Posts from 2018

Court Of Chancery Applies The Covenant Of Good Faith And Fair Dealing To Fill A Gap

In re Oxbow Carbon LLC Unitholder Litigation, C.A. 12447-VCL (February 12, 2018)

This may be the definitive decision on when and how to apply the covenant in every LLC agreement to act in good faith and deal fairly. Here the “gap” the parties did not address in their LLC agreement concerns the rights of newly admitted LLC members to block a forced sale of the entity.  While that right was addressed in the initial LLC agreement, the terms on which new members were admitted years later were not addressed at that time. The decision is also noteworthy in how it decides to fill the gap the parties left, by deciding what they would have done had they thought about it.

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Court Of Chancery Resolves Allocation Issues In Advancement Case

Weil v. Vereit Operating Partnership LP, C.A. 2017-0613-JTL (February 13, 2018)

This decision clearly sets out how to allocate fees for claims subject to advancement of attorney fees from those that are not covered by an advancement obligation. In particular it details how allocation questions should be answered  and how disputes over the amounts to be paid should be resolved. More ›

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Dismissal of Shareholder Derivative Action on Rule 23.1 Grounds Precludes Relitigation of Different Del. Plaintiffs

The Delaware Supreme Court recently issued an important corporate law decision addressing issue preclusion in the context of multiple shareholder derivative actions. The court ruled in California State Teachers’ Retirement System v. Alvarez, No. 295, 2016 (Del. Jan. 25), that an Arkansas federal court’s dismissal of a shareholder derivative suit for failure to plead adequately demand futility precluded Walmart stockholders from attempting to prosecute derivative claims in Delaware arising from the same misconduct. The court rejected the argument that the failure of the Arkansas plaintiffs to have used books-and-records discovery under Section 220 to assemble their complaint rendered their representation inadequate, or that applying issue preclusion in this context violated the stockholders’ due process rights. Although Delaware strongly encourages plaintiffs to use books-and-records requests to prepare a shareholder derivative complaint, the court concluded that Delaware’s substantial interest in governing the internal affairs of Delaware corporations must yield to the stronger national interests that all state and federal courts have in respecting each other’s judgments. More ›

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Morris James LLP Names Patricia A. Winston as Leadership Council on Legal Diversity Fellow

Morris James LLP has chosen Patricia A. Winston to be a member of the 2018 class of Fellows, participating in a landmark program created by the Leadership Council on Legal Diversity (LCLD) to identify, train, and advance the next generation of leaders in the legal profession.

“This is a singular honor for Patricia Winston,” said Keith Donovan, Managing Partner.  “She joins a select group of experienced attorneys from diverse backgrounds who have been recognized for their potential as leaders in their organizations.” More ›

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Delaware Corporate and Commercial Case Law Year In Review – 2017

Morris James attorneys Lewis Lazarus, Albert Manwaring and Albert Carroll authored an article published in Transaction Advisors titled Delaware Corporate and Commercial Case Law Year in Review – 2017. The article summarizes ten significant decisions of the Delaware Supreme Court and the Delaware Court of Chancery over the past year, including matters such as appraisal rights, duties in the master limited partnership context, director compensation awards, and preclusion in shareholder derivative litigation.  Continue reading for the full article. More ›

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Court Of Chancery Awards Fees Under Indemnification Provision

Composecure LLC v. Cardux LLC, C.A. 12524-VCL (Feb. 1, 2018, corrected Feb. 12, 2018)

Most of this decision deals with when a contract is void or voidable. If the signing is in violation of mandatory provisions in the entity’s governing instrument, it is void, but if it only was signed without the needed formality it is voidable. But more interesting, the decision also awards attorney fees under an indemnification provision in a contract that, as the Court noted, may only really apply to third-party claims. The scope of such provision thus remains unclear under conflicting Delaware decisions.

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Court Of Chancery Resolves Good Faith Claim In LLC Context

Miller v. HCP & Company, C.A. 2017-0291-SG (February 1, 2018)

This decision resolves the tricky issue of when the provisions of an LLC agreement do not allow “gap filling” so as to permit a claim for violation of the covenant to act in good faith and fairly. Briefly, when the LLC agreement permits the governing body of an LLC to act in its “sole” discretion and otherwise has an effective limit on the exercise of that discretion [such as permitting deals only with outsiders] then there is no reason to limit the discretion by imposing a duty to act in good faith. Of course, that may also require a waiver of fiduciary duties in the LLC agreement.

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Court Of Chancery Holds Stock Issuance Void

Southpaw Credit Opportunity Master Fund LP v. Roma Restaurant Holdings Inc., C.A. 2017-0059-TMR (February 1, 2018)

When stock is issued in violation of a stockholder agreement, the issuance is “void.” This has great significance because the issuance than cannot be ratified.

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Court Of Chancery Denies Advancement “As Incurred”

HOMF II Investment Corp v. Altenberg, C.A.2017-0293-JTL (Transcript December 13, 2017)

A provision in an LLC agreement that provides for “indemnification" “as incurred” does not provide for advancement. This illustrates that the confusion between advancement and indemnification still exists. If you want advancement, you had better say “advancement.”

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Court of Chancery Rejects Conspiracy Theory of Jurisdiction At Summary Judgment Stage

Reid v. Siniscalchi, C.A. No. 2874-VCS (January 30, 2018)

The facts underlying this summary judgment decision are rather remarkable.  The case is long-pending, and involved years of jurisdictional discovery granted for the purpose of allowing the plaintiff to explore its pleading-stage theory of personal jurisdiction under the so-called conspiracy theory.  The gist of that theory is that a Delaware court can exercise personal jurisdiction over all co-conspirators when one commits an act in the State that is central to carrying out the conspiracy.  It is a theory oft-invoked but rarely satisfied.  And, as this decision demonstrates, it is a theory that could be subject to some abuse by a clever litigant.  In this case, the evidence ultimately showed that the plaintiff misled the Court by claiming to be the victim of a Delaware-based conspiracy, when, in fact, the plaintiff was the architect of the very wrongdoing used to advance his conspiracy theory.  Thus, some ten years into the litigation, the non-resident defendant was dismissed from the case based on a lack of personal jurisdiction.   

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Where Do You Want to Be Sued?

Where does your company want to be sued? Of course, the obvious answer is “nowhere.” But in this litigious country that is not realistic. However, to a large extent, companies can chose the forum to decide claims made against them. The choice is not necessarily an easy one, given competing considerations that this article reviews. More ›

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Delaware Supreme Court Gives Preclusive Affect To Prior Dismissal In Wal-Mart Derivative Litigation

California State Teachers Retirement System v. Alvarez, No. 295, 2016 (Del. Jan. 25, 2018)

This is an important decision clarifying the rules regarding the preclusive effect a dismissal of a derivative suit may have on a similar suit pending or brought later in Delaware.  This litigation saga involving a bribery scandal at Wal-Mart took some interesting turns, ping-ponging between the Delaware Court of Chancery and the Delaware Supreme Court.  More ›

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Chancery Greenlights Use of Books and Records Demands to Buttress Post-'Corwin' M&A Challenges

Stockholder M&A challenges in the Delaware Court of Chancery have declined in the wake of the well-known Trulia (and its federal corollary Walgreens) and Corwin decisions, which respectively reduced incentives for pre-closing M&A challenges by outlining a strict standard of review for disclosure-only settlements; and confirmed that, regardless of whether the process at issue complied with Revlon, transactions approved by an informed and uncoerced stockholder vote are subject to the protections of the business judgment rule.  Against this backdrop, the Court’s year-end decision in Lavin v. West Corp., C.A. No. 2017-0547-JRS, 2017 WL 6728702 (Del. Ch. Dec. 29, 2017), is of note, as it endorses the use of books and records demands to help stockholders meet Corwin’s pleading demands. More ›

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Court Of Chancery Explains Inspection Rights Under An LLC Agreement

Aloha Power Company LLC v. Regenesis Power LLC, C.A. 12697-VCMR (Dec. 22, 2017)

This books and records decision addresses inspection rights granted under an LLC agreement. It also is useful as a reminder that a mere decline in an entity’s performance is not a sufficient proper purpose supporting inspection.  While the “credible basis” standard for suspecting mismanagement is low, it is not that low.

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Court Of Chancery Explains When A Prediction Is A Misleading Disclosure

Chatham Asset Management LLC v. Papanier, C.A. No. 2017-0088-AGB (Dec. 22, 2017)

It is often said that a mere prediction of some future event cannot be misleading because such predictions are speculations that cannot be relied upon. However, as this decision points out, stating something is “possible” when it is impossible is misleading and actionable as a disclosure violation.

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