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Summaries and analysis of recent Delaware court decisions concerning business-related litigation.
Morris James Blogs
Showing 17 posts from December 2013.
In general, a successor entity is not liable for its predecessor's obligations when there has been a fundamental change in the identity of the entity. Here, the Court held that the conversion of a corporation into an LLC did not make the LLC obligated to advance attorney fees for claims that arose out of actions taken while a director of the predecessor corporation. The decision turned on the terms of the LLC's advancement provisions in its operating agreement. Hence, if you want to include a right to advancement for actions taken for the predecessor entity, you had better say so. Note also that the result may well have been different for a claim for indemnification after a merger because the merger statute provides that obligations of an entity in a corporate merger pass to a resulting entity after a merger.
Under Delaware law, a so-called Brophy claim seeks to recover the profits made by trading on insider information. Showing that material insider information was available is not too hard. What is harder is showing the intent to use that information, the scienter requirement. After all, an insider may trade for a variety of reasons, such as a favorable public announcement of good future prospects. Here the Court explains, in the context of a motion to dismiss, how to interpret the circumstances surrounding insider trades to find that they were done with the intent to benefit from the insider information. Among the key facts are the timing of the trades in reference to obtaining the information, the failure to disclose the insider information until after the trades are completed, and the size of the trades in comparison to any prior trading.
Delaware entities generally provide broad advancement and indemnification rights to encourage directors and officers to serve. Absent such protection, managers bear the costs of defense for claims against them arising out of acts they perform in carrying out their company duties. Qualified officers and directors likely would be reluctant to serve or too risk-averse if every official act they performed were subject to litigation that the manager had to pay personally to defend. More ›
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.
The Court of Chancery has again denied a request for an anti-suit injunction. This time the Court noted that the litigation sought to be enjoined would actually continue by a party not before the Court. Hence, the injunction was not going to accomplish an end to duplicative litigation.
This decision explains when the doctrine of equitable tolling will save a complaint from being dismissed because it was filed too late. If the plaintiff would not have been able to discover the key facts supporting a claim by inspecting the company's books and records, equitable tolling of the applicable limitations period will apply until those facts come to light. That is particularly helpful in a Brophy claim alleging the use of insider information where the knowledge of the insider may not become apparent until that insider's records are disclosed.
This opinion has a good summary of Delaware law on forum selection clauses, motions to dismiss for improper venue, and stays in favor of another forum.
The term "inadvertent" is frequently used in confidentiality and quick-peek agreements to permit the claw back of privileged documents that have been "inadvertently" produced. In a rare case, the Court of Chancery concluded that there was inadvertent production, even though the documents were used in questioning a witness.
The Delaware Court of Chancery continues to evolve its approach to multijurisdictional litigation. Exactly what that court will do next is uncertain. Its most recent decisions seem to rebut the prediction it would enjoin forum-shopping plaintiffs to prevent them from abusing the legal system by filing suits in multiple jurisdictions over the same controversy to try to pressure corporate defendants. More ›
When the Delaware Court of Chancery adopted Rule 5.1 in late 2012, the court took great pains to inform the public that Rule 5.1 represented a significant departure from the practices under former Rule 5(g). Notwithstanding this admonition from the court, until the court issued opinions addressing the new aspects of Rule 5.1, particularly what type of information met the "good cause" standard articulated in the rule, there was little guidance to flesh out exactly how the court would apply the new rule. More ›
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.
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.
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.
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.
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.
If there is a dispute over the identity of the directors of a Delaware corporation, the corporation, its stakeholders and those with whom it does business require prompt certainty as to who is in charge. For that reason, Section 225 of the Delaware General Corporation Law provides for a summary proceeding to determine who rightfully comprises the board and officers of a Delaware corporation. While there is a rich body of Section 225 case law, there are few decisions addressing whether the party who loses at the trial court level is entitled to a stay of the court's order pending an appeal. The Court of Chancery recently addressed this issue in Klaassen v. Allegro Development, C. A. No. 8626-VCL (Del. Ch. November 7, 2013), known as Klaassen II, and partially stayed its post-trial order to allow the losing CEO to pursue an expedited appeal. In this decision, the court provided guidance on how it may limit the conduct of a judicially sanctioned board while a party challenges that outcome on appeal. The court also identified a significant issue that, once resolved by the Delaware Supreme Court, likely will affect how parties resolve leadership transitions when they are at odds over how to manage the company's business and affairs. More ›