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Summaries and analysis of recent Delaware court decisions concerning business-related litigation.

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Photo of Delaware Business Litigation Report Brett M. McCartney
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bmccartney@morrisjames.com
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Brett M. McCartney focuses on corporate governance and complex commercial litigation, stockholder litigation, fiduciary duties, alternative entity disputes, class action, and …

Showing 9 posts by Brett M. McCartney.

Chancery Approves Incorporation of Reference Condition in Section 220 Litigation

Books and records actions are heralded as the “tools at hand” for litigators pursuing shareholder claims against a corporation.  In fact, the Delaware Court of Chancery has been critical of litigants who failed to take advantage of a shareholder’s right to request the books and records of a corporation prior to commencing litigation against the corporation.  See, e.g., Thermopylae Capital Partners v. Simbol, 2016 WL 368170, at *17 (Del. Ch. Jan. 29, 2016). And while many shareholders have utilized Section 220’s summary proceeding to get a corporation’s books and records, Delaware courts have approved certain conditions on the use of those records. As discussed below, the Court of Chancery recently approved a company’s proposed incorporation condition, assuring the company that all the documents it produces pursuant to a books and records demand will be incorporated, even if not explicitly referenced, in any subsequent litigation where the plaintiff relies on any of the records produced by the company. More ›

Chancery Declines Applying 'Garner' Exception to Privileged Documents in Books-and-Records Action

In the recent decision in Salberg v. Genworth Financial,the Delaware Court of Chancery declined to compel the production of attorney-client privileged documents in a books-and-records action. In Salberg, Vice Chancellor Joseph R. Slights III was confronted with an unusual set of facts which culminated with a trial on the narrow issue of whether Genworth would be required to produce otherwise attorney-client privileged information under the Garner fiduciary exception. The court held that despite most of the factors in the Garner analysis being favorable to the plaintiffs' position, those factors were not all-inclusive nor dispositive in every case. Ultimately, the court held that the plaintiffs failed to demonstrate the "good cause" necessary to satisfy the Garner test. More ›

Chancery Holds That Deal Price Is Fair Value in Massive Appraisal Fight

In In re Appraisal of PetSmart, one of Delaware's largest appraisal litigations in history, the Delaware Court of Chancery held that the deal price in PetSmart Inc.'s going-private transaction was the best evidence of fair value. This decision, along with the Court of Chancery's recent decision in In re Appraisal of SWS Group, where the court held that fair value was less than the deal price, will likely bring joy to deal lawyers across the country while confounding the plaintiffs bar. More ›

Stockholders' Complaint Survives Chancery's 'Corwin' Analysis

After a series of successful applications of the Corwin doctrine in Delaware's Court of Chancery, a plaintiff has finally survived a motion to dismiss where Corwin was applied. In In re Saba Software Stockholder Litigation, the Court of Chancery held, for the first time, that a shareholder-approved all-cash merger did not satisfy Corwin. While limited by the unique facts at issue, the Saba decision provides useful guidance to practitioners as to the parameters of Corwin when analyzing the likelihood of success of challenges to third party mergers. The court's decision in denying a motion to dismiss in Saba, coupled with the court's decision dismissing a complaint under Corwin in In re Columbia Pipeline Group Stockholder Litigation, provide great insight into what constitutes material disclosures in the post-Corwin world. More ›

Claims That Controlling Stockholder Received Unique Benefits Dismissed

In GAMCO Asset Management v. iHeartMedia, Delaware's Court of Chancery considered claims that a controlling stockholder's liquidity needs created conflicts in otherwise arm's-length transactions with third parties. As demonstrated in New Jersey Carpenters Pension Fund v. infoGROUP, a controlling stockholder that receives the same financial benefit as the minority stockholders must also receive a "unique benefit" for the challenged transaction to be subjected to the entire fairness standard of review. Circumstances like infoGROUP, however, represent extreme cases. As discussed below, the plaintiff in iHeartMedia was unable to persuade the court that infoGROUP-like circumstances existed in its case. More ›

Dismissed Dell Appraisal Claimants Settle With Company

Appraisal litigation has been a topic at the forefront of the minds of many legal practitioners over the past few years. Recently, amendments to Section 262 of Delaware's General Corporation Law went into effect that were effectuated to eliminate de minimis appraisal claims while also allowing companies to make a pre-judgment payment to dissenting stockholders to reduce interest costs in connection with appraisal litigation. The Delaware Court of Chancery authored several opinions concerning appraisal arbitrage and the technical requirements of Section 262. There have even been unique appraisal cases where the court discussed the circumstances surrounding the proposed settlement of only factions of the appraisal class. More ›

Advancement Rights of Present and Future Officers Under LLC Agreement

Advancement and indemnification rights are vital in attracting the best and brightest individuals to serve as managers of Delaware entities. Those rights are meant to provide managers of Delaware entities comfort when accepting positions that often lead to being named in litigation. In the limited liability company context, a manager's advancement and indemnification rights are often derived from the entity's operating agreement. And seeing as Delaware courts strive to enforce the express terms of an agreement, advancement and indemnification provisions must be drafted with precision. As discussed below, contractual limitations and qualifications on advancement and indemnification rights will be interpreted in a way that gives meaning to all terms in the agreement. More ›

Court Tackles Nonmember Appointed as a Special Litigation Committee

It is often said that Delaware limited liability companies are creatures of contract. Drafters of LLC agreements have the freedom to craft an LLC that best suits their goals. For instance, LLCs can be drafted to allow the members to manage the affairs of the LLC. LLCs can also be created so that members appoint a manager or managers to govern the LLC. Drafters can also mold an LLC to mimic a corporation by having the LLC's affairs governed by a board of directors. What practitioners must know is that when an LLC's governance features mimic another type of entity, a court analyzing a dispute involving that LLC will likely draw from existing precedent. So, where an LLC was created to parrot a corporation's governance structure, a court will likely look to corporate law for guidance in resolving a dispute. More ›

Dell Shareholders' Appraisal Claims Denied After Voting Mishap

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In July 2015, the Delaware Court of Chancery issued an opinion in In re Appraisal of Dell, Consol. C.A. No. 9322-VCL, holding that the technical missteps of a custodial bank necessarily required the court to deny certain beneficial stockholders' demands for appraisal. Nearly a year later and after trial, Vice Chancellor J. Travis Laster held that certain other petitioners seeking appraisal of their Dell shares were barred from doing so because the record holder of the shares voted in favor of the Dell going-private merger and, in doing so, violated the "dissenting stockholder" requirements of Delaware's appraisal statute, Section 262 of the Delaware General Corporation Law. Again, the court was faced with a situation where the petitioners argued that the defect in their appraisal demand was inadvertent.  More ›