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Summaries and analysis of recent Delaware court decisions concerning business-related litigation.

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Court Of Chancery Denies Request For A "No Trade" Agreement

The Ravenswood Investment Companies L.P. v. Winmill & Co. Inc., C.A. 7048-VCN (May 30, 2014)

Inspection of a company's records may not be conditioned on an agreement not to trade the company's stock following the inspection.

Former Director Loses Right To Inspect

King v DAG SPE Managing Member Inc., C.A. 7770-VCP (December 23, 2012)

This decision holds that after a director ceases to be a director, he loses any statutory or other right as a director to inspect a corporation's books and records.

Court Of Chancery Limits Inspection From Third Party

Florida R&D Fund Investors LLC v. Florida BOCA, C.A. 8400-VCN (August 30, 2013)

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

Court Of Chancery Permits Access To Litigation Reserves

JP Morgan Chase & Co. v. American Century Companies Inc., C.A. 6875-VCN (April 18, 2013)

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.

Court Of Chancery Explains Limits On Inspection

Doerler v. American Cash Exchange Inc., C.A. 7640-VCG (February 19, 2013)

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.

Court Of Chancery Permits Interlocutory Appeal In 220 Case

In Re Freeport-McMoRan Copper & Gold Inc. Derivative Litigation,  C.A. 8145-VCN (February 14, 2013)

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.

Court Of Chancery Limits Claims In Section 220 Cases

The Ravenswood Investment Company LP v. Winmill & Co. Incorporated, C.A. 7048-VCN (January 31, 2013)

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.

Court Of Chancery Explains Scope Of Inspection

Rock Solid Gelt, Ltd. v. The SmartPill Corporation,  C.A. 7100-VCN (October 10, 2012) 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.

Court Of Chancery Explains Sufficient Basis For Inspection

Louisiana Municipal Police Employees' Retirement System v. Lennar Corporation, C.A. 7314-VCG (October 5, 2012)

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.

Supreme Court Upholds Section 220 Jurisdictional Rules

Central Laborers Pension Fund v. News Corporation,  No. 682, 2012 (May 29, 2012)

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.