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Summaries and analysis of recent Delaware court decisions concerning business-related litigation.
Morris James Blogs
In Arch Insurance v. Murdock, (Del. Ch. Mar. 1, 2018), a D&O insurance coverage dispute, the state Superior Court’s complex commercial litigation division reasoned broadly to hold that, absent a contrary choice of law clause, Delaware law applies to Delaware corporations’ D&O insurance policies, and that Delaware public policy does not prohibit insuring losses from insureds’ breaching the fiduciary duty of loyalty through fraudulent conduct. More ›
This decision upholds coverage under a D&O policy for a claim alleging fraud by directors. This is not too surprising as the Delaware Corporation Law has long relied on insurance to cover the gap in the DGCL that denies indemnification for some claims based on disloyalty. The business judgment rule, the right to advancement, and indemnification and insurance are the triad of protections for Delaware directors.
To obtain inspection rights from a Delaware corporation to investigate alleged wrongdoing, the petitioner needs some evidence to support his suspicions. As this decision explains, the filing of a suit by someone else is not enough. However, when that other complaint has detailed facts to support it or documents attached that show wrongdoing, that will suffice. This is also a good decision on the scope of inspection rights.
Demand on directors is not required when it is alleged that they have violated a statute or rule. But when the claim is only that they violated the "best practices” suggested by an agency, that is not enough to excuse demand on the board.
This decision is particularly helpful in clarifying the effect of Section 141 of the DGCL. A transaction that is passed by the vote of even a single disinterested director is not void because of the language of Section 141. However, that does not mean that the transaction also is then subject to the business judgment standard of review. If the other directors are interested in the transaction, then the entire fairness standard will apply. More ›
When seeking stockholder votes it is not always clear when the company must disclose an opinion of an individual director on the merits of the proposed transaction. This decision reviews the Delaware law and concludes that at least when the director involved is a founder and chairman and voices an opinion that the transaction is not good for the company, that opinion must be disclosed.
This Order is helpful in setting out how to plead that a board decision subject to a “good faith” test in an LP agreement did not meet that standard.
As this decision again points out, a scheduling order is a court order that must be followed or sanctions will be imposed. Late production of documents is just such a sanctionable event.
When a demand to inspect corporate records states a purpose other than to value the corporation’s stock, it is often difficult to determine if the basis for the demand is properly supported by the facts in the petition. The petition must state a credible basis to investigate any alleged wrongdoing. This decision is an excellent summary of what facts are sufficient to support such a demand and the analysis the Court will use to decide that issue.
This is an important case for its comments on the Dell decision of the Delaware Supreme Court. The Court declined to use the deal price as evidence of the fair value despite the favorable comments on the use of deal price in Dell. Hence, this may mean that some commentators are wrong in their views that deal price is conclusive in valuation cases in the Delaware courts. Note, however, that again the fair value determined by the Court is less than the deal price, a loss for petitioners. More ›
The Delaware Limited Liability Company Act’s policy is to give the maximum effect to the principle of freedom of contract in LLC operating agreements. While the act permits parties to eliminate fiduciary duties that members or managers would otherwise owe to one another, an operating agreement may not eliminate the implied covenant of good faith and fair dealing that inheres in every LLC operating agreement under Delaware law. The implied covenant operates to imply terms to address developments or contractual gaps that neither party anticipated in the operating agreement, but which are necessary to fill gaps essential to meeting the reasonable expectations of the parties as reflected in the express terms of the operating agreement. More ›
This appraisal case adopts the target’s market price as its fair value. This confirms that the Court of Chancery may well interpret Dell and related decisions as strongly favoring market price, at least when the market is deemed efficient and unaffected by the deal. Is this then the end of appraisal arbitrage?
In what it is hoped is the final act in the TransPerfect case, this decision upholds the sale process used by the Custodian to sell TransPerfect. While certainly a unique case, the decision does provide guidance on the discretion of a Court-appointed custodian in selling a deadlocked corporation.
This may be the definitive decision on when and how to apply the covenant in every LLC agreement to act in good faith and deal fairly. Here the “gap” the parties did not address in their LLC agreement concerns the rights of newly admitted LLC members to block a forced sale of the entity. While that right was addressed in the initial LLC agreement, the terms on which new members were admitted years later were not addressed at that time. The decision is also noteworthy in how it decides to fill the gap the parties left, by deciding what they would have done had they thought about it.
This decision clearly sets out how to allocate fees for claims subject to advancement of attorney fees from those that are not covered by an advancement obligation. In particular it details how allocation questions should be answered and how disputes over the amounts to be paid should be resolved. More ›