Delaware Courts Continue to Scrutinize Noncompete Agreements

As previously reported (here, here and here), courts in Delaware, the once favored “employer-friendly” jurisdiction, have increasingly scrutinized and refused to enforce noncompete agreements. In recent cases, Delaware courts have continued this trend, this time focusing on forfeiture-upon-competition provisions in equity or profit incentive agreements that also include affirmative restrictive covenants. Two of these cases are Delaware Chancery Court noncompete cases. Following on the heels of the Delaware Supreme Court’s affirmation of the employee choice doctrine, three trial courts have held that forfeiture of equity results in a failure of consideration such that the affirmative restrictive covenants are unenforceable. The practical effect of these cases is to force companies to choose between forfeiture or affirmative restrictions when crafting their equity contracts with employees. We can expect further developments in Delaware noncompete law and its implications for drafting incentive units and noncompete agreements under Delaware law, as two of the three cases are now on appeal. Recent cases are discussed below.Continue Reading Delaware Courts Limit Noncompete Enforcement in Incentive Plans

State oversight of healthcare transactions is continuing to undergo a significant transformation. As tracked in our updated Healthcare Merger Matrix, the number of states implementing or considering expanding antitrust laws targeting proposed deals continues to rise.[1] For instance, Washington and Colorado’s premerger notification laws went into effect on July 27 and August 6, 2025, respectively, and Indiana recently modified its existing transaction notice law to exempt certain practitioner-owned practices.[2] Additionally, New Mexico enacted a permanent version of its temporary transaction notification law with enhanced oversight and enforcement.[3]Continue Reading State Antitrust Enforcement Roundup: Updates to Healthcare Merger Matrix; New Potential Legislation Targeting Private Equity and Other For-Profit Entities in Healthcare

In SEC v. Sripetch, No. 24-3830, 2025 WL 2525848 (9th Cir. Sept. 3, 2025), the United States Court of Appeals for the Ninth Circuit affirmed a $2.25 million disgorgement award obtained by the United States Securities and Exchange Commission (“SEC”) in an enforcement action, rejecting the argument that the SEC must prove pecuniary harm to investors before obtaining disgorgement under 15 U.S.C. §§ 78u(d)(5) and (d)(7). This decision deepens a split between Circuits that require a showing of pecuniary harm to investors in this context, and those that do not. As it stands now, the First, Fifth and Ninth Circuits have generally agreed that the SEC does not need to show individual investor harm impose disgorgement, whereas the Second Circuit holds the opposite. This split on a critical issue of SEC enforcement raises the specter of review by the United States Supreme Court.Continue Reading Ninth Circuit Clarifies SEC Disgorgement Standard, Aligning with the First and Fifth Circuits and Disagreeing with the Second Circuit

In Sneed v. Talphera, Inc., 2025 WL 2406424 (9th Cir. Aug. 20, 2025), the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of a securities fraud suit against Talphera, Inc. (formerly AcelRx Pharmaceuticals; the “Company”) and two top executives, holding that a company slogan used in investor presentations — “Tongue and Done” — was not misleading to reasonable investors, especially in light of accompanying disclosures. This opinion clarifies the interplay between marketing materials, context and the reasonable investor standard for reliance and materiality in claims under Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78j(b), and Securities and Exchange Commission Rule 10b-5, 17 C.F.R. § 240.10b-5.Continue Reading Ninth Circuit Affirms Dismissal of Securities Fraud Suit: Marketing Slogan Alone Not Actionable Under Section 10(b) and Rule 10b-5

On September 3, 2025, The Nasdaq Stock Market LLC (Nasdaq) announced proposed changes to its listing standards. According to Nasdaq, these proposed changes respond to the rising complexity and volatility in today’s capital markets, especially in the context of emerging companies and cross-border listings.Continue Reading Nasdaq Proposes Significant Changes to Initial and Continued Listing Standards

Following up on our recent post analyzing Texas’s new proxy advisor disclosure statute, S.B. 2337, we note a significant development: On August 29, 2025, Judge Alan Albright of the United States District Court for the Western District of Texas issued a preliminary injunction temporarily preventing the Texas Attorney General from enforcing the law against major proxy advisory firms Institutional Shareholder Services Inc. (ISS) and Glass, Lewis & Co. (Glass Lewis).Continue Reading Federal Court Blocks Enforcement of Texas Proxy Advisor Disclosure Law

Transactions in the United States and the United Kingdom can have material differences, particularly with respect to purchase price adjustment mechanics, due diligence processes, equity incentives, third-party reliance on diligence reports, sandbagging provisions, MAC closing conditions, and auction processes. This article explores these areas further, providing insights into how legal frameworks and market practices differ between the two jurisdictions.Continue Reading Crossing the Atlantic: Navigating Differences in US and UK M&A Practice

Texas has enacted S.B. 2337, a statute set to reshape proxy advisory practices for publicly traded companies that are either organized in Texas, have their principal place of business in the state or have proposed becoming a domestic entity within Texas.Continue Reading Texas’s New Proxy Advisor Disclosure Law: Key Details for Shareholders and Companies Ahead of September 2025

In United States v. Chastain, No. 23-7038, 2025 WL 2165839 (2d Cir. July 31, 2025), the United States Court of Appeals for the Second Circuit vacated wire fraud and money laundering convictions in what the government described as its first crypto insider trading case. The case involves a former employee of OpenSea, an online non-fungible token (“NFT”) marketplace, who allegedly used confidential information about which NFTs would be featured on OpenSea’s homepage to purchase those NFTs before they were promoted, then sold them after a post-promotion price bump for a profit. At trial, the United States District Court for the Southern District of New York instructed the jury that property protected by the wire fraud statute need not have commercial value, and the defendant could be convicted of wire fraud by failing to abide by societal mores. Continue Reading Second Circuit Vacates Fraud Conviction in First Crypto “Insider Trading” Case

In EpicentRx, Inc. v. Superior Court, Case No. S282521, 2025 WL 2027272 (Cal. July 21, 2025), the California Supreme Court held that forum selection clauses may be enforced against California plaintiffs even when the selected forum — such as the oft-selected Delaware Court of Chancery — would not afford plaintiffs a right to a civil jury trial they would otherwise have had in a California court. This decision effectively overrules Handoush v. Lease Financing Group, LLC, 41 Cal.App.5th 729 (2019), in which the California Court of Appeal (First District) restricted courts from enforcing such clauses where the plaintiff would not be entitled to a jury trial in the selected forum. The Supreme Court’s decision thus clarifies the law in California, providing practitioners and litigants with greater certainty that forum selection clauses will be enforced.Continue Reading California Supreme Court Holds That Lack of Jury Trial Right Is Insufficient to Reject Enforcement of Forum Selection Clause