Best wishes to all my loyal readers for a happy and healthy New Year!
The last year gave me much to be thankful for, and I hope 2009 is a great one for all of you (and for me).
December 2008
Chancery Court Rules in Favor of Bank of New York Mellon Regarding Realogy Corporation Refinancing
By Francis Pileggi on
Posted in Court of Chancery Updates
The Bank of New York Mellon v. Realogy Corp., (Del. Ch., Dec. 18, 2008), read opinion here. This Chancery Court decision in favor of The Bank of New York Mellon ("BNYM"), involved contract interpretation of various documents in connection with an attempt to refinance. Both BNYM as indenture trustee, and the corporate issuer sought declaratory judgment on…
The Madoff Litigation Update
By Francis Pileggi on
Posted in Commentary
Kevin LaCroix of The D & O Diary provides a very useful update of the lawsuits that have been filed to date involving the Bernie Madoff ponzi scheme that is estimated to have caused billions of dollars in losses. The defendants include "feeder firms" such as other hedge funds who gave Madoff money–and the accounting firms that audited…
Chancery Court Rules on Business Break-up Issues and Decides Oral Resignation of Director is Effective
By Francis Pileggi on
Posted in Court of Chancery Updates
In General Video Corp. v. Kertesz, et al., 2008 Del Ch. LEXIS 181 (Dec. 17, 2008), read opinion here, the Delaware Chancery Court addresses in a 76-page decision, issues of practical importance to anyone interested in the sundry dilemmas that always arise in connection with the "break-up" of a closely-held business. As commonly happens, one of the "partners" of…
Chancery Distinguishes Between Promise and Condition in Contract to Deny Indemnification Claim
By Francis Pileggi on
Posted in Court of Chancery Updates
In TravelCenters of America LLC v. Brog, (Del. Ch., Dec. 5, 2008), read opinion here, the Chancery Court denied a claim for indemnification based on the argument that the provisions of the parties’ LLC agreement were breached. The Court reached this conclusion notwithstanding its reasoning in an earlier opinion that the notice provisions of the agreement were not complied with…
Fiduciary Duty Claims Survive Motion to Dismiss, But Not Disclosure Claims
By Francis Pileggi on
Posted in Court of Chancery Updates
Brinckerhoff v. Texas Eastern Products Pipeline Company, LLC , (Del. Ch., Nov. 25, 2008), read opinion here. In this decision, the Chancery Court denied a motion to dismiss based on Rule 12(b)(6), in connection with a fiduciary duty claim against certain directors. The Court found that the simple allegation that “the board of directors” authorized the transaction…
Chancery Distinguishes Contract-Based and Common Law-Based Fiduciary Duty Voluntarily Assumed
By Francis Pileggi on
Posted in Court of Chancery Updates
In re: Cencom Cable Income Partners, L.P. Litigation, (Del. Ch., Nov. 26, 2008), read opinion here.
This Chancery Court decision denied in part and granted in part Defendants’ motions for summary judgment involving issues of fiduciary duty and candor. (see footnote 1 for citations to three prior opinions in this case.)
In…
Chancery Interprets LLC Agreement that Modifes Fiduciary Duties
By Francis Pileggi on
Posted in Court of Chancery Updates
Kahn v. Portnoy, (Del. Ch., Dec. 11, 2008), read opinion here.
This Chancery Court opinion deals with the important concept of the ability to modify fiduciary duties in an LLC agreement. In this derivative case involving an LLC, the LLC agreement’s modification of fiduciary duties was not clear enough to choose one reasonable interpretation over…
Chancery Rules on Duties of Trustee
By Francis Pileggi on
Posted in Court of Chancery Updates
In Gilmore v. Gilmore, (Del. Ch., Dec. 3, 2008), read opinion here, the Delaware Chancery Court, in a short letter decision, addresses the fiduciary duties of the trustee of a trust. As an historic note, it is these same fiduciary duties that the Delaware courts "transported" from the English common law to apply (and evolve and develop)…
Delaware Supreme Court Polices Trial Practices of Prosecutors
By Francis Pileggi on
Posted in Delaware Supreme Court Updates
Hardy v. State, (Del. Supr., Dec. 9, 2008), read opinion here. Why, one might ask, is a criminal decision on this business litigation blog? This decision is relevant to this blog to the extent it demonstrates how the Delaware Supreme Court polices, on appeal, the conduct of lawyers at trial, in connection with its consideration of trial issues…