood and Olenik defined, and what a special committee has to actually do rather than merely be. Along the way it covers Rule 13e-3, short-form mergers, appraisal arbitrage, and the strategic choice between a petition and a fiduciary claim. The goal is a practical map of a doctrine that decides billions of dollars on the question of what "fair" means.
Appraisal and Going-Private Toolkit: Special Committee Charters, Fairness Opinions, and Valuation Records
This toolkit collects the operative documents in a controller going-private transaction and an appraisal case, in the form practitioners actually need them. It provides annotated language for the controller's conditioned proposal letter, a special committee charter, the non-waivable merger agreement conditions, and the proxy disclosure items that carry the most litigation weight. It then turns to the appraisal side with a demand letter, a statutory information request, a prepayment notice, and a valuation record index. Every provision is annotated with the reason it exists and the failure it prevents.
Antitrust Investigation Response Checklist: A Practical Checklist
This checklist runs a criminal antitrust matter from the first signal through remediation, on the compressed timeline the leniency race imposes. It opens with recognizing how investigations start, the first forty-eight hours, and a litigation hold aimed at the sources cartel investigations actually care about—calendars, expense records, phone logs, and messaging platforms. It then covers the marker decision made on incomplete facts, the parallel global applications that must go out the same week, the internal investigation with separate counsel for individuals, and joint defense arrangements that constrain later cooperation. Later sections address the grand jury phase, plea negotiation and the volume of affected commerce, ACPERA cooperation with civil plaintiffs, collateral consequences including suspension and debarment, and the compliance program aimed at where cartels actually form.
Activism Preparedness Checklist: A Practical Checklist
This checklist covers activism preparedness and response, front-loaded toward the work done in ordinary years because that is what determines the outcome. It opens with the shareholder register and surveillance, the annual self-assessment run through activist eyes, the bylaw and rights plan infrastructure, the named response team, and the tabletop exercise that reveals what is missing. It then runs the response: the first seventy-two hours, the honest substantive assessment in privileged session, the nomination notice review with a caution against strained rejections, the vote model built holder by holder under universal proxy, and institutional and proxy adviser engagement. Closing sections address settlement terms and the test for settling, defensive measures and the scrutiny they attract, running a contest, communications with employees and customers, and living with an appointed director.
Acquisition Agreement Toolkit: Reps, Schedules, Escrows, Earnouts, and Claim Notices
Working templates for the risk allocation provisions of an acquisition agreement. It includes LOI indemnity language, a full indemnification article with drafting notes, definitions of Knowledge, Fraud, Losses, and Material Adverse Effect, a disclosure schedule format and general disclosure provision, escrow release mechanics, a special indemnity template, earnout covenants that are actually enforceable, a working capital exhibit with a sample calculation format, a claim notice, and a post-closing calendar. Each carries notes on what the language does, what the other side will say, and where deals go wrong. Adapt everything to the transaction, the governing law, and the diligence record.