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Showing 12 posts from January 2024.

Chancery Denies Advancement for Director Suspected of Leaking Confidential Financial Information

Hoffman v. First Wave BioPharma, Inc., C.A. No. 2023-0097-MTZ (Del. Ch. September 27, 2023)
A company's board of directors suspected one of its members had leaked the company's financial information to a third party and that the third party used the information to obtain a more favorable settlement with the company. In response, the board formed a board committee for discussion of confidential matters consisting of all directors other than the one suspected of having leaked information. The excluded director engaged an attorney to contest the formation of the board committee and filed an action for the advancement of his legal fees. He relied on an indemnification agreement that granted him a mandatory advancement right for fees incurred by reason of his corporate status in connection with a covered proceeding; he argued that the directors must have investigated his conduct if they had reached a conclusion that he had leaked information and that an investigation was a covered proceeding. More ›


Supreme Court Upholds Contractual Voidness Provision in LLC Agreement

Holifield v. XRI Investment Holdings, LLC, No. 407, 2022 (Del. Sept. 7, 2023)
This decision concerned the disputed transfer of a member's LLC units. Below, the Court of Chancery held that the disputed transfer was invalid because it violated the LLC agreement's terms governing transfers. The trial court also held that, under CompoSecure II, the transfer was incurably void, and thus beyond affirmative defenses like acquiescence, because the LLC agreement's “void" language provided for that outcome. However, in dicta, the trial court invited the Supreme Court to revisit its ruling in CompoSecure II, which upheld contractual voidness provisions in the alternative entity context. On appeal, the Supreme Court declined the invitation and ruled that CompoSecure II was correctly decided citing, inter alia, contractual freedom in the LLC context and the doctrine of stare decisis


Spoliation of Email and Texts Leads to Adverse Inferences and Fee Shifting

Gener8 LLC v. Castanon, 2022-0246-LWW (Del. Ch. Sept. 29, 2023)
This dispute concerned a non-compete agreement that the plaintiffs alleged the defendant breached by establishing a competing business. The defendant denied the existence of relevant texts and email communications, when in fact he intentionally withheld and deleted them. In discovery, he claimed no relevant communications existed on his phone, citing that he was not a “big texter.” The defendant testified to this at trial, and pled ignorance of both the operations of the competing enterprise and any discussions or communications to that effect. However, other parties produced text messages including the defendant, making clear that he had in fact sent many texts concerning these subjects.  More ›


Chancery Upholds Removal of Board Members

Barbey v. Cerego, Inc., C.A. No. 2022-0107-PAF (Del. Ch. Sept. 29, 2023)
This decision considered the proper constitution of the board of directors of a Delaware corporation, Cerego, Inc., under Section 225 of the DGCL after directors were removed following a corporate inversion whereby Cerego became a subsidiary of its wholly owned subsidiary, Cerego Japan, Inc. (“CJ”), a Japanese entity. More ›


Chancery Denies Specific Performance in De-SPAC Transaction Based on Difficulty of Enforcement and Plaintiff’s Inequitable Conduct

26 Capital Acquisition Corp. v. Tiger Resort Asia Ltd., CA No. 2023-0128-JTL (Del. Ch. September 7, 2023)
Even where the parties have contractually agreed that specific performance is the preferred remedy for a breach, the decision whether to award that relief nevertheless remains within the Court of Chancery's discretion. In this decision, addressing the availability of specific performance, the Court assumed without deciding that the defendant target of a SPAC had not used its reasonable best efforts to close the transaction in breach of the agreement, that the SPAC was ready, willing, and able to close, and that money damages were an inadequate remedy at law. More ›


Chancery Upholds Written Consent Based on Signer’s Sophistication and Opportunity to Inspect

Posted In Chancery, LLCs

REM OA Holdings LLC v. Northern Gold Holdings LLC, C.A. No. 2022-0582-LWW (Del. Ch. Sep. 20, 2023)
Delaware is a contractarian state and the presumption is that parties are bound by their agreements. That presumption applies with even greater force when the parties are sophisticated and engage in arms-length negotiations. In this case, the defendant, a 50% member of an LLC, challenged a $10 million financing agreement entered into by the LLC’s other 50% member. That arrangement allowed the lender to purchase an interest in the company. In challenging the agreement, the defendant member argued that the plaintiff did not provide him with the term sheet for the transaction. In this decision, the Court of Chancery upheld the transaction, reasoning that, while the defendant member did not receive the term sheet, the consent for the loan that he signed repeatedly referenced the term sheet, the defendant was a sophisticated party with counsel, and he had the opportunity to inspect the consent and inquire about the term sheet as a matter of basic diligence. The Court also rejected numerous other defenses to enforceability.


Chancery Finds Defendant Officer Usurped Corporate Opportunity for His Own Competing Venture

Sorrento Therapeutics, Inc. v. Mack, C.A. No. 2021-0210-PAF (Del. Ch. September 1, 2023)
Under the corporate opportunity doctrine, an officer or director may not take a corporate opportunity for himself if "(1) the corporation is financially able to exploit the opportunity; (2) the opportunity is within the corporation's line of business; (3) the corporation has an interest or expectancy in the opportunity; and (4) by taking the opportunity for his own, the corporate fiduciary will thereby be placed in a position inimical to his duties to the corporation.” Broz v. Cellular Info. Sys., Inc., 673 A.2d 148, 154-55 (Del. 1996). In this post-trial opinion, the Court of Chancery held that a co-founder and former CEO who stayed on as President following his sale of the company to a strategic acquirer breached his fiduciary duties by usurping its corporate opportunities. While the defendant argued the company lacked the resources to pursue the opportunity, the Court reasoned that there was "no structural or situational barrier" to the company obtaining the capital needed. The Court did not credit the defendant's argument that the company was not likely to pursue the opportunities. The Court also explained that the corporate opportunity "test focuses on the company's ability to pursue the opportunity, not the board's likelihood of actually deciding to do so." The Court also found that the third prong was met because the opportunities were in the same line of business in which the company operated, but the defendant had usurped them for his own venture. It accordingly found the defendant liable and ordered supplemental briefing regarding the appropriate remedies.


Chancery Refuses to Impose Additional Conditions on Voluntary Dismissal of Claims Subject to Advancement

Sal Gilbertie, et al. v. Dale Riker, et al., C.A. No. 2020-1018-LWW (Del. Ch.)
The Delaware Court of Chancery frequently hears advancement disputes, wherein officers or directors of Delaware entities seek to enforce their right to the ongoing payment of legal fees in the defense of claims brought against them. Sometimes, as in this case, a plaintiff entity moves to voluntarily dismiss its claims rather than to pay the freight for both sides. Here, the plaintiffs sought to dismiss the pending claims subject to advancement with prejudice after the Court granted the defendants advancement in a separate action. The defendants opposed the plaintiffs’ motion and sought to impose additional conditions on any dismissal under the Court of Chancery rule governing voluntary, court-approved dismissals, including conditions related to advancement and a finding that the defendants had prevailed on the merits. The Court rejected the defendants’ requests because the advancement relief could be considered under the controlling Fitracks order, and any characterization was premature given the remaining counterclaims. Thus, the Court granted the voluntary motion to dismiss without any conditions.


Chancery Refuses to Enforce Nationwide Noncompete

Centurion Service Group, LLC v. Wilensky, C.A. No. 2023-0422-MTZ (Del. Ch. Aug. 31, 2023)
In Frontline Techs Parent LLC v. Murphy, C.A. 2023-0546-LWW (Del. Ch. Aug. 23, 2023), the Court of Chancery recently declined a subsidiary’s attempt to enforce a non-compete provision benefitting the parent. A week later, in Centurion, the Court likewise declined to enforce a non-compete, this time based on its unreasonably broad scope. Though the Court ultimately applied a Delaware choice-of-law provision, Centurion highlights that Delaware courts do not blindly apply such clauses “when doing so would circumvent the public policy of another state that has a greater interest in the matter.” The decision also reinforces that Delaware courts scrutinize non-competes and are hesitant to “blue pencil” overly broad terms to recraft them as reasonable – instead, Delaware courts tend to decline to enforce them altogether. Here, the at-issue non-compete prevented the former employee from engaging in any business directly or indirectly engaged in Centurion’s business, any business competitive with Centurion’s business, or any business competitive with any business Centurion planned to engage in at any time during the employee’s employment, for a period of two years after his termination date, anywhere in the United States. The Court found these terms unreasonable, explaining that the geographic scope and duration taken together “casts a limitless net over [defendant] in both scope of geography and scope of conduct,” and taking particular issue with the language covering any field the company “planned to enter.” 


Chancery Limits Section 220 Books-and-Records Production to Formal Board Materials

In re Zendesk, Inc. Section 220 Litigation, C.A. No. 2023-0454-BWD (Del. Ch. Aug. 25, 2023)
The background of this books-and-records decision involved a failed acquisition, a strategic review, a proxy contest, and a decision to sell the company at a price below an offer rejected just a few months prior. The plaintiff-shareholders' inspection purpose was to investigate alleged board wrongdoing in connection with the transaction’s approval. The company voluntarily produced formal board materials. But, contending there were information gaps, the plaintiffs also wanted informal board materials, including emails among directors, as well as documents and emails at the officer level. In its post-trial decision, the Court of Chancery found that while the plaintiffs had stated a proper purpose, they did not show entitlement to documents beyond the formal board materials already provided. Citing produced materials, including board minutes and presentations, and the Court found the formal board materials were sufficient to satisfy the shareholders' inspection purpose. As the Court explained, Section 220 inspections “are not tantamount to ‘comprehensive discovery,’" and entitle shareholders only to the “essential” responsive records. 


Chancery Finds That Books and Records Incorporated by Reference in Complaint Demonstrate the Lack of a Valid Caremark Claim

Joel Newman v. KKR Phorm Investors, L.P., et al. C.A. No. 2022-0310-NAC (Del. Ch. Aug. 31, 2023).
At the motion to dismiss stage, Delaware courts will consider the facts alleged in the complaint as well as the documents incorporated into and integral to it. Under Court of Chancery Rule 23.1, a derivative plaintiff is entitled only to reasonable inferences drawn from the facts asserted and the documents incorporated. Here, the Court reviewed the books and records incorporated by reference in the complaint and determined that the plaintiff failed to plead demand futility. More ›


Chancery Declines to Defer to the Deal Price in Appraisal Proceeding Involving a Controller Squeeze-Out Subject to MFW Protections

HBK Master Fund L.P. v. Pivotal Software Inc., C.A. No. 2020-0165-KSJM (Del. Ch. Aug. 14, 2023)
The Delaware Court of Chancery engages in an independent valuation process when determining the fair value of petitioners' stock in appraisal actions. In this case, Chancellor McCormick addresses an interesting question concerning the deal price primacy under Delaware law and ultimately rejects deference to it in controlling stockholder squeeze-out transactions subject to the MFW protections. More ›

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