The Delaware Association of Second Amendment Lawyers will present its Third Annual Delaware Firearms Law Seminar on October 6, 2016 at 8:30 a.m. in Wilmington, Delaware, at the Doubletree Hotel. The foregoing hyperlink has more details, but in addition to nationally-recognized constitutional law scholars, two members of the Delaware judiciary will be making a presentation that qualifies for legal ethics CLE.
This Court of Chancery decision provides a useful example of those circumstances in which the express terms of a contract serve as a barrier for claims of fraud, misrepresentation and related claims that are dependent on statements or other facts outside the four corners of an agreement. Flores, et al. v. Strauss Water Ltd., C.A. No. 11141-VCS (Del. Ch. Sept. 22, 2016).
Background: This case involves a claim by a bankruptcy trustee that a creditor masterminded a fraudulent scheme to obtain valuable technology and business opportunities from a company to whom it loaned money – – with the expectation that the company would not be able to repay the loan and then the lender would obtain valuable assets upon default.
Among other reasons why this decision is of practical value to commercial litigators is the excellent statement of important legal principles of Delaware law and the elements of a cause of action for common claims in commercial litigation.
First, the court provides an exemplary recitation of the standard under Court of Chancery Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
The court recited the elements of the cause of action for the following claims, and with one limited exception found that the express terms of the contract barred such claims: (1) fraud; (2) fraudulent inducement; (3) negligent misrepresentation; (4) breach of the implied covenant of good faith and fair dealing; (5) breach of contract; (6) promissory estoppel; (7) estoppel; (8) tortious interference with contract; and (9) tortious interference with prospective business relationship. The court also highlighted some elements of the foregoing claims that are common or shared.
The court found that the claims contradicted clear and unambiguous terms of the written contract between the parties which was negotiated through sophisticated counsel. Among other reasons described in this 40-page decision, the court explained that the claims for negligent misrepresentation are limited by the economic loss doctrine. [Compare: equitable fraud v. negligent misrepresentation.] In addition, the claims for tortious interference with contract failed because the allegedly improper acts were expressly permitted by the parties’ contracts.
The court found, however, that there was a reasonably conceivable inference that Strauss tortiously interfered with prospective business relationships.
This post was prepared by Justin Forcier, an associate in the Delaware office of Eckert Seamans.
The focus of this blog is key Delaware corporate and commercial litigation decisions. That includes the Complex Commercial Litigation Division of the Superior Court. The rules and procedures in that court are not always the same as those in the Court of Chancery. It remains important to know the differences. For example, Court of Chancery Rule 26 and Superior Court Rule 26 are not identical, regarding what information provided to a party’s expert is discoverable.
Two recent rulings address this topic: CIM Urban Lending GP v. Cantor Commercial Real Estate Sponsor, L.P., C.A. No. 11060-VCS (Del. Ch. May 19, 2016) (TRANSCRIPT) and Green v. Nemours Found., C.A. No. N15C-03-208 (Del. Super. Aug. 17, 2016).
Superior Court Rule 26: The Superior Court of Delaware recently took a close look at Superior Court Rule 26 and made some very important distinctions regarding what is discoverable and what is not when it comes to information given to a party’s expert.
Background: In Green, the Superior Court considered plaintiff’s counsel inadvertently including two documents titled “Work Product Memorandum” and “Deposition Preparation Exhibits” in a binder that was produced to defense counsel prior to taking the plaintiff’s expert’s deposition. The plaintiff sought to recover those documents once the mistake was realized. After returning the documents, defendants’ counsel filed a motion to compel their production.
Analysis: The Superior Court has adopted the federal version of Rule 26(b), which requires counsel to “identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed” and “identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.”
The court left no stone unturned with its analysis of Rule 26 — often relying on the Advisory Committee’s comments to the Rule when it was amended. The Superior Court held that documents are deemed “considered,” and thus not privileged, “if it was seen by the expert, regardless whether he relies upon it and indeed, even if he rejects it entirely.”
However, the court did not extend such a sweeping definition of the other non-disclosure exception — the requirement that assumptions provided by counsel to the expert be disclosed. The Superior Court stated: “So to the extent the attorney communicates with the expert his ‘assumptions’ about the case — be they hypotheticals or other possibilities — these communications are privileged from disclosure unless the expert were to aver that he ‘relied’ on the assumption as posited by the attorney.”
Court of Chancery Rule 26: The Court of Chancery’s ruling in CIM Urban Lending GP stems from a dispute over the language in a limited partnership agreement and cross motions to compel information provided to each parties’ experts. The plaintiffs sought documents that the defenses’ expert relied on in determining his report. The defendants sought documents from the plaintiffs regarding a pre-litigation investigation into whether the limited partnership agreement was breached.
Analysis: Citing Chancery Rule 26(b)(4), which requires production of facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, the court held that the information that was actually considered and relied on in the final defendants’ expert’s report was not privileged because that expert report was placed at issue since the expert will be testifying at trial.
However, the court held that documents considered and relied on by a non-testifying expert to prepare a pre-litigation report were protected work product and not discoverable. This is a very important distinction made by the court.
Finally, it is important to note that, unlike the Superior Court, the Court of Chancery has not adopted the most-recent language of the federal rules. Both the Superior Court and the Court of Chancery Rules contain substantially similar language in Rules 26(b)(1)–(4).
Importantly, however, Court of Chancery Rule 26 does not have a counterpart to Superior Court Rule 26(b)(6), which expressly exempts: (1) the compensation that the expert is paid; (2) the facts or data provided to the expert; and (3) the assumptions provided to the experts from any claim of privilege.
However, the Guidelines on Best Practices for Litigating Cases before the Court of Chancery (the “Guidelines”) expresses a preference for parties to stipulate what information is privileged. It’s also important to note that according to the Guidelines, parties are encouraged to agree to stipulate that “[m]aterials or information that may have been viewed or considered but not relied upon by the [e]xpert” are not discoverable, and the court provides a sample stipulation to address these issues.
A short ruling today by the Delaware Court of Chancery contains excellent quotes on two procedural topics, with which proficiency may not be needed every day–but this decision still deserves a place in the toolbox of those who labor in the vineyard of corporate and commercial litigation. In Chrome Systems, Inc. v. Autodata Solutions, Inc., et al., Civil Action No. 11808-VCG (Del. Ch. Sept. 21, 2016), the court addressed the public policy reasons that spoliation of evidence is contemptible and why interlocutory appeals are rarely permitted.
On spoliation, which was also addressed in another recent Chancery ruling highlighted on these pages, even though the court stayed its hand pending a decision by an arbitrator handling other issues in the case, the court explained that:
Because spoliation inhibits the search for truth and the administration of justice, it is anathema to our courts; accordingly, allegations of spoliation are taken seriously. There are, to my mind, two components involved in the appropriate resolution of claims of spoliation: minimizing its effect on the administration of justice, which may require shifting burdens of proof or excluding submissions of evidence by the spoliator to prevent prejudice to the non- spoliating party; and use of the contempt power to vindicate the integrity of the Court and the interest of the public in the preservation and presentation of evidence, in the interest of justice.
This topic has been in the news lately in connection with one of the candidates for president, but litigators recognize it as a serious issue.
Regarding the trial court’s review of a request for an interlocutory appeal, before the Delaware Supreme Court addresses it, the Vice Chancellor observed that:
As Supreme Court Rule 42 makes clear, interlocutory appeal is an extraordinary remedy, which “should be exceptional, not routine, because [such appeals] disrupt the normal procession of litigation, cause delay, and can threaten to exhaust scarce party and judicial resources.” Before certifying an appeal, I must determine that an interlocutory appeal would bring “substantial benefits that will outweigh the certain costs that accompany” such an appeal. (citing Supr. Ct. R. 42(b)(ii)).
The court declined the invitation to certify the interlocutory appeal. Notably, the Delaware Supreme Court recently amended the rule to emphasize that such an appeal should only be considered in truly rare circumstances.
Justin M. Forcier, an associate in the Delaware office of Eckert Seamans, prepared this overview.
The Delaware Court of Chancery recently granted a motion to dismiss based on an application of the business judgment rule, and a motion to recover damages based on the earlier grant of an injunction later determined to have been improvidently granted. This case stems from a merger between C&J Energy Services, Inc. (“C&J”) and its subsidiary Nabors Industries Ltd. (“Nabors”). City of Miami General Employees’ & Sanitation Employees’ Retirement Trust v. Comstock, et al., C.A. No. 9980-CB (Del. Ch. Aug. 24, 2016)
Background: Plaintiffs originally sued to block the merger and were issued a preliminary injunction by the court, but that decision was reversed by the Delaware Supreme Court. That decision was highlighted on these pages.
Following the Delaware Supreme Court’s decision, the transaction was approved by 97.66% of the stockholders who voted, or 81.73% of the outstanding shares.
With overwhelming stockholder approval, the transaction closed and the two entities merged. Seven months following the close, Plaintiffs filed an amended complaint alleging breaches of fiduciary duties against members of the C&J board and certain C&J officers for entering into the transaction with Nabors. The amended complaint also alleged, for the first time, various disclosures that were distributed to the C&J stockholders prior to the merger were deficient. Finally, Plaintiffs alleged that Morgan Stanley & Co., who served as the financial advisor for the special committee that ran the solicitation process, aided and abetted those breaches of fiduciary duties.
Defendants filed a motion to dismiss for Plaintiffs’ failure to state a case and a motion to recover damages in the amount of approximately $542,000. The court granted both motions.
Analysis: The court began its analysis with the seven theories alleged under the disclosure allegations. The court noted that material information must be disclosed to stockholders, but ultimately held that the alleged inadequacies in the disclosure documents would not have significantly impacted the “total mix” of available information. The court noted that despite having filed a pre-merger action, Plaintiffs waited until after the closing to challenge the disclosure—thus precluding any possible remedy through additional disclosures. However, instead of dismissing this claim under the doctrine of laches, the court evaluated the claim on the merits pursuant to Corwin v. KKR Financial Holdings, LLC.
The court rejected Plaintiffs’ claim that the proxy contained false information regarding the company’s post-merger EBITDA. The court found that the amended complaint failed to plead facts that the C&J CEO’s concession to pay a higher EBITDA multiple if the EBITDA forecast declined and that this concession resulted in the CEO’s willingness to stretch the EBITDA multiple in order to achieve a higher valuation.
Next, the court rejected Plaintiffs’ argument that the disclosures should have stated that the $445 million EBITDA estimate was management’s “upside case.” The court stated that such an assertion could not be squared with the Supreme Court’s review of the preliminary injunction. The “upside case” language was used as a negotiation tactic, not a projection by C&J management.
Plaintiffs also challenged the Nabors disclosures of the post-closing company’s EBITDA forecast. The court again rejected this claim because although the amended complaint alleged that Nabors numbers were incorrect, it did not state that C&J was aware of the inaccuracies or relied on numbers other than those provided by Nabors.
Next, Plaintiffs alleged that the disclosures should have included a synergy tax from a fictitious $1 billion intra-company loan. However, this was rejected because the Plaintiffs did not allege that the loan or tax benefits were would fail to produce the expected tax synergies.
Fourth, Plaintiffs claimed that the disclosures should have included information about a statement the C&J CEO made that he would refuse to sign the merger agreement if he and his team were not guaranteed future employment. This too was rejected because the proxy stated that C&J’s management team and Nabors would finalize the terms of the of their proposed employment arrangements.
Next, Plaintiffs claimed that Citi Group Global Markets Inc. breached its own conflicts policy by providing deal financing and advice and that information should have been disclosed. The court found that this information was indeed included in the proxy in a way that gave sufficient notice to a stockholder.
Sixth, Plaintiffs argued that other potential bidders should have been made known to stockholders. However, the disclosures did state that alternative bidders were not likely to produce a superior proposal than that received by Nabors. The court found that this was enough and the details of the other bidders were superfluous
Finally, Plaintiffs asserted that information concerning Morgan Stanley & Co.’s independence as the special committee’s financial advisor should have been included. However, the court again rejected this claim because the solicitation process became null upon the Supreme Court’s reversal of the injunction.
BJR and Fiduciary Duty Claims: Next, the court addressed the claims of breaches of fiduciary duties and ultimately applied the business judgment rule to review the transaction.
First, the court rejected Plaintiffs’ claim that a majority of the C&J board was conflicted. The board consisted of seven members, four of whom stood to be nominated to the surviving company’s board. However, this was not enough to hold that the members were interested in the transaction because, as the court noted, it would require the members to give up their current positions for the prospect of getting another.
The court also found that complaint failed to properly allege that C&J’s CEO deceived the board. Although the CEO stood to receive a lucrative employment contract, there was no evidence that this contract was a material increase from his existing ones or that his position was in danger. Furthermore, the CEO’s large equity stake helped to align his interests with those of the stockholders.
The court then held that the remainder of the fiduciary duties claims should be dismissed, which were centered on the level of reasonableness and care the board took in approving the merger. The court noted that the claims could have survived under a Revlon standard; however, that is not the standard for a post-closing action for damages that was approved by a majority of independent stockholders. Also any claim for aiding and abetting a breach of fiduciary duties cannot survive when the underlying claims of breach have not survived.
Finally, the court granted damages to Defendants in the amount of $542,087.89 as a result of a wrongful injunction because Plaintiffs were unable to state a claim for breach of fiduciary duties or to support a finding of bad faith.
Justin M. Forcier, an associate in the Delaware office of Eckert Seamans, prepared this overview.
The Court of Chancery recently granted advancement of fees in Harrison v. Quivus Sys., Inc., C.A. No. 12084-VCMR (Del. Ch. Aug. 5, 2016) (TRANSCRIPT), based on the more flexible language of the Delaware LLC Act as compared with the more rigid structure of the Delaware General Corporation Law.
Background: Plaintiff John E. Harrison formed a joint venture with Prince Bander Bin Adbulla Bin Mohammed Al-Saud of Saudi Arabia in 2007. The name of the entity was Quivus Systems, Inc. (“Quivus”). Quivus was formed under the Delaware LLC Act and included advancement rights to members or managers of the company (and their heirs, estate, personal representative, or administrators) to the fullest extent allowed under Delaware law.
After the business relationship between Harrison and Prince Bander broke down, Harrison was removed from his position as CEO in 2014. One year later, Prince Bander filed a lawsuit against Harrison in Washington, D.C., alleging claims of mismanagement, incompetence, and corporate malfeasance while Harrison was serving as the CEO. Harrison sent a letter to Quivus demanding advancement of fees to defend the charges against him and Quivus refused. Harrison then filed this action in the Delaware Court of Chancery.
Analysis: The court began its analysis by observing that this case was not a normal, run-of-the-mill advancement action because it was being brought under the more flexible Delaware LLC Act and not under § 145 of the Delaware General Corporation Law. The significant difference between the two statutes is that advancement under the DGCL normally hinges on whether the defendant is being sued “by reason of the fact” that he took action in his official corporate capacity. Under the Delaware LLC Act, however, advancement and indemnification is available for “any and all claims and demands whatsoever.”
Defendants asserted that notwithstanding this broad language, Harrison did not have advancement rights because he was sued a year after being removed as the CEO. The court rejected that argument because it stated, “If nothing else, Harrison was a present manager when he was CEO of the company and when the events underlying the . . . action occurred.”
The court also found that the defendants’ interpretation improperly ignored the advancement clause’s language that future managers are owed rights. The court found that this rejected logic of the company was reminiscent of the movie Spaceballs, in that the company argued Harrison “could be a present manager in the past, but not in the present,” for the purpose of advancement. The court also reiterated Delaware’s public policy of respecting advancement rights to encourage qualified persons to serve as corporate directors without the ever-present threat of having to fund a lawsuit to defend themselves.
Finally, the court held that in light of Harrison’s success, he was entitled to attorneys’ fees on top of his advancement fees, more commonly known as fees on fees.
This Delaware Court of Chancery opinion is notable for denying, after trial, a demand for books and records of a publicly held company for purposes of valuation and to seek documents under Section 220 to investigate alleged mismanagement based on Caremark claims. Beatrice Corwin Living Irrevocable Trust v. Pfizer, Inc., C.A. No. 10425-JL (Del. Ch. Sept. 1, 2016). This opinion provides an excellent explanation and example of a successful defense to a demand by a stockholder for corporate records.
This is the second Section 220 opinion within the span of a few days by former Master in Chancery LeGrow, who is now a Delaware Superior Court Judge, but was appointed to decide these cases as a Vice Chancellor-by-Designation under Del. Const. art. IV § 13(2). The prior case was also highlighted on these pages.
The stockholder seeking books and records under Section 220 in this matter is a trust. The two stated purposes for the demand were both proper purposes but they still did not satisfy the nuanced requirements established by case law which must be satisfied in order for the proper purpose requirement to be met. The purposes for demanding books and records in this case were to investigate mismanagement of alleged Caremark claims for failure to disclose the amount of tax liability for the billions of dollars in revenue that was “located” outside the United States–if the funds were repatriated into the U.S. But the company had no plans to repatriate those funds in the United States, at which time they would be subject to taxation. The company maintained that it had no foreseeable plans to repatriate the funds and therefore there was no need to determine the tax liability. Moreover, they were not required to do so under the applicable accounting standards based in part on their position that to do so was not practicable.
The plaintiff maintained that nonetheless it was a violation of the board’s fiduciary duty of oversight not to determine the amount of potential tax if the funds were repatriated, and they claimed that would have an impact on the valuation. The Court disagreed based on a careful and thoughtful analysis.
The court provided the public policy reasons why it must balance the interests of a stockholder in obtaining books and records with the duties of the board of directors to manage the affairs of the corporation under DGCL § 141. This opinion provides excellent recitations of important principles of corporate litigation and corporate governance involved in Section 220 demands. The many nuances of this common claim as established by case law over the years are explained in lucid fashion.
The sole issue in this case was whether the plaintiff satisfied the prerequisites for establishing a proper purpose for the inspection. The court found that the trust failed to satisfy the necessary elements of a proper purpose which in this case meant that the plaintiffs neither: (i) established that they have a credible basis to investigate mismanagement or wrongdoing based on their Caremark allegations, (ii) nor have they shown that the tax issues for which they sought information would have any material impact on the valuation of the company.
Importantly, the court explained that in order to satisfy a proper purpose for investigation of mismanagement, “mere suspicion” or “subjective belief of wrongdoing, without more, is not sufficient to stay a proper purpose.”
The court provides a very useful explanation of the details that would satisfy the credible basis standard when a Section 220 demand alleges the failure of the board to fulfill its duties under Caremark.
Compare the case cited at footnote 39 in which a successful 220 case based on a Caremark claim was recognized by the Court of Chancery. See Oklahoma Firefighters Pension and Retirement System v. Citi Group, Inc., 2015 WL 1884453, at *5-6 (Del. Ch. Apr. 24, 2015).
This opinion is also helpful to explain those situations in which a publicly held company can successfully defend against a demand for books and records when the purpose stated is valuation and there has not been a satisfactory justification for explaining why the documents requested are necessary for purposes of valuation – – or not otherwise publicly available.
This opinion should be read together with the opinion by Vice Chancellor-by-Designation LeGrow which was published within a few days of this decision in the matter of Bizzari v. Suburban Waste, highlighted on these pages here, in which the demand for corporate records by a director was denied based on somewhat unusual facts involved in that case.
Both of these cases involve post-trial denials of Section 220 demands. Readers of these pages over the years will be forgiven for perceiving a constant refrain in the commentary on many of the Section 220 cases highlighted on these pages in which one might detect a theme that Section 220 cases can be quite expensive and time-consuming and, after trial, do not always result in any substantial document production for the plaintiff.
Why Notable: This Delaware Chancery decision is essential reading for those involved in corporate litigation who need to know under what circumstances uncoerced and informed stockholder approval will cleanse the vote of a conflicted board and entitle it to the defense of the business judgment rule (BJR) – – when no controlling stockholder is involved either on one-side or on both sides. Larkin v. Shah, C.A. No. 10918-VCS (Del. Ch. Aug. 25, 2016).
Highlights: The background facts of this case feature the increasingly prevalent situation of either a venture capital affiliated stockholder or a private equity affiliated stockholder whose appointed directors are accused of selling the company for less than might have otherwise been negotiated, based on the alleged goal of liquidating their investment early, instead of waiting for a later, perhaps more speculative but potentially more lucrative deal. This opinion provides one of the more pithy restatements of basic corporate governance principles such as the:
1) articulation of the fiduciary duties of directors;
2) presumption of the BJR as a standard of review;
3) when the BJR applies;
4) how the BJR is rebutted.
This opinion also provides an eminently clear articulation and application of the various permutations of one-sided or both-sided controlling stockholder transactions, and what standard of review applies, as well as the standard that applies in this case, where there is no controlling stockholder – – but there is stockholder approval.
An application of the recent Chancery opinion in the Volcano case, and the Supreme Court’s Corwin decision, is also worth the time required to read this 55-page jewel.
Many other important restatements and clarifications of Delaware M&A law are found in this ruling but are not covered in this short overview. This opinion is a likely candidate for one of the most useful opinions of 2016.
Justin M. Forcier, an associate in the Delaware office of Eckert Seamans, prepared this overview.
The latest Delaware opinion in long-running litigation in this case granted partial summary judgment as a result of the claims for breach of contract being subject to the three-year statute of limitations for contracts. AM General Holdings LLC v. The Renco Grp, Inc. & The Renco Grp., Inc. v. MacAndrews AMG Holdings LLC, C.A. No. 7668-VCS (Del. Ch. Aug. 22, 2016). Even a casual reader of this blog will recognize the parties in this case because several of the many prior decisions in this case have been covered on these pages.
Background: This long-lasting litigation stems from a joint-venture transaction between Renco and MacAndrews. Renco alleged that the merger agreement was breached when MacAndrews: (1) made unauthorized royalties and management payments to MacAndrews AMG; (2) made unauthorized ER&D payments; and (3) made unauthorized transfer pricing transaction for the engines involved in the deal. MacAndrews defended by claiming Delaware’s 3-year statute of limitations bars all of these claims because the alleged breach occurred over a decade ago.
Analysis: First, Renco argued that the statute of limitations did not begin to run for the unauthorized royalties and management payments because it claimed that the payments were made out of a mutual, running account. For this Renco relied on 10 Del. C. Section 8108, which provides that the statute of limitations does not begin to run on a mutual, running account until the account closes.
The court rejected this argument because it noted that the parties’ accounts were separate and were irreducible to a single balance. Moreover, any periodic distributions from the two accounts were calculated based on proportional values of each separate account. Therefore, the statute of limitations applied.
Second, Renco alleged that the misconduct that had occurred since 2004 was a continuing breach, which starts the clock for the purposes of statute of limitations only when full damages can be calculated. Renco contended that the alleged breaches were inexorably intertwined because each breach was part of a broader scheme to enrich MacAndrews’ account at Renco’s expense.
Again, this argument was rejected. The court found that each time MacAndrews made an unauthorized management fee and royalty payment, misallocated ER&D, or manipulated transfer pricing, it constituted a separate breach with a separate effect on Renco’s account. Therefore, these alleged breaches were not inexorably intertwined and the statute of limitations barred any recovery.
Finally, Renco attempted to invoke the time of discovery doctrine and toll the statute of limitations for the ER&D claims and the transfer pricing claims because it was unable to discover the predicate facts for those breaches.
The court also rejected this argument. During the negotiations between the entities, Renco exerted great effort to protect itself from any mismanagement of the venture by MacAndrews. Renco secured broad books and records rights and MacAndrews agreed to make regular disclosures concerning the accounts. The court also held that equitable tolling did not apply because a prior court ruling determined that the parties disclaimed any fiduciary duties that would otherwise apply in the joint-venture agreement. Lastly, the court held that the relation back doctrine did not apply because the original complaint does not infer the facts that the current claims were based upon.
Holding: Therefore, the court granted summary judgment for MacAndrews because the claims were barred by the statute of limitations applicable to contracts.
Congratulations to Delaware attorney Bill Johnston on becoming the new chair of the American Bar Association’s Business Law Section. Bill is a partner at Young Conaway Stargatt & Taylor in Wilmington where he concentrates on corporate and other business counseling and litigation, with an emphasis on Delaware Chancery Court practice and Delaware Superior Court Complex Commercial Litigation Division practice. Bill is widely-respected around the country as the consummate gentleman. In my view and the view of many others, by his example Bill sets the standard by which others should be measured.
Bill is married to The Honorable Mary Miller Johnston, a Judge of the Delaware Superior Court. The ABA is fortunate to have someone of Bill’s high caliber and integrity to lead the Business Law Section.