美国商标_广告商标转让_驰名商标申请要满足什么条件

美国商标_广告商标转让_驰名商标申请要满足什么条件

Delaware Supreme Court Affirms Rural/Metro Decision, Including Aiding and Abetting Liability PublicationsAriel J. DeckelbaumRoss A. FieldstonStephen P. LambJeffrey D. MarellRobert B. SchumerFrances F. MiMergers & AcquisitionsMergers & Acquisitions LitigationPrivate EquityCorporate Share this See Also Ariel J. DeckelbaumRoss A. FieldstonStephen P. LambJeffrey D. MarellRobert B. SchumerFrances F. MiMergers & AcquisitionsMergers & Acquisitions LitigationPrivate EquityCorporate Share this December 2, 2015 Download PDF The Delaware Supreme Court has issued its much anticipatedopinion in RBC Capital Markets v. Joanna Jervis,affirming all of the principal holdings of the Court of Chancery'sseries of decisions in In re Rural/Metro Corp. S'holderLitig.  The opinion speaks to a multitude of issues, butwe focus on the breach of fiduciary duty and aiding and abettingliability claims in this update.In In re Rural/Metro, the Court of Chancery found thatthe directors of Rural/Metro Corporation had breached their duty ofcare under the enhanced Revlon standard of review by failing to actwithin a range of reasonableness in overseeing the sale of thecompany in 2011.   Among other things, the Court ofChancery found fault with (i) the board's decision to run its saleprocess concurrently with that of a competitor (which effectivelyreduced the number of potential bidders for Rural/Metro becausesome bidders would be prevented by confidentiality agreements orotherwise from bidding on both companies at the same time), (ii)the board's allowing its special committee to put the company inplay prior to full board approval of such action and (iii) theboard's failure properly to supervise its financial advisor. Further, the Court of Chancery found the financial advisor liablefor aiding and abetting the fiduciary duty breaches of the board inconnection with the sale because, among other things, the financialadvisor (i) allowed its interest in pursuing buy-side financing toaffect Rural/Metro's sale process, (ii) failed to adequately informthe board of its conflicts of interest and (iii) provided a flawedvaluation analysis, which, in addition, was not delivered untilimmediately before the board meeting to approve the transaction.Notwithstanding that the directors would ultimately have beenexculpated from their breaches of fiduciary duties, the financialadvisor was nevertheless liable for aiding and abetting suchbreaches.Key takeaways from the Supreme Court's opinion include thefollowing:Where directors breach their fiduciary duties underRevlon by engagingin conduct outside the range of reasonableness,注册商标时间流程, such breach is asufficient predicate for post-closing third-party aiding andabetting liability, even if the underlying breach would not resultin monetary liability for directors.  Defendanthad argued that intermediate scrutiny under Revlon exists todetermine whether stockholders should receive pre-closinginjunctive relief, but not to establish a breach of fiduciary dutythat warrants post-closing damages[1], and that the Court ofChancery erred by finding a due care violation without findinggross negligence. The Supreme Court disagreed with the defendantand affirmed the Court of Chancery's ruling that the directors hadbreached their fiduciary duties under a Revlon standard ofreview by engaging in conduct that fell outside the range ofreasonableness, and that this was a sufficient predicate for itsfinding of post-closing aiding and abetting liability against thedefendant. Notably, the Supreme Court found that that company'sstockholders were not fully informed when they voted to accept thedeal. While the Supreme Court acknowledged that grossnegligence is required to sustain monetary damages againstdisinterested directors, it states that a board may nonethelessstill be in breach of its fiduciary duties under Revlon'sreasonableness standard of review, and as such Revlon maycontinue to apply in the context of post-closing aiding andabetting claims.Consistent with existing law, the Revlon standard ofreview begins to apply from the time that a board initiates a saleprocess to the exclusion of other strategicalternatives. The Court of Chancery had found that,under the specific circumstances of the case, the board'sinitiation of a sale process in late 2010 fell outside the range ofreasonableness, and thus was a breach of its fiduciary duties underRevlon.  On appeal, the defendant argued that duringsuch period the company was merely exploring strategic alternativesand that the business judgment rule-notRevlon-applied.  The Supreme Court disagreed, findingthat the record showed that the company was for sale from theoutset.  Among other things, the court noted that there was noexploration of other strategic alternatives, the financial advisorsunderstood that they were being hired for a sell-side engagement,the special committee had authorized the negotiation of the sale ofthe company at an early stage in the process,商标重名查询, and, although theboard was not initially aware of the special committee'sauthorization of the sale of the company, the board ultimatelypurported to ratify the special committee's actions.  TheSupreme Court was careful to state that this ruling is premised onthe case's "unusual facts" and is not meant to effect any shifts inthe Revlon landscape.  We believe that boards maystill initiate a general strategic review without triggeringRevlon, so long as various alternatives are being explored(as opposed to focusing only on a sale).A board may still consent to a conflict, but itmust then be "especially diligent" in overseeing the conflictedadvisor in the sale process.  Further, a board's consent to aconflict does not give the advisor a "'free pass' to act in itsself-interest or to the detriment of its client." Aboard should take steps to address or mitigate the conflicts, whichcould include insisting, as a "contractual matter[, . . .] onprotections to ensure that conflicts that might impact the board'sprocess are disclosed at the outset and throughout the saleprocess."  The opinion does not address the financialadvisors' obligations to disclose conflicts to the board, but thiscase and the long line of other Delaware decisions scrutinizingfinancial advisory conflicts greatly incentivizes financialadvisors to disclose all material conflicts to its clients at theoutset and throughout the engagement.A financial advisor must be wary of creating an"informational vacuum" that leads to a board's breach of itsfiduciary duties, but does not have to act as a "gatekeeper" forthe board.  If the financial advisor is awarethat a board is proceeding on "fragmentary and misleadinginformation" and allows such action to continue, especially where afinancial advisor may be motivated by improper motives, this may besufficient to establish scienter for an aiding and abettingclaim.  However, the Supreme Court was careful to disavow theCourt of Chancery's statements that financial advisors are"gatekeepers" for the board,申请注册商标的流程, stating that such an amorphous termwould inappropriately expand the role of a financial advisor sothat any failure by a financial advisor to prevent directors frombeaching their duty of care could give rise to an aiding andabetting claim.  The Supreme Court clarified that a financialadvisor's role is primarily contractual in nature, negotiatedbetween sophisticated parties and can vary upon a myriad offactors.  Financial advisors must not act in a manner that iscontrary to the interests of the board, but do not necessarilyserve as "gatekeepers" to the board. The Supreme Court explicitlystates that the holding is a "narrow one that should not be readexpansively to suggest that any failure on the part of a financialadvisor to prevent directors from breaching their duty of caregives rise to a claim for aiding and abetting a breach of the dutyof care."While recent decisions suggest that financial advisory aidingand abetting cases will be more difficult to sustain once atransaction is approved by a fully informed, uncoerced vote ofdisinterested stockholders, the Rural/Metro line ofdecisions shows that these types of claims remain a possible riskagainst which financial advisors should protect, including by fullydisclosing all material conflicts.[1]This argument appeared to be consistent with the DelawareSupreme Court's statements in its recent Corwin v. KKRFinancial Holdings opinion that standards of review underRevlon and Unocal are primarily designed to give the stockholdersand the Court of Chancery the ability to enjoin a merger beforeclosing, but were not designed with post-closing money damagesclaims in mind.  For more detail on Corwin v. KKRFinancial Holdings,韩国注册商标, see our alert here.[2]This is in contrast to Corwin, where the SupremeCourt found that the transaction had been approved by a fullyinformed, uncoerced vote of disinterested stockholders, which inturn invoked the business judgement rule, to the exclusion of otherheightened standards of review, such as Revlon and Unocal.  Insubsequent cases applying Corwin, the Court of Chanceryfurther confirmed that once the stockholder vote has shifted thestandard of review to business judgement, a complaint must containwell pleaded allegations of facts that the directors were grosslynegligent in order to maintain a claim for a breach of fiduciaryduty of care.   For more detail of these cases, see ouralert here.

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