This is a useful decision because it collects the relevant rules for deciding if there is a privilege for communications that include a mixture of business and legal advice. If the business advice can be segregated from the legal advice, the communication should be produced with the legal advice redacted. If the business advice predominates and segregating it from the legal advice is not possible, the communication should be produced. But if the business advice cannot be said to predominate and segregating the legal advice is not possible, the communication may be withheld.
As this decision affirms, it is possible to waive the right to a judicial dissolution in an LLC agreement. However, the decision also notes that the Court may use its equitable powers to remedy an abuse of power. This possible "escape valve" may be hard to invoke given the respect the Delaware Courts have for the right to contract away one's rights in an LLC agreement.
What are the damages when a party's right to consent to a transaction is violated? There is no easy answer to that question that involves predicting what might have been won in fair negotiations for that consent. Nonetheless, here the Court explains how it determines what are the reasonable expectations of the non-breaching party.
This is an excellent summary of the Delaware law on advancement and why all the arguments against improvidently granted advancement rights are wrong. For example, it explains why the right to be "defended' includes advancement, but the right just to be indemnified does not. In short, it is a good case to read before drafting advancement contracts.
The duty to negotiate in good faith is now well recognized in Delaware under SIGA Acquisition Inc. v. PharmAthene Inc., 67 A.3d 330 (Del. 2013). However, what is less clear is when exactly does that duty arise. This decision explains when the duty is created and distinguishes Delaware from New York law in that respect.
This is an example of a corporate nightmare for failing to follow the requirements to validly issue stock. Delaware law requires that the stock issuance be reflected by a "written instrument," not just some oral agreement. Moreover, the Court of Chancery will not use its equitable powers to cure a void stock issuance. Hence, the stock will be held to not exist and all the corporate acts taken in reliance of that stock being issued will be called into question.
This is another decision holding that a contractual limit on when a claim "survives" is actually a limitation on when such a claim may be filed in court based on a breach of contract. In short, survival clauses may shorten the statute of limitations.
The decision is also helpful in explaining that there is no requirement that the claim actually be known for it to expire and how to plead any of the several tolling doctrines that might apply to save such a claim.
This decision clarifies the Court of Chancery's jurisdiction under the clean up doctrine and when a contract subject to specific performance has not yet been breached.
Section 228 of the DGCL sets out the requirements to act by stockholder consent. Here, the Court notes that each stockholder's signature should be separately dated. While somewhat forgiving of a failure to observe all the technical requirements when there is no real factual dispute over what the stockholders did, this is a warning that a consent may be invalid if not done right.
What is the status of a general partner in a Delaware limited partnership after that GP is removed? As this decision points out, the answer is not clear and it may be just a holder of an economic interest, but not a limited partner. That question can be resolved by a provision in the partnership agreement and that is the better course as it will then help to determine the former GP's buy out rights.
The so-called conspiracy theory of jurisdiction over a non-resident is often misunderstood. This decision is useful because: (1) it explains the relationship between jurisdictional discovery and the burden of alleging facts sufficient to establish jurisdiction and (2) it again explains what must be shown to warrant jurisdiction under the conspiracy theory.
A buyer of a business may not get what he was told to expect. This decision is a good review of the legal theories available to recover under those circumstances.
What constitutes a "business combination" is an important question because that phrase is found in statutes and stockholder agreements that restrict certain corporate actions. Here, the Supreme Court makes it clear that a divestiture is not a "combination" and that the phrase needs to be interpreted in the context it is used.
In what seems to have created a real stir, the Court of Chancery held that control over the assertion of the attorney-client privilege passed to the acquiring corporation in a merger. Hence, that entity could waive that privilege and obtain the legal advice the company received before the merger about certain aspects of its operations that the buyer now is arguing over. Frankly, there is a lot of authority supporting this result and it should not have come as a surprise.
This is an interesting decision because it involves calculating how much litigation contributed to an increase in merger consideration when a competing bid drove the merger price up. There is no formula to apply to reach the result. Significantly, the attorneys were aided by the presumption that their efforts did have a positive affect. It may be that the fee awarded was also influenced by calculations of a "fair" hourly rate for the hours worked.
It is sometime thought that it is enough to state a claim for a complaint to just allege that the directors violated the terms of a stock option plan. Not so. As this opinion points out, the complaint must also contain factual allegations that the directors knowingly violated the terms of the plan. A simple negligent violation is not enough to state a claim. Thus, if the terms of the plan are sufficiently ambiguous that the directors may have believed their actions conformed to the plan's requirements, the directors are not liable for a breach.
In this appraisal case, the Court rejected the usual DCF analysis as unreliable and instead adopted the merger price as the fair value. The facts are a bit unusual. The merger was the result of a real marketing of the company.
The alter ego and conspiracy theories of jurisdiction are among the hardest to understand. This decision carefully and clearly applies those theories to a complicated fact pattern.
This is an interesting decision dealing with jurisdiction over foreign entities. The Court will not take jurisdiction when the assets involved are located outside the US and not owned by a Delaware entity
As is well known, the attorney/client privilege may be waived by interjecting that communication into the matters "at issue" in the litigation. Advice of counsel as a defense is one such instance. This decision illustrates another - when the advice apparently went to the valuation matters.
Also interesting is the Court's caution that just because one side interjects attorney communications into the issues, that does not mean that the opposing side's demand to see those communications also opens up its privileged matters to discovery as well.
This is another example of how the Court of Chancery treats breach of fiduciary duty claims that are duplicative of breach of contract claims. When the 2 claims overlap, the Court will dismiss the breach of fiduciary duty claim. Of course, what constitutes such an overlap is not always easy to determine. This decision illustrates that process.
This decision sets out in one place the standard rules for interpreting an insurance policy, particularly who has the burden of proving an exception to coverage exists and any exceptions to that exception. The decision is also noteworthy for adopting the rule that the exceptions to coverage should not be interpreted to swallow up all the coverage of the policy.
If you are looking for a case that lists almost every abuse a controlling group of stockholders can make, this is it. The decision also sets out the right scope of review and what are reasonable inferences sufficient to warrant upholding a variety of claims as well.
In this unusual case, the Court of Chancery upheld the results of a proxy contest. The opinion is noteworthy for its explanation of the tests the Court will use in ruling on a challenge based on claims the election was unfairly conducted.
This is an interesting decision because it dismissed an action against a merger when the complaint was similar to the standard form of complaint filed after most mergers are announced. Here, in contrast to what usually happens, the defendants chose to fight the allegations rather than settle with some additional disclosures and the payment of attorney fees. This does not mean we are in a new era of stand and fight. After all, one case does not make a trend. The opinion is a good collection of the Delaware law decisions on what must be pled to sustain such a complaint.
When does the parties' contract bar a claim for fraud? Here the Superior Court adopted the Court of Chancery's line of decisions that holds to bar such a claim the contract must specifically disclaim any "reliance" on representations outside the terms of the contract itself.
When litigation confers a benefit upon a corporate entity, it is only fair that entity pay the fees incurred. Yet what constitutes a benefit may be contested, particularly by the corporation that is the subject of the suit. Here the Court held that forcing the LLC to comply with its agreements constituted such a benefit that fees should be awarded.
There is still an important distinction under Delaware law between actions that are void and those that are merely voidable. For only voidable actions may be ratified. This decision traces the history of that distinction with respect to calling of directors' meetings. Only meetings called in violation of the bylaws or certificate of incorporation are void. Others subject to some equitable attack are still able to be ratified.
This is an action where the defendant tried to avoid its contractual obligations by asserting a mutual mistake led to the wrong language in the contract. The Court rejected that argument for want of clear proof of a mutual mistake. This illustrates the all-too-human tendency to feel that the wrong result must be a "mistake." The Court just is not going to buy that cop out.
This decision is particularly interesting for its affirmance in the face of questions from the Court of Chancery that the Delaware pleading standard is "reasonably conceivable" and not the federal "plausible" test of whether a pleading alleges facts sufficient to state a claim.
When can you challenge the right to consent to corporate action? This decision explains the rules that govern such challenges, particularly when it is claimed that the consent is valid on its face.
This is an interesting decision because it discusses the duties, or lack thereof, a large stockholder who is buying more stock on the open market to take control. Here the stockholder had a contract that it entered into when it loaned a lot of money to the company that limited the company's ability to adopt a poison pill or otherwise prevent such stock purchases. Yet even absent that contract, the court indicated that there is no fiduciary duty to offer a "fair" price when buying stock on the open market and no duty of a board to act to prevent those purchases.
This is the first decision under Section 223(c) of the DGCL to decide whether to order an election to fill the vacancies on a board that has less than a quorum of directors in office. The Court held that the stockholders had the burden to show an election was appropriate and that due to the company's precarious finances, it was best not to hold the election but let the incumbent board members fill the vacancies.
If it is upheld upon review, this decision by a Master in Chancery needs to be studied by all practitioners. Briefly, it holds that when a party waives the attorney-client privilege, it does so with respect to the entire subject matter of the communication involved in the waiver. There is no temporal limit such that later communications on the same subject matter may be protected from discovery.
When does a litigant"s conduct before or after the litigation is filed justify fee shifting? This careful decision answers that question.
To begin with, mere silence about a drafting error during contract negotiations is not the sort of fraud that warrants fee shifting.
As to post litigation fee shifting, needlessly increasing the costs as a leverage technique does warrant fee shifting. The decision also gives a litany of other examples that is a useful guide.
This decision ordered the parties to pick a new arbitrator when the prior arbitrator concluded he was biased. Why anyone would argue this seems odd.
When does a derivative suit survive a merger? This decision says "not very often." There seems to be two rules at play here. First, when the merger's sole purpose is to eliminate the standing of the derivative plaintiff, then the derivative suit may continue. Second, the merger may be attacked when it is an "inseparable" part of a fraud alleged as part of a direct pre-merger suit. Note the word "direct." A direct claim is not a derivative claim, but instead alleges wrongs for which the plaintiff may recover for herself. Hence, even if the merger is cast as part of some fraud inseparable from pre-merger acts, a derivative suit will not survive the merger just for that reason.
This decision holds that an employee's email communications with his attorneys are not privileged. The holding is limited to circumstances where the employer has at least told the employees not to expect that their email is private. Furthermore, the Court notes that this decision may not be followed in the typical derivative case where an outsider is trying to gain access to those emails. That decision will need to wait for another day.
This decision holds that language in an LLC agreement that mirrors the indemnification language of the Delaware Corporation law will be interpreted the same way to mandate indemnification to a prevailing manager.
This is an excellent summary of what language is needed to prevent a claim based on reliance on representations outside the terms of the actual contract. The language must clearly refer to the intention of the parties to bar such claims.
This decision illustrates the danger in vesting practical control of the records an entity in a non-Delaware "agent." Simply put, as the agent is not subject to the statutory duty to produce those records and may not even be subject to Delaware jurisdiction, the Delaware forum is not available to enforce inspection rights
The interplay between fiduciary duties and contractual obligations is often hard to understand. Add to that the task of explaining the duty to act in good faith and deal fairly and the law is even more confusing. This decision does a good job of cutting through that problem to explain: (1) when a complaint alleges enough facts to state a claim for acting in bad faith, (2) when contractual obligations take the place of fiduciary duties, and (3) when the obligation to act fairly is not superseded by contract.
The rules for determining when demand on the directors is excused apply even to Chinese-based companies despite their bad press. This decision in a direct and clear way spells out when demand is not excused. For example, merely being on the audit committee does not mean a director faces a serious risk of personal liability for auditing mistakes. More "red flags" are required.
Arbitration clauses often have an exemption for suits for injunctive relief. Yet just asking for an injunction in the complaint may not avoid the need to arbitrate, as this decision holds. Apparently, when the injunction is just to enforce the terms of the contract and not to prevent irreparable harm, the claim must still go to arbitration.
When does laches apply to a claim filed in the Court of Chancery? Generally that Court follows the statute of limitations that would have applied in the law court, the Delaware Superior Court. However, the time to file suit may be extended in "unusual conditions or extraordinary circumstances," under IAC/InterActive Corp. v. O'Brien, 26 A.3d 174 (Del. 2011). This decision explains when those circumstances exist.
This is an important decision. It resolves the long-standing confusion over how a board of directors is to act when the interests of preferred shareholders conflict with those of common shareholders. The common shareholders win is the short answer.
The decision also is very helpful in setting out how the directors should act or not act when faced with the all-too-common question of whether to sell when the common stock is under water due to the preferred stock's liquidation rights.
This federal decision follows the recent Chancery explanation of the Gentile doctrine that permits a direct claim for equity dilution. In short, the dilution can be by paying too little cash for the additional shares and the so-called "controlling" stockholder requirement for the buyer can be satisfied by a group of buyers operating though their elected directors that are a majority of the board.
Agreements to arbitrate disputes often have an "out clause" that permits the parties to seek judicial relief by way of an injunction. The scope of such a clause is the focus of this opinion that explains when a party may still file suit even after the other party has demanded arbitration.
This is an interesting decision because it involves some real nerve by directors who seek indemnification even after they lost big time in the underlying litigation. Their claim is that some of the counts against them were withdrawn, they were "successful" and hence entitled to be indemnified. The Court avoided deciding if this is correct by holding that so long as the underlying case is on appeal, it is better to wait to see how the appeal turns out and if the previously withdrawn claims are reinstated.
The Court of Chancery often enters standstill orders or status quo orders when the control of a Delaware entity is in dispute. The orders are designed to prevent actions that may not be what the actual management would do in circumstances when the identity of that management is not in doubt. Disputes over the form of these orders are common and this decision seems to settle how one provision should be worded. At least in the absence of special circumstances, the provision of the order that prevents extraordinary actions should be worded so as to permit action after 7 days notice to the other side, who is then free to seek court action if it objects.
When is there a claim for "equitable fraud" in the absence of a fiduciary relationship? This may be an important issue when it is difficult to prove the scienter requirement to establish a common law claim for fraud. This decision holds that there may be a claim for equitable fraud even when the parties do not have a fiduciary relationship. However, the holding is limited to when the proper remedy is to rescind the transaction.
This is an interesting decision because it explains what is the effect when a member fails to pay the consideration contemplated by the LLC operating agreement to obtain his membership interest. The answer is determined by what the operating agreement says is the consequence, loss of interest or just a debt owed to the LLC.
This is also an example of what a mess may be created when parties try to do their own legal work in setting up an entity and working their way through disputes.
This federal decision illustrates when a complaint does state a proper derivative claim because it alleges that a majority of the Board violated a clear restriction on its right to award stock options. Such violations of an option plan are akin to violations of the law that are almost always beyond the business judgment of the directors to do.
This decision explains how to determine if too much time has passed to permit a complaint to go forward, under a variety of circumstances. It also discusses the various rules that may be applied when a class action is not certified but there is tolling while the class certification issue is pending.
This decision is a good example of when a complaint about really nothing to complain about will be dismissed, even in the current environment where every merger is subject to litigation. Here there was virtually no evidence any better deal was available, almost every director was disinterested, there was an extensive search for suitors, and the claims over the way the fairness opinion was done were just quibbles.
When is a limitation on a damages clause enforceable? This decision explains Delaware law on that issue, particularly when the actual damages are too difficult to predict and the limitation is reasonable.
This transcript ruling explains the Court of Chancery practice on hearing motions for summary judgment. Briefly, it does not want to do so when there is less than 90 days after all briefing is done before the trial is to start. Not only do such late-filed motions put a burden on the party preparing for trial but they require the court to decide those motions quickly when the circumstances do not warrant expedited treatment.
This decision is another example of the increasing scrutiny of complaints attacking mergers without an adequate factual basis. At the outset of the decision, the Court gives an extensive justification for going beyond the mere confines of the allegations of the complaint to review SEC filings and other materials touched on in the complaint. From those documents, the court is able to conclude the Revlon claim has no merit.
The Court of Chancery once again has affirmed that the proper use of a conflicts committee may immunize a transaction from attack. This is now a common feature of LLP and LLC agreements but each agreement's terms are critical to its impact and its implementation.
Under the IRS Code, executive compensation over $1,000,000 a year is not deductible absent a stockholder vote to approve a compensation plan that meets certain objective criteria. Here the Court dealt with a complaint that alleged that the approval vote had to include the vote of stock that under the corporation's certificate of incorporation did not normally have the right to vote. The Court rejected that argument and held that only voting stock had the right to approve a compensation plan. Hence, the DGCL was saved from the IRS.
When stock options are awarded may be important to their actual value. Get an option when the market price is in the toilet and you will do better when the market turns than with an option granted at the top of the market. But is option grant timing itself actionable? This decision says that it is and that a complaint that alleges such timing may withstand a motion to dismiss.
When there is an argument over whether part of a dispute is subject to the Court or the arbitrator's judgment, there has been considerable confusion. The classic formulation of the test is:
Issues of substantive arbitrability are gateway questions relating to the scope of an arbitration provision and its applicability to a given dispute, and are presumptively decided by the court. Procedural arbitrability issues concern whether the parties have complied with the terms of an arbitration provision, and are presumptively handled by arbitrators. These issues include whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met, as well as allegations of waiver, delay, or a like defense to arbitrability.
In this Supreme Court decision, the Court adopts this test at first and then seems to back away from it for a new test of its own. The new test seems to be whether the dispute is simply part of the overall controversy. If it is, then the arbitrator decides it. Now that may be a misguided view of the holding, but it is the best that I can do.
This is another in the series of recent appraisal cases. As usual, the opinion reflects a careful analysis of the traditional methods used to value a company in an appraisal proceeding.
Particularly noteworthy is the Court's continued insistence that the expert's opinions be supported by a full explanation and that conclusions should be grounded in practices recognized by valuation literature. This translates into the point that these appraisal cases are not for novices and demand familiarity with the financial literature and processes involved.
Almost every case seems to involve the issue of when asserting that the defendant board had legal advice constitutes a waiver of the attorney-client privilege. This decision explains how far you can go and yet preserve the privilege. Basically, you can say that you consulted and still keep the privilege, but you cannot say 'he told me it was okay" without a waiver.
This careful decision explains how to calculate damages in a breach of contract case. That is not as easy as it sounds. Plaintiffs frequently try to get tort-type damages in breach of contract cases, particularly under the loss of value theory. This decision cuts off those types of damages.
This appraisal case is a good example of the Court's thinking processes in establishing value. The close focus on the particular industry involved, the consideration of economic trends and the reliance on valuation theory are all typical in appraisal cases. Also interesting is the Court's willingness to really dig into the reasons for any expert's opinion. The experts had better fully explain why they reached any particular opinion or bear the risk that the Court will not accept it.
The Court of Chancery has upheld a bylaw that selects Delaware as the only forum for internal corporate disputes. The Court did leave open the possibility that such a bylaw might be later challenged on narrow grounds that it was improper in limited circumstances.
This transcript decision illustrates the danger in using a computer generated privilege log. It will leave out document descriptions, addresses, etc. As a result, the Court here held that any privilege claim was waived by using the "worst" log ever. Hence, loggers beware!
What happens when the Court orders the holding of an annual meeting and the company refuses to do so? In this decision the Court of Chancery appointed a receiver with the authority to hold the meeting once the receiver determines how to do so without running afoul of the SEC rules requiring audited financial statements the company presently does not have.
This decision has big implications. In a line of past decisions, the Court of Chancery has upheld arguments that an LLC agreement may define what constitutes "good faith" in such a way as to severely limit claims based on the implied duty of good faith and fair dealing. Of course, that duty under the Delaware LLC Act cannot be eliminated in an LLC agreement. But, by permitting drafters to define what constituted good faith, the trial courts came close to eliminating that duty. No more.
Exactly what will constitute a violation of the duty of good faith and fair dealing is also implicated by this decision. Conduct that may seem permitted by the LLC agreement may now be prohibited if done to take an action that the investors never would have agreed to had they thought of it when the LLC agreement was drafted. Time will have to tell what all this means.
The Delaware Supreme Court has upheld cross-jurisdictional tolling. Thus, when a class action is filed, the statute of limitations is tolled at least until the class is not certified. That is true even if, as here, the class action was filed in another jurisdiction.
This is another in the continuing series of cases involving buyers of companies who claim to have been misled by the sellers and where the sellers rely on exculpation clauses to defeat the buyers' claims. What is interesting about this decision is that it upholds the novel argument that a concealment claim is not barred by such exculpation language. The decision has an excellent review of prior Delaware law interpreting such clauses.
This is an important decision because it upholds the power of the Delaware Court of Chancery to enforce by an injunction the forum selection clause in a contract. Previously, there was some doubt under the existing case law whether such an injunction would issue, but, at least among sophisticated litigants, there is no doubt any more. Note that the clause in question provided that a "court in Delaware" would hear any dispute. A clause that attempted to vest jurisdiction only in the Court of Chancery is questionable because a contract alone cannot confer jurisdiction on that court with its limited equity jurisdiction.
In this important decision the Court of Chancery for the first time has applied a business judgment rule analysis to a review of a merger where a controller is on both sides of the deal. This result limits the old Lynch doctrine that mergers involving a controller on both sides is subject to the intrinsic fairness standard that almost always requires a trial to resolve. While this short blog cannot do justice to the Court's analysis, it held that the BJR will apply when: (1) the deal is subject to the approval of a SNC and the majority of the minority stockholders, (2) the SNC is independent, (3) the SNC has its own advisors and can say "no", (4) the SNC meets its duty of care, (5) the stockholder vote in fully informed and (6) the vote is not subject to coercion.
This decision affirms the consensus that a limited partnership agreement may set the standards for resolving a conflicted transaction and thereby absolve the controllers from any liability.
One of the harder aspects of practicing Delaware corporate law is dealing with all the decisions. This is an excellent summary of current Delaware law on Rule 23.1, Caremark and a lot of other aspects of Delaware law that are implicated by derivative complaints. It is also yet another example of a Chinese-based entity whose controllers seem to have no concern about compliance with our law.
Many acquisition agreements contain provisions that are intended to limit the buyer's remedies. This decision explains what language to use to cut off claims based on extra-contractual representations. The contract must specifically say that there is no reliance on anything outside the terms of the contract.
This decision discusses when discovery from a third party not involved in the transaction under attack in the litigation is justified. In part, the Court denied the discovery because it was not convinced the information to be obtained would be all that helpful in the litigation.
This decision explains the limits on any substantive review of an appraisal determination the Court will undertake when the parties' agreement limits that review. it is an excellent overview of the way in which parties may decide how much judicial review they want in such cases.
This is a major decision. Generally, a merger ends the standing of a plaintiff to pursue derivative litigation. To get around this problem, derivative plaintiffs have alleged that the merger itself was invalid because the consideration paid to the stockholders eliminated in the merger did not include anything for the value of a pending derivative claim. Until this decision, that claim did not go very far because the courts found that the derivative claim was worth very little. But what if the claim is worth a lot?
This decision explains how to deal with that situation to effectively assert what is known as a "Parnes" claim. As a result, we may see more such claims at least when the derivative litigation asserts big damages.
As this decision points out again, when a board of directors is disinterested in the transaction, its decision to accept the first offer for its company does not run afoul of the Revlon doctrine just because there was no pre-agreement market check. Instead, their decision is subject to the business judgment rule.
This is an important decision because it sets the rules for when a contract may be reformed for a unilateral mistake. First, it is not a defense to a reformation claim that the other party failed to read the contract. That may be a defense to a rescission claim, but not reformation. Second, a unilateral mistake, known to the other party who remains silent, may justify reformation. Third, the defense of ratification of such a mistake must be based on knowledge of the mistake.
The Delaware appraisal statute is generally interpreted to preclude consideration of post-merger events in determining the fair value of the company. However, in this transcript ruling, the Court indicated that it would consider such evidence when: (1) it sheds light on what the parties were thinking at the time of the merger (such as on revenue projections) and (2) it helps prevent a true outlier (such as wildly wrong revenue projections). The Court cautioned that it might not give much weight to this evidence and it remains to be seen how far this transcript will go to permit other post-merger evidence.
When does a corporate fiduciary owe a special disclosure duty to a minority stockholder whose stock he purchases? There are several approaches to this question and this decision fully reviews them all. Ultimately the Court adopted the so-called "special circumstances" rule that requires disclosure when the buying fiduciary knows of material facts not known to the seller. Note that in this context what is "material" is a higher bar to pass than in a more common disclosure case.
The decision is also useful for its review of the equitable fraud and common law fraud rules, particularly after a duty to disclose arises because of a past disclosure.
This decision affirms the long held law that Delaware does not recognize the "abuse of minority stockholders" theory whereby there is a duty to treat minority stockholders in such a way as to give them benefits that are not provided by contract or the law, such as dividends.
The rules governing when a demand on a board to file suit is excused are well known. Less well known is what happens when a demand is made and nothing happens. This decision explains that the failure to even respond is itself evidence that the board cannot be trusted to fairly evaluate the need to sue. While each such case turns on its own facts, this decision is an excellent summary of Delaware law on when a Caremark claim is well pled to excuse demand.
This decision explains the rare case when a litigant may gain access to the opposing party's litigation reserves. That information is usually subject to attorney-client privilege.
When may most of a Board of Directors deny another director access to the advice of counsel the majority received? This decision answers that interesting question and concludes "not very often." There are exceptions to that general rule, such as when there is a board committee involved whose counsel has not also been counsel to the excluded director, when the excluded director wants the information for a proven improper purpose, etc.
When does the mere assertion that your client had "advice of counsel" waive the attorney-client privilege? This question comes up more often than you might think. This decision makes clear that in some instances, merely asserting that you sought an attorney's advice is not a waiver of the privilege. The 2 keys to retaining the privilege are not injecting the advice of counsel issue into the litigation yourself and not actually saying what the attorney told you. But, if you follow the guidance in this decision, the privilege will be preserved.
In a major decision, the Delaware Supreme Court dismissed a derivative suit on the basis that a prior dismissal of essentially the same suit by a different stockholder barred the Delaware litigation. This reverses the Court of Chancery that held the suit might proceed despite the dismissal of the other litigation by a Federal Court in California.
Pyott may have major implications for derivative litigation, at least when multi-state cases are filed. Defendants may be expected to race to file motions to dismiss in what they see as the most favorable jurisdiction or in those cases where they see less formidable opponents.
It is also noteworthy that the Supreme Court rejected any presumption that a "fast filer" is an inadequate plaintiff.
When may a partnership demand advancement of its litigation expenses from a limited partner who has arguably breached the partnership agreement? Only when the partnership agreement is very clear in granting that right, according to this decision.
Who decides if a dispute is subject to arbitration? The Delaware Supreme Court decision in the Willie Gary case sets the way to resolve this question. However, those rules are often hard to interpret. This decision explains Willie Gary in a useful way.
This decision gives a good explanation of how to calculate fees in a supplemental disclosure case. It is particularly noteworthy in comparing the fees awarded to those won in other cases.
This decision permits a suit to proceed that seeks the appointment of a trustee for a solvent corporation based on allegations of breach of fiduciary duty. That may be particularly unusual for prior decisions have required that there be a prior adjudication of a serious breach of duty before an action seeking a trustee might be filed. Perhaps here the gross breaches of duty alleged were enough to convince the Court to let the action go to trial.
This is a major decision. For some time lawyers have struggled to understand when a claim is derivative or direct. The distinction is important if for no other reason than derivative claims may be mooted by a merger that eliminates the plaintiff as a stockholder with standing to sue. Under the Delaware Supreme Court's Gentile decision, some claims alleging a wrongful stockholder dilution may be direct, derivative or both. Which ones qualify? This decision answers that question with a thoughtful analysis that is useful in dealing with other factual patterns besides the controlling stockholder that was involved in Gentile.
This decision is also important for its holding that when a stockholder consents to any corporate action by a written consent form that refers to other documents that define the transaction consented to, the other documents must be given to the consenting stockholder for her consent to be effective.
This transcript sets 2 guidelines that a class representative should follow with respect to trading in the securities held by the class it represents. First, any trading should be first reviewed by class counsel to avoid problems with using insider information gained in the course of the litigation. Second, the class representative should retain at least 75% of the securities it held when the class was certified to be sure it continues to have the same economic interests that warranted its appointment to represent others.
This is an important decision dealing with a so-called "Proxy Put." Briefly, a Proxy Put permits creditors to call corporate debt when a new board of directors is elected without the consent of the current board. This decision applies the reasonableness standard of Unocal rather than the stricter standard of review of Blasius to decide if the Board has properly refused to approve a competing slate of directors for purposes of preventing a Proxy Put.
The Court carefully distinguished other circumstances where such a Put might be upheld, such as when a competing slate's election might cause immediate harm to the corporation.
When a secured creditor forecloses on its line, the resulting sale must be "commercially reasonable." What does that mean exactly? This decision provides guidance to answer that question. For example, just because the lender works with the company to get the best price does not mean the resulting sale to the lender is tainted.
When is a claim that stockholders were wrongly diluted by the issuance of stock a derivative claim and not a direct claim? Under the Gentile rule, such a claim is derivative unless the dilution was done to benefit a controlling stockholder of a control group. Determining when several stockholders constitute a "group" for this purpose is not easy. Just acting together is not enough. This decision explains what else is required, such as acting to carry out a preconceived goal.
Under the McWane doctrine, a Delaware court will dismiss a case if another proceeding filed elsewhere is more advanced and will provide complete relief for any valid claim. As this decision illustrates, while Delaware does not too often apply McWane, it will do so when it is the plaintiff in the Delaware litigation who has chosen to first seek relief in another state's court. The lesson is to not treat the Delaware court as your second choice.
This is yet another example of the Court of Chancery explaining that the deal protection rules set by Omnicare have long since been modified by the Court. The correct analysis is not to just adopt some rigid formula but to instead carefully test the actual impact of the deal protection measures on the possibility some other bidder may appear. This decision tells you how to do just that test.
This books and records case provides a good summary of the law limiting inspection to what the petitioner really needs to fulfill her proper purpose in seeking inspection. The decision covers both inspection to value shares and to investigate alleged wrongdoing.
In recent years, the Delaware Supreme Court has stressed that it is desirable to file a books and records case before starting derivative litigation. But do you need to do that every time? In the unusual situation presented by this case, the Court of Chancery declined to hold up a derivative case to permit a books and records case to go first. In granting an immediate appeal, the Court recognized that the Supreme Court may want to clarify the law in this area.
The liability of a custodian or receiver for a dissolving corporation is not clear. Judicial immunity does protect him from many claims, but as this decision points out, not from all claims. The discussion of what claims are or are not barred by immunity is particularly helpful for anyone assuming the role of a custodian or receiver.
This decision is a good review of the qualifications needed to serve as a class representative. Particularly noteworthy is its holding that merely voting in favor of the merger under attack is not an automatic disqualification. So too, the sale of the stock prior to the merger is not grounds for disqualifying a proposed class representative.
This case involves a classic mistake. The contract contained a severability clause that required a court to enforce the contract even if one of its provisions was unenforceable. The Court held that the marketing commitment of key importance to the defendant was not enforceable. But, as a result of the severability clause, the Court enforced the contract in favor of the plaintiff and awarded it damages. Hence, using form contract terms is not a good idea.
It is not always easy to have the Court of Chancey expedite your case just because you ask for an injunction. Here, the Court denied expedition because the plaintiff had waited 5 months to ask for it and because the plaintiff's claim was really just for damages.
When may an arbitrator's award be vacated? Of course, that is determined by the applicable arbitration statute. However, that begs the question as the statutes are not easy to apply in this area. This decision explains when the arbitrator award may be vacated for a manifest violation of the law.
When a buyer breaches a contract to buy a business, how are the seller's damages to be calculated? This is not as easy as it sounds. For if the seller finds a new buyer and demands damages equal to any dimunition in the sale price, the defaulting buyer will claim the duty to mitigate requires the loss be offset by any income earned prior to the later successful sale. How do you decide what that is? This decision carefully analyzes this issue. The short answer is it depends on the conduct of the parties after the breach.
Plaintiffs often try to allege fraud by claiming that the defendant made a promise that he did not intend to keep. As this decision points out, that mere allegation is not good enough to state a claim. Rather, the complaint must allege facts that support the allegation the promise was made all the while with the intent to not keep it. For example, if the promisor lacked the means to keep his promise or had no reasonable expectation of getting the means to do so, then it might be said he lied when he said what he could not deliver.
This decision also has an excellent analysis of the conspiracy theory of jurisdiction.
When a majority of a board of directors is not personally benefiting from a transaction they approve, the business judgment rule applies. How do you overcome that BJR? A plaintiff may do so by showing an "extreme set of facts" sufficient to support the inference the board acted in bad faith. In trying to do so, however, it is not enough to allege the board "should have known" the deal stunk. Instead the plaintiff needs to allege facts that show the board actually knew that the deal was not in their company's best interests.
This decision affirms the rule that attorney fees should be apportioned between those claims that succeeded and those that did not.
In a books and records action, may the plaintiff also add a count for breach of duty? This decision holds that he cannot do so. After all, a books and records action is meant to be summarily litigated. That fast track cannot be achieved if other claims must also be decided at the same time.
The Delaware Supreme Court has made it clear that investors in LLCs get what they bargained for in their LLC agreement, but not much more. That seems attractive to those who manage LLCs because they feel they can limit their liabilities to investors by the terms of the LLC agreement. Yet, management may be overstating the benefits of the LLC form, as this decision points out.
In this case, very sophisticated counsel advised on how to issue additional interests in the LLC to raise more capital. Unfortunately, and despite being the drafter of the LLC agreement, he got it wrong and failed to follow the terms of the agreement. This points out that LLC agreements are often so complicated that compliance with their terms is tricky. Each agreement is individually crafted, unlike in a corporation where the statute generally spells out in well understood terms what are the rights and obligations of the investors and managers. These errors have happened time after time. Hence, use of the LLC or LLP form needs to be with great caution.
This is an essential decision for anyone dealing with the corporate opportunity doctrine. Under that doctrine, a fiduciary who takes an opportunity that might have been instead given to his corporation (or LLC or LLP) is liable for any gain made by him as a result. One prime defense to such a claim is that the entity lacked the means to develop the opportunity itself and thus suffered no real harm when it lost that opportunity. This decision significantly undercuts that defense.
This decision provides a good review of when the Court will expedite a proceeding.
It is now common for LLC and LLP agreements to have provisions permitting a "special committee" to approve transactions with a controller. What the limits are of that form of protection is the subject of this interesting opinion. As the Court points out, surely not every committee approval, no matter how onerous, can immunize the transaction from judicial review. Here, even when the transaction did not get an independent adviser's review and was at a price reflecting a startling run up in value for the underlying assets, the complaint failed to allege facts sufficient to state a claim that the approval was in bad faith. More was required.
As this decision points out, an agreement to indemnify against loss does not necessarily mean that the indemnitee also recovers its attorney fees.
This is a somewhat unusual fee award because of the way the Court did the calculation of the amount. The court divided the award into two parts, one for the additional disclosures and the second part for the settlement fund created by the plaintiff's efforts. The disclosure award is also larger than typical awards for added disclosures.
This decision well explains what may constitute a claim that a merger was entered into in bad faith. Such a claim is necessary to sustain a complaint when the majority of the directors are independent and disinterested. Deal protection devices such as termination fees are not enough to show bad faith, at least when their terms are typical of such provisions.
Here the complaint adequately pled bad faith by alleging that the board favored 1 of 2 bidders for no good reason. For example, if the losing bidder made the highest offer, there must be some reason to not take its bid. If not, the the board may be said to have acted in bad faith because that would knowingly violate its duty to get the best deal.
The Delaware Supreme Court has issued 4 opinions that significantly refine the rules set out only 2 years ago in the Drejka decision on when a case may be dismissed for failing to meet the timetable in a scheduling order. See Christian v. Counseling Resource Associates Inc., No. 460, 2011 (January 2, 2013); Hill v. DuShuttle, No. 381, 2011 (January 2, 2013); Adams v Aidoo, No. 177, 2012 (January 2, 2013) and Keener v. Isken, No. 609, 2011 (January 2, 2013).
The Christian decsion is perhaps the most significant. From now on, if a party fails to meet a deadline for discovery, the opposing party will be precluded from objecting unless the opposing counsel alerts the Court to the failure and asks for formal relief. Note that the Supreme Court's wording is very broad because it says that the first failure to object to a delay means the opposing party has "waived the right to contest any late filings by opposing counsel from that time forward." Literally then, all future delays are waived. This seems too broad to be taken literally. For example, a failure to object to a 2 day delay on a minor matter should not preclude a failure later to provide an expert report. Nonetheless, the current, somewhat lax, informal extensions are now a thing of the past.
This decision illustrates the need for careful drafting of bylaws regarding advancement rights. The plaintiff claimed entitlement to mandatory advancement under the Company's bylaws. However, the bylaws also provided that advancement was required "unless" the Board decided otherwise. The Court held that the word "unless" made advancement discretionary. In contrast, a different bylaw that made advancement subject to board approval has been held to be mandatory so long as the request met the board's technical requirements as to the form of the requested advancement. A word can make a lot of difference.
The Delaware Supreme Court has required opt out rights in a class action settlement. The objector that wanted to opt out was a major stockholder, the claims being settled were only damage claims and the class representative had acted in a way that called into question if it had adequately represented the class. Thus, this decision may be an abnormality and opt out rights will still continue to be rarely granted. But, we shall see.
This is an interesting decision because it may extend the circumstances where the Court of Chancery will issue a preliminary mandatory injunction requiring the payment of money. It is often said, perhaps wrongly, that there is an adequate remedy by the award of damages that precludes issuing an injunction requiring such a payment. Here, however, the parties' contract contained a provision recognizing that irreparable harm would occur if the payment was not made and the failure to make the payment also frustrated a key provision in the parties' contract governing how their entity would be operated. That was enough to get the injunction.
While not having anything new, this decision is an excellent summary of the law on LLP agreements, such as their exculpation provisions.
What claims does an indemnification clause in a sale of a company actually cover? This decision is useful in interpreting a typical indemnification clause to point out that it does not cover future events absent clear language.
Affirmed, Del Supr. 39, 2013 ( October 7, 2013).
For years the Court of Chancery has repeatedly held that the controllers of an LLC owe fiduciary duties to the members - at least absent an express disclaimer of those duties in the LLC Operating Agreement. Then on November 7, 2012 in the Gatz Properties decision, the Delaware Supreme Court said "not so fast" and indicated in no uncertain terms that the fiduciary duties of an LLC controller were not yet decided under Delaware law. Well in this decision, the Court of Chancery decided that so long as the Supreme Court continued to not rule on the question, the Court of Chancery would continue to hold those duties exist. Maybe this will force the Supreme Court to decide that issue.
This decision is also interesting for its ruling on when a claim must go to arbitration. If the claim might have been brought even without the contract having the arbitration clause in existence, then it need not be arbitrated.
This transcript has an excellent review of the case law on deal protection clauses that limit what a Board can do upon receiving a possible better offer. The Court enjoined compliance with a "don't ask, don't waive" clause in such circumstances.
For some time the conspiracy theory of jurisdiction, first set out in the famous Istituto Bancario decision, has had little success in conferring jurisdiction over foreign entities. With this new decision by the Delaware Supreme Court, that trend may be reversed. The key holding is that the defendant should have known that it was involved with a Delaware corporation and the dissolution of that company as part of the alleged conspiracy was enough to give jurisdiction over the non-US defendant. While the parameters of this possible extension of jurisdiction are to be determined later, it may be very broad.
This is a troubling decision. One plaintiff, through the efforts of the other plaintiff who is a lawyer, used a false verification when the complaint was filed. The Court of Chancery requires all complaints be verified. As a result, the Court dismissed the complaint under the rule of Parfi where the dismissal is on the merits.
Seems right so what is troubling? Delaware lawyers typically believe their clients when they are sent a verification that the client did what the verification says, appeared before a notary to sign it. This is an odd case because there was some indication that was not being done. Still, how far should we go? The short answer is that we need to ask the client: "Did you get this signed in front of a notary like it says"?
This decision deals with a hole in Delaware jurisprudence. Generally, the statutes authorizing each form of Delaware entity contain a provision whereby the managers of that entity submit themselves to the jurisdiction of the Delaware courts for acts in their managerial capacity. But, as this decision points out in dismissing the complaint for want of personal jurisdiction over the defendants, that is not the case under the Delaware limited liability partnership statute. This seldom used act may need to be amended as a result.
A Section 225 action is supposed to be limited to the narrow question of the composition of a corporation's board of directors. Subsidiary questions, such as who owns what stock, may be resolved as well but are generally not binding on persons who are not parties to the litigation. However, as this decision points out, if you are a party and consent to the Court deciding stock ownership in a Section 225 action, you are stuck with the judgment.
In the absence of a provision that excludes fiduciary duties, do the managers of a Delaware LLC have those duties? The Court of Chancery has long said "yes" but this decision of the Delaware Supreme Court says "not so fast." Instead, the Supreme Court held that the terms of the LLC agreement in this case imposed fiduciary duties on the manager in a self-dealing transaction. Thus, the Court held, it was premature to also hold, as the Court of Chancery did, that under the LLC statute such fiduciary duties existed absent a renunciation of those duties in the agreement.
Will the Supreme Court ever decide that issue and if it does, how will it come out? Is it time for the Delaware General Assembly to resolve this issue? If LLCs are ever to be used for more publicly traded entities, their managers will need to have a fiduciary duty. Trusting to the LLC agreement to protect investors is to ask too much of drafters of such agreements who cannot anticipate every circumstance that may occur. That calls for the legislature to act.
This transcript is noteworthy for 2 reasons. First, it reflects the Court's view that a conflict committee in an LLC must examine all the important aspects of a proposed transaction before a motion to dismiss will be granted based on the committee's approval of the deal under attack. Second, the transcript shows the Court's respect for the NYSE definition of when a director is "independent."
This decision in a bench ruling has some interesting issues on what should be disclosed in discovery. First, it is important to not fail to list the witnesses that you will call at trial when answering interrogatories. Hanging back to the last minute may mean the witness will be barred from testifying. There was more to this than just delay but that is still a point worth remembering.
Second, the scope of expert discovery may well include notes and work papers of everyone who is on the team assisting the expert witness and will certainly include prior studies the expert has done on the same subject matter for other clients. This points out the need to be careful in setting up the expert's team and in selecting the expert.
Too often a plaintiff will file suit just to put pressure on the other side to get a settlement of a business dispute. In this decision, after finding that the complaint included knowingly false factual allegations, the Court imposed attorneys' fees on the plaintiff for suing when it had decided "not to bring his claim to definitive adjudication." This illustrates the Court of Chancery's understandable lack of tolerance for litigants who waste its time and the other side's money.
At common law, a director who was interested in the outcome of a board of directors vote simply could not vote on the issue before the board. Her vote was literally void. That old law was changed by statute in Delaware, under Section 144 of the DGCL. This decision holds that even absent a similar statute in the LLC Act, a manager may vote on a transaction that he is interested in, absent some restriction in the LLC Operating Agreement. Of course, merely having the power to vote does not make any vote the right thing to do.
This decision addresses one of the more perplexing problems of book and records litigation - what exactly is the plaintiff entitled to review? The Court of Chancery expects plaintiffs to limit their demands to what is really necessary and to explain to the Court, sometimes with witnesses, exactly what should be inspected to meet the proper purpose established at trial. A blunderbuss approach is likely to irritate the Court and get you less than you really want. This decision spells out the sort of evidence that should be presented to inspect specific records.
This simple decision is still important because it contains the contract language that effectively waives any fiduciary duty to the limited partners in a Delaware LLP. This has been a source of confusion in the past where the language was less clear and complete. For example, there are Delaware decisions that find that efforts to waive fiduciary duties did not extend to the duties owed to minority owners.
Delaware does not have a separate corporate statute dealing with non-profit corporations. Hence, the non-stock sections of the DGCL usually apply to such entities. It is sometimes hard to decide what parts of the DGCL do apply, however, as the integration of stock with non-stock provisions is less than clear. This decision helpfully explains how to decide what parts of the DGCL to apply to non-stock entities
To inspect corporate records to see if there has been "wrongdoing," a stockholder has to have a basis to suspect that wrongdoing has occurred. The evidence needed has been described as the lowest level possible if there is to be any standard at all. This decision illustrates that a standard does exist. Past lawsuits that have been settled are not sufficient to show present wrongdoing. General news articles about an industry-wide investigation are not sufficient. Both together do not get there either and the suit was dismissed.
This decision establishes that "clear and convincing" evidence is needed to warrant reformation of a contract for mutual mistake or unilateral mistake coupled with knowing silence.
Everyone agrees that a director should speak up even if he disagrees with the rest of the board of directors. But when does a director go too far in his opposition to policies he wants to change? In this decision, the Court wrestled with this question and decided that leaking confidential corporate information to pressure the company went too far. Significantly, the information was not about any wrongdoing. Hence, the finding of a breach of the duty of loyalty only goes so far as a precedent.
This is a classic example of what not to say in an argument unless you want to get the Court mad. In addition, this decision again explains how to calculate a fee award when the corporate benefit achieved is non-monetary.
This is a useful, if not surprising, example of how the Court will interpret a corporate charter regarding the rights of preferred stock. It is also an example of the principle that if you want a veto power in the charter, you had better be clear and complete or the charter will be changed to your detriment.
This decision illustrates the Court's reluctance to permit protective orders to limit access to documents. The Court permitted the plaintiff's husband and non-US attorneys access to the documents that would otherwise have been confidential under a protective order.
When a non-party to a contract is still bound by its arbitration provision is surprisingly often litigated. This decision reviews the past law and reiterates that a non-party may need to arbitrate when it is the alter ego of the a party that agreed to the arbitration clause, such as a successor partnership.
Many lawyers believe that it may be okay to file suit and do an investigation of the facts later through discovery. Not so in some derivative litigation. This decision explains what pre-suit investigation is required to sustain a derivative suit alleging a Caremark claim. It is required reading for its detailed review of the current law.
Briefly, at least when a Caremark claim is asserted, it is almost mandatory that a Section 220 action to inspect the corporation's records be done before filing suit. Absent that inspection, a plaintiff better have a very good factual basis to allege that the directors violated their duty to oversee their company's compliance with the law.
Delaware limited partnership agreements frequently have provisions governing how to deal with conflict of interests between the GP, the limited partners and the owners of the GP. This decision sets out the language needed to protect the GP and its owners from attacks in conflict transactions when the deal is approved by a conflicts committee. If the committee acts in the subjective good faith belief the transaction is in the best interests of its constituency, an attack alleging objective unfairness will be dismissed.
This then may be the definitive guide to drafting limited partnership agreements. And while the Court recognizes that the decision offers little protection for limited partners, it points out that is part of the risk they bear when they invest in such LPs.
This decision was affirmed on July 22, 2013.
Acquisition agreements often have provisions for post-closing adjustments to the purchase price. How to invoke the right to such an adjustment is set out in the agreement. This decision deals with such a notice provision requiring "reasonable particularity" for the claimed adjustment. While the Court reserved for trial the decision on whether that standard was met, the discussion of the notice provision is an excellent guideline on how to draft and interpret notice provisions.
Section 124 of the Delaware General Corporation Code sets out the Delaware limits on the common law doctrine of ultra vires. This decision holds that Section 124 does not limit suits for breach of fiduciary duty, but does protect corporate transactions that have closed from some attacks alleging a lack of power to do the transaction.
When may an expert change his mind after he has provided his report under a court-ordered deadline? This decision answers that question. Briefly, absent agreement between all the parties, once the report is served, it may not be materially changed. Of course, this just makes common sense if scheduling orders are to have any force.
What the expert is then to do when he realizes he has erred is a tough question. Confession is said to be good for the soul and that probably applies here as well. But the opposing party needs to be cautious as well, for nothing in this ruling bars a surprise during cross examination of its expert, who absent a correction by the opposing expert, may not be as prepared as he might have been with that disclosure.
This is an important decision because it explains the theory of jurisdiction over alleged conspirators. While that basis for jurisdiction has been around since the Istituto Bancario decision, it is still hard to understand. The guidance this decision provides to that law and the conspiracy theory in general is very helpful.
The Delaware Supreme Court has upheld the largest attorney fee award in Delaware history. In doing so, the Court has squarely upheld the use of percentages to award fees out of the common fund created by the litigation and disclaimed the so-called "lodestar" approach.
The decision is also noteworthy for its upholding of the Court of Chancery's damages award, also probably the largest in Delaware history.
On September 27, 2012, the Supreme Court aslo denied a motion for reargument. The reargument opinin is noteworty bcaue it rejected te "look through" theory that the benefit confererd by a derivative suit should be limited to the interest in the corporation held by its the non-defendant stockholders.
While this issue continues to come up, it is still not clear when limited partners may terminate a manager when their limited partnership agreement only says they must act in "good faith." Absent some more definitive standard, this decision holds the termination must be done honestly in fact and observe reasonable commercial standards. Now is that clear enough? In any case, if the manager fails to meet the deadline for submitting an annual financial statement, you may "in good faith" fire her.
Affirmed, Del Supr. August 26, 2013
This decision clarifies the extent of a controlling shareholder's duties when selling her company. The controller is not required to sacrifice her own interests to benefit the minority, such as by accepting less for herself than others receive. Of course, the safe harbor is still equal treatment.
This decision clarifies that to have discovery of work product a party needs only show a "substantial need" and that it would be an "undue hardship" to get the information some other way. Despite some contrary language in the famous Garner case, there is no requirement that you also show the information is sought in "good faith."
It has long been thought that Cede & Co. v Joule Inc., 2005 WL 736689 (Del. Ch. Feb. 7, 2005) denied standing to a party to object to a third party subpoena except on privilege grounds. Well no more. In this recent decision, the Court declared that Joule is wrong and that it will protect a party from excessive discovery.
This is another in a series of recent discovery decisions limiting the use of subpoenas. Here the Court balanced the limited relevance of the information sought with the potential prejudice to the party asked to produce its trade secrets and denied some of the discovery.
When a complaint is amended, the issue sometimes arises whether any new claims relate back to the original filing date so as to avoid the expiration of the statute of limitations. In this decision, the Court explains that when the breach of contract alleged in the amended complaint arises out of different facts and is a different breach than in the original contract, then it does not relate back. Hence, it is a bad idea to wait to amend a complaint.
This decision explains how to calculate damages in an accounting action for breach of fiduciary duty.
This decision clarifies that the rule of the Blasius decision is really just an application of the intermediate Unocal standard in reviewing director conduct.
When is a laches defense available in the Court of Chancery? This decision explains how to figure that out in a breach of contract case.
While each disclosure case will turn on its own facts, this decision gives an excellent overview of when employment contracts with management must be disclosed when notifying stockholders of a proposed merger with an acquiring company. When management has been involved in the merger negotiations, any employment agreements and the surrounding circumstances must be disclosed.
When a plaintiff is able to show a "colorable claim" and that absent prompt relief it will suffer "irreparable harm," the Court of Chancery will expedite a hearing on its claims. However, exactly what that all means varies from case to case. This is a good example of such a showing to obtain expedition in a breach of contract case.
This decision establishes Delaware law on what constitutes a wrongful interference with another's contract. Thus, it resolves several unsettled questions, such as concluding that a proper motive trumps an improper motive to interfere with a contract's performance.
All Court of Chancery complaints must be verified by each plaintiff. Most of us take it for granted when the client returns a notarized verification. But should we? In this case the transcript includes an order granting discovery of a notary to see if the plaintiff actually appeared before that notary to sign his verification. The Court suggests that if he did not do so then he has committed a fraud on the Court. That is perhaps not the best way to start litigation.
One of the more difficult issues in appraisal litigation is how to allocate value between common and preferred stock. Here the preferred stock was entitled to dividends on an as-converted basis and the Court used that forrmula to allocate the enterprise's value between the preferred and common stock.
The decision is also a primer on how to do a discounted cash flow valuation.
In this unusual case, the Court of Chancery held individuals liable on a contract that was signed by a corporation. Why? The corporation did not exist. Apparently, the buyers intended to form the entity, but had a fight with their lawyer and never got around to doing the incorporation. While they argued that they had expressly refused to guarantee the contract, the Court held they could not both take the benefits of the deal themselves and then not pay for it. Big surprise!
A plaintiff must offer some basis to believe the defendant is subject to the Court's jurisdiction before he will be permitted to take jurisdictional discovery. Owning an interest in a Delaware LLC is not enough.
Litigation to restrain the employment of former employees is often complicated by jurisdictional issues. This decision resolves some of those issues by holding that a Delaware court may restrain a Delaware corporation from employing a former employee of the plaintiff even when that employee is not himself subject to the jurisdiction of the Delaware courts.
This decision, coupled with the enforcement of the choice of Delaware law clauses in other employment decisions, means that Delaware is a preferred forum for such litigation.
Allocating a fee claim between various losing parties in the case that you won is difficult most of the time. This decision shows that when all the claims are sufficiently related, you may not need to do so. The defendants are then jointly and severally liable.
In a "man bites dog" case, the Court of Chancery awards attorney fees for opposing a Rule 11 claim for fees. This illustrates that the Court really does not like Rule 11 motions and those need to be made only after careful thought.
Derivative suits alleging excess compensation are hard to plead. To avoid dismissal, the plaintiffs must show the directors were interested in the compensation awarded and their customary director fees do not count. Indeed, even bonus awards to themselves are not enough when the bonuses are approved by a stockholder vote. But this decisions shows why there is an exception to this general rule.
Here the bonus plan did not contain any limit on the board's discretion, except for a cap on the total awarded. Finding that this made the awards free from any real stockholder control, the Court held the complaint stated a valid derivative claim. The lesson then is to put some guidance on the awards into the plan when it is submitted for the stockholders' approval.
This is a run -of -the mill dismissal of a derivative suit for failure to justify the lack of demand on the board, but with a twist. For the decision highlights just how hard it is to show that a board is liable for paying an executive too much. Hence, curbs on compensation are left to the stockholders' vote to control.
It is often said that the Court of Chancery will not stay or dismiss an action filed under one of the statutory provisions for summary adjudication of a claim, such as to decide a proxy contest, because there is prior litigation filed elsewhere. That is generally true, but not always and this decision involves 1 of the rare exceptions. Here the plaintiff sought a decree of dissolution by his complaint filed several months after a similar claim was filed by the other side in New Jersey. Noting that any decision by it would impact a preliminary ruling by the New Jersey court, the Court of Chancery dismissed its case to avoid such a conflict.
This is one of the most important decisions on derivative litigation in many years. There are 3 key holdings, at least one of which may reverse prior law. First, the Court held that a derivative suit dismissed for failure to plead sufficient grounds to proceed under the demand rules may be refiled by a different plaintiff who has a better complaint. This may modify prior law that had held that once dismissed with prejudice, the suit could not be revived by a better complaint from a new plaintiff.
Second, this decision effectively kills off the old first-filed rule that held that the plaintiff who files the first complaint will control the litigation even if other complaints are filed later by different plaintiffs. From now on, the better plaintiff will be the lead plaintiff.
Third, the decision again stresses the value of inspecting a company's records before filing a derivative suit. Indeed, the failure to do so may cause the Court to view the complaint as presumptively meritless, at least with respect to whether the demand rules have been meet.
The opinion is worth reading for many other reasons as well. Its discussion of the Caremark case alone is a good reason to study the decision.
What is the role of a "stockholder representative" in an arbitration proceeding? When there are many parties to an agreement, it is common for the parties on one side (such as the selling stockholders entitled to an earn out payment) to chose one of their bretheren to act for them all. While most assume that the representative chosen has the right to call the shots in the arbitration, her role may be much more. This decision explains why that may be important. It holds that notice to the representative that begins the period in which an appeal may be filed also counts as notice to all the parties the chosen one represented. Hence, if she does not file a timely appeal, the others may not do so later. Moreover, the decision suggests that only the representative may argue the merits of an appeal.
Parties often try to plead as many different legal theories as possible. Pleading tort claims is particularly popular because there is a sense that it may lead to bigger damages and sounds aggressive. After all, who wants to be a "tortfeasor?" This careful decision explains when there is a tort claim and when there is not when the dispute arises out of a contractual relationship.
Briefly, after the contract has been at least partially performed, it is not a tort to promise to continue performance even if you do not mean to do so. Instead, that is just a breach of the contract. Therefore, there is no claim in such circumstances for fraudulent inducement. Also, when the damages arising out of the breach are not different than the damages recoverable in tort, there is no tort claim either.
PharmAthene Inc. v. SIGA Technologies Inc., C.A. 2627-VCP (May 31, 2012)
The original PharmAthene decision is a landmark in the law of remedies for breach of contract because it imposed a form of profit sharing. This latest decision in that case, together with the attached Order, explains in detail how that remedy is to work.
This decision, including its award of expectation damages, was largely affirmed on May 24, 2013. See Del Supr C.A, 314, 2012
This decision reiterates the settled Delaware law that when a contract deals with the parties' rights on a particular subject, one of the parties can not claim that it entered into the contract based on an oral promise that differs from what the contract provides. After all, if you could do that, then why have the contract in the first place?
The LLC statute, like the DGCL, permits the operating agreement to bar member action by written consent. Here the plaintiff argued that such an agreement's fairly common provisions dealing with how members were entitled to vote at a meeting also precluded member action by written consent. The Court held that any such prohibition must be clearly set out in the operating agreement and not merely implied. Hence, the written consents were upheld.
This decision involved an interesting argument over the scope of a release. As is common, the release was signed on behalf of a parent company and all its subsidiaries. To escape the scope of the release, a subsidiary argued that it was only bound to release the same claims that its parent had, but not any claims that were unique to the subsidiary. The Court sidestepped that argument because in any case the release did not cover the claims asserted by the subsidiary. However, this stands as a warning to better draft releases that cover all entities in a control group.
The right of a stockholder to inspect a company's books and records is govenned by Section 220 of the DGCL. A beneficial owner must first show proof of beneficial ownership, however, and Section 220 tells how to do so. Here the plaintiff for some reason just ignored Section 220's requirements to show beneficial ownership. When then faced with a motion to dismiss, he argued that he could supply that proof later because it was just a clerical mistake to not do so when his complaint was filed. The Delaware Supreme Court forcefully rejected that argument and upheld the dismissal of his complaint.
Note that the Supreme Court sidestepped the holding of the Court of Chancery that once it filed a derivative suit, this plaintiff lost its rights under Section 220.
This decision explains how to apply the burden of proof in an accounting case. Merely producing a cancelled check is not enough.
Discovery in aid of proving jurisdiction is usually available. But is there a limit? This decision explores that question and permits depositions to prove jurisdiction.
This decision applies the familiar Hirt factors to decide who should be lead class counsel. Note the slight preference for who has the most support among the various plaintiffs' firms.
This is an interesting decision because it suggests a remedy other than damages in an unfair price case. Once a deal has closed, the plaintiff may find that his remedies in a pure unfair price claim are limited. Frequently, damages against directors are foreclosed by an exculpation clause. Here the Court suggests that, at least when the merger consideration is not just cash, reformation may be an available remedy. Given that has happened just once, it may be a long shot at best.
This decsiion was upheld by the Supreme Court on MAy 28, 2013. 67 A3d 369.
When a preferred stockholder has the right to approve the issuance of any new securities by its company, the question arises whether that right extends to the issuance of notes. In the second decision in this case, the Court again determines whether such notes should be considered securities subject to approval by a preferred stockholder. In keeping with the brevity expected of a blog, the short answer is that the longer the term of the note, the closer it is to being classified as a security. Of course, that is too short an answer, but you will need to read this detailed opinion to really understand the test.
Recovering attorney fees is rare in Delaware litigation. However, this decision enforces another of the few exceptions to the American rule that usually denies a fee award. The exception is for when a fraud requires a plaintiff to spend the fees in defense or prosecution of a claim involving a third party. In that case, the fees are really just damages caused by the fraud and may be recovered.
It is common in sales of a company to have a non disclosure agreement containing a waiver of any claim, including a fraud claim, by the buyer that is based on any representation not specifically included in the final agreement of sale. In other words, there may be no reliance on any oral representation or even any written materials unless the final agreement says the buyer is entitled to rely on that representation. This Delaware Supreme Court decision squarely upholds such provisions.
After all, the result could hardly have been otherwise in this case. For here, the would be buyer never actually agreed to buy, but only to take a look. When it found out the facts, it walked away except to demand payment for its expenses. To let a possible buyer recover expenses based on claims it had disclaimed going into the due diligence room seems unwise.
This is an excellent review of when a contract may be reformed by a court to correct a drafting mistake known by just 1 of the parties who remains silent in the face of the other party's obvious mistake about what the contract says. Reformation is particularly appropriate when there is strong evidence from past dealings over what the parties intended to be in the contract and when the error makes no economic sense.
When the Court tasked with reviewing a settlement proposal in a derivative action is faced with apparently well-intentioned objectors who want to go to trial and not settle, deciding what to do is not easy. This decision comes up with an ingenious solution - let the objectors "buy the settlement." This is accomplished by giving the objectors time to put up a bond to effectively guarantee the recovery of the settlement amount and then permit the objectors to take over the litigation and go to trial.
It will be interesting to see if the objectors take the Court up on its proposal. After all, the recovery in any derivative suit goes first to the entity involved. Any one who funds such litigation needs to be aware of the risk that sharing in the recovery is its only reward.
This decision answers the question of what law will apply to decide if a beneficiary of a Delaware statutory trust may bring a derivative suit. The court held that the established law under the DGCL and Rule 23.1 applies. Hence, the beneficiary must show that either the director defendants are conflicted or that there is a substantial basis to believe that they will be liable because their actions are so outlandish that they are not protected by the business judgment rule.
Non-disclosure agreements are often used and frequently ignored. Well not any more. This decision enjoins a proxy contest for 4 months because the bidder violated a NDA in its proxy materials. This unique remedy will make it much more important to carefully draft and to honor NDAs.
This is an interesting appraisal case because it explains the issues dealing with valuing a smaller company. As they are riskier, for example, a small company risk premium is proper in determining what its cost of capital should be.
This is an interesting decision because it explains the limits of drag along rights. While some old case law and some new contract language try to spell out when a stockholder, creditor or other interested party may have their rights affected by a corporate transaction taken without their consent, this makes it clear that there needs to be very explicit authority to do so, particularly when we are talking about drag along rights that are contractually based.
An advance notice bylaw requires stockholders to tell their company substantially in advance of a stockholders' meeting if they want to nominate someone to to be elected as a director at that upcoming meeting. But, under the Hubbard decision, sometimes the Court of Chancery will set aside such a bylaw when it is used in a way the Court finds is inequitable. Here Carl Icahn is claiming that the Board changed its basic business strategy after the advance notice bylaw deadline has passed and it would be inequitable under those circumstances to bar him from nominating a slate of directors to bring the company back on course. The Court has agreed to hear his claim. The outcome will be interesting.
Delaware has a savings statute that generally prevents the statute of limitations from expiring when a case is dismissed for technical reasons and then refiled in the right court. But, as this decision points out, the savings statute has a much narrower scope than some might believe. Thus, when as here, a case is filed in a jurisdiction other than that chosen by the parties in their contract and then dismissed for having violated the forum selection clause, the savings statute does not apply.
The Delaware Supreme Court has once again confirmed that substantial attorney fee awards may be appropriate even when the plaintiff has not won a large monetary recovery. That is particularly so when the plaintiff has protected stockholder voting rights, as in this litigation.
Directors who are also officers have an interest in a merger when they are to retain their jobs in the merged company. Delaware has recognized that this interest is inevitable in many cases and is usually not enough to make that director's vote for the merger considered an interested transaction. Of course, if future employment is negotiated improperly, the director may well be "interested," particularly if he both negotiates the merger and his future employment at the same time.
But what happens if he does not do so? Here the director/officer was deemed to be an interested director who had to prove the entire fairness of the deal because he knew he was about to be fired unless the deal was done soon. This illustrates the importance of context.
Finally, the opinion is also interesting for its review of when circumstantial evidence is enough to show the acquiror had knowledge of possible fiduciary duty breaches so as to be an aider and abettor.
A year or so ago, the DGCL was amended to permit the removal of a director by the Court of Chancery. While the grounds to do are broadly stated (including "breach of the duty of loyalty"), the statute requires that the director first have been convicted of a felony or been found in a prior case to have breached his duty of loyalty. There thus remains the question of whether director removal may be done without a prior action that establishes the grounds to do so.
This decision suggests that such a direct action for removal will be very hard to win, for the Court expressed serious concerns over whether it has that authority absent the statutory prerequisites. The question is still open to be squarely decided in another case.
This is another example of how an LP agreement may limit the review of a transaction by a court at the request of a dissatisfied partner. The partnership agreement provided that the GP only needed to act in good faith in approving a sale and defined good faith, in part, as established by reliance on an expert's advice. Since that was present, the court dismissed the complaint.
It is well understood that when a controlling stockholder stands on both sides of a transaction with his controlled entity that he will need to show the transaction is entirely fair to the other owners. But when he receives such a special benefit so as to be on both sides of the deal is not always so easy to decide. After all, it is common such acquirors to want to retain management. If the insiders get an employment contract, do they stand on both sides of the negotiations? This decision helps to answer that question. In general, if the controllers get an equity interest in the surviving entity to a merger that is not shared with the other owners, then they are on both sides of the transaction and must show it is entirely fair.
When must a litigant raise any issue over the choice of the law that governs a dispute? Right away is the answer. As this decision correctly holds, if the parties brief their issue under Delaware law, trying to argue later that some other jurisdiction's law applies is too late.
When a post-closing adjustment is due after a merger is sometimes disputed, particularly when it depends on the closing of another deal. Here the Supreme Court concludes that when the payment is due on the closing of another "deal" that new deal needs only to close, not to be exactly what the parties might have contemplated when they signed the merger agreement. Thus, this is another example of "you-get-what-you bargained-for" in Delaware.
This is an important decision because it clarifies when a stockholder will be deemed to have acquiesced to a merger, thereby losing her right to continue to litigate. In short, voting for the merger or accepting a tender offer is acquiescence. Accepting the merger consideration when the merger is inevitable is not acquiescence.
This decision is also useful for its explanation of how the Court will calculate the fees to be awarded.
After a board makes a decision that has consequences that last for years, the question arises of when the time to litigate over that decision expires. Some decisions hold that when the decision is not reviewable later, such as when a long term contract is awarded, the time to attack that contract starts to run out the day the contract is approved. Here, however, the Court noted that the company had the right to cancel the contract every year. Thus, the Court held that each time the board decided not to cancel the contract, it made a new business decision that was subject to court attack from the date the contract was not cancelled.
In this case the Court appointed a receiver for an insolvent corporation under Section 291 of the DGCL. The Court reasoned that the appointment was needed to break a deadlock over whether to implement a proposed tax strategy when there was little time left to deal with the IRS. This illustrates when a receiver may be appointed to make business decisions.
It occurs more than you might think that a party to a release later claims that the release is not binding because she was fraudulently induced to sign it. Applying recent New York law, here the Court holds that if the release covers "unknown claims," then it cannot be set aside by an claim that it was fraudulently induced.
For the second time in a month, the Court of Chancery has denied an injunction against a merger despite serious breaches of duty by the lead merger negotiator. Here the controlling stockholder refused to vote for the transaction unless he received a "bonus" in the form of more for his stock than the other stockholders were to receive on a per share basis. This odd demand arose out of some equally odd provisions in the certificate of incorporation where the controller had agreed to equal treatment in any merger but now sought to take back that provision. That was wrong, the Court held. However, the deal was too good to enjoin when there was no other deal on the table and none likely to arise later if an injunction stopped the show. Hence, out of concern for the minority stockholders, the Court let the deal go through and left the stockholders with a damage claim.
While some commentators have argued that such a result is wimpy, they do not seem to worry about the impact on stockholders of killing a deal that represents the golden goose. The threat of a damage remedy should be enough to deter such conduct in the future, just as it does in other contexts.
This is an interesting application of corporate law principles to an LLC dispute where the LLC operating agreement defined the managers' duties by language closely following common law duties for directors. Thus, the analysis included determining if they acted with gross negligence, were interested in 2 transactions to invoke the entire fairness test, etc.
Among the more vexing tasks of a Court is setting the fees to be awarded in an advancement case. If left to itself, this can become a monthly job as the parties endlessly quarrel over how much is to be paid. The Court of Chancery has tried several approaches to avoid getting stuck in this endless quagmire. Here is a new one. The Court is charging the senior Delaware lawyers for each party with the duty to resolve any difference through a detailed process including monthly meet and confer sessions. That may be enough to interject some sanity into these disputes.
It is often thought that the jurisdiction where suit is first-filed will obtain priority over later filed actions. As this decision makes clear, that is not true when the litigation involves a representative action and Delaware corporate law applies. For in that case, the Delaware courts will apply the doctrine of forum non conveniens that gives only slight weight to where the first suit was filed. More important in class or derivative actions is Delaware's interest in applying its corporate law to Delaware entities.
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.
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.
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.
This decision upholds transfer restrictions in a limited partnership agreement.
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.
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.
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.
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.
When answering an interrogatory asking about the documents a litigant relies upon, it is not enough to just refer to the documents produced. Instead, the specific documents must be identified, such as by bates numbers.
It is often the case that a controlling owner wants to eliminate the minority interests. How to do so and abide by his fiduciary duties is the stuff that makes for litigation. This is an example. This decision is particularly important for 2 reasons. First, it makes clear that even a controlling owner who does not really want to be a seller must consider going through a validly conducted sale process to show that he has been entirely fair with the minority.
Second, it explains the role of fiduciary duties in LLCs, including those LLC agreements that try to modify or eliminate those duties. That is possible to do but needs to be done very explicitly.
When is email sufficiently authenticated to be admissable into evidence? This decision explains that when there are "distinctive characteristics" such as an email address the party admits is his, then that email is admissable.
This is a classic example of just about everything that you should not to do in running a closely-held company. Everybody involved seems to have ignored his or her fiduciary duties. Hence, it is a useful precedent because the breaches cover all sorts of misconduct, any one of which might be found in your case.
Another important point about this decision is its recognition that breaches of duty may be waived if not objected to, particularly when some benefit is received by the party who later objects to what was done.
This decision is an example of the growing Court of Chancery litigation over enforcement of loan agreements. The court reviewed the recent deicisions over when to issue an injunction or instead leave the parties to a damages remedy. Here the decision is affected by the procedural stance of the litigation because the burden the plaintiff must bear is somewhat less at the TRO stage and the decision fully explains how that affected its conclusion to issue an injunction.
Morris James LLP is pleased to announce that Jason C. Jowers and James H. McMackin, III became partners, effective January 1, 2012. David H. Williams, the firm’s Managing Partner, made the announcement and stated “the elections will expand and strengthen several of the firm’s practice groups.”
Jason C. Jowers joined Morris James LLP in 2003 and is a member of the firm’s Corporate and Fiduciary Litigation Group. He primarily focuses on corporate, alternative entity, and commercial litigation in the Delaware Court of Chancery and the Delaware Superior Court. Mr. Jowers has litigated matters involving a variety of substantive issues, including: LLC governance; fiduciary duties of officers and directors of corporations; inspection of books and records of corporations and LLCs; complex contracts; director and officer liability insurance coverage; trade secret misappropriation; and covenants not to compete. In addition to his corporate and fiduciary litigation practice, he regularly handles pro bono cases before the U.S. District Court for the District of Delaware as a member of the Federal Civil Panel. Mr. Jowers also serves as Chair of the Delaware High School Mock Trial Competition, and is a member of the Board of the Delaware Law Related Education Center. He is admitted in Delaware, Pennsylvania, Tennessee, the U.S. District Court of Delaware and the U.S. Court of Appeals, Third Circuit. Mr. Jowers received his B.A., cum laude, With Honors, in 2000 from Rhodes College and his J.D., in 2003, from The George Washington University Law School. While in law school, he was the Regional Champion and National Quarterfinalist in the Association of Trial Lawyers of America's Student Trial Advocacy Competition in 2003.
James H. McMackin, III joined Morris James LLP in 2004. In his employment, education and governmental relations law practice, he appears before the Delaware courts, arbitrators and administrative bodies. Mr. McMackin frequently counsels and represents clients on matters involving non-compete agreements, suits alleging discrimination and retaliation, and contractual obligations. He serves as counsel in negotiating and drafting contracts and complying with Delaware education laws. Mr. McMackin is a former chair of the Labor and Employment Section of the Delaware State Bar Association and a frequent panelist and presenter on employment and education law topics. Mr. McMackin received his B.A. in 1996 from Muhlenberg College and his J.D., cum laude, in 2002 from Widener University School of Law. He was an Intern for The Honorable Jane R. Roth, U.S. Court of Appeals, Third Circuit. Mr. McMackin was a Honey F. Colby Memorial Scholarship recipient and a member of the Moot Court Honor Society, Phi Delta Phi Society and the Phi Kappa Phi Society. Mr. McMackin is admitted in Delaware, the U.S. District Court, District of Delaware and the U.S. Court of Appeals, Third Circuit.
Morris James Welcomes Bryan Townsend as an Associate in its Corporate and Fiduciary Litigation Group
Mr. Townsend focuses his practice on litigation involving complex corporate, commercial and fiduciary matters. He clerked for Chancellor William B. Chandler III in the Delaware Court of Chancery from 2009-2010 after graduating from Yale Law School in 2009, where he served as Co-Editor-In-Chief for the Yale Journal on Regulation. Mr. Townsend earned an M.Phil. in Chinese Studies from the University of Cambridge in 2006 after attending Peking University (Beijing Daxue) in 2005, where he studied Chinese language, economics, and politics. He received three degrees from the University of Delaware: an Honors B.A. with Distinction in Philosophy and Biology in 2004, and an M.A. and Honors B.S. in Economics in 2003.
Mr. Townsend is a volunteer attorney for the Delaware Office of the Child Advocate, Delaware Volunteer Legal Services, and Widener Law School’s Veterans Law Clinic. He is a director on the board of the University of Delaware Alumni Association and served from 2004-2005 on the University’s Board of Trustees. Mr. Townsend is an ardent supporter of Special Olympics Delaware and is a volunteer Big Brother with Big Brothers Big Sisters of Delaware. For his commitment to leadership in the public service, Mr. Townsend was selected as a 2003 Harry S. Truman Scholar, one of seventy-six individuals nationwide to receive the honor. He is a member of the bars of Delaware (2010) and the United States District Court, District of Delaware (2011).
The U.S. District Court for the District of Delaware has now taken a bold step to address the cost of civil litigation due to ESI discovery. The court recently adopted its "Default Standard for Discovery, Including Discovery of Electronically Stored Information." These new standards expand the court's previous ESI standards, first adopted in 2004 and later amended in 2007. As was the case with the 2007 standards, the parties are still free "to reach [their own, different] agreements cooperatively on how to conduct discovery." While the parties to litigation have frequently done just that and crafted their own ESI discovery procedures, the 2007 standards successfully prodded parties to reach agreements and provided useful guidelines to do so. These new standards will have a similar, laudatory effect.
This is an important decision because it reaffirms the ability in an LLC agreement to severely limit the right to sue. Here the LLC agreement first said that if the committee appointed to review conflict of interest decisions did so, then there was no right to sue for breach of fiduciary duty by the controllers. The Plaintiff tried to argue that the implied duty to act in good faith and fairly still meant the controllers could not have acted in good faith by submitting the conflicted transaction to the committee. However, the LLC agreement also said that if the controllers acted after receiving expert advice the transaction was fair, then they were conclusively presumed to have acted in good faith. The Court agreed that cut off the claim based on implied duties.
A class representative may not trade in the stock held by his class members based on information he learns in the litigation. That is the usual rule reflected in the typical confidentiality order entered in such cases in Delaware. This decision collects several other unreported decisions following that rule and shows how to calculate the trading profits that must be returned to the class when the rule is violated.
Delaware officers and directors are usually entitled to have their litigation expenses advanced when they are sued for their conduct in those corporate capacities. Exactly what conduct is alleged to be wrongful is key to determining if that right to advancement applies. For example, if after a merger a director ceases to be a director, then he is not entitled to advancement for litigation over that conduct. This decision illustrates how the Court will decide what conduct is involved in the underlying litigation so as to decide if advancement is required.
This decision is a clear explanation of how to determine if a contract is ambiguous on a point. If it is, then evidence of the parties' intentions is necessary to decide what the contract provides.
There is nothing more sacred in Delaware corporate law than the right of the stockholders to elect directors. This decision illustrates that point and what the Court of Chancery will do when it feels that right has been improperly infringed, including extending the meeting date.
How do you set the fee to be awarded when there is no monetary recovery in a representative action? For example, if the litigation creates a benefit to shareholders by reducing deal protection measures to permit a possible topping merger bid, but no topping bid appears, what should be the fee? Using studies that attempt to calculate the benefits of such litigation, this decision sets out a methodology to guide applicants.
This decision clarifies the detail that must be pled to assert a claim that the defendant acted in "bad faith." The short answer is that any set of facts that warrants such an inference is enough to state such a claim.
When a prevailing party is entitled to interest on its judgment has sometimes been confusing. This decision affirming the general right to interest clarifies Delaware law.
This decision clarifies the scope of the right to inspect a company's records to investigate allegations of wrongdoing. The decision is somewhat unique becasue it also raised issues of attorney-client privilege and work product protection that the Supreme Court did not need to decide. Briefly, a document may be subject to inspection when it is "essential" to accomplish the purpose of the inspection. That in turn means the document must address the issue involved, such as the alleged wrongdoing, and not just be information otherwise made available to the inspector.
Obviously, this is a fact intensive test. In this case, for example, the information sought was contained in other documents provided and the document sought did not really add much to the mix of information addressing the key question the stockholder wanted to investigate.
This is another case where a party tried to re-do a contract by claiming that the failure to give it more than it bargained for constituted a violation of the covenant of good faith and fair dealing. In rejecting that claim, the Court again explains the tight limits of that covenant. It just can not be used to make a new deal.
Affirmer, del Sup. 39, 2013 (October 7, 2013).
This is a rare Court of Chancery decision discussing when a class should be certified. The Court reviewed and dismissed the claim that there was a conflict of interest among class members, based on a funds flow analysis.
This decision upholds the power of the Court of Chancery to appoint a receiver for a dissolved Delaware corporation to collect on the corporation's insurance polices covering asbestos claims. This may be done even more than 10 years after formal dissolution and provides a way to pursue insurance coverage despite the general law that prohibits direct claims against an insurer.
See also the Supreme Court's reversal of part of the Court's ruling at Anderson v. krafft-Murphy Company, Inc. Del Sup. C.A. 85, 2013 ( November 26, 2013).
It is sometimes important to decide if a series of transactions are to be coupled together to be treated as one. The so-called step transaction doctrine does that when applied. Here the Court used the step transaction to interpret an agreement that gave the selling stockholders the right to a bump up in the merger consideration and certain protections if company assets were sold before all the additional consideration was paid. This somewhat lenient application of the doctrine may signal its greater acceptance by the Court.
This scholarly review of Delaware law explains the "physical evidence requirement" in some insurance policies.
What is a derivative claim is sometimes hard to decide but may be central to a plaintiff's right to bring suit. Under the Supreme Court's Gentile decision, a claim that the controlling stockholder has improperly diluted the minority shareholders' stock may be filed as a direct claim on behalf of those stockholders and does not have to pass the tough rules governing the filing of derivative litigation. Who then constiutes a "controlling stockholder?" This decision holds that a group may be in "control" for the purposes of the Gentile rule and explains how to decide if that control group exists.
The decision also further explains what sort of dilution qualifies to invoke Gentile, when disclosures after action by stockholder consent must be complete and that a pending class action tolls the statue of limitations until the class certification process is complete.
It is sometime claimed that the act of incorporating a Delaware corporation is enough to subject the incorporator to jurisdiction in Delaware. After all, an old case does do just that. But as this decision points out, the act of incorporating has to be an integral part of the actions that give rise to the claims asserted. That is not so easy to show and did not work in this case.
A frequent issue is how to calculate a fee award when the prevailing party has only been partially successful. This decision turns on the unique provisions of English law, but is still an interesting exercise in awarding some but not all the fees to a party who only partially prevailed.
This is the largest monetary award in the history of the Court of Chancery, $1.263 Billion plus interest. Indeed, except for 1 other case decided outside of Delaware, it may be the largest breach of fiduciary duty case anywhere else. It certainly should end the claim that the Delaware courts always favor management.
The decision is particularly instructive about how a special negotiating committee should conduct or not conduct itself. For that reason alone it is required reading for anyone who cares about such things.
Some corporate mergers give stockholders of the acquired company an option to take cash or the stock of the acquiror. If the stockholder fails to chose, then she typically gets the cash. The appraisal statute only provides for an appraisal claim when the stockholder is required to take cash and not publicly traded stock. Here the plaintiff who had not made the election to take stock and so got cash argued she was forced to take cash and hence was entitled to appraisal of her shares.
The Court said "no," reasoning that so long as she had a choice she was not forced to take the cash. Risking the wrath of some members of Congress, the Court cited to a famous French philosopher on why you still have a choice even when you do not decide to act. That too is your choice.
Delaware corporate law permits a Delaware corporation to exonerate directors from claims that they acted negligently. Those claims are known as "duty of care" claims. However, the same statute also states that claims for acting in bad faith [known as "duty of loyalty" claims] may not be so easily precluded. Hence, plaintiffs often seek to cast their complaints as duty of loyalty claims. Often, this takes the form of alleging that no loyal director could have been so stupid as to do what those directors are alleged to have done and so they must have been disloyal, not just negligent.
Well as this decision shows, it is just not that easy to plead a duty of loyalty claim. You need really strong facts, not just conclusions. This decision is a good example of how the Court analyzes those sorts of allegations and will dismiss a complaint that lacks the facts to sustain a duty of loyalty claim.
Every so often, a corporation acts so badly that a plaintiff decides to take a run at attacking the business judgment rule and sues the corporation's directors alleging their decisions have been too stupid to be protected by that rule of Delaware law. That was true in the famous Disney case and this is another example of such a suit. After all, who could stand up for Goldman Sachs these days?
Well, showing that the business judgment rule is alive and well, the newest member of the Court of Chancery in this decision reaffirms that hindsight alone does not support a good claim. The decision is noteworthy because Vice Chancellor Glasscock exhibits the same care and scholarship as his predecessors in his opinion dismissing the complaint.
What should be disclosed in a proxy is not always clear. This decision notes the reasons and the precedent to disclose free cash flows used to do a discounted cash flow analysis by an investment bank giving the fairness opinion.
Some believe that the board of directors of a small company does not have as strict fiduciary duties to the minority stockholders as do boards of publicly traded companies. This decision reiterates that under Delaware law those duties apply to the small and the large equally.
The opinion is also noteworthy as another example of the Court of Chancery's inclination to limit the Omnicare decision to its facts.
This is a significant decision for 2 reasons. First, it confirms the widely-held belief that the Tooley test to determine if a complaint is direct or derivative applies to limited partnerships.
Second, it interprets language in the LLP agreement permitting the general partner to rely on the advice of an investment banker as constituting proof of "good faith" in deciding to do a deal with an affiliate of that general partner. This is important because while Delaware law permits LLP agreements to waive many duties owed by a GP, the duty to act in "good faith" cannot be waived. Hence, the ability to effectively define in the LLP agreement what will constitute good faith is another way to limit claims against the GP even for self-dealing.
This decision was affirmed on MAy 28, 2013.
To decide whether a derivative suit may proceed without first asking the Board of Directors to bring the suit, one test that is applied is whether the Board is "dominated or controlled" by an alleged wrongdoer. For if the Board is so dominated, then it cannot be expected to independently decide if the suit should proceed. Some cases under this rule are easy to decide, such as when there is a parent-child relationship involved. [Those of us who have had teenagers might wonder why this is so.]
There are harder cases and this is one. Here the Court decided that the threats of a dominant stockholder and board member had so affected the rest of the Board that the other directors could not be expected to independently decide if the dominating board member should be sued. Hence, it permitted the suit to proceed without a demand on the rest of the Board.
The obvious lesson here is not to be a bully.
Authored by Lewis H. Lazarus
This article was originally published in the Delaware Business Court Insider | September 28, 2011
In 2009, Delaware's General Assembly passed and Gov. Jack Markell signed legislation enabling arbitration in the Court of Chancery. In 2010, the Court of Chancery adopted rules governing arbitration. As the statutes — 10 Del. C. §§ 349 and 351 — and rules — Court of Chancery Rules 96-98 (Arbitration Rules) — are new and arbitration requires mutual agreement, arbitration may become a more prevalent means of resolving disputes as deal lawyers increasingly require Court of Chancery arbitration for disputes arising out of merger and other agreements.
Reportedly, the current dispute between Skyworks Solutions and Advanced Analogic Technologies contains a dispute resolution clause mandating arbitration in the Court of Chancery. It is thus appropriate to review why Chancery Court arbitration is likely to become an increasingly preferred method of dispute resolution.
First, the arbitration rules permit resolution of disputes by decision-makers with the knowledge and experience of the chancellor and vice-chancellors. To be eligible for Court of Chancery arbitration, the dispute must involve at least one party that is a Delaware entity; both parties must agree to arbitration; and if the dispute is solely about monetary damages, the amount in controversy must exceed $1 million. The procedure is not available for consumer disputes. Previously, disputes solely for monetary damages were not amenable to subject matter jurisdiction in the Court of Chancery.
Second, the members of the Court of Chancery are used to resolving matters on an expedited basis. The arbitration rules contemplate that generally an arbitration hearing will be scheduled within 90 days of the filing of the petition. However, they also allow for modification of the schedule with the consent of the parties and approval of the arbitrator. The arbitration rules thus permit flexibility for the parties and arbitrator to structure the dispute resolution on a schedule that makes sense.
Third, Chancery Court arbitration proceedings are confidential. The filing of a petition for arbitration is not included on the court's docket system. The petition and all supporting documents are by rule considered confidential and not of the public record, unless there is an appeal.
Fourth, Section 351 of Title 10 expressly authorizes parties to stipulate that an arbitration award shall be final, binding and non-appealable. As the synopsis to the legislation explains, "In many matters parties desire an answer and their dispute is narrow enough that even if they cannot settle, they are willing to agree in advance to live with the outcome rendered ... ." The new statutes permit that voluntary option.
Fifth, any appeals go to the Delaware Supreme Court, a decision-making body equally acclaimed for its knowledge and experience in the prompt resolution of significant business disputes.
Sixth, for parties in disputes with foreign entities, the new statutes and arbitration rules may provide greater comfort that the arbitration award will be enforceable against a foreign entity on its home turf under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
Finally, the price is right compared to private arbitration. The filing fee is $12,000, to be equally divided by the parties. For each day or partial day that the vice chancellor or master engages in arbitration after the first day of arbitration, there is a $6,000 fee, also to be equally divided by the parties.
Efficiency, confidentiality, first-rate decision-makers experienced in resolving complex business disputes — for these reasons deal lawyers should consider the benefits of Chancery Court arbitration. And as they counsel their clients to specify Chancery Court arbitration in their agreements, we can expect that it will be an increasingly utilized tool for dispute resolution.
This is a good discussion of the "enhanced scrutiny" that the Court of Chancery applies to board action that affects the right to vote. Such action must have a "compelling justification" and the simple desire to avoid being thrown out of office, even by scalawags, is not enough. Hence, here the Court invalidated the provisions of a specially issued series of preferred stock that had the right to block the removal of the board of directors.
Morris James Launches "Delaware Courts Online" - A Guide To Litigation in Delaware's Business Courts
Morris James LLP is pleased to announce the launch of Delaware Courts Online, a second online presence for the firm that will serve as a guide to litigation in the U.S. District Court of Delaware, the Delaware Court of Chancery and the Delaware Superior Court Complex Commercial Litigation Division.
Delaware Courts Online (www.delawarecourtsonline.com) is intended to assist clients and counsel whose Delaware law issues or corporate or commercial litigation are resolved in Delaware courts. The website features experienced Delaware litigators providing insight on topics such as the courts, judges, procedures, rules, forms and electronic filings and much more.
Unique features of the website include its courtroom galleries showing views of the courtrooms from all angles and the highlights of the court rules and practice pointers. Clients and out-of-town counsel will find a guide on how to litigate in Delaware’s business courts.
“Delaware Courts Online will serve as an extension of what we do every day for our clients – deliver information about the Delaware business court system, says Edward M. McNally, Chair of Morris James’ Litigation Group.
This is an important decision for 2 reasons. First, it clarifies the extent of a duty to negotiate in good faith. Second, it crafts a remedy for a breach of that duty. This is important because deal term sheets often provide for further "good faith" negotiations and what that means has been unclear in the past. Further, it is also common for the mediation of commercial disputes to end with the basic terms set out in a memorandum of understanding with the details to be "negotiated in good faith."
First, it is important to understand when there is a binding obligation to negotiate in good faith. In this case, 2 formal contracts between the parties required they have such further negotiations. Without a binding contract to do so, it remains doubtful that just a simple agreement to continue discussions binds anyone.
Second, when the duty to negotiate does arise, what constitutes good faith is hard to define in the abstract. This decision points out, however, that a refusal to continue to honor past agreements is "bad faith." In short, you cannot go back on terms already agreed to as a way to get other concessions.
Third, when the duty to negotiate is violated, the remedy is critical. As this decision points out, specific performance and a damage award of what one side says were its expectation damages may not be available for a variety of reasons. Here, the Court provided a remedy that gave the non-breaching party what the Court felt were the benefits that the parties had agreed on generally, even if the details were not finalized. This highlights the importance of reviewing the history of their negotiations to determine what is likely to have been the outcome had they fairly negotiated.
This is an interesting decision for its very entertaining explanation of the facts and how the Court decided what was true in the face of false testimony. Using the computer records to verify when documents were generated, the Court determined which story was most believable.
There are also some key legal determinations, although nothing really new. For example, even though the LLC Agreement had provisions for dissolution, the Court, having concluded those would not work, ordered dissolution.
Frequently a contract will have a provision selecting Delaware as the forum to litigate any dispute. What happens then when a case is filed elsewhere and one party seeks to enforce the forum selection clause by an injunction in Delaware against the prosecution of the other litigation? Well, this decision tells us the result and resolves possible conflicting holdings in other courts including the Delaware Supreme Court. Briefly:
1. The Court of Chancery will grant the injunction if the forum selection clause properly confers jurisdiction in Delaware courts. Note that this means that selecting the Court of Chancery may not work if the dispute is not subject to equitable jurisdiction in that court. Better to select "any" court with jurisdiction in Delaware over the subject matter of the dispute.
2. The forum selection clause must be broad enough to include any dispute "arising out of" or "related" to the dispute. A narrower clause may not work.
For companies in disputes with third parties or insiders, filing a declaratory judgment action offers a way to seize control of a dispute and frame the contours of the litigation. Filing a declaratory judgment also provides a way to resolve uncertainty, such as when potential claims affect a business's ability to obtain financing. There can be a number of advantages to this approach, assuming the parties can satisfy the requirements for a declaratory judgment, versus waiting to see if the other side sues.
The advantages include "setting the table" for the litigation. The initiating party can tell the court its side of the story first, define the framework of the parties' dispute and introduce the key issues and players to its advantage. If there are bad facts for the initiating party, it can attempt to neutralize those bad facts by explaining why they are not actually bad or do not really matter. Such an approach can be preferable to defending bad facts after the other side initiates litigation and distorts the facts to its advantage. A defendant moving to dismiss a complaint for failure to state a claim cannot challenge the well-pleaded facts in the complaint. The court must accept the allegations as true in resolving the motion to dismiss.
Another potential advantage to initiating a declaratory judgment action is forum selection. Perhaps there are multiple jurisdictions that could hear the dispute and the parties did not select a forum. Or maybe there is some question as to the appropriate jurisdiction. Even if the parties have selected a forum, perhaps the other side is likely to file somewhere else.
Delaware courts move promptly and a party that initiates a declaratory judgment action in Delaware will at least have the opportunity to argue that Delaware is the appropriate forum. Like all courts, however, Delaware courts are critical of forum shopping, so filing a declaratory judgment action with a weak basis for jurisdiction in Delaware compared to a more convenient forum is unlikely to succeed.Continue Reading...
A few months ago the pop culture writer Chuck Klosterman published a short article addressing a question I have pondered myself, although far less articulately than Klosterman discussed it: Is there a speed at which the human body cannot run any faster?
Put another way: Is there a point at which the record for the 100 meter dash is so low that it cannot be broken because the human body simply cannot exceed it, or could the record always be lowered? The general consensus was that there probably is a limit, but no one knows what the limit is, and a sprinter's belief in his ability to continually break the record generated better performances.
The limits of the human body are, of course, a long way from the poison pill jurisprudence of the Delaware courts, but a question with a similar genesis can be asked: Is there a lower limit for poison pill triggers? In 2010, the Delaware Supreme Court in Versata Enterprises Inc. v. Selectica Inc. affirmed the decision of the Court of Chancery upholding the adoption of a poison pill with a 5 percent holding trigger.
Indeed, the Supreme Court upheld the adoption of the poison pill, the dilution below 5 percent of the stockholder that intentionally triggered the pill, and the adoption of a second poison pill, again with a 5 percent holding trigger. In reaching this conclusion, the Supreme Court found that despite the low trigger point for the poison pill, the pill was not preclusive because it was not "realistically unattainable" for an insurgent to wage a successful proxy contest with a 5 percent trigger. The Supreme Court added that the shareholder advisory firm RiskMetrics Group supports rights plans with a trigger below 5 percent on a case by case basis if adopted for the purpose of preserving net operating losses, as was the case in Selectica.Continue Reading...
by Edward M. McNally
Originally published in the Delaware Law Weekly l 08-31-2011
In years gone by, Delaware’s courts had much of the same flavor as a small town. The local bar was small. Few firms from outside Delaware had Delaware outposts. The lawyers were part of a community where everyone at least knew someone who knew who they were and how they practiced law. As a result, it was often true that lawyers got away with not complying with scheduling orders and continuances were freely granted. Even today, some of that atmosphere remains, with Delaware lawyers maintaining civility.
To view the full article, login to Delaware Law Weekly.
by Lewis Lazarus
Originally published in the Delaware Business Court Insider | August 31, 2011
Stockholder litigation challenging a merger transaction before it is consummated often has two phases. First, plaintiffs seek to enjoin the transaction. Second, if that fails, plaintiffs proceed with claims that the transaction was unfair because of a flawed process and an inadequate price.
When plaintiffs succeed in causing the corporation to issue corrective disclosure prior to a stockholder vote, they generally will be found to have conferred a benefit upon the corporation and its stockholders. Having done so, they are then entitled to an award of attorney fees. But can they get fees before the case is finally resolved?
Two recent decisions, Frank v. Elgamal and In re Del Monte Foods Company Shareholders Litigation, illustrate that the question is one for the discretion of the court and that that discretion may be exercised differently depending upon the chancellor or vice chancellor deciding the case and the underlying facts and circumstances.
Although the Frank court declined to entertain an application for interim fees while the Del Monte court did and awarded $2.75 million in interim fees, the court in each opinion agreed that "interim fee awards may be appropriate where a plaintiff has achieved the benefit sought by the claim that has been mooted or settled and that benefit is not subject to reversal or alteration as the remaining portion of the litigation proceeds," quoted from the 2001 decision in Louisiana State Employees Retirement System v. Citrix Systems Inc.
The court in each opinion also recognized that a trial court is never required to consider an interim fee application and that a trial court may well prefer to have applications determined at the end, when a single fee can be awarded. Vice Chancellor John W. Noble in Frank noted that "judicial economy and the orderly conduct of litigation are usually better served if interim awards of attorneys' fees are avoided."
In recent years, the tension between fiduciary duty principles and contract rights, particularly with respect to fiduciary duties in unincorporated entities, has received a great deal of attention from the members of the Delaware judiciary in their written opinions and in extrajudicial commentary.
On the one hand, many decisions of the Court of Chancery have held that fiduciary duties apply in unincorporated entities unless specific language eliminates those duties. On the other, Chief Justice Myron T. Steele wrote an article in the 2009 American Business Law Journal that stated, "Delaware courts should not apply default fiduciary duties even if the parties have not specifically provided for the elimination of fiduciary duties."
Although the Delaware Supreme Court has not yet directly addressed whether fiduciary duties apply to unincorporated entities by default, it has held — in the 2010 case Nemec v. Shrader — that the exercise of contractual rights is not subject to fiduciary duties.
The tension between fiduciary duties and contract principles in unincorporated entities was visited again in the Court of Chancery's recent opinion in Paige Capital Management LLC v. Lerner Master Fund LLC. Although the court's opinion addressed many factual and legal issues, the facts of Paige as they relate to fiduciary duty issues are straightforward.
Michele and Christopher Paige, wife and husband, sought to enter the world of hedge fund management. They recruited Lerner Master Fund LLC, the investment arm of the Lerner family, founders of MBNA and current owners of the NFL's Cleveland Browns and English Premier League's Aston Villa Football Club, to provide the hedge fund with $40 million in "seed money" so that the Paiges could use the Lerners' investment to attract other qualified investors. The Lerner group became a limited partner of the hedge fund, but also signed a separate agreement with additional terms and conditions that were applicable to the Lerners' investment. Pursuant to this side agreement, the Lerners were not permitted to remove their investment from the hedge fund for three years, unless, among other things, the Paige entities breached the contract or a fiduciary duty. In exchange, the Lerners received reduced management fees, incentive payments and other benefits.
This decision upholds the prior decision of the Court of Chancery that creditors of an insolvent LLC may not bring a derivative claim against its managers. This follows because the Delaware LLC Act limits such claims to members. This result is another example of the differences between LLCs and corporations. For in the corporate context, a creditor may file a derivative claim when the entity is insolvent.
Seventeen Morris James attorneys are listed as being among the most elite lawyers in their practices in The Best Lawyers in America® 2012.
The Best Lawyers in America® has become universally regarded as the definitive guide to legal excellence. Their rigorous research is based on an exhaustive peer-review where leading attorneys cast votes on the legal abilities of other lawyers in their practice areas.
The Morris James attorneys listed in the 18th edition of the guide and the areas of law in which they are recognized include:
Richard P. Beck
Litigation – Real Estate (1983)
Real Estate Law (1983)
John M. Bloxom IV
Real Estate Law (2010)
P. Clarkson Collins, Jr.
Corporate Law (2005)
Litigation – Mergers and Acquisitions (2005)
Mary M. Culley
Elder Law (2008)
Keith E. Donovan
Personal Injury Litigation (2009)
Dennis D. Ferri
Medical Malpractice Law (2007)
Personal Injury Litigation – Defendants (2007)
Personal Injury Litigation – Defendants (2005)
Richard K. Herrmann
Information Technology Law (2003)
Technology Law (2003)
Francis J. Jones, Jr.
Personal Injury Litigation – Defendants (2008)
Personal Injury Litigation – Plaintiffs (2008)
Mary B. Matterer
Litigation – Intellectual Property (2009)
Edward M. McNally
Corporate Law (2005)
Litigation – Mergers and Acquisitions (2005)
Mark D. Olson
Tax Law (2011)
James W. Semple
Commercial Litigation (2009)
Bruce W. Tigani
Tax Law (2011)
David H. Williams
Education Law (2007)
Employment Law – Management (2007)
Labor Law – Management (2007)
Litigation – Labor and Employment (2007)
(Year indicates first year listed in practice area)
Inspection rights in LLCs are different from those in corporations. The statute is different and the relationship between the owners is different. This decision does a good job of explaining inspection rights in an LLC, including when those rights may reach the records of a subsidiary.
Once again, the Court of Chancery has denied an application for interim fees in a shareholder litigation. The application was based on so-called curative disclosures made as a result of the plantiff's efforts. While such applications are certainly disfavored as premature, that is perhaps all the more so when they are based on just additional disclosures. Several other recent decisions have reached the same conclusion.
This is the first decision in Delaware to uphold an attorney's lien for unpaid legal fees. Hence it is welcome news to us all. The Court conditioned the release of the documents subject to the lien on the client posting security to cover the disputed fees pending an arbitration.
The opinion is particularly noteworthy for its exhaustive scholarship and its modification of the old rule that such a lien might only be justified to prevent a client fraud.
This important decision clarifies that Delaware courts should apply the "conceivability" test to determine if a complaint states adequate facts to state a claim. Previously, Delaware's trial courts had applied the "plausibility" test from the United States Supreme Court's Twombly decision. As the Delaware Supreme Court makes clear, the "conceivability" test is the more liberal test and will result in sustaining more complaints in response to motions to dismiss.
For years, the Chief Justice has cautioned in public statements that Twombly was not Delaware law. While his opinion in this case may leave that open for a later review, for now he has the last word.
The decision also significantly liberalizes the scope of a "good faith and fair dealing" claim. So long as such a claim does not depend on an actual breach of the contract involved, it may survive a motion to dismiss as well.
It is often unclear when a member of an LLC may transfer not just her financial interests but her voting rights as well. The LLC Act leaves that issue to be determined by the LLC operating agreement. Here the Court closely examines this issue and an LLC agreement and decides that a member's full interest may be transferred by her without the other members' consent.
Sometimes a lingering contract dispute causes problems in obtaining financing or just getting on with a company's business. Here the Court upheld the use of a declaratory judgment action to establish the parties rights in such a dispute.
This is an important decision and a lot of fun to read to boot. The fun is in the all-too-human story it tells of personal ambition frustrated and what happens then.
There are 3 key points in its holding. First, those who control an LLC owe fiduciary duties to the members unless the LLC Agreement clearly cancels those duties. This may be contrary to the views of at least 1 Supreme Court Justice who favors requiring those duties be spelled out in the agreement.
Second, vesting in a manager the "sole discretion" to decide a matter only means she is the only one who gets to vote on it. It does not mean she can vote anyway she likes even if that is unfair. Here better drafting is needed.
Third, the Court will decide cases on their legal merits even if the winning party is a jerk. Of course, here there was a bit of a contest to see who could be the biggest jerk. Nonetheless, it is reassuring that the Court saw though all that to get to the real merits.
The Superior Court's Complex Commercial Civil Division is issuing more and more opinions in the various matters that are now becoming ripe for decision. Here the Court explains when both fraud and breach of contract claims may be filed in the same case and how to adequately plead the fraud count under the particularity standard required.
This article originally appeared in the Delaware Business Court Insider | August 03, 2011
How would you like to advance your opponent's legal fees as you fight out your dispute in court? That is bad enough when you are the plaintiff. It is even worse when you have been sued and you find your company paying the plaintiff's attorney fees and expenses to prosecute his or her claims against you. Yet all that can and does happen in suits involving directors and officers in litigation with their former company. How can this happen?
First, some background helps. The American "rule" is that litigants pay their own legal fees, even if they win the case. "Loser pays" is rarely true in the United States in business litigation. Because of that rule, companies have sought to attract good directors and high-level employees by providing them with the employment benefit of indemnification against litigation costs at the end of a trial and advancement of their costs throughout the trial. Indeed, in Delaware and most states, directors have a statutory right to be indemnified in most business litigation. That seems reasonable enough, in the abstract.
But consider what happens when a dispute arises between the company and a former director or officer. Frequently, those former company officials have been given contracts that require they be indemnified against loss in any litigation they win and have their litigation expenses advanced to them throughout the litigation. In those circumstances, the courts have repeatedly upheld the right to have expenses advanced, subject to the company's right to recover those advances later if it wins the litigation. Still, that does not seem so bad. It is just another cost of doing business.
However, the reality may be far more onerous. When the company is paying the lawyer bills without any right to pick the lawyer or even to review his or her statements, there is little restraint on fees. Millions of dollars then are spent, cases settled just to stop the cash drain and rarely is there ever a recovery of expenses advanced to the former official, who is then cash poor. Perhaps even more surprising, there is little the courts can do to control this result.
Companies do object to paying what they see as unreasonable legal expenses. But when their former officials sue to compel payment of those fees, the courts are not able to effectively determine the reasonableness of any bills. After all, it is an abuse of the courts' resources to expect a judge to sit down each month to review a party's legal bills, which often are dozens of pages of minute detail. Solving this problem has proved elusive.
Various remedies have been tried. Courts have appointed special masters to review the legal bills, with the parties sharing the master's fees for his or her services. Under the so-called "Duthie" rules used in the Delaware Court of Chancery, uncontested fees are to be promptly paid, counsel are required to certify their good faith in any dispute, and guidelines are provided as to what may be disputed.
Even those limited remedies to prevent abuses have been undermined, often by the very contracts the company agreed to without much thought. For example, in a decision just last month, the Court of Chancery held that the company must pay all of the fees of the special master because it had promised its former official to advance all of her "expenses" in litigation. Considering that the legal fees in dispute exceeded $5.5 million, paying the special master's fees as well must have felt like the last straw.
What then can be done about this problem? To begin with, companies must recognize that the problem arises out of the indemnification and advancement contracts they sign. No one is forcing them to give overly generous benefits, and no one should expect the courts to change their contracts just because they have become burdensome. Proper contract drafting helps here.
Several examples come to mind and should be acceptable even to the potential new officials the company seeks to retain. These include: limitations on advancement rights when the official is acting as a plaintiff; approval rights on the counsel to be selected; forum choices for any disputes; and fee caps on advancements. Until some of these or more creative terms are used, the problem will remain.
The real problem is not indemnification, but advancement. Delaware law limits the right to be indemnified, even by contract. It is against Delaware law to indemnify a director for wrongful acts, and a contract that attempts to do so is not enforceable. Advancement, on the other hand, is virtually unlimited if the contract is drafted that way. Yet, there is no reason why companies should have to agree to pay unlimited sums to attract talent. To do so is to let some lawyer charge without any restraint. Future articles will show how to avoid that problem.
This decision discusses when a party may obtain discovery in an action seeking to vacate an arbitration award. The short answer is "not very often." However, discovery was granted in this case alleging arbitrator bias.
This decision explains the limits on a parent's guaranty of a subsidiary's performance in the context of what the parent can do with its assets and its ability to later honor the guaranty. It is an illustration of the need to understand the client's business and for careful drafting of such agreements.
Recently, the Court of Chancery has permitted fee applications before a case is finally decided. This decision notes that practice should and will be limited to unusual situations. That cuts off that trend before it goes too far.
When a director is sued, he often is entitled to have his attorney fees advanced by his company, even when it is his former company. A fight over the fees sometimes results, however, when the fees are high and the relationship with the director is not the best. The Court of Chancery, after having to referee several of these fee fights, adopted what are known as the Duthie procedures where a percentage of the fees are paid and any disputed fees are sent to a special master to determine reasonableness. The parties then split the fees of the master. This decision modifies the Duthie procedures by having the fees of the special master paid by the company and not split with the director when his advancement agreement calls for payment not just of his fees but of any "expenses."
On one level this is not a particularly unusual decision and that is just the point. For here the Superior Court's new CCLD shows that it is going to make the same studied analysis and follow the same precedent as the Delaware Court of Chancery. This will increase confidence in the CCLD and, as this decision shows, its experienced and competent judges, for business disputes.
The Delaware Supreme Court affirmed this decision on MArch 5, 2012.
For years the federal courts have steadily increased the sanctions for not following the rules governing email production in pretrial discovery. Now the Delaware Supreme Court has affirmed that it too will impose harsh penalties when emails are destroyed. The opinion has a useful explanation of the rules governing storage of emails and what should be done to protect them.
The opinion also clarifies that a Delaware court may decide who may vote the stock in a Delaware corporation even when the individuals claiming that right are not before the court. However, the court may not determine who owns that stock unless it has personal jurisdiction over them.
Court of Chancery Denies Expedited Process in Merger of Limited Partnership Even Though Plaintiff Stated Colorable Claim
Authored by Lewis H. Lazarus
This article was originally published in the Delaware Business Court Insider | July 13, 2011
The Court of Chancery often hears applications for expedition of a plaintiff's motion to enjoin a merger transaction. While the court "has followed the practice of erring on the side of more hearings rather than fewer" (Giammargo v. Snapple Beverage Corp. (1994)), it will not schedule an expedited hearing unless the plaintiff can show good cause.
The June 10 opinion in In Re K-Sea Transportation Partners L.P. Unitholders Litigation illustrates that, even where a plaintiff can state a colorable claim, the court will not schedule an expedited hearing if the plaintiff fails to show "a sufficient possibility of a threatened irreparable injury, as would justify imposing on the defendants and the public the extra (and sometimes substantial) costs of an expedited preliminary injunction proceeding," (citing Giammargo).
The K-Sea case also illustrates that when parties to agreements governing limited partnerships, limited liability companies or other alternative entities modify or eliminate fiduciary duties, a Delaware court will enforce the agreements as written. Courts will not undo what one party now believes is a bad bargain through the application of fiduciary duties or the implied covenant of good faith and fair dealing.
K-Sea involved the acquisition of a Delaware partnership. The acquirer sought to acquire the limited partnership by merger for either cash or a combination of cash and the acquirer's stock. Representatives of the board of directors of target's general partner negotiated the terms of the merger agreement. A special committee approved the transaction.
The plaintiffs argued that the special committee's approval did not comply with the K-Sea Limited Partnership Agreement (LPA) for two reasons. First, the special committee failed to consider separately an $18 million payment to the general partner for its incentive distribution rights (IDRs). Second, the members of the special committee were not independent because shortly before the beginning of merger negotiations with the acquirer, the target granted them each 15,000 phantom units that would immediately vest upon a change of control.
The plaintiff-unitholders also challenged the disclosure provided the common unitholders in the registration statement.
One of the more misunderstood aspects of merger agreements is how their representations and warranties are intended to work. Do they continue after closing? What is the limit on when litigation may be filed over any breach? This decision answers those questions and is therefore essential reading for those who deal in these agreements.
Of particular importance is the decision's holding that a 1 year limitation of litigation is binding and may cut off claims for breach of the representations and warranties.
When will Delaware law apply to a dispute is often not an easy question to resolve. That is true even when the parties had agreed to sue under Delaware law but the issue presented may involve foreign law as well. Here the Court sorted through a complicated deal involving the internal affairs of a German bank and held that some of the issues might be governed by German law but the main dispute was subject to Delaware law. This analysis is thus a useful guide in other complicated choice of law situations.
This article was original published in The Delaware Business Court Insider | 2011-07-06
On May 31, Vice Chancellor Leo E. Strine Jr. issued an opinion denying a motion for preliminary injunction to halt a merger between Massey Energy Company and an affiliate of Alpha Natural Resources Inc. One of the critical issues in the opinion was the value of the derivative claims Massey had against certain current and former directors and officers arising out of Massey's compliance with federal mining safety regulations.
Massey's attitude toward federal mining safety regulations arguably manifested itself in the Upper Big Branch mine disaster, which resulted in the loss of 29 lives. In his opinion, Strine found that the plaintiffs had probably stated a Caremark claim against the directors of Massey and criticized the board of Massey for failing to assess the value of the derivative claims but ultimately refused to enjoin the merger, concluding that the derivative claims did not have the value plaintiffs believed.
While this result has received some negative commentary, is it really a surprise? In fact, the court's analysis is consistent with prior analyses addressing the value of derivative claims in the context of a merger. The fact that the party here is more infamous than many others did not change the analysis under Delaware law.
The plaintiffs valued the derivative claims based on the "aggregate negative financial effect on Massey that the Upper Big Branch Disaster and its Fall-Out has caused." According to the plaintiffs' expert, these damages range from at least $900 million to $1.4 billion. The court, however, rejected this theory, in large part because the computation of the value of the derivative claims was far more complicated than the plaintiffs' theory.
First, even though the plaintiffs had stated a viable Caremark claim against the directors, because of the business judgment rule and the exculpatory provisions in Massey's certificate of incorporation, in order to obtain a monetary judgment against the directors, they would have to prove that the directors acted with scienter — a difficult standard to meet, particularly with independent directors.
Second, the court also found that even as to the autocratic former leader of Massey, Don Blankenship, who was arguably responsible for Massey's approach to mining safety, meeting this standard would be difficult. The court noted that there is a large gap between pushing the limits of federal regulations while accepting minimal loss of life and knowingly endangering the mine itself by putting its very operations at risk. Moreover, Blankenship was not directly in charge of any specific mine, and tying his policies directly to any disaster would be challenging.
Third, proving that the directors acted with scienter may entitle the corporation to a monetary judgment from the directors, but it would simultaneously expose the company to third-party civil liability and potential criminal liability, and potentially deprive the directors of the ability to rely on insurance coverage, all of which would harm the company.
Fourth, after the merger, Alpha will continue to have to address direct claims against Massey from its lost and injured miners, regulatory consequences of the company's mining safety approach, and other elements of the "Disaster Fall-Out." To the extent possible, Alpha will have every incentive to shift that liability to the former directors.
Fifth, it is impossible to determine the potential derivative liability of the directors until Massey's direct liability is determined. Indeed, it is not even in the interest of Massey's stockholders to press their claims of derivative liability now, before third-party civil and criminal adjudication, lest the plaintiffs expose the company to additional liability.
Sixth, the plaintiffs' expert put no value on the ability of the company or its stockholders to collect on a potential $1 billion judgment. The company's insurance policy, even assuming it is available to cover claims against the former directors, is only $95 million. While this is no small amount, it is, as the court put it, "not material in the context of an $8.5 billion merger."
While the vice chancellor was quick to note that the Massey board's approach to valuation of the derivative claims was less than ideal, because of the factors noted above, he found that the plaintiffs had not persuaded him that the merger was unfairly priced because of the failure to value separately the derivative claims. Was this conclusion so unprecedented, however, to justify criticism of the valuation?
Delaware courts previously have been asked to consider the value of unliquidated, contingent claims belonging to the company in the valuation context. These courts have never valued derivative claims at the full value of all potential damages, but instead have considered many of the factors Strine addressed in Massey.
For instance, in Onti Inc. v. Integra Bank Inc., petitioners in an appraisal action argued that their derivative claims should have been valued as an asset of the company in the appraisal proceeding. The stockholders' expert valued the claims at more than $19 million, while the company's expert valued the claims at negative $2.5 million. The court determined that the claims had no value. In reaching that conclusion, the court adopted the theory advanced by the company's expert, that all litigation factors should be considered, including the likelihood of success on the merits, the attorney fees necessary to obtain that result and any indemnification that the company would owe to its directors. Citing to prior precedent, the court noted that "there would be strong logic in including the net settlement value of such claims as an asset of the corporation for appraisal purposes."
Later that same year, the court took a similar approach in Bomarko Inc. v. International Telecharge Inc. The court valued the claim in that case by multiplying the probability of success by the likely amount of recovery while subtracting costs incurred to obtain that result.
More recently, in Arkansas Teacher Retirement System v. Caiafa, the Court of Chancery overruled an objection to a settlement that released claims that the board failed to ascribe any value to federal derivative claims in a merger. After noting that there is no case law supporting the proposition that the board was required to undertake a separate and discrete valuation of the derivative claims pending at the time of the challenged merger, the court reached the same result as Strine did in Massey, albeit with less analysis. That is, the court noted that the claims asserted in the federal action were difficult to win, and even those that had a higher probability of success could not have the $2 billion value the objectors claimed they did. On appeal, the Delaware Supreme Court affirmed the Court of Chancery's decision to overrule the objection for the reasons set forth in the Court of Chancery's opinion.
Given these precedents, is the result in Massey all that surprising? While some contingent claims have been given value, it is the exception, and not the rule, to assign material value to contingent derivative claims. Moreover, in the context of a merger worth billions of dollars, the likelihood is low that derivative claims have material value, particularly when reasonable defenses can be interposed.
But does this decision mean that boards can just eschew any analysis of the value of a derivative claim in the context of a merger? Probably not. The Court of Chancery certainly did not condone the practice, and had the court not been persuaded that the board otherwise acted properly, the failure to do so could have had more importance.
Further, because the exception to the derivative standing rule that entering into a merger for the purpose of extinguishing derivative claims remains viable, particularly in light of the Supreme Court's opinion in Caiafa, failure to value the claims could support the conclusion that a merger was negotiated simply to avoid liability. Finally, not all derivative claims are equal in this context. As Strine noted in Massey, if Massey had a liquidated claim against a former fiduciary reduced to a judgment but failed to get any value for this claim, he could see the substantial unfairness in failing to obtain value for that claim in a merger. Alternatively, if recovery on any derivative claim after a cash-out merger would inure solely to the benefit of the acquirer, then perhaps there would be value to the buyer in obtaining that claim.
Put simply, as with many issues of fiduciary law, the context of the situation is important. What is fairly clear, however, is that unliquidated contingent derivative claims are not ascribed much value, if any, in a merger context, unless a party can demonstrate a reasonable likelihood that the net value of the claim to the company is material.
Peter B. Ladig (email@example.com) is a partner at Morris James in Wilmington and a member of its corporate and fiduciary litigation group. He represents both stockholders and directors in corporate litigation. The majority of his practice is in the Delaware Court of Chancery, although he has extensive experience in the other state and federal courts in Delaware and has been involved in over 50 published decisions. The views expressed herein are his alone and do not necessarily reflect the firm or any of the firm's clients.
This article was originally published in the Delaware Business Court Insider | June 29, 2011
There is trouble in Delaware. For over 40 years the esteemed Delaware Court of Chancery has been almost always headed by a Chancellor named “William.” From William Duffy, to William Marvel to William Quillen to William Allen and last in the line, William Chandler, the Court has been well served by its Williams. Now that Leo Strine is about to become the rare Chancellor not named William, concern abounds over his name. Of course, a past great Chancellor was named Grover, as in Grover Brown, but that was the exception that proves the rule. Apart from their common name, what made all these Williams special? That answer can be seen in looking at the characteristics of the last William, Chancellor Chandler who has just retired.
First of all, William Chandler was an honest man in an age when intellectual honesty is not common. By honesty, of course, I do not refer to financial integrity. All Delaware judges have had that in recent memory. Instead, honesty means following binding precedent even when you think it is wrong. Here, Chancellor Chandler always said what he thought and never hid his reasoning, but followed precedent even if he disagreed with the Delaware Supreme Court.
A great judge has intelligence. The scholarship of so many Chandler opinions is astonishing for a busy judge. Just look at the hundreds of footnotes in his recent Air Products decision issued soon after the last hearing and you must wonder how did he find the time. Intellectual ability made the difference. Past Chancellors such as William Allen have lasting reputations for their scholarship. So too will this Chancellor Chandler.
A great judge has energy. Being a judge requires paying attention to witnesses and lawyers droning on and on and then writing an opinion that decides a complicated case. That takes stamina. Chancellor Chandler’s frequent jogging kept him in shape and that was reflected in the energy he brought to the job.
A great judge is a good administrator. The Court of Chancery under this Chancellor was free from internal squabbling, had a hard working staff of reporters and administrators and consistently provided great service. While that is a tribute to that staff, it also reflects well on the person in charge – the Chancellor. This aspect of the job is often overlooked because it is not done in public or with great fanfare. Yet, it is vital to an effective court. Moreover, Chancellor Chandler has a great interest in technology. That has led the Court to be up-to-date not just with electronic fillings but with other innovations such as easy rapid transcription of hearings.
A great judge has patience. Chancellor Chandler is among the most patient of human beings. He was patient with wandering lawyers, pro se litigants, impossible deadlines and constant demands on his time with rarely a complaint. This characteristic is much more appreciated than some judges might think. Chancellor Duffy was a small man in stature, but had total command of the Courtroom through his calm, patient demeanor. Not for him was the sarcastic remark to put down the wrongheaded lawyer. Chancellor Duffy instead would gently show the errors of that lawyer’s position by his patient explanations. That is not easy and is often not acknowledged, but is important. Chancellor Chandler had a similar quiet but effective command of his courtroom.
A great judge is a good listener. This is more than just being patient. It is the knack of making the person talking to you feel that you are hearing and considering every word they say. Chancellor Chandler was the best listener I have ever seen. He made you feel that you were the only one in the room. On occasion at some Bar or judicial event, the Chancellor would need to participate in a conference call. When he did, the telephone literally seemed to be part of his anatomy and even if a streaker ran by he would not blink so intent was his concentration.
A great judge is a faithful public servant. The Court of Chancery did not need to volunteer to hold mediations and now arbitrations of business disputes in addition to its regular, full docket. But to keep Delaware as a leader in resolving business disputes, this Chancellor was an early advocate of these additional services to business litigants. That is a burden that he and the Court took on and that is all done in private without any public appreciation for that extra effort. That is real public service.
Finally, a great judge enjoys his job. The constant clamor of litigants and the demands of always being “fair” can make any judge irritable. That never happened with Chancellor Chandler. Sure he always ruled his courtroom and could be stern when that was needed. But day in and day out he was good to be with even in the toughest trial. Just the joy he took in the new courthouse in Georgetown was a pleasure to see, including giving tours of that courthouse when it first opened.
So what about the nominee to be Chancellor? Even though he is named “Leo” he is well-suited for this job as Chancellor. While not as patient as Chancellor Chandler (who is anyway?), Chancellor Strine has the intellectual honesty, intelligence, energy, administrative skills, and commitment to public service of the Williams who preceded him. The Delaware Bar expects that he will fulfill his promise.
This is another in a series of detailed explanations of how attorney fees are to be calculated in representative litigation in Delaware. First, the Court explained when an interim application may be considered, noting that it may be preferable to do so when the matter is still fresh. That is particularly so when any appellate review is not likely to change the benefit conferred by the litigation.
Next, the Court explained that uncovering facts not known before the litigation began is particularly important and deserving of a fee award at the higher end.
Finally, the Court set out examples of prior fee awards and explained how those informed its decision in this case.
Lewis H. Lazarus
This article was originally published in the Delaware Business Court Insider | June 15, 2011
A plaintiff who pleads successfully that a transaction under attack is governed by the entire fairness standard of review instead of business judgment generally stands a good chance of defeating the defendant's motion to dismiss. That is because when a transaction is reviewed for entire fairness, defendants bear the burden in the first instance of proving at trial the fairness of the process and price.
In two recent cases - Ravenswood Investment Co. v. Winmill and Monroe County Employees' Retirement System v. Carlson - the Court of Chancery clarifies that a plaintiff must still make well-pleaded allegations that a transaction is unfair as to process and price if its complaint is to survive dismissal at the pleadings stage.
Ravenswood involved claims that defendant directors' adoption of a performance equity plan violated fiduciary duties by seeking to dilute the minority stockholders' percentage interest in non-voting Class A shares (only Class B shares had voting rights). The court noted that the entire fairness standard applied because "where the individuals comprising the board and the company's management are the same, the board bears the burden of proving that the salary and bonuses they pay themselves as officers are entirely fair to the company unless the board employs an independent compensation committee or submits the compensation plan to shareholders for approval."
Because the directors employed no such protective measures, the court held that the entire fairness standard of review applied. Still, citing Monroe County, the court held that the plaintiff "bears the burden of alleging facts that suggest the absence of fairness."
The court dismissed the plaintiff's complaint because it found he had failed to make well-pleaded allegations that the defendant directors' adoption of the performance equity plan was unfair. Critical to the court's reasoning was that dilution occurs upon the adoption of any options plan; the question is whether the manner in which the options were issued unfairly diluted the stockholders.
As the defendants in their motion to dismiss did not challenge the plaintiff's claim for unfair issuance of the options, the court found that the plaintiff's allegation of dilution did not suffice to state a claim for unfairness in the adoption of the performance equity plan.
This was so because the plaintiff alleged that "(1) the Performance Equity Plan only authorizes the Board to grant stock options with an exercise price not lower than the market value as of that event, (2) the Defendants already control all of the Company's voting rights through their ownership of its Class B shares, and (3) even if all options authorized under the plan were to be granted to the Defendants they would not obtain a majority interest in the Class A shares... ."
The court noted that although it was true that the Class A shares could vote to approve a merger, the plaintiff made no allegation in his complaint that the adoption of the performance equity plan impaired those voting rights. The court declined to comment on whether such an allegation may have sufficed to sustain this claim.
The Ravenswood court relied upon the court's holding in Monroe County. That case involved a challenge to an intercompany agreement that required the plaintiff's company to purchase services and equipment from its controlling shareholder on terms in conformity with (for services) or the same as (for equipment) what the controlling shareholder charged its other affiliates. The parties agreed that the arrangement the plaintiff attacked was governed by the entire fairness standard of review.
They disagreed as to whether the plaintiff's pleading sufficed to survive a motion to dismiss.
As summarized by the court: "Delaware law is clear that even where a transaction between the controlling shareholder and the company is involved such that entire fairness review is in play, plaintiff must make factual allegations about the transaction in the complaint that demonstrate the absence of fairness. (citations omitted). Simply put, a plaintiff who fails to do this has not stated a claim. Transactions between a controlling shareholder and the company are not per se invalid under Delaware law. (citation omitted). Such transactions are perfectly acceptable if they are entirely fair, and so plaintiff must allege facts that demonstrate a lack of fairness."
In reviewing the complaint, the court found no allegations that the price at which the controlling stockholder provided the services and equipment was unfair. Instead, the court found that plaintiff's allegations addressed only alleged unfair dealing.
In the absence of an allegation that the company could have obtained the services or equipment on better terms from a third party or any specific allegation of the worth of the services or equipment relative to what the company paid, the court found that the complaint did not make sufficient factual allegations that the intercompany agreement transactions were unfair. Because the plaintiff chose to stand on its complaint in response to the defendants' motions to dismiss rather than to amend, the court dismissed plaintiff's complaint with prejudice under Court of Chancery Rule 15(aaa).
Together, these two cases clarify that a plaintiff cannot survive a motion to dismiss simply by alleging that a transaction involving a controlling stockholder is unfair. A plaintiff instead must make particular factual allegations suggesting why the transaction was unfair. A plaintiff who cannot make such allegations and who stands on a conclusory complaint, as in Ravenswood, may find that its claims are dismissed with prejudice.
Lewis H. Lazarus (firstname.lastname@example.org) is a partner at Morris James in Wilmington and a member of its corporate and fiduciary litigation group. His practice is primarily in the Delaware Court of Chancery in disputes, often expedited, involving managers and stakeholders of Delaware business organizations. The views expressed herein are his alone and do not necessarily reflect the firm or any of the firm's clients.
One of the more important fiduciary duties in Delaware corporate law is not to trade on insider information. A complaint alleging that you did is known as a Brophy claim for the decision that announced it over 60 years ago. Recently, Brophy was thought to have been watered down by a requirement that the company actually suffer harm from the trading involved. That would occur, for example, if the company is in the market to buy back its own stock in competition with the insider.
Well, the Supreme Court announced in this decision that it will not permit any chipping away at the Brophy rule. It is not necessary to show harm to bring such a claim. Rather, preserving the sanctity of fiduciary duties under Delaware law warrants permitting recovery of any profits made by the disloyal fiduciary, even if not at the company's expense.
Recently Delaware enacted a statute to authorize business trusts, such as used in the mutual fund industry, the Delaware Statutory Trust Act. This decision establishes that the normal rules for derivative litigation apply in actions brought by trust interestholders. For example, whether the action is direct or derivative and when demand is excused will be decided applying established Delaware law.
The decision also squarely establishes that the alleged mismanagement of investments by a mutual fund manager is a derivative claim.
This decision on a motion to expedite the scheduling of a challenge to a merger is interesting for its extensive treatment of the merits of the complaint. In the past, the Court of Chancery has treated motions to expedite more summarily. Perhaps this indicates a greater focus on the burdens of expedition on the Court and others and a desire to limit expedition to those instances where otherwise a plaintiff would have no real remedy.
The opinion discussed in some detail when the possibility that a monetary judgment will be uncollectable is adequate to warrant expedition. A real showing that is the case is required, not just speculation.
The opinion's other major holding is that a limited partnership agreement may effectively limit the amount of disclosures that must be given prior to a vote on a proposed merger.
This article was originally published in the Delaware Business Court Insider | June 08, 2011
Why do so many people care about whether the Delaware courts will continue to uphold the "poison pill" defense to a hostile takeover? After all, comparatively few lawyers practice merger and acquisition law. Few companies are subject to hostile takeover threats, especially in recent years. And who really stays up at night worrying about the fight between the two largely unknown companies that were the participants in Delaware's latest hostile takeover battle and the weapon of choice among defenders in such battles, the poison pill?
Yet, since the Feb.15 Court of Chancery decision in the Air Products case, there have been almost too-many-to-count blog postings, journal articles and symposia about that decision and its upholding of a poison pill. Who cares?
In this case the limited partnership agreement had a detailed method for dissolving the entity and paying the proceeds to the limited partners, including how to set the sale price if its assets were sold to a related party. The General Partner approved such a sale and followed the prescribed method. When the plaintiff argued the result was less than optimal, the Court held that was too bad when the partnership agreement was followed. In short, the "contract" among the partners was again enforced.
The Delaware Supreme Court has held that when there are staggered terms for the members of a board of directors that the annual stockholders meetings must be about 1 year apart. In this case, the next board meeting was set for June, 2011 or 6 months after the last meeting. The Court held that was acceptable because the directors whose terms would expire at the new board meeting were elected 3 years ago. Of course that left open whether continuing the new meeting date in 2012 might cut short the tems of other directors. The Court declined to resolve that issue until the next meeting date was actually set.
This is a useful case because it covers just about every basis to assert jurisdiction over non-Delaware residents for their actions in Delaware. It also upholds jurisdiction over a former Delaware corporation that merged out of Delaware.
When a company that is subject to derivative litigation is sold in a merger, the value of the derivative claim may be significant. After all, in most cases, that claim passes to the buyer who arguably should pay something for it. Here the Court carefully evaluated a derivative claim that it found would survive a motion to dismiss and explains why, in the circumstances of this case, that claim and its possible value did not mean the merger consideration was inadequate.
The way the Court does the analysis here is an excellent example of the way to value such a claim in the merger context.
Some may think that all you need to state a claim for breach of fiduciary duty is to allege the action under attack involved a conflicted board. Not so. At the very least, a plaintiff also needs to allege facts that show the deal was unfair to the company. Once that is pled, then the burden does shift to the conflicted board to justify the transaction.
This decision explains in a clear way how the class certification process is to work and when the members of the class should receive more direct notice of the class action.
This decision involves the application of the familiar standards governing the appointment of lead counsel, but with a twist. When multiple suits are filed over the same alleged misdeed, the Court of Chancery has encouraged the litigants to file a so-called "Savitt Motion." That motion asks the various courts involved to confer as to which case should go forward while the others are stayed. Here, when the New York court decided the Delaware case should be the one to proceed, the lead lawyer in New York agreed to drop his suit and go to Delaware with his claim. That drew praise from the Delaware court and may have tipped the balance in having that lawyer appointed lead counsel.
Chancery Decisions Highlight Importance of Independent and Disinterested Directors in Company Sale Transactions
Lewis H. Lazarus
This article was originally published in the Delaware Business Court Insider | May 25, 2011
Two recent decisions from the Court of Chancery — In re Orchid Cellmark Inc. Shareholders Litigation and In re Answers Corp. Shareholders Litigation — illustrate how parties may reduce deal risk by ensuring that the directors responsible for managing a sale process are disinterested and independent. At the same time, while the court in both cases rejected challenges to the transactions based on allegedly excessive deal protection terms, the court also signaled that providing much more than the parties did in Orchid may break the court’s proverbial back.
Independence and Disinterest
The court decided each of these cases following an expedited preliminary injunction hearing at which the plaintiffs sought to enjoin the transactions based in part on an allegedly inadequate sales process. In this Revlon Inc. v. MacAndrews & Forbes Holdings Inc. context, the court is called upon "to assess carefully the adequacy of the sales process employed by a board of directors." A primary inquiry in assessing a transaction is whether the directors responsible for the negotiations are independent and disinterested.
In Orchid, the court noted that five out of the six directors were independent. Its board formed a special committee to negotiate the transaction. That committee included two independent directors and a third newly elected director who had been nominated by the company’s largest shareholder. In addition to the independence of the special committee, the court also found no reason to doubt the independence or credentials of the special committee’s financial adviser.
Likewise, in Answers, although the plaintiffs raised questions about the independence of two of the directors, the court found that those directors did not lead the negotiations. Moreover, four out of the seven directors who approved the transaction were disinterested and independent. Finally, the court held that the company’s financial adviser’s independence and qualifications were not seriously challenged. The independence of the directors and their advisers were significant factors in the court’s decision in both cases to uphold the reasonableness of the boards’ decision making.
Deal Protection Terms
The court noted that deal protection terms such as termination fees, expense reimbursements, and no-talk and no solicitation clauses are standard. The issue is whether cumulatively they are impermissibly coercive or preclusive of alternative transactions. In Answers, the court observed that the break-up fee of 4.4 percent of equity value was at the upper end of the "conventionally accepted" range.
However, the court stated that this is not atypical in a smaller transaction. The court also rejected the plaintiffs’ challenge that the court should measure the break-up fee in reference to enterprise value on the ground that "Our law has evolved by relating the break-up fee to equity value."
In Orchid, the parties' deal protection included not only standard no-shop and termination provisions, but also a top-up option, matching rights and an agreement to pull the company’s poison pill, but only as to the buyer. The court held that top-up options are standard in two-step tender offer deals. As to the termination fee, the court found it appropriate in reference to the equity value of the target and again rejected the plaintiffs' effort to measure the termination fee in reference to enterprise value. The court also recognized that the matching and informational rights might have a deterrent effect on a hypothetical bidder, but it found those provided in the merger documents would not preclude a serious bidder from stepping forward.
The court also found that the selective pulling of the pill was not impermissibly preclusive of alternative bids. The court reasoned that the merger agreement enables the board to redeem the pill if it terminates the merger agreement. Termination is permitted if the board receives a superior offer and withdraws its recommendation that the stockholders tender their shares. The court observed that the termination fee that would be owed if the board terminates the merger agreement for a bidder who makes a superior offer and then pulls the pill w