Archives: Chancery Court Updates

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Chancery Applies Discounted Cash Flow Analysis in Valuation Decision

Justin Forcier, an associate in the Delaware office of Eckert Seamans, prepared this overview. The Delaware Court of Chancery recently applied a discounted cash flow (“DCF”) analysis to value a privately-held company following a merger between ISN Software Corp. (“ISN”) and ISN’s wholly-owned subsidiary, with ISN continuing as the surviving company.  In re ISN Software … Continue Reading

Court of Chancery rejects claim under the Deceptive Trade Practices Act

Any newcomer to Delaware would note the proliferation of business names containing some variation on “Diamond State” or “Blue Rock” – and, as the Court of Chancery recently noted in its letter opinion in Diamond State Tire, Inc. v. Diamond Town Tire Pros & Auto Care, Inc., C.A. No. 11550-VCS (August 15, 2016), the inclusion of … Continue Reading

Court of Chancery Awards Mootness Fees for Additional Disclosures

Justin Forcier, an associate in the Delaware office of Eckert Seamans, prepared this overview. The decision in this matter should be of widespread interest to corporate litigators and is the latest in the evolution of disclosure-only settlements following the  Delaware Court of Chancery’s decision in In re Trulia Inc. Stockholder Litigation, C.A. No. 10020-CB (Del. … Continue Reading

Chancery Addresses Tools and Principles for Corporate Litigators

The Delaware Court of Chancery recently selected lead counsel and lead plaintiffs in response to competing motions in connection with class action stockholder litigation, applying the well-worn principles in Hirt v. U.S. Timberlands Service Co., 2002 WL 1558342, at * 2 (Del. Ch. July 3, 2002).  In the course of applying those factors to the facts of … Continue Reading

Chancery Dismisses Caremark Claims

A recent Delaware Court of Chancery decision serves as a reminder that Caremark claims are among the most difficult corporate litigation claims to make against directors. Melbourne Municipal Firefighters’ Pension Trust Fund v. Jacobs, C.A. No. 10872-VCMR (Del. Ch. Aug. 1, 2016).  Of course, most readers are aware that Caremark is the colloquial reference for … Continue Reading

Chancery Allows Claims Against Directors for Interested Transaction

A recent Delaware Court of Chancery decision should be useful to corporate litigators for its practical explanation of the type of transaction that will be considered an “interested” one and subject to the entire fairness standard.  In re Riverstone National, Inc. Stockholder Litigation, Consol. C.A. No. 9796-VCG (Del. Ch. July 28, 2016). Background The background of … Continue Reading

Chancery Compares Claims Against Director Based on Fiduciary Duty and Contract

The Court of Chancery in Jeter v. RevolutionWear, Inc., C.A. No. 11706-VCG (Del. Ch. July 19, 2016), provides a helpful explanation and application of several basic principles of Delaware corporate and commercial law that are useful to include in the toolbox of corporate and commercial litigators. Background Facts: The court’s opinion begins with the admonition that: “This … Continue Reading

Court Awards Advancement to Officer of Affiliated Entity

Narayanan v. Sutherland Global Holdings Inc., C.A. No. 11757-VCMR (Del. Ch. July 5, 2016). This Delaware Court of Chancery opinion addressed: (1) Whether separate sources of indemnification, including the company’s bylaws and an indemnification agreement, must be read together or separately; (2) Whether the plaintiff-director served the entity at the request of the company or for … Continue Reading

Request for Interim Fee Award Denied and Representative Plaintiff Disqualified

In a pair of related decisions issued on the same day, June 29, 2016, the Court of Chancery in Smollar v. Potarazu (here and here) made the unusual move of disqualifying a derivative plaintiff and his counsel, and granting a motion to intervene brought by another stockholder who sought to become the representative plaintiff. Key Issues Addressed … Continue Reading

Chancery Imposes Penalties for Not Saving Text Messages and Bad Faith Litigation

Justin Forcier, an associate in the Delaware office of Eckert Seamans, prepared this overview. Key Issue Addressed: Fees imposed for bad faith litigation as well as for failure to preserve text messages and other mishandling of ESI. In re: Shawe & Elting LLC, C.A. Cons. No. 9661-CB (Del. Ch. July 20, 2016). Background: This decision … Continue Reading

Chancery Addresses “Commercially Reasonable Efforts” and Denies Request to Enforce Deal

In an expedited deal litigation matter, in The Williams Companies, Inc. v. Energy Transfer Equity, L.P., C.A. No. 12168-VCG (Del. Ch. June 24, 2016), the Court of Chancery denied a request to enjoin Energy Transfer Equity, L.P. (“ETE”) from evading a deal based on its inability to obtain a tax opinion that was a condition precedent … Continue Reading

Chancery Approves Sale of Deadlocked Company Proposed by Custodian

This post was prepared by Justin Forcier, an associate in the Wilmington office of Eckert Seamans. Why This Case is Noteworthy: The Court of Chancery approved, with certain modifications, the recommendation of an appointed custodian for the proposed sale of a company as a going-concern in light of the company’s two directors being deadlocked. In Re TransPerfect Global, Inc., … Continue Reading

Chancery Examines Good Faith Corollary to Duty of Loyalty in Short-Form Merger

This post was prepared by Justin Forcier, an associate in the Wilmington office of Eckert Seamans. The Court of Chancery in the case of In re Chelsea Therapeutics International Ltd. Stockholders Litigation, 2016 WL 3044721 (Del. Ch. May 20, 2016), addressed claims of bad faith in connection with a short-form merger of a developmental biopharmaceutical company … Continue Reading

Another Recent Chancery Opinion Fuels Skepticism About Section 220’s Usefulness

Why this Case is Noteworthy: The Court of Chancery’s opinion in Laborers’ District Council Construction Industry Pension Fund v. Bensoussan, C.A. No. 1123-CB (Del. Ch. June 14, 2016), is the second decision from the Court of Chancery in two months that provides a reasonable basis for skepticism about whether, as a practical matter, plaintiffs’ attorneys should wait for … Continue Reading

Chancery Explains that Special Litigation Committee Must Only Include Board Members

Why This Case is Important: The Court of Chancery opinion in Obeid v. Hogan, C.A. No. 11900-VCL (Del. Ch. June 10, 2016), will be cited often as a reference guide for fundamental principles of Delaware corporate law and LLC law, including the following: (1) even in derivative litigation when a stockholder has survived a motion to dismiss under … Continue Reading

No Per Se Duty to Disclose Financial Statement in Closely Held Company

A recent Delaware Court of Chancery transcript ruling is notable for stating that there is no per se affirmative obligation, absent a request for stockholder action, in a closely held company, to produce financial statements. The court held, however, that under certain circumstance, for example in response to a demand under DGCL Section 220, it could … Continue Reading

Chancery Explains Policy Reasons for Awarding Advancement to Former Director

The Delaware Court of Chancery’s opinion in Marino v. Patriot Rail Company LLC, C.A. No. 11605-VCL (Del. Ch. Feb. 29, 2016), is noteworthy for providing the most detailed historical analysis and doctrinal underpinning for the legislative scheme that requires corporations under certain circumstances to provide advancement to former directors and officers, that has come along in … Continue Reading
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