Earlier this year, the Delaware Court of Chancery clarified when information sharing between the directors of a Delaware corporation and their nominating shareholders is permitted under Delaware law. In Icahn v. Illumina1 the Court held that an employee of an activist shareholder who was nominated to the board of a public corporation could not share confidential and privileged board information with the shareholders who nominated him The case concerned the admissibility of information derived from confidential and privileged board communications delivered by a director of Illumina who was employed and nominated by an activist shareholder The Court of Chancery rejected the activist shareholder’s argument that the director could share the corporation’s confidential and privileged information with the nominating shareholder solely because of the nominating and employment relationships they shared and other affiliated funds (the Activist) were activist shareholders that collectively owned less than 2% of Illumina The Activist nominated three directors for seats on Illumina’s board an employee of another Activist-controlled entity was elected by shareholders to the board (the Activist Director) The Activist Director proceeded to share confidential and privileged Illumina information with the Activist which the Activist then used in a complaint filed against Illumina In granting Illumina’s motion to strike paragraphs of the complaint derived from Illumina’s confidential and privileged information the Court of Chancery found the Activist Director’s sharing of information was impermissible because it did not meet either of the bases established under prior case law allowing information sharing with a nominating shareholder the Activist did not have a contractual right to nominate directors nor did the Activist have sufficient voting power to elect the Activist Director was not a controller or fiduciary of the Activist Although the Court of Chancery acknowledged there could be other bases establishing a director’s right to share these circumstances did not exist between the Activist Director and Illumina the Court of Chancery gave significant weight to the fact that the Activist Director agreed to be bound to the corporation’s code of conduct which prohibited the sharing of confidential information with third parties Icahn Partners LP et al. v. Francis deSouza et al., C.A. No. 2023-1045-PAF (January 2024), https://chancerydaily.com/documents/65a7bf4c0280a.To discuss these issues This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice we would be pleased to discuss the issues in this publication with you in the context of your particular circumstances For permission to republish this or any other publication, contact Janelle Weed. Sign In Subscribe Now An old-growth protest group that has made headlines in B.C for disrupting traffic says like-minded groups around the world have launched a number of demonstrations at big events like the Tour de France and Formula 1 Grand Prix in Britain has aligned itself with the A22 Network for Civil Resistance a ten-country coalition where each member has a distinct policy demand from their respective governments Save Old Growth demands that the John Horgan administration pass legislation to immediately end all old-growth logging in B.C “We’re inspired by the actions of our member groups,” said Save Old Growth member “We’re in the midst of a catastrophic emergency The group has been occupying highways in various parts of the province in an effort to cause enough disruptive action that B.C According to the group there have been 120 arrests during its demonstrations with no cases of violence or resisting arrest “People are outraged that we interrupt business-as-usual,” said Picui “We hope people’s outrage can instead be pointed towards governments who fail to adapt and mitigate climate change causing people to lose their homes and their communities in unparalleled weather and natural disasters.” The group says it has been spray-painting Vancouver tourist attractions and landmarks as an act of civil disobedience The Save OId Growth group says targets have included the Gastown steam clock artist Douglas Coupland’s Digital Orca sculpture which distributed a photo of the steam clock covered with slogans says it painted the messages as a reminder of what it called the B.C as part of Overshoot Day – designed to mark the date when humanity has used up all biological resources the planet is capable of regenerating each year Like us on Facebook and follow us on Twitter Dialogue and debate are integral to a free society and we welcome and encourage you to share your views on the issues of the day. 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