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Summaries and analysis of recent Delaware court decisions concerning business-related litigation.
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Showing 370 posts by K. Tyler O'Connell.
Chancery Orders Defendant to Pay Simple Prejudgment Interest and Reduces the Amount Because of Plaintiffs’ Delays
Ainslie v. Cantor Fitzgerald LP, C.A. No. 9436-VCZ (Del. Ch. Apr. 5, 2023)
Delaware law provides for the interest to be awarded under 6 Del. C. § 2301 in actions seeking compensatory damages, and the rate is fixed by the statute. The Court of Chancery has discretion, however, to adjust the rate and form of interest “as equity requires.” In this case, the Court awards Plaintiffs simple interest and reduces the amount because of the Plaintiffs’ inordinate delays in prosecuting the case. More ›
Director violated Revlon Duties by Tilting the Sales Process in favor of the Buyer
In re Mindbody Inc. Stockholder Litig., C.A. No. 2019-0442-KSJM (Del. Ch. Mar. 15, 2023)
Under Revlon, to demonstrate that they satisfied their fiduciary duties in connection with a sale of control, directors bear the burden of establishing both the reasonableness of their decision-making process and the reasonableness of their actions in light of the circumstances then present. As the Court reasoned in a prior opinion in this action (discussed here), "[t]he paradigmatic Revlon claim involves a conflicted fiduciary who is insufficiently checked by the board and who tilts the sale process toward his own personal interests in ways inconsistent with maximizing stockholder value." More ›
Supreme Court Affirms Chancery’s Interpretation of Word “And” in Option Agreements
Weinberg v. Waystar, Inc., No. 274, 2022 (Del. March 16, 2023)
The appellant was a former chief marketing officer of the appellee, a Delaware corporation. Soon after her termination, the appellant timely exercised her equity options and converted them to partnership units. The appellee thereafter exercised its call rights to repurchase the units. The appellant filed suit, arguing that the use of the word "and” in the options agreements meant that both of two conditions (termination of employment and breach of a restrictive covenant) had to be satisfied before the appellee could exercise its call rights. The Court of Chancery ruled in favor of the appellee, finding that "and” meant either of the two conditions would trigger the appellee's call rights. More ›
Chancery Holds Stockholders Can Assert Disclosure Claims on Behalf of Other Stockholders but Must Do So Through a Derivative Action
New Enterprise Associates 14, L.P. vs. Rich, C.A. No. 2022-0406-JTL (Del. Ch. March 9, 2023)
Delaware law establishes that directors owe a duty of disclosure which arises as "the application in a specific context of the board's fiduciary duties…." In this case, stockholders asserted various claims against the board, including an allegation that the company's directors breached a duty of disclosure to other stockholders, which injured the plaintiffs when those stockholders were misled into approving a dilutive stock offering. This decision finds that the stockholder-plaintiffs can assert such a cause of action but that the resulting claim is derivative. More ›
Chancery Grants Injunction Under the Delaware Deceptive Trade Practices Act
Next Level Ventures, LLC v. AVID USA Technologies LLC, C.A. No. 2022-0699-MTZ (Del. Ch. March 16, 2023)
The Delaware Deceptive Trade Practices Act (the "DDTPA”), 6 Del. C. § 2531, et seq., prohibits confusing or creating misunderstanding as to "the source, sponsorship, approval, or certification of goods or services" as well as to the products' “affiliation, connection, or association with, or certification by, another." In this case, the plaintiff asserted violations of the DDTPA in connection with the defendants' allegedly misleading statements. This decision grants the injunction against all defendants but narrows it to fit the specific allegations. More ›
Chancery Addresses Standards for Privilege Logs
Thermo Fisher Scientific PSG Corp. v. Arranta Bio MA, LLC, C.A. No. 2022-0608-NAC (Del. Ch. Jan. 18, 2022)
To assert privilege in Delaware, the asserting party must provide clear and specific reasons as to how and why privilege applies. Such that opposing counsel can comprehend the privilege asserted and challenge unsupported claims. This task is accomplished with a clear and concise privilege log listing all documents subject to privilege with individual descriptions for each. The mere presence of an attorney on the communication will not render that communication privileged, and documents must be appropriately redacted rather than simply withheld when non-privileged material exists alongside privileged legal advice. Delaware counsel should be involved in privilege log decisions. More ›
Chancery Addresses When Third Parties Are Within the Scope of the Privilege
Police and Fire Ret. Sys. of the City of Detroit v. Musk, C.A. No. 2020-0477-KSJM (Del. Ch. January 31, 2023)
A communication is privileged under Delaware Rule of Evidence 502(b) if it is confidential and "made for the purpose of facilitating the rendition of professional legal services to the client." Rule 502(a)(2) defines a confidential communication as one "not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication." Rule 502(b) makes clear that the presence of a client's "representative" does not waive confidentiality or break privilege, but the rule itself does not define "representative." More ›
Chancery Finds Delaware’s Officer Consent Statute Extends Beyond “Formal Officers” to De Facto or Acting Officers
Harris v Harris, C.A. No. 2019-0736-JTL (Del. Ch. January 19, 2023)
Delaware's Officer Consent Statute provides for service of process on anyone who "accepts election or appointment as an officer of a corporation…or who after such date serves in such capacity." In this case, Vice Chancellor J. Travis Laster addressed an issue of first impression and found that the Statute can be used to serve process on a person who performs the duties of an officer regardless of the person's formal title or acceptance of the position. This decision allows plaintiffs to engage in jurisdictional discovery to determine whether the company's advisor acted as its de facto officer. More ›
Chancery Orders an LLC to Provide Manager with Books and Records Comprising Informal Board Materials Related to Other Managers’ Actions
Bruckel v. TAUC Holdings, LLC, C.A. 2021-0579-MTZ (Del. Ch. Jan. 6, 2023)
Delaware law provides managers of an LLC with a right to inspect the company’s books and records for a purpose reasonably related to their management positions. In this Order, the Court emphasized that all managers of an LLC have equal access to the company's information. More ›
Chancery Resolves Dispute About Competing Forum Selection and Arbitration Provisions
Fairstead Cap. Mgmt. LLC v. Blodgett, C.A. No. 2022-0673-JTL (Del. Ch. Jan. 6, 2023)
This case highlights the difficulties that can arise when relationships are governed by contracts with competing forum selection and arbitration provisions. Two LLCs brought claims against a former principal for breach of the respective LLC agreements, both of which contained Delaware forum selection clauses. In response, the principal sought an injunction barring the LLCs from proceeding outside of arbitration because the principal’s employment agreement contained a broad arbitration provision that encompassed all of the parties’ disputes. More ›
Chancery Finds SPAC’s Sponsor and Board Potentially Violated Fiduciary Duties by Depriving Public Stockholders of the Information Material to the Stock Redemption Decision
Delman v. GigAcquisitions3 LLC, C.A. No. 2021-0679-LWW (Del. Ch. January 4, 2023)
Delaware law establishes that fiduciaries of a corporation cannot be exempted from "their loyalty obligation and the attendant equitable standards of review that [the] court will apply to enforce it." In this case, following last year's Multiplan decision (discussed here), stockholders alleged that a SPAC's sponsor and board members breached their fiduciary duties by failing to disclose information material to the stockholders' decision on whether to redeem the stock prior to the de-SPAC transaction. This decision denies the defendants' motion to dismiss and finds that stockholders properly brought the lawsuit as a class action based on the fact that the alleged harm they suffered was individually compensable. More ›
Citing MFW, Court of Chancery Dismisses Merger Challenge
Smart Local Unions and Councils Pension Fund v. BridgeBio Pharma, Inc., C.A. No. 2021-1030-PAF (Del. Ch. Dec. 29, 2022)
Typically, the “entire fairness” standard of review applies to any transaction in which a controlling stockholder acquires the outstanding minority shares. But, under the MFW framework, the more lenient business judgment standard of review may apply if the controller can establish that, among other things, an independent, fully-empowered special committee met its duty of care to negotiate a fair price for the shares and also that an informed, uncoerced majority of the minority stockholders approved the transaction. More ›
Chancery Finds Plaintiff Failed To State A Non-Exculpated Claim Against Special Committee Defendants In Complaint Challenging A Merger
Ligos v. Tsuff, C.A. No. 2020-0435-SG (Del. Ch. Dec. 1, 2022)
The Delaware Supreme Court’s Cornerstone Therapeutics decision established that, although a transaction involving a controller must satisfy entire fairness review, plaintiffs seeking money damages against independent directors protected by an exculpation clause must still state a non-exculpated claim against each such director, or that director will be entitled to dismissal. In other words, to proceed against independent directors, the complaint must adequately plead that they breached the fiduciary duty of loyalty. More ›
Chancery Finds Stockholder Conferred a Substantial Corporate Benefit by Challenging the Joint Vote of Two Classes of Common Stock under Section 242(b)(2) of the DGCL
Garfield v. Boxed Inc., C.A. No. 2022-0132-MTZ (Del. Ch. Dec. 27, 2022).
Section 242(b)(2) of the DGCL requires the separate approval of different classes of stock for charter amendments that, inter alia, “increase or decrease the aggregate number of authorized shares of such class…” Section 242(b)(2) permits corporations to opt-out of this separate class approval requirement via a charter amendment – but any such amendment also must be approved by a separate class vote. This decision awards attorneys’ fees under the corporate benefit doctrine to a stockholder who questioned the validity of Class A and Class B common shares voting together on proposed amendments triggering these requirements, which then caused the corporation to provide separate class votes. More ›
Court of Chancery Awards Plaintiffs Attorneys’ Fees and Costs in Section 225 Action for Obtaining a Substantial Benefit for the Corporation and its Stockholders
Totta v. CCSB, LLC, C.A. No. 2021-0173-KSJM (Del. Ch. Nov. 3, 2022)
Delaware follows the “American Rule”: each party bears its own legal fees and expenses. However, there are certain exceptions. This includes the “corporate benefit exception,” where a party has obtained a substantial benefit for the corporation or its stockholders through prosecuting the lawsuit. In this recent decision from the Court of Chancery, the Court awarded attorneys’ fees and expenses to a plaintiff in a Section 225 action under the corporate benefit exception. More ›