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

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Showing 108 posts in Directors.

Chancery Denies Director Access to Privileged Materials Involving Counsel to Preferred-Appointed Directors

Posted In Attorney Client Privilege, Chancery, Directors

Gilmore v. Turvo, Inc., C.A. No. 2019-0472-JRS (Del. Ch. Aug. 19, 2019).

As several Delaware decisions teach, each director, as a member of the larger deliberative body that is the board, has a fundamental right to access corporate information to carry out his or her fiduciary duties.  Thus, as a general rule, a Delaware corporation “cannot assert the privilege to deny a director access to legal advice furnished to the board during the director’s tenure.”  There are several exceptions to this rule.  More ›

Delaware Superior Court Addresses Choice of Law Issues in the D&O Insurance Context and Requires Carriers to Cover Pfizer’s Litigation Costs

Posted In Choice of Law, Directors, Insurance Policy

Pfizer Inc. v. Arch Insurance Co., C.A. No. N18C-01-310 PRW CCLD (Del. Super. July 23, 2019).

This case from the Delaware Superior Court discusses important D&O coverage exclusion issues that frequently arise during securities litigation.  Pfizer sought coverage from its insurers in connection with the defense and settlement of a securities action in the Southern District of New York.  Defendants, the excess insurers, denied coverage based on “related wrongful acts” exclusions in the policies.  They argued that the action “arose out of” or “shared a common nexus” with another action in the District of New Jersey such that the D&O policies’ exclusion provisions precluded coverage.  Noting that the contract interpretation result would likely be different if applying New York law rather than Delaware law, and that the policies lacked a controlling choice of law provision, the Superior Court first applied the Restatement’s “most significant relationship” test to determine which state law should apply.  Although some of the Restatement Section 188 factors tipped in favor of New York, the Court ruled that application of Delaware law was most consistent with the parties’ reasonable expectations at the time of contracting and with the Delaware choice of law precedent for D&O policies.  For such policies, under Delaware law, the state of incorporation, rather than the state where the corporation is headquartered, has the most significant relationship.  This also was consistent with the parties’ choice of Delaware law in the policies to govern arbitration or mediation of their disputes.  Applying well-settled Delaware law to the interpretation of the policy provisions, the Court found the two actions were not “fundamentally identical.”  Thus, the exclusion did not apply and the insurers were obligated to cover the costs. More ›

Court of Chancery Grants Preliminary Injunction Based on Insider’s Stock Issuances to Himself

Posted In Directors, Preliminary Injunction

Applied Energetics, Inc. v. Farley, C.A. No. 2018-0489-TMR (Del. Ch. Jan. 23, 2019).

This opinion addresses two bedrock issues of Delaware corporate law, specifically, proper board authorization under 8 Del. C. § 141 and directors’ fiduciary duty of loyalty.  Following other directors’ resignations, defendant George Farley was the only director as of February 2016 of plaintiff Applied Energetics (the “Company”).  Shortly after becoming the sole director, Farley executed a written consent to issue himself twenty million shares of Applied Energetics stock for $.001 per share.  No contemporaneous valuation was performed, and Farley made no attempts to ensure a fair process.  Faced with a request to enjoin Farley from selling the shares at issue, the Court of Chancery held that it was reasonably probable that Farley could not cause the Company to validly issue stock, because he was the only remaining director of a three-person board.  The Court also held it was reasonably probable that Farley will be unable to meet his burden at trial of proving the share issuances were entirely fair.  Accordingly, the Court enjoined Farley from trading the shares pending a final adjudication of their validity.  This decision also provides helpful analysis, as did prior decisions in this matter, regarding how the Court will determine the amount of bond when granting preliminary injunctive relief.

Delaware Superior Court Upholds Coverage For Fraud Claim

Posted In Directors

Arch Insurance Company v. Murdock, C.A. N16C-01-104 EMD CCLD (March 1, 2018)

This decision upholds coverage under a D&O policy for a claim alleging fraud by directors. This is not too surprising as the Delaware Corporation Law has long relied on insurance to cover the gap in the DGCL that denies indemnification for some claims based on disloyalty. The business judgment rule, the right to advancement, and indemnification and insurance are the triad of protections for Delaware directors.

Court Of Chancery Determines When A Proxy Is Irrevocable And When It Has Jurisdiction To Decide Equitable Ownership In A Section 225 Case

Posted In Directors

Zohar II 2005-1 Limited v. FSAR Holdings Inc., C.A. No. 12946-VCS (Nov. 30, 2017)

This is an important decision for two reasons. First, it determines when a proxy is irrevocable under Delaware law. To be irrevocable under Section 212 of the DGCL, the proxy must be coupled with an interest. While the “interest” requirement is quite broad, the “coupled” requirement is more strict. The “interest” involved must be held by the person or entity receiving the proxy in order to be “coupled.” Thus, when the proxy is in favor of “X”, but the “interest” supporting the grant of the proxy is for “Y”, the proxy is not irrevocable. This prevents a proxy holder from voting in a way that may be inconsistent with the proxy’s purpose. More ›

Court Of Chancery Decides It Will Determine Stock Validity In A Section 225 Case

Posted In Directors

Southpaw Credit Opportunity Master Fund L.P. v. Roma Restaurant Holdings Inc., C.A. No. 2017-0059-TMR (Oct. 13, 2017)

In a contest over who has been elected to a board of directors under Section 225 of the DGCL, it is sometimes critical to decide if certain stock was validly issued and thus can be voted. This decision sets out a circumstance when that issue may be determined in Section 225 case even when the holders of the contested stock are not parties to the litigation.

Court of Chancery Applies Ratification To Equity Grants Under Stockholder Approved Plan

Posted In Directors

In re Investors Bancorp, Inc. Stockholder Litigation, C.A. No. 12327-VCS (April 5, 2017)

Stockholder approval of an equity compensation plan may or may not constitute ratification over awards to the directors under the plan.  When it does, the Court of Chancery will review challenges under the business judgment rule.  There are Delaware decisions coming out both ways on the issue of ratification.  As this decision illustrates, whether or not ratification applies depends on how specific the plan is that the stockholders approved (and whether the vote was informed and uncoerced).  When it comes to the level of specificity required in the plan, generally speaking, a plan that sets specific and meaningful limits on the grants could constitute ratification of grants within those limits.  This decision, where the Court applied ratification, provides guidance on just how specific the plan must be.

Court Of Chancery Applies Business Judgment Rule After Majority Tender Shares

Posted In Directors, Securities

In Re Volcano Corp. Stockholder Litigation, C.A. 10485-VCMR (June 30, 2016)

In what might be one of the most important decisions this year, the Court held that the tender of their shares by a majority of the stockholders invokes an “irrebuttable” presumption that the business judgment rule applies and, as a result, the complaint generally must be dismissed.  This extends the Delaware Supreme Court’s Corwin decision to the tender offer context.  While the tender offer aspect of this case will get the most notice, the concept of an “irrebuttable” business judgment rule may prove to be more important.  For when that form of the business judgment rule applies, only facts demonstrating waste will let a complaint survive a motion to dismiss.  Of course, waste is almost impossible to successfully allege under Delaware law.

Court Of Chancery Enjoins Board Reduction Plan Prior To Director-Election

Posted In Directors, Stockholders' Meetings

Pell v. Kill, C.A. 12251-VCL (May 19, 2016)

This is an excellent review of the law governing when the Court will enjoin board action that affects the ability of stockholders to elect directors. Such interference must: (1) be for a proper motive, (2) not be preclusive, and (3) have a compelling justification in the method chosen. Downsizing the board just before an election in the face of a proxy contest over one class of directors does not pass this test, even if done for a proper, unselfish purpose. The bottom line is that incumbent directors cannot determine the outcome of an election contest for the stockholders.  

Court Of Chancery Reverses Director Resignation

Posted In Directors

Martin v. Med-Dev Corporation, C.A. 10525-VCP (October 27, 2015)

In this unusual case, the Court of Chancery has reinstated a director who was tricked into resigning. The opinion has a good discussion of how directors may resign and when their resignation is not effective.

Court of Chancery Explains Notice Required Before Directors Act

Posted In Directors

Optmiscorp v. Waite, C.A. 8733-VCP ( August 26, 2015)

This decision concerns a soap opera with bizarre facts and alleged witness tampering that hopefully will never be repeated. It does have a good discussion on what notice the board of directors must give to a controller before taking action to oust him as CEO. None is the answer.

Court Of Chancery Explains Limits Of Ratification Defense

Posted In Directors

Calma v. Templeton, C.A. 9579-CB (April 30, 2015)

This decision reviews the history of the effect of stockholder ratification on director compensation. Briefly, stockholder ratification will cause the compensation to be subject to the business judgment standard of review when the stockholders are fully informed and approve a specific level of compensation. In other words, just approving a general compensation plan that is not specific as to the actual compensation to be received is not sufficient to shift the standard of review and instead, assuming all the directors receive the compensation at issue, they will need to meet the entire fairness standard of review. Note also that directors are deemed interested for demand excuse purposes on matters of their own compensation without a showing that it was material as to them individually.

Court Of Chancery Explains Bad Faith Claim

Posted In Directors, Fiduciary Duty
In Re Novell Shareholders Litigation, C.A. 6032-VCN (November 25, 2014) When does a board act in bad faith so as to not be entitled to exculpation under a corporate charter? As this decision explains, mere mistakes in complicated negotiations do not come close to supporting a bad faith claim.

Court Of Chancery Explains Pleading Standard For Claims Against Disinterested Directors

Posted In Directors
In Re Cornerstone Therapeutics Inc. Stockholder Litigation, C.A. 8922-VCG (September 10, 2014)  This is a great decision to read to understand the pleading standard that applies to a complaint that alleges a controlling stockholder transaction. Even in such a transaction, the disinterested directors are not liable absent proof of a breach of a non-exculpated breach of duty. However, that rule will only apply after a full record is made at trial [or possibly at the summary judgment stage]. At the initial motion to dismiss stage, all the complaint need allege is that entire fairness review is required because of the control the majority stockholder had over the transaction. On September 26, 2014, the Court certified an interlocutory appeal to the Delaware Supreme Court.