Posts from July 2014

Modest Reflections on the State of Delaware Litigation

Authored By Edward Mcnally

This article was originally published in the Delaware Business Court Insider | July 30, 2014

Delaware's courts are going through a period of rapid change. While it is too early to decide whether those changes are for the better, some preliminary comments are possible. In general, the recent events are a cause for optimism that Delaware is maintaining its position as the best forum for corporate litigation. There is, however, one dark cloud on the horizon. More ›

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Albert J. Carroll Joins Morris James’ Business Litigation Practice

Morris James has announced that Albert J. Carroll has joined the Firm’s Business Litigation Group as an associate in its Wilmington office. His practice will focus on Corporate and Commercial Litigation. “Albert’s experience as a corporate litigator will be a great asset to Morris James. We look forward to his contributions to the growth of our business litigation team,” said Managing Partner David Williams. Mr. Carroll’s experience includes representing stockholders, directors, officers, and companies in the Court of Chancery in matters involving breaches of fiduciary duty, breaches of contract, and summary proceedings under the Delaware General Corporation Law.  Albert has also assisted in counseling special committees of boards of directors formed to investigate alleged wrongdoing. His commercial experience also includes representing companies in breach of contract matters in arbitrations governed by the AAA Commercial Arbitration Rules. More › Share

Chancery Court Dismisses Revlon and Quasi-Appraisal Claim

Authored By Lewis Lazarus This article was originally published in the Delaware Business Court Insider | July 23, 2014 The Delaware courts apply a high standard of review in sale transactions where a plaintiff pleads a conflict of interest. Where a board sells to a third party and the plaintiff pleads no conflict of interest, however, the Delaware Supreme Court has noted that "an extreme set of facts" is "required to sustain a disloyalty claim premised on the notion that disinterested directors were intentionally disregarding their duties." Lyondell Chemical v. Ryan, 970 A.2d 235, 243 (Del. 2009). Only where a plaintiff pleads facts showing a conscious disregard of duties would a plaintiff be able to allege that the directors had acted in bad faith in approving a sale transaction. And if a plaintiff cannot plead facts showing disloyalty or bad faith, and assuming the board is protected by a Section 102(b)(7) provision, then a plaintiff will not be able to plead any non-exculpated conduct and hence the court will dismiss at the pleadings stage any claim for monetary damages. The recent case of Dent v. Ramtron International, C. A. No. 7950-VCP (Del. Ch. June 30, 2014), illustrates these principles and provides guidance as well into the court's application of the materiality standard in assessing claims of breach of the duty of candor that might give rise to a quasi-appraisal remedy. More › Share

Morris James LLP Welcomes New Attorney Meghan A. Adams

Morris James LLP is pleased to announce that Meghan A. Adams has joined the Firm’s Wilmington office as an associate in its Business Litigation Group. Her practice will focus on Corporate and Commercial Litigation. Ms. Adams’ experience includes stockholder litigation, corporate governance, officer and director fiduciary obligations and the resolution of limited partnership and limited liability disputes. During law school, she served as a Judicial Extern to the Honorable Myron T. Steele, then Chief Justice of the Supreme Court of Delaware. Managing Partner, David Williams, said of Meghan, “We are thrilled to bring such a capable lawyer to our Business Litigation group. Her experience in both the Delaware Court of Chancery and the Delaware Superior Court makes her a great addition to our firm.” Ms. Adams graduated from Widener University School of Law in 2007, ranking in the top 10% of her class and receiving the Dean Santoro Scholarship and Outstanding Service Award. She served as the Articles Editor for The Delaware Journal of Corporate Law at Widener. Meghan received her B.S. in Business Administration from the University of North Carolina at Chapel Hill in 2003, which she attended on a golf scholarship while serving as captain of the women’s varsity golf team. She is admitted to practice law in Delaware and the United States District Court for the District of Delaware. Share

Chancellor Explains When Demand Is Required For Compensation Claim

Friedman v. Khosrowshahi, C.A. 9161-CB (July 16, 2014) Recently derivative suits claim that there is no need to make a pre-suit demand on the board because that board violated the terms of an incentive compensation plan and is thus disqualified from considering a demand it file suit.  As this decision by the new Chancellor points out, the prior case law that excused demand turned on the alleged fact that the incentive plan was clearly violated by the board.  Here, in contrast, the plan might reasonably be interpreted to permit just what the board was accused of doing when it amended the plan to grant the extra incentive the complaint alleged was wrong.  Hence, the board was not disqualified out of fear the members would be held liable for doing what they did to intentionally violate their duties. Share

Stockholder Derivative Actions With Pending Federal Securities Actions

Authored By Albert Manwaring This article was originally published in the Delaware Business Court Insider | July 9, 2014 While not adhering to the first-to-file rule, Delaware courts have long recognized that a stay of an action in favor of another action may be appropriate in the interests of comity and judicial efficiency when there is identity of the parties and issues in the two actions. The Court of Chancery has frequently stayed derivative actions (in favor of federal securities fraud actions) where the derivative action simultaneously seeks to prosecute fiduciary-duty claims based on similar facts and claims for misrepresentations and insider trading, or seeks indemnification from the directors based on a company's potential liability in the federal securities action. In these circumstances, the court has recognized a company may be unfairly prejudiced if forced to adopt conflicting positions and litigation strategies where the company is simultaneously a defendant in the federal securities action and a nominal plaintiff in the stockholder derivative action. Indeed, a company faces an inherent litigation conflict if forced to simultaneously defend against allegations that the directors and the company lacked knowledge of purported wrongdoing in a federal securities action while at the same time, a stockholder asserts derivative claims, on behalf of the same company, against the directors, alleging that they had knowledge of the wrongdoing. More › Share

District Court Explains Class Certification Issues

Skeway v. China National Gas Inc., No. 10-728-RGA (June 18, 2014) This is a useful opinion dealing with when a securities action should be certified as a class action. Share

District Court Reviews Website As Basis For Jurisdiction

Inno360, Inc. v. Zakta, LLC, No. 13-1790-SLR (June 19, 2014) This decision has a good review of when just posting a web page is enough to support jurisdiction over the posting party. Share

Court Of Chancery Explains Member Fiduciary Duty

Xcell Energy and Coal Company LLC v. Energy Investment Group LLC, C.A. No. 8652-VCN (June 30, 2014) The question of whether the members of an LLC owe fiduciary duties to the other members  is dependent on the terms of the LLC agreement. When there is a manager designated by the LLC agreement, the members as members will not ordinarily have fiduciary duties. Share

Court Of Chancery Dismisses Merger Case

Dent v. Ramtron International Corporation, C.A. 7950-VCP (June 30, 2014) There is a general sense that it is hard to have the Court of Chancery grant a motion to dismiss litigation attacking a proposed merger. While that may be true when the merger involves insiders, this decision demonstrates that an arms length transaction subject to typical deal protection provisions is not easily attacked absent some hard facts supporting the claim. Without those well-pleaded facts, the Court will dismiss the suit. Share

Court Of Chancery Upholds Right To Indemnifcation In Face Of Bylaw Amendment

Branin v. Stein Roe Investment Counsel LLC, C.A. No. 8481-VCN (June 30, 2014) Can a company defeat a former officer's claim for indemnification by simply amending its bylaws?  If the right to indemnification has already accrued, such as by the filng of a suit against that director, the short answer is "no." Share

Chancery Court Rejects Trading Restriction as Condition of Receipt

This article was originally published in the Under 8 Del. C. Section 220, stockholders of Delaware companies are entitled to inspect certain books and records of the company upon stating a proper purpose. A long-recognized proper purpose for a books-and-records demand is an interest in valuing one's stock. In The Ravenswood Investment L.P. v. Winmill & Co., C.A. No. 7048-VCN (Del. Ch. May 30, 2014), the Court of Chancery decided the "novel" issue of whether a company, in response to a books-and-records demand, may condition the provision of nonpublic financial information on a trading restriction. Finding that the trading restriction would "inappropriately frustrate a fundamental stockholder right" to value its stock, the court held that the company could not require an agreement on the part of the requesting stockholder not to trade its stock for a certain period of time after receipt of the requested information. More ›

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