Delaware Business Litigation Report : Delaware Business Litigation Lawyer & Attorney : Morris James Law Firm : Delaware Business Litigation Report

Authored by Katherine J. Neikirk
This article was originally published in the Delaware Business Court Insider | February 29, 2012

Court of Chancery Rules 93, 94, 95 and 174 and 10 Del. C. § 347 provide an excellent opportunity for parties to mediate disputes meeting certain requirements with a Court of Chancery judge or master acting as a mediator. Rule 174 governs mediations in cases already pending in the Court of Chancery, while 10 Del. C. § 347 and Court of Chancery Rules 93, 94 and 95 govern disputes filed as “mediation only” matters in the court. Under Rule 174, parties to an ongoing case pending in the Court of Chancery may agree to mediation.

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In re Micromet Inc. Shareholders Litigation, C.A. 7197-VCP (February 29, 2012)

This is an excellent primer on what deal protection provisions are acceptable, particularly when the board must have the right to change its recommendation to stockholders when a superior proposal surfaces.  It is permissible to require a board to wait a short time before changing its recommendation to allow the first acquiror to match a new proposal.  However, once that matching right period passes, the board must be free to act promptly.

This opinion also provides a good analysis of the scope of any pre-deal market check and the board's role in limiting the scope of any effort to shop a deal.

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In re El Paso Corp. Shareholder Litigation,  C.A. 6949-CS (February 29, 2012)

This is the now-famous decision finding several breaches of fiduciary duties by the negotiators of a merger, but declining to kill the deal that would have given stockholders a large premium.  The opinion is, as usual for its author, entertaining to read.  More importantly, however, it is once again proof that money may deaden any sense of fiduciary duty, particularly any sense of when there is a conflict of interest.

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Matthew v. Laudamiel, C.A. 5957-VCN (February 21, 2012)

This decision resolves who may bring a derivative claim after an LLC has been dissolved.  The argument made by 1 of the parties was that after dissolution, any member may bring a derivative claim directly.  The Court rejected that argument and concluded that the claim still must be brought in the name of the LLC and that a petition might also be filed to have the entity restored to bring such a claim or for a trustee to be apponted to do so.

This decision also dealt with an important jurisdictional issue under the so-called conspiracy theory.  It holds that the alleged conspirator must be aware that the conspiracy involves an action in Delaware in furtherance of the conspiracy, before the conspiracy is completed and the harm done.

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Authored by Lewis H. Lazarus
This article was originally published in the Delaware Business Court Insider | February 15, 2011

When a dissatisfied stockholder petitions the Court of Chancery for an appraisal of shares extinguished in a merger, the petitioner will have the burden of persuading the court of the fair value of those shares. When the holder owns preferred stock, valuation issues arise that do not pertain to the holders of common stock. That is because, unlike for common stockholders, preferred stockholders' rights, including to redemption and sometimes to valuation in the event of a merger, are spelled out contractually.

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In re Estate of Everett T. Conaway, C.A. 6056-VCG (February 15, 2012)

This decision upholds transfer restrictions in a limited partnership agreement.

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Jagodzinski v. Silicon Valley Innovation Company LLC, C.A. 6203-VCP  (February 14, 2012)

This is an interesting decision because the Court appointed a receiver to enforce its orders granting a right to inspect an LLC's records when the LLC management did not comply with those past orders.  How far that receiver might go in his inspection is not clear but given that the receiver is the plaintiff's own agent, pretty far seems likely.

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Authored by Edward M. McNally
This article was originally published in the Delaware Business Court Insider | February 8, 2012

Litigation in multiple courts over the same basic claim continues to be a serious problem for corporate defendants. Indeed, some commentators argue the problem is getting worse. It is now almost certain that any merger or going-private transaction involving a publicly traded company will generate multiple suits. In fact, even the suits themselves now generate tag-along litigation.

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Marc S. Hermelin v. K-V Pharmaceutical Company,  C.A. 6936-VCG (February 7, 2012)

This is the leading decision on how to establish the "good faith" requirement for permissive indemnification after the indemnitee has lost his case.  As the opinion notes, that may require a mini-trial when the good faith of the indemnitee has not been settled in the underlying action.

The opinion is also helpful in setting out what constitutes and how to prove "successful on the merits or otherwise,"  the usual test both under the statute and most bylaws for mandatory indemnification.

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In re Delhi Financial Group Shareholder Litigation,  C.A. 7144-VCG (February 7, 2012)

This decision teaches how to appy the so-called Hirt facts to select lead counsel in a class action. Most notably, it holds that filing first is not as important as filing the best complaint and that co-lead counsel may work in some cases.

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Amalgamated Bank v. NetApp Inc., C.A. 6772-VCG (February 6, 2012)

The interaction between two cases in two jurisdictions is again examined in this decision. The court held that a Section 220 books and records case may not be pursued to provide discovery to support the amendment of a complaint in a case pending elsewhere when the time to amend that complaint has passed.  The mere possibility that the time to amend may be extended is not enough to get under the rule in the King decision that permitted a books and records action to proceed when the right to amend a complaint was still present.

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Authored by Katherine J. Neikirk
This article was originally published in the Delaware Business Court Insider | February 1, 2012

The economic downturn has affected many sectors and litigation is no exception. The Delaware Court of Chancery's docket reflects, and will continue to reflect for some time to come, the consequences of the economic downturn. The most recent example of this trend is Trilogy Portfolio Co. v. Brookfield Real Estate Financial Partners.

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