LG Electronics, Inc. v InterDigital Communications Inc., C.A. 9747-VCL (August 20, 2014)
This is the first decision by the Court of Chancery that dismissed a case over which it has jurisdiction because an arbitration proceeding had been filed first. As the court points out, this is unusual because the court usually dismisses cases in favor of arbitration when the court lacks jurisdiction to hear disputes subject to an arbitration provision. Here, however, both the court and the arbitration panel had jurisdiction so that a dismissal on those grounds was not appropriate. Instead, the Court applied the McWane
doctrine whereby a case is dismissed when a first-filed proceeding elsewhere will do justice between the parties.
The decision is interesting because it also holds that the court will not interfere in how another proceeding is being conducted. While that may not always be true, it is a useful reminder of the limits of what the Court of Chancery will get involved in most of the time.
Partner Lewis Lazarus participated in a podcast on behalf of the Committee on Director and Officer Liability of the Business Law Section of the ABA discussing attorney-client privilege implications for directors and officers. Listen here.
Authored By Albert H. Manwaring, IV
This article was originally published in the Delaware Business Court Insider |
August 13, 2014
In Garner v. Wolfinbarger
, 430 F.2d 1093 (5th Cir. 1970), the U.S. Court of Appeals for the Fifth Circuit recognized a fiduciary exception to the attorney-client privilege "where the corporation is in suit against its stockholders on charges of acting inimically to stockholder interests, protection of those interests as well as those of the corporation and of the public require that the availability of the privilege be subject to the right of the stockholders to show cause why it should not be invoked in the particular instance." Thus, upon a showing of "good cause," Garner
allows stockholders to invade the corporation's attorney-client privilege to prove fiduciary-duty breaches of directors, officers or those in control of the corporation. The Fifth Circuit listed the following factors relevant to show "good cause" under the Garner
exception to the attorney-client privilege: "the number of shareholders and the percentage of stock they represent; the bona fides of the shareholders; the nature of the shareholders' claim and whether it is obviously colorable; the apparent necessity or desirability of the shareholders having the information and the availability of it from other sources; whether, if the shareholders' claim is of wrongful action by the corporation, it is of action criminal, or illegal but not criminal, or of doubtful legality; whether the communication is of advice concerning the litigation itself; the extent to which the communication is identified versus the extent to which the shareholders are blindly fishing; the risk of revelation of trade secrets or other information in whose confidentiality the corporation has an interest for independent reasons." More ›
This article was originally published in the In Delaware, the Court of Chancery has the power to reform an agreement that "fails to express the [parties'] real agreement or transaction," as in Miller v. National Land Partners LLC, C.A. No. 7977-VCG, at 34 (Del. Ch. June 11, 2014), citing Amstel Associates LLC v. Brinsfield-Cavall Associates, (Del. Ch. May 9, 2002). However, for a plaintiff to obtain reformation based on a mutual mistake, he or she must demonstrate by "clear and convincing evidence" that the written agreement failed to reflect accurately the oral agreement reached by the parties. More ›
Salamone v. Gorman, C.A. No. 8770-VCN (July 31, 2014) This is an unusual case involving a director deadlock created by a stockholder voting agreement, despite the presence of a majority stockholder. More ›
Buttonwood Tree Value Partners L.P. v. R.L. Polk & Co. Inc., C.A. No. 9250-VCG (August 7, 2014)
A Delaware corporation does not itself owe a fiduciary duty to its stockholders and may not be charged with aiding and abetting a breach of that duty by its directors. This holding has ample precedent and is important because it may avoid the expansion of the company's disclosure obligations beyond the duty to avoid fraudulent disclosures.
Sample v. Gumbiner C.A. No. 8873-VCN (July 31, 2014)
In settling a class or derivative suit, the plaintiff's attorney will seek a fee if she has caused a corporate benefit, such additional disclosures in a merger. But what happens when there is a dispute over why those added disclosures were made? The Court, as here, is left with a causation dispute where the record is not clear. This decision illustrates how a court will try to reason its way to a conclusion and, in effect, split the baby by lowering the fee when causation is not clear.