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Summaries and analysis of recent Delaware court decisions concerning business-related litigation.
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Showing 539 posts by Albert J. Carroll.
Chancery Declines to Modify Status Quo Order to Allow Partial Performance of Pending Settlement
In re AMC Entertainment Holdings, Inc. Stockholder Litigation, Consol. C.A. No. 2023-0215-MTZ (Del. Ch. Apr. 5, 2023)
In various contexts, upon request or stipulation, the Court of Chancery will impose status quo orders, which typically restrain corporate action pending the Court’s adjudication of disputed rights. A party seeking to modify or vacate such an order bears the burden of establishing good cause for the change. Here, following a settlement agreement between the parties, the plaintiffs sought to lift a status quo order to permit the defendant, AMC, to partially effectuate the settlement. The proposed action would alter the company’s capital structure. The litigation involved class claims, implicating Court of Chancery Rule 23, and the requirement that any class action or derivative settlement be approved by the Court following notice to the stockholders and the opportunity to object. The Court had not yet considered or approved the proposed settlement. In these circumstances, with little more than a desire for speed offered in support of the motion, the Court declined to lift the status quo order, citing the Court’s gatekeeping role in Rule 23 settlements.
Supreme Court Finds Contractually Required Board Committee Determination Under Stock Option Agreements Did Not Bar Judicial Review
Terrell v. Kiromic Biopharma Inc., No. 299, 2022 (Del. May 4, 2023)
This dispute between a company and a former director involved the meaning of a stock option agreement and option grant notice. The Court of Chancery had found that, under a contractual alternative dispute resolution provision, the dispute was to be resolved in accordance with a board committee’s interpretation of the relevant documents. The trial court stayed the action for that purpose. After the committee resolved the issue in the company’s favor, the trial court promptly dismissed the complaint for lack of subject matter jurisdiction. On appeal, the Supreme Court found no error in the trial court’s stay to allow the committee’s determination in the first instance but reversed and remanded for the trial court to review the matter before dismissing the action. The Supreme Court explained that the provision “is an expert determination, not an arbitration, and because it requires the Committee to reach legal determinations, not issue findings of fact within its area of expertise, the Court of Chancery is not required to defer to the Committee's conclusions." Thus, the trial court was required to engage in a de novo interpretation of the agreements.
Chancery Finds for Defendants in Challenge to Oracle Acquisition of NetSuite
In re Oracle Corporation Derivative Litigation, Consol. C.A. No. 2017-0337-SG (Del. Ch. May 12, 2023)
In this “vigorously litigated” matter, the Plaintiffs argued that Oracle’s founder and current officer and director, Larry Ellison, manipulated a special committee of Oracle’s board to overpay for NetSuite, another company in which Ellison was a substantial investor. Plaintiffs offered two theories to bring the transaction within the entire fairness standard of review: first, that Ellison was a controller who sat on both sides of the transaction, and second, that Ellison, on his own and with Oracle CEO Safra Catz, misled the Oracle board and special committee, and thus the transaction was a product of fraud. Post-trial, the Court of Chancery rejected both theories, applied the business judgment rule, and found for the defendants. More ›
Chancery Dismisses Oversight Claim Based on Board’s Response to Red Flags
In re McDonald's Corp. Stockholder Derivative Litig., CA No. 2021-0324-JTL (Del. Ch. March 1, 2023)
A plaintiff can plead an oversight claim against a board by alleging particularized facts to support an inference that the directors either: (1) utterly failed to implement a reporting or information system or controls or (2) consciously failed to monitor or oversee the business and, as a result, disabled themselves from being informed of problems or risks that required their attention. A "prong-two" failure to monitor Caremark claim, or "red flags" claim, requires that the plaintiff plead that the board's information system generated red flags and that the board subsequently failed to respond and address the red flags. More ›
Chancery Examines Director’s Personal Ties and Dismisses Duty of Loyalty Claim
In re Orbit/FR, Inc. S’holders Litig., C.A. No. 2018-0340-SG (Jan. 24, 2023)
This decision involved a stockholder challenge to a merger between Orbit and its controller, Microwave Vision. A certain director who served on a special committee was alleged to have breached his fiduciary duty of loyalty in approving the transaction, arising out of his alleged conflict as an employee beholden to the controller for his job. After admitting the allegation of an employment relationship was a mistake, the plaintiff shifted to alleging the director lacked independence based on his personal relationship with another director, who served on the boards of both Orbit and Microwave Vision. The two directors had been neighbors, their children were contemporaries, and they frequently went bicycling together years earlier. On a motion to dismiss, the Court of Chancery found that these "casual sharing of interests between neighbors” did not give rise to a conflict for the at-issue director and did not support a non-exculpated duty of loyalty claim against him.
Delaware Supreme Court Affirms Delaware Choice-of-Law Ruling In Dismissal of D&O Liability Insurance Coverage Dispute
Stillwater Mining Company v. National Union Fire Insurance Company of Pittsburgh, PA et al., No. 24, 2022 (Del. Jan. 12, 2023)
This decision from Delaware Supreme Court addresses choice-of-law questions for D&O insurance contract disputes and cautions litigants to remain consistent in the positions they take before the trial court. The appellant here, an insured under a tower of directors and officers’ liability insurance policies, asserted that Delaware law applied to the claims in its original complaint for coverage of its defense costs in an appraisal action. Following a decision from the Delaware Supreme Court in another matter (In re Solera Ins. Coverage Appeals), which held that an insurer is not obligated to provide coverage for appraisal actions under a similar insurance policy, the insured amended its complaint and, in so doing, argued that Montana rather than Delaware law controlled. More ›
Chancery Rules That Moving Situs of Trust to Delaware Supports Personal Jurisdiction Under the State’s Long-Arm Statute
Harris v. Harris, C.A. No. 2019-0736-JTL (Del. Ch. Jan. 12, 2023)
Three children filed suit against their mother and her associates, alleging they had seized control of a family-owned corporation and engaged in self-dealing, including via self-serving withdrawals from a family trust. Plaintiffs asserted claims for breaches of fiduciary duty, aiding and abetting those breaches, breach of a trust agreement, and tortious interference with the trust agreement. The general counsel of the company moved to dismiss the tortious interference claim against him, including for lack of personal jurisdiction. More ›
Chancery Finds Personal Jurisdiction Under Conspiracy Theory of Jurisdiction Based on Trust Domestication
Harris v. Harris, C.A. No. 2019-0736-JTL (Del. Ch. Jan. 16, 2023)
Under the conspiracy theory of personal jurisdiction, when defendants conspire to engage in tortious activities, the Delaware-directed acts of one co-conspirator can be attributed to the other conspirators for the purpose of establishing personal jurisdiction under Delaware’s Long-Arm Statute. Here, the plaintiffs alleged that the defendants acted in concert to support the domestication of a trust (specifically, a GRAT) in Delaware for purposes of a larger tortious scheme. Based on these allegations, the Court of Chancery found there was sufficient support to support personal jurisdiction under the conspiracy theory, or minimally to allow for jurisdictional discovery. But the Court also concluded that the discovery was unnecessary because there was evidence of spoliation, which allowed for a pleadings stage inference that the defendants were engaged in a conspiracy sufficient to support personal jurisdiction.
Chancery Denies Motion to Dismiss Finding Primedia Argument Inapplicable
In Re Orbit/FR, Inc. Stockholders Litig., C.A. No. 2018-0340-SG (Del. Ch. January 9, 2023)
In In re Primedia, Inc. S’holders Litig., 67 A.3d 455 (Del. Ch. 2013), the Court examined whether a litigation asset being pursued derivatively was extinguished by the sale of the company to a third party that had no interest in pursuing the claim and had not valued the claim as an asset in the merger. Primedia sets forth certain stringent standards to assert a claim that the merger was unfair based on such a derivative claim. More ›
Chancery Concludes Section 18-110 of the LLC Act Does Not Permit Standalone Books and Records Claims When Company Management Is Undisputed
Cardinale v. Feingold, 2023 WL 142510 (Del. Ch. Jan. 10, 2023)
In a dispute about the manager of a limited liability company, Section 18-110 of the LLC Act grants the Court of Chancery the statutory authority to order the production of books and records “relating to the issue.” Here, the plaintiff sought a declaration that he was the sole manager of six companies and also an order directing the defendants to turn over the companies’ books and records. The defendants, who had recently resigned as managers, confirmed that the plaintiff was the companies’ sole manager and asked the Court to dismiss the remainder of the action for lack of jurisdiction. The Court agreed. Because the identity of the companies’ manager was undisputed, the Court concluded it no longer had jurisdiction under Section 18-110 to order the production of books and records.
Supreme Court Interprets an Alleged Irrevocable Proxy and Finds It Does Not Run with Shares and Bind Subsequent Owner
Daniel v. Hawkins, No. 184, 2022 (Del. Jan. 6, 2023)
Through an irrevocable proxy, the appellant held voting power for 100 shares of a partnership. The proxy had been a tool to immediately transfer the shares' voting power to the appellant, away from a beneficial owner experiencing legal troubles, to minimize the risk of tainted control harming the business pending transfer of beneficial ownership. Years later, with beneficial ownership having transferred for 75 shares, the appellee sought to purchase those shares free of the proxy. The appellant argued that the proxy was irrevocable and could not be relinquished. Appellee filed suit in the Court of Chancery, seeking a declaratory judgment that the irrevocable proxy did not apply to subsequent third-party owners. The Court of Chancery determined that the irrevocable proxy's plain language did not establish a grant of agency authority that ran with the shares. More ›
Chancery Upholds Claims Post-Merger
Harris v. Harris, C.A. No. 2019-0736-JTL (Del. Ch. Jan. 6, 2023)
Delaware law allows for two exceptions to the continuous stock ownership rule for stockholders to bring and maintain standing to assert derivative claims that predate a transaction: (1) when the transaction, which would otherwise deprive the plaintiffs of standing, is essentially a reorganization that does not affect the plaintiff’s relative ownership in the post-merger enterprise; or (2) when a plaintiff stockholder loses standing based on a merger consummated for the purpose of depriving the stockholder of the ability to bring or maintain a derivative action. Stockholders with derivative claims that predate a transaction also may assert direct claims to challenge a merger by pleading that the value of the derivative claim is material in the context of the merger, that the acquirer did not assign value or provide additional consideration for the value of the derivative claim, and that the acquirer will not assert the derivative claim. More ›
Chancery Finds Payment Condition, Non-Compete, and Non-Solicit Provisions Unenforceable
Ainslie et al. v. Cantor Fitzgerald, L.P., C.A. No. 9436-VCZ (Del. Ch. Jan. 4, 2023)
Under Delaware law, restrictive covenants generally are enforceable unless overly broad in the circumstances, and Delaware courts closely scrutinize them. Similarly, contractual conditions precedent generally are enforceable unless they result in a penalty, and Delaware courts construe ambiguous conditions narrowly to avoid forfeitures. In this decision from the Court of Chancery, a provision in a limited liability partnership agreement intended to discourage competitive activities by former partners was held unenforceable both because it was overly broad and resulted in a forfeiture.
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Chancery Denies Motion Seeking Appointment of a Receiver
Bighorn Ventures Nevada LLC v. Solis, C.A. No. 2022-1116-LWW (Del. Ch. Dec. 23, 2022)
The Court of Chancery has the discretion to appoint a custodian or receiver under Section 226(a)(2) of the DGCL when the board of directors is deadlocked, the business is suffering or is threatened with irreparable injury because of the deadlock, and the shareholders are unable to terminate the deadlock. Under Section 291, the Court has the discretion to appoint a receiver when the corporation is insolvent and special circumstances indicate some beneficial purpose will be served. More ›
Chancery Orders Stay of “Dr. J” Litigation Pending Arbitrator’s Decision on Arbitrability
Erving v. ABG Intermediate Holdings 2, LLC, C.A. No. 2021-0816-NAC (Del. Ch. Nov. 28, 2022)
Basketball legend Julius W. Erving II, also known as “Dr. J”, sold a majority interest in his trademark and other intellectual property to a brand development and marketing company. The transaction involved the creation of an LLC—in which Dr. J held a minority interest and the marketing company held a majority interest and promised to grow Dr. J’s brand. The LLC operating agreement contained a dispute resolution provision that included an exclusive arbitration clause. Several years later, Dr. J filed claims in the Court of Chancery, alleging that the defendants had wrongfully diverted funds and failed to devote reasonable efforts to grow Dr. J’s brand. Defendants moved to dismiss the action in favor of arbitration or, in the alternative, to stay the case pending an arbitrator’s decision regarding whether the dispute must be arbitrated. More ›