FTC Alleges Harm to Innovation Competition and Sets Aside Two Controversial Merger Settlements; DOJ Accepts a Weakened Competitor Defense in One Merger and Accepts Divestitures in Another
On August 8, 2025 in Kim, et al. v. FemtoMetrix, Inc., the Delaware Court of Chancery permitted the amendment of a stockholders agreement without the consent of an adversely impacted investor, even though both the intent and effect of the amendment was to force that investor’s director designee to resign from the board.
Appellate Court Holds That Firms’ Voting Recommendations Are Not “Solicitations” Under Section 14(a) of the Securities Exchange Act of 1934
On June 26, 2025, in In re The Boeing Co. Deriv. Litig.,[1] Vice Chancellor Morgan Zurn of the Delaware Court of Chancery ordered a stay of all discovery pending the Court’s resolution of Defendants’ motion to dismiss Plaintiffs’ derivative claims. Notably, in granting the stay, the Court disallowed Plaintiffs from obtaining and using readily accessible discovery already exchanged in a parallel federal derivative securities action involving similar issues. The decision reaffirms long-standing Delaware precedent barring discovery to plead demand futility, leaving pre-suit books and records demands as the principal means for plaintiffs to develop factual support for their claims.
Broad state-level premerger notification requirements are now in effect in Colorado (as of August 6, 2025) and Washington State (as of July 27, 2025). Any person that files a Hart-Scott-Rodino (“HSR”) Act Notification and Report Form (“HSR Form”) with the Federal Trade Commission (“FTC”) and the Department of Justice (“DOJ”) must also submit an electronic copy of their HSR Form to the Colorado or Washington State Attorney General (as applicable) if the person filing an HSR Form meets certain state-specific jurisdictional tests.
