Delaware Business Litigation Report

Breach of Fiduciary Duty Claim Subsumed by Breach of Contract Claim

Defendants are often faced with complaints that assert multiple causes of action arising from the same set of facts and circumstances. A prime example of such a complaint is presented in CIM Urban Lending v. Cantor Commercial Real Estate Sponsor, L.P. C.A. No. 11060-VCN (Del. Ch. Feb. 26, 2016). In an effort to recover for a general partner's alleged improper payments to an affiliate, the plaintiffs in CIM asserted claims for breach of contract, breach of fiduciary duty, aiding and abetting breach of fiduciary duty and unjust enrichment. On the defendant's motion to dismiss, the court found that only the breach of contract claim could stand. The remaining claims, including for breach of fiduciary duty, were dismissed as duplicative of the core claim for breach of the limited partnership agreement. More ›

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Court Upholds but Limits Claims Arising From Merger Agreement

The Delaware courts regularly address contract claims arising out of merger agreements. Among other recurring issues are whether and how the parties limited claims based on alleged misrepresentations or omissions, whether a party can state a claim for breach of the implied covenant of good faith and fair dealing, and the nature of the remedies available in the event of breach. The recent case of Haney v. Blackhawk Network Holdings, C.A. No. 10851-VCN (Del. Ch. Feb. 26, 2016), addresses each of these issues and provides guidance to transactional and litigation attorneys concerned about minimizing litigation risk. More ›

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Chancery Applies 'Rales' in Dismissing Derivative Claim

In Sandys v. Pincus, C.A. No. 9512-CB, (Del. Ch. Feb. 29, 2016), the Delaware Court of Chancery considered the uncommon scenario of analyzing whether a demand made upon Zynga Inc.'s board of directors pursuant to Rule 23.1 would have been futile when the actions being challenged occurred at a time when Zynga's board was composed of several different directors. While a majority of the Zynga directors had not turned over between the time of the challenged actions and the time the litigation, enough of the interested directors were replaced in that period so that, at the time the derivative litigation was initiated, the Zynga board was populated by a majority of disinterested and independent directors. In considering whether demand on the Zynga board should be excused, the court analyzed this novel issue when determining what test should apply. More ›

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Court Of Chancery Again Explains Requirements For Ratification Defense

Larkin v. O’Connor, C.A. 11338-CB (Transcript) (March 22, 2016)

This is an interesting decision because it explains the requirements for stockholder ratification of grants under a stock option plan. The stockholders have to vote not just on the plan itself, but on the actual grants for ratification of those grants to occur. Merely mentioning the actual grants in the proxy statement without having a separate vote on those grants themselves is not sufficient to constitute ratification.

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Court Of Chancery Explains Advancement Rights Of Seller Representative

Hyatt v. Al Jazeera America Holdings II, LLC, C.A. 11465-VCG (March 31, 2016)

This is an interesting advancement case as it applies the usual test of whether the former directors have been sued “by reason of the fact” they were directors in the context of suit against former owners’ representative for a merger agreement escrow account. Thus, it is a helpful precedent to apply that test. The court held that advancement would be required when the acts alleged involved acts the former directors took in their capacity as directors, even if the underlying suit was against them as former owner representatives.  Thus it is the acts that lead to potential liability that count, not the capacity in which you are sued.

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CorpCast Episode 11: Better Know a Judge: Vice Chancellor Joseph R. Slights, III of the Delaware Court of Chancery

On this episode of CorpCast, we continue our “Better Know a Judge” series with an interview of the newest member of the Delaware Court of Chancery, Joseph R. Slights, III. Joe discusses why he took a pay cut while his children are in college, his background, some advice for young lawyers, as well as what he’s looking forward to and dreading when he gets on the bench.

Love what you hear? Go to our podcast tab for archived episodes and be sure to follow @DECorpCast for the latest updates. If you have questions or comments, you can reach us at CorpCast@morrisjames.com. Thank you for listening! More ›

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Court Of Chancery Upholds Limits Of Disclosure Obligation

Dieckman v. Regency GP LP, C.A. 11130-CB (March 29, 2016)

This is an interesting decision in the master limited partnership context because it shows how far a limited liability agreement may go to limit member rights to disclosures even in a conflicted deal. If the partnership agreement waives fiduciary duties and also states what disclosures are due to members asked to vote on a deal, then the specified disclosures are what they get, nothing more. Here the agreement stated that the members were to receive just the merger agreement.  Of course, the members still had the right to object to the merger and that at least gave them some say over the transaction.

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Are Disclosure-Only Claims Dead Yet?

Are "disclosure only" claims now at an end in Delaware? Following the Delaware Court of Chancery's Jan. 22 decision in In re Trulia, 129 A.3d 884 (Del. Ch. 2016), various commentators have concluded Trulia "likely spells the end of disclosure-only settlements in Delaware." But as Monty Python famously said, "I am not dead yet," and the same may be true of claims attacking a corporate transaction for want of adequate disclosures. More ›

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CorpCast Episode 10: eDiscovery Review

On today’s episode of CorpCast, we are joined by our colleagues Ian McCauley and Laura Readinger. Ian and Laura’s practice focuses on eDiscovery, and this episode covers Delaware developments on the subject over the past 16 months.

We cover global issues such as the role of Delaware counsel in discovery, and the Court of Chancery’s growing concern regarding the conduct of counsel throughout discovery. We also take a look at defensible document collection, preservation of text messages, and production of personal email. Finally, we discuss very narrow topics that the Court has tackled, including production of metadata and document review. More ›

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Contractual Stipulations of Irreparable Harm: Helpful But Not Determinative

Business contracts frequently contain remedy clauses whereby the parties agree that a breach constitutes irreparable harm entitling the nonbreaching party to specific performance or injunctive relief to enforce the agreement. The effect of such clauses seemed to be settled in Delaware when the Delaware Supreme Court in Martin Marietta Materials v. Vulcan Materials, 68 A.3d 1208, 1226 (Del. 2012), stated that "contractual stipulations as to irreparable harm alone suffice to establish that element for the purpose of issuing ... injunctive relief." However, cases before and after Martin Marrieta make clear that such clauses constitute a party stipulation and admission, but do not alone establish irreparable harm sufficient to warrant preliminary injunction relief. In a recent Court of Chancery decision, Vice Chancellor John W. Noble discussed the helpful, but nondeterminative, effect of such remedy clauses, making clear that the ultimate determination of harm necessary to support injunctive relief rests with the court, not the parties, as in The Renco Group v. MacAndrews AMG Holdings, C.A. No. 7668-VCN (Del. Ch. Feb. 19, 2016). More ›

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Duplicative Discovery Not Objectionable Unless 'Fully' Duplicative

Litigators often have the tendency to seek similar, if not identical, information from multiple sources. As an opponent has an interest in withholding harmful information, third-party discovery may be critical to proving a claim or defense. In Hamilton Partners v. Highland Capital Management, C.A. No. 6547-VCN (Del. Ch. Feb. 2, 2016), the plaintiff appeared to take the approach of seeking similar information from both the defendant and relevant third parties. The defendant challenged this practice by opposing the plaintiff's motions for commissions and third request for production of documents as, among other things, duplicative, cumulative and oppressive. According to the defendant, because the plaintiff's discovery sought "largely the same information from each non-party and the third request and the motions [sought] information already sought in the first and second requests, the plaintiff's discovery effort has become unnecessarily cumulative and 'oppressive.'" The Delaware Court of Chancery disagreed, finding that, because the requests were not fully duplicative, they were not objectionable. More ›

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Three Morris James Attorneys on Panels at DSBA Women and the Law Section Retreat

Joseph R. Slights, III and Ian D. McCauley spoke on panels at the Delaware State Bar Association Women and the Law Section's Retreat, which was held on March 4th and 5th, 2016.

Ian D. McCauley spoke on the first panel of the retreat that dealt with various technology issues impacting lawyers.  This panel discussed various issues including the ethical considerations of social media, the discovery of electronic material, and the use of technology in the courtroom.  

Joseph R. Slights, III spoke on a panel which tackled common issues that a practitioner confronts, such as building a network to benefit or advance one’s career, and understanding how to manage clients effectively.  This panel also provided insight into practical office management.

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Patricia A. Winston Successfully Represent Radio One before Delaware Supreme Court

Patricia A. Winston secured an order from the Delaware Supreme Court affirming the Superior Court Complex Commercial Litigation Division’s grant of summary judgment in favor of their client, Radio One, Inc.  Patricia successfully represented Radio One before the Supreme Court, which upheld the Superior Court’s interpretation of a “complicated” agreement between Radio One and another broadcaster.  By its appeal, the appellant sought to reverse the Superior Court’s summary judgment decision and to overturn an earlier jury verdict in Radio One’s favor.  The ruling by the Supreme Court further confirms the appropriateness of resolving complex contract interpretation issues through summary judgment.

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Court Of Chancery Limits Fiduciary Claims Based On A Contract

CIM Urban Lending GP, LLC v. Cantor Commercial Real Estate Sponsor, L.P., C.A. 11060-VCN (February 26, 2016)

A recurring problem in Delaware jurisprudence is whether breach of contract and fiduciary duty claims may proceed simultaneously. This decision explains when they are duplicative of one another so that the secondary claim [here the breach of fiduciary duty one] should be dismissed.

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Court Of Chancery Denies Advancement Until Undertaking Executed

Wong v. USES Holding Corp., C.A. 11475-VCN (February 26, 2016) 

This decision states what should be obvious — you do not get your expenses advanced until you undertake to repay them if you lose. Note the opinion also sets out the process to have advancement claims processed by a  special master.

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