My apologies to the board. I was wrong in my prev
Post# of 155052
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Posted On: 09/03/2021 1:35:30 PM
My apologies to the board. I was wrong in my previous post that CYDY could remove 13D's Delaware state court suit to federal court. When yesterday's PR referenced the importance of an Oct 6 hearing in the Delaware Court of Chancery, it prompted me to review the rules for removing a state court case to federal court -- something I should have done before posting my prediction of a removal by CYDY. In my earlier post, I, unforgivably, overlooked the essential element that removal is not available when the defendant (CYDY) is a corporate citizen of the state in which the action was filed. (As a 1st or 2nd year associate back in the 70's, such a blunder in a research memo to a partner probably would have gotten me fired.)
The inability to remove means that the Delaware Court of Chancery will rule on the BOD ballot issue by focusing exclusively on compliance with CYDY's corporate by-laws, while the federal court (Judge Noreika) will determine the same issue by focusing exclusively on compliance with SEC statutes and rules. 13D's post suit amendments to its initial disclosures are admissions of the need to cure initial deficiencies. My hunch remains that the extent to which each court finds that the initial deficiencies (relative to either the by-laws or securities law) have been cured will significantly impact its predisposition toward utilizing either "respect for the rules" or "shareholder rights" as the basis for its BOD ballot decision.
The fact that 2 courts will be simultaneously dealing with the ballot issue increases the possibility (perhaps likelihood) that the Oct 28 shareholder meeting may have to be moved to later in the year since either court could presumably enjoin inclusion of the 13D slate.
Once again -- my humble apologies to the board.
The inability to remove means that the Delaware Court of Chancery will rule on the BOD ballot issue by focusing exclusively on compliance with CYDY's corporate by-laws, while the federal court (Judge Noreika) will determine the same issue by focusing exclusively on compliance with SEC statutes and rules. 13D's post suit amendments to its initial disclosures are admissions of the need to cure initial deficiencies. My hunch remains that the extent to which each court finds that the initial deficiencies (relative to either the by-laws or securities law) have been cured will significantly impact its predisposition toward utilizing either "respect for the rules" or "shareholder rights" as the basis for its BOD ballot decision.
The fact that 2 courts will be simultaneously dealing with the ballot issue increases the possibility (perhaps likelihood) that the Oct 28 shareholder meeting may have to be moved to later in the year since either court could presumably enjoin inclusion of the 13D slate.
Once again -- my humble apologies to the board.
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