Albert J. Carroll

Court Of Chancery Clarifies Personal Jurisdiction Over LLC Managers

In The Matter of Dissolution Of Arctic Ease LLC, C.A. No. 8932-VCMR (December 9, 2016)

The Delaware LLC Act provides for personal jurisdiction in Delaware over those who manage a Delaware LLC—i.e., those who are named as managers in the LLC agreement, and those who participate materially in the LLC’s management. This decision explains what it means to participate materially in the LLC’s management by a thorough analysis of the precedents. In effect, it means the person must have the management role usually undertaken by a corporate director—a control or decision-making role. Just acting as an officer is not enough when that person is subject to the control of others.

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“Directors’ Decisions Must Be Reasonable, not Perfect” Home Depot’s Shareholder Derivative Litigation Arising from Data Breach Dismissed; Demand Was Not Excused Under Delaware Law

On November 30, 2016, a federal district court dismissed a shareholder derivative complaint against various current and former directors of Home Depot arising from the well-publicized data breach the company suffered between April and September 2014.  In re The Home Depot, Inc. Shareholder Derivative Litigation, Civil Action No. 15-CV-2999-TWT (N.D. Ga. Nov. 30, 2016).  The complaint asserted claims against the directors for breach of the fiduciary duty of loyalty and corporate waste under state law, and a federal law securities claim under Section 14(a) of the Securities Exchange Act.  The decision illustrates important principles of corporate law reflected in Rule 23.1 (under both state and federal law), governing when a plaintiff can bypass the board of directors to assert a derivative claim for injury to the company on the company’s behalf, rather than deferring to the board’s judgment about asserting such a claim, and how these principles may affect litigation arising out of data breaches and alleged failures of director oversight.  More ›

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Court Of Chancery Examines Whether Derivative Demand Was Wrongfully Refused

Zucker v. Hassell, C.A. 11625-VCG (November 30, 2016) and Kops v. Hassell, C.A. 11982-VCG (November 30, 2016)

Even after a board rejects a plaintiff-stockholder’s demand to bring a derivative litigation, the plaintiff may proceed to bring that derivative action if the plaintiff can show the refusal was “wrongful.”  Having conceded that the directors were not “interested” in the subject of the demand by making the demand rather than suing and trying to allege demand futility, the plaintiff must show that the decision to refuse the demand was a bad faith breach of the duty of loyalty, or a grossly negligent breach of the duty of care.  These two related decisions examine whether plaintiffs met the high bar of sufficiently alleging wrongful refusal.  They illustrate, for instance, how it might not be enough that an investigation proved wrong, or that the company subsequently agreed to a large settlement arising out of the investigated events.

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Court Of Chancery Addresses Who Is To Do Post-Closing Adjustments

Chicago Bridge & Iron Company N.V. v. Westinghouse Electric Co. LLC, C.A. 12585-VCL (December 5, 2016)

Many contracts for the sale of a company have a provision addressing how the parties should resolve disagreements concerning post-closing adjustments to the sale price.  Exactly who is to resolve those disputes (be it an accountant, an arbitrator or the court), and the scope of their authority is sometimes unclear.  This decision tracks some precedents and explains when the contract may be interpreted to permit an accountant to decide what adjustments are required by GAAP.

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Delaware Supreme Court Finds Pre-Suit Demand Was Excused

Sandys v. Pincus, No. 157, 2016 (December 5, 2016)

When a stockholder files a derivative suit she can avoid dismissal under Rule 23.1’s pre-suit demand-on-the-board requirement by showing that a majority of the directors were not independent enough to fairly consider her demand that the corporation itself file the suit.  This decision clarifies how to decide if a board member is sufficiently independent to fairly consider such a demand.  Briefly, at least two factors will be relevant: close social connections to the target of the suit, and disqualification under the NASDAQ tests for independence. There is no single test that controls, although either one of the aforementioned relationships may be disqualifying under the right circumstances, as the Court found them to be in this case.

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Court Of Chancery Summarizes Law On Reliance Disclaimers

IAC Search LLC v. Conversant LLC, C.A. No. 11774-CB (November 30, 2016)

Large commercial contracts frequently try to limit a buyer’s remedies for any extra-contractual misrepresentations by the seller.  Many Delaware decisions deal with disclaimers of extra-contractual representations and this decision does a nice job of summarizing some of that existing law. For example, it notes that a statement from the seller that it has not made any extra-contractual representations may not suffice, while a statement of non-reliance from the buyer should do the trick.

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Court Of Chancery Dismisses Dissolution Case In Favor Of Ongoing California Litigation

Zebala v. Aminopterin LLC, C.A. No. 12186-VCS (September 28, 2016) (TRANSCRIPT) 

An issue of some debate is whether a non-Delaware court has the power to dissolve a Delaware entity.  Here, the Court of Chancery was asked to dismiss a later-filed dissolution action in Delaware based on a California forum selection clause in the parties’ LLC agreement, and in deference to a long-pending first-filed action in California where the court had already issued an injunction restricting the LLC’s assets that the Court of Chancery was being asked to wind up.  The Court thus had the opportunity to address the important power to dissolve question, but under the circumstances found it appropriate to defer to the California court relying on principles of comity and a McWane analysis to dismiss the dissolution action.  In other words, the Court of Chancery would not step on the California court’s toes under the circumstances, and the California court could decide for itself if it has the power to dissolve a Delaware entity should the parties present that issue there.

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Delaware Supreme Court Rejects Fraud Defense To Advancement

Trascent Management Consulting LLC v. Bouri, No. 126, 2016 (November 28, 2016)

Delaware strongly protects a party’s right to advancement of attorney’s fees. This decision holds that a claim of fraudulent inducement cannot be asserted as a defense in a contractual advancement case even when the fraud is alleged to have induced the advancing party into signing the contract.  Rather than use the alleged fraud as a defense to providing advancement, the advancing party must satisfy its advancement obligations and then assert its plenary claim for fraud in a separate proceeding where it can recoup the allegedly wrongfully advanced funds.

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Superior Court Limits Contractual Indemnification To Third Party Claims

Deere & Company v. Exelon Generation Acquisitions LLC, C.A. N13C-07-330 MMJ CCLD (November 22, 2016)

This decision holds that a general obligation to indemnify another party to a contract applies only to claims filed by a third party and not to claims between the parties to the contract itself. Hence, if you want to cover inter-party claims, you need to say so explicitly.

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Delaware Supreme Court Explains Setoff And Recoupment

Finger Lakes Capital Partners LLC v. Honeoye Lake Acquisition LLC, No. 42, 2016 (November 14, 2016)

This decision explains the difference between a defendant’s right of setoff and recoupment. The key difference is that the right of setoff arises out of an independent transaction, while recoupment must be based on the same facts that support the main claim. Another difference concerns the statute of limitations.  Setoff is subject to a three-year statute of limitations, while time-barred claims can be considered for recoupment when they arise out of the same factually-related transaction as the plaintiff’s claim.   

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Court Of Chancery Grants Dissolution On Conditions

Abelmann v. Granum, C.A. 12041-VCMR (November 15, 2016)

This is an interesting decision in a small case. The Court granted the request to dissolve a Delaware entity in deadlock, but conditioned that dissolution on an agreement not to use the fact of dissolution in another proceeding between the parties to defeat a party’s standing. What other conditions might be imposed in other cases remains to be seen.

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Delaware Superior Court Explains Disgorgement Exclusion In Insurance Coverage

TIAA-CREF Individual & Institutional Services, LLC v. Illinois National Insurance Company, No. N14C-05-178 JRJ CCLD (October 20, 2016)

D&O policies often attempt to exclude from coverage sums paid to disgorge unlawful profits. The underlying theory is that the company did not suffer a true loss when it has to give back something that it never should have had in the first place. This decision tackles the hard problem of applying that theory in specific circumstances. The Court held that when a company settles a claim without admitting it has made an unlawful profit then the insurer has to prove the sums paid were in fact a return of an illegal profit. Merely settling a claim for some amount does not establish disgorgement occurred, even when the claim itself may have made that allegation. In particular, when the actual settlement agreement does not refer to a return of an illegal gain, there is no tie to actual disgorgement and the exclusion may not apply. Hence, when settling a claim it is important to consider how the settlement agreement should read.

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Court Of Chancery Explains Law Of Issue Preclusion In Arbitration

Government Employees Insurance Company v. Progressive Direct Insurance Company, C.A. 11425-MZ (November 2, 2016)

This decision addresses issues that may arise when there are successive arbitrations involving the same basic set of facts, if different parties. It concludes that when engaging in the limited judicial review which asks whether an arbitrator exceeded its authority, the issue of whether the first arbitration’s findings are preclusive in the second arbitration is for the second arbitrator to decide, not the Court.

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Court Of Chancery Explains Fee Award In Appraisal Case

In Re Appraisal Of Dell Inc., C.A. 9322-VCL (October 17, 2016)

Plaintiffs’ attorneys in representative litigation may obtain awards of fees and expenses when their efforts prove successful and provide benefits to the represented class. This decision explains how the Court of Chancery will calculate a fee award in an appraisal case based on the benefit conferred to the dissenting stockholders; here, a $21 million bump in the consideration. The decision addresses several important issues, including when expenses should be deducted from the benefit conferred before calculating the fees. Indicative of this litigation’s complexity, the expert witness fees alone were over $3.3 million. The decision will serve as a useful guide to any future fee awards in the growing field of appraisal cases.

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Court Of Chancery Reviews Caremark Pleading Standard

Reiter v. Fairbank, C.A. No. 11693-CB (October 18, 2016)

Directors may face liability for a failure of oversight that caused the company to suffer a loss, often involving fines imposed by various authorities. Claims alleging this oversight liability under Delaware law are governed by the famous Caremark standard. A considerable hurdle for the plaintiff is the Caremark standard’s sometimes overlooked scienter requirement—the need to show bad faith, meaning that the directors knew that they were not discharging their fiduciary obligations. This decision carefully analyzes a complaint’s allegations and the Caremark precedent to conclude the complaint should be dismissed for failure to meet that test.

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