Securities Regulation Daily McCormick slated to helm Chancery Court; Wilson Sonsini lawyer to fill vacancy
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Monday, April 12, 2021

McCormick slated to helm Chancery Court; Wilson Sonsini lawyer to fill vacancy

By Anne Sherry, J.D.

If confirmed by the Delaware Senate, Kathaleen McCormick will be the first woman to serve as chancellor of the Court of Chancery.

Delaware Governor John Carney’s latest judicial nominations include two key nominations to the Court of Chancery. Carney has nominated current Vice Chancellor Kathaleen McCormick to replace Andre Bouchard, who is retiring, as chancellor. If confirmed, she will be the first woman to hold that role. The governor also nominated Wilson Sonsini partner Lori W. Will to replace McCormick as vice chancellor. Will primarily practices before the chancery court and is a former law clerk to then-Vice Chancellor Leo Strine.

Governor Carney said he was proud to submit the nominations, which also include several posts to the Superior Court and the Court of Common Pleas. Of the chancellor role in particular, Carney said, "Vice Chancellor McCormick has the experience and good judgment necessary to serve as the next Chancellor of the Delaware Court of Chancery, and make sure Delaware’s preeminent business court is well prepared for the future."

McCormick. Vice Chancellor McCormick joined the court from Young Conaway in November 2018. Among her opinions is one declining to bind a foreign non-signatory to a forum selection provision in an asset purchase agreement signed by its U.S. subsidiary. In that case, Neurvana Medical, LLC v. Balt USA, LLC, McCormick examined Delaware jurisprudence on the "closely-related" test and distinguished a line of cases that found a foreseeability inquiry supported a close relationship. In litigation over the sale of Mindbody, Inc., McCormick held that Mindbody stockholders pleaded a "paradigmatic Revlon claim" on the theory that the CEO’s inability to access liquidity, which he had lamented in a podcast interview, motivated him to sell the company below its true value.

Most recently, McCormick invalidated an anti-activist pill with an "unprecedented" set of features that included a 5-percent threshold, a broad definition of "acting in concert," and a narrow "passive investor" carve-out. In The Williams Companies Stockholder Litigation, McCormick set out the history of poison pill thresholds creeping from 20 percent to 15 and then 10 percent. Applying enhanced scrutiny under Unocal, McCormick reasoned that even assuming for the sake of argument that the pill addressed a legitimate corporate objective, its features were disproportionate to the hypothetical threat of an activist campaign.

Will. In her current practice at Wilson Sonsini, Will focuses on stockholder class actions and derivative suits, with significant experience in the Court of Chancery. Her practice also includes conducting investigations on behalf of boards of directors and special committees and advising companies and their boards on mergers and acquisitions, corporate governance, and the Delaware General Corporation Law. Before joining the firm, will was a senior associate in the litigation department of Skadden, Arps, Slate, Meagher & Flom LLP and served as a law clerk to then-Vice Chancellor Leo E. Strine, Jr.

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