Showing 303 posts by K. Tyler O'Connell.
Court Rejects Franchisor’s Attempt Based on Business Effects of COVID-19 to Escape Contractual Obligation to Purchase Franchisee’s Assets
Level 4 Yoga, LLC v. CorePower Yoga, LLC, C.A. No. 2020-0249-JRS (Del. Ch. March 1, 2022)
In this post-trial decision, the Court of Chancery awarded specific performance to Plaintiff/franchisee who sought to enforce Defendant/franchisor’s exercise of its contractual right to purchase Plaintiff’s assets, which included yoga studios in several states. Defendant exercised its right as of May 2019 but then delayed, and ultimately purported to back out, after the COVID-19 pandemic took hold in early 2020. The Court granted specific performance based upon the specific language of the parties’ agreement, finding Defendant failed to prove either a Material Adverse Effect or a violation of the ordinary course covenant when Plaintiff temporarily closed its yoga studios in response to COVID-19. Among other reasons, the seller was the franchisee, the buyer was the franchisor, and the seller had followed the buyer’s instructions concerning the operation of franchises. The Court also noted that the parties’ agreement contained no closing conditions or an express right to terminate.
Superior Court CCLD Determines D&O Insurance Policy Does not Cover Defense Costs in Statutory Appraisal Proceeding
MPM Holdings, Inc. v. Federal Ins. Co., C.A. No. N20C-07-014 MMJ CCLD (Del. Super. Ct. Mar. 17, 2022)
In recent years, the Delaware Supreme Court has pointed out that directors and officers liability insurance might not cover defense costs in statutory appraisal proceedings. In In re Solera Insurance Coverage Appeals, 240 A.3d 1121 (Del. 2020), the Supreme Court held that an appraisal action is not a securities claim because it does not involve a violation of the law. Subsequently, the Supreme Court affirmed a Superior Court decision that an appraisal action is not based on a wrongful act, but rather is a creature of statute and neutral in nature. Jarden, LLC v. ACE American Ins. Co., 2021 WL 3280495 (Del. Super. Ct.), aff'd sub nom. Jarden LLC v. ACE American Ins. Co., 2022 WL 618962 (Del.). More ›
Chancery Finds AT&T Failed to Satisfy Entire Fairness Review in a Freeze-Out of Minority Partners in Local Spectrum Partnership
In re Cellular Telephone P’ship Litig., Coordinated C.A. No. 6885-VCL (Del. Ch. Mar. 9, 2022)
A controller that stands on both sides of a freeze-out transaction has the burden to prove that its acquisition was entirely fair to minority partners in terms of the acquisition’s process and price. The freeze-out of minority partners at an opportune time for the controller may not satisfy entire fairness review. More ›
Knight v. Miller, C.A. No. 2021-0581-SG (Del. Ch. Apr. 27, 2022)
In mid-March 2020, at a time when the COVID-19 pandemic caused the corporation’s stock price to trade at a periodic low, the corporation’s compensation committee awarded stock options to themselves and other directors and officers. Addressing the defendants’ motion to dismiss, the Court reasoned that the circumstances did not support an inference of bad faith. Nevertheless, because the compensation committee members received options and thus were personally interested in determining their terms, such claims were subject to entire fairness review. Similarly, option grants to certain directors who together also were the corporation’s controlling stockholders would be subject to entire fairness review as involving non-ratable benefits to a controller. The Court rejected, however, the stockholder-plaintiffs’ theory that certain officer-defendants breached their fiduciary duty of loyalty by receiving the awards. Surveying prior cases, the Court reasoned that to sustain such a claim, the circumstances would have to be such that the recipient acted with scienter (i.e., in “bad faith”) by receiving the compensation at-issue. Finally, given that the awards potentially resulted from breaches of fiduciary duty by the director-defendants, the Court sustained at the pleading stage a claim that all recipients were unjustly enriched.
Krauss v. 180 Life Sciences Corp., C.A. No. 2021-0714-VCW (Del. Ch. Mar. 7, 2022).
The plaintiff was a former director and officer of a SPAC who became involved in litigation following its business combination. The certificate of incorporation and bylaws provided for mandatory advancement. Regarding several subpoenas to the plaintiff and her affiliated companies, although only one was brought “by reason of the fact” of her service as a director or officer, the Court granted advancement based on her counsel’s good faith certification for all work would have been done if there was only the one covered subpoena, even if such work also helped with her responses to non-covered subpoenas. The plaintiff’s affirmative defenses to a fiduciary duty action similarly were covered. Her compulsory counterclaims there also were covered. In so holding, the Court reasoned that, although the certificate of incorporation stated board approval was required for advancement in connection with certain litigation activities initiated by the indemnitee, the bylaws contained no such requirement. Certain counterclaims for breaches of registration rights agreements were not compulsory and were personal in nature, however, and so were not subject to advancement. The plaintiff was entitled to fees-on-fees proportionate to her success and pre-judgment interest from the date she provided invoices evidencing those costs; although the invoices redacted various time entries, her counsel certified that she did not seek advancement for those amounts.
Chancery Adjusts Deal Price to Account for Synergies and Post-Signing Change in Value in Statutory Appraisal of Investment Bank
BCIM Strategic Value Master Fund, LP v. HFF, Inc., C.A. No. 2019-0558-JTL (Del. Ch. Feb. 2, 2022)
In a statutory appraisal proceeding, Delaware courts may rely upon the deal price adjusted for net synergies as the most persuasive evidence of fair value provided the transaction process contains sufficient indicia of reliability. More ›
Strategic Investment Opportunities, LLC v. Lee Enterprises, No. 2021-1089-LWW (Del. Ch. Feb. 14, 2022)
This case reflects that incumbent directors’ decision to enforce an advance notice bylaw generally will be upheld where a stockholder’s nomination materials do not comply with the bylaw’s plain terms and enforcement is not inequitable in the circumstances. Here, directors rejected an activist stockholder’s nominees for election because of non-compliance with certain requirements of an advance notice bylaw, specifically that nominations (i) must be made by the record holder (here, Cede & Co.), and (ii) must include information on a form required by the company. Given the context – the defense of a proxy contest – the Court proceeded to review whether the decision to enforce the bylaw complied with the directors’ fiduciary duties, applying enhanced scrutiny under Unocal and Blasius. Because the bylaw was adopted on a “clear day,” because it served valid corporate purposes and because the board did not engage in any manipulative conduct impeding the stockholder’s ability to comply with the bylaw, the Court held that the board’s decision to uphold the bylaw was valid.
Blue v. Fireman, C.A. No. 2021-0268-MTZ (Del. Ch. Feb. 28, 2022)
This case illustrates circumstances in which allegedly improper pre-merger transactions that divert merger consideration from stockholders may be considered direct challenges to a merger, rather than derivative claims, thus permitting a former stockholder to continue to pursue them after closing. Here, in the run-up to a merger, a large creditor with a proxy representing 85% of the corporation’s voting power sought and obtained beneficial amendments to its notes and warrants. The amendments had the alleged effect of diverting $40 million of $130 million total merger consideration from the stockholders and to the creditor. Reviewing Parnes v. Bally and its progeny, the Court reasoned that the claims were direct because merger consideration allegedly was diverted, with a material effect on the merger’s price and fairness, in transactions allegedly involving breaches of fiduciary duty. Accordingly, the Court denied the defendants’ motion to dismiss premised on a lack of derivative standing.
Court of Chancery Dismisses Thinly-Pleaded Breach of LPA Claim and Breach of Fiduciary Duty Claim Disclaimed by LPA and Foreclosed by Corwin
Ryan v. Buckeye Partners L.P. et al., C.A. No. 2021-0432-JRS (Del. Ch. Feb. 9, 2021)
Delaware is a notice pleading jurisdiction. But, even under this forgiving standard, the Court of Chancery Rule 8 still requires that the pleadings give defendants notice of the claims asserted against them. This recent decision from the Court of Chancery found that Plaintiff’s breach of a limited partnership agreement (“LPA”) claim failed to put Defendants on notice of even what provisions were allegedly breached. The Court also held that Plaintiff’s breach of fiduciary duty claims was deficient because the LPA disclaimed traditional fiduciary duties and, in all events, the claims were foreclosed by a fully informed vote under Corwin. More ›
Chancery Stays Case So That Committee of Company May Decide Whether It Has Power to Interpret Alternate Dispute Resolution Provision of Agreement
Terrell v. Kiromic Biopharma, Inc., C. A. No. 2021-0248-MTZ (Del. Ch. Jan. 20, 2022)
When an alternative dispute resolution (“ADR”) provision is an arbitration provision, presumptively the Court may consider the scope of the provision absent “clear and unmistakable” evidence to the contrary. When an ADR provision is not an arbitration provision, however, the Court applies contract interpretation principles to determine who – as between the Court or the person or body specified in the provision – may construe its scope. More ›
Harcum v. Lovoi, C.A. No. 2020-0398-PAF (Del. Ch. Jan. 3, 2022)
In Harcum, the Delaware Court of Chancery dismissed all claims brought in a stockholder suit alleging fiduciary breaches in connection with the $1 billion dollar acquisition of Roan Resources Inc. by Citizen Energy Operating, LLC. The Court found that the transaction was “cleansed” pursuant to Corwin v. KKR Financial Holdings LLC, 125 A.3d 304, 312 (Del. 2015), because the plaintiff failed to adequately plead that any alleged controllers were conflicted or that the transaction was not approved by an uncoerced, fully informed stockholder vote. More ›
Chancery Curtails Discovery in Appraisal Action Instituted as a Substitute for Books and Records Demand
Wei v. Zoox, Inc, C.A. No. 2020-1036-KSJM (Del. Ch. Jan. 31, 2022)
Often, stockholders who suspect corporate wrongdoing in connection with M&A transactions demand to inspect the company’s books and records under Section 220. But if, through no fault of the stockholder, the timing of a closing makes Section 220 relief more difficult to obtain, may the stockholder use Section 262, the appraisal statute, and its broader available discovery, to accomplish the same goal? In this case, the Court concludes that the answer is a qualified yes. That is, the stockholders are entitled to discovery in the appraisal proceeding. But if it appears the proceeding is just a means to investigate a potential class action for breach of fiduciary duties, the stockholder is entitled to discovery only to the limited extent it would have been available under Section 220, and not to the broader extent typically available under Section 262.
Galindo v. Stover, C.A. No. 2021-0031-SG (Del. Ch. Jan. 26, 2022)
If a majority of fully informed, uncoerced, disinterested stockholders vote to approve a merger not involving a conflicted controlling stockholder, then under the Corwin doctrine, the business judgment rule applies because the vote cleanses any breach of duty (except a claim for waste). In this decision, the Court of Chancery returns to what it means for the stockholder vote to be “informed.” More ›
Delaware Uniform Arbitration Act Did Not Permit the Court of Chancery to Confirm or Vacate an Interim Partial Arbitration Award Because It Was Not Final
Astrum Fund I GP, LP v. Maracci, C.A. No. 2020-0919-PAF (Del. Ch. Jan. 27, 2022) Maracci v. Astrum Fund I GP, LP, C.A. No. 2021-0073-PAF (Del. Ch. Jan. 27, 2022)
A limited partnership agreement’s dispute resolution framework mandated arbitration for certain disputes but contained a Delaware forum selection provision for the resolution of damages. Limited partners initiated arbitration proceedings against the partnership and its general partner after a real estate transaction resulted in the loss of their entire investment. The arbitrator issued an interim partial award (“IPA”) after finding that the general partner had breached the agreement and breached the general partner’s duty of care. The arbitrator did not issue a final award because of the agreement’s requirement that a Delaware court determines damages. More ›
Chancery Dismisses Action for Declaratory and Injunctive Relief for Lack of Subject Matter Jurisdiction on Grounds that the Proposed Declaratory Judgments Would Provide an Adequate Remedy at Law
Qlarant, Inc. v. IP Commercialization Labs, LLC, C.A. No. 2021-0574-MTZ (Del. Ch. Jan. 25, 2022)
Pursuant to an asset purchase agreement, the plaintiff buyer purchased assets from a seller and several of its affiliates. Despite another company asserting that it owned twenty percent of the seller, the agreement represented that the seller had only two individual shareholders. The company that claimed it was a shareholder filed an action in Maryland challenging the asset purchase transaction. In turn, the plaintiff buyer filed an action in the Court of Chancery seeking declaratory judgments that the company was not a shareholder of the seller at the time of the agreement and that the asset-purchase transaction had been validly consummated. The plaintiff also asked the Court to permanently enjoin the company from asserting it was a shareholder of the seller. More ›