Corporate Law Seminar

I have been asked to provide information about the following seminar on corporate law at Rutgers Law School-Camden:

The Rutgers Center for Corporate Law and Governance is presenting a conference on corporate compliance on Friday, May 20, 2016, from 8:30 AM to 3:30 PM, entitled New Directions in Corporate Compliance. The conference will take place at Rutgers Law School, 217 North Fifth Street, Camden, NJ 08102. Additional information and a link to register are available at:  http://cclg.rutgers.edu/event/new-directions-in-corporate-compliance-conference/

CEOs as Social Justice Warriors

Yesterday’s Wall Street Journal featured a front page article about an apparently increasing number of CEOs of public companies who use their companies’ resources, and wield their companies’ resources as a sword, to advocate in their official corporate capacities to advance their favorite social agendas–or to oppose legislation on social policies that they disfavor. Courtesy of highly-regarded corporate law scholar Professor Stephen Bainbridge, we have citations to, and quotes from, a recent law review article by the Chief Justice of the Delaware Supreme Court, in which he reiterates a bedrock principle of Delaware corporate law that corporate directors and officers of for-profit Delaware companies “… must make stockholder welfare their sole end….” Leo E. Strine, Jr., The Dangers of Denial: The Need for A Clear-Eyed Understanding of the Power and Accountability Structure Established by the Delaware General Corporation Law, 50 Wake Forest Law Review 761, 767 (2015).

If a stockholder thought that a CEO of a public company was more focused on social activism than observing his or her duty to maintain a focus on maximizing shareholder wealth, one element of a claim would be the measure of damages. If a company is profitable “enough”, the CEO may “get a pass”. But the recent downward trajectory of the stock price of profitable companies like Apple, which recently lost about $73 billion in market value, and an unrelated petition of over one million people who are boycotting Target department stores due to their position on recent gender issues, may gain the attention of a different type of activist: plaintiffs’ lawyers who specialize in stockholder class actions.

SUPPLEMENT: Kevin LaCroix on his blog The D&O Diary, has a characteristically thoughtful analysis of this issue. Both he and Professor Bainbridge kindly linked to my blog post. The good professor also linked to additional commentary on this issue.

Supreme Court Rules on Duties of Delaware Directors

The Delaware Supreme Court recently ruled on the duties of directors of Delaware corporations who are appointed by particular stockholders. In OptimisCorp v. Waite, Del. Supr., No. 523, 2015 (2016), Delaware’s high court issued a nine-page Order with several substantive footnotes that provide practical insights for those who need to know what the rights and obligations are of directors who are appointed, for example, by written agreement as a condition of an investment in a company. These members of the board are sometimes referred to as “blockholder directors”, as in a director appointed by someone who owns a block of stock.

The Order affirmed a 213-page opinion by the Court of Chancery that also explored the dark corners of “witness tampering”. See OptimisCorp v. Waite, C.A. No. 8773-VCP (Del. Ch. Aug. 26, 2015). Despite the affirmance of the result, the Supreme Court disavowed the Court of Chancery’s reasoning on the “super-director” theory, and neither endorsed the trial court’s view, nor expressed any controlling opinion, about the part of the lower court’s decision relating to the substance or agenda of a board meeting being selectively withheld from a particular director–especially when the stockholder who appointed that director might have exercised his majority power prior to the meeting to avert an ambush.

Nonetheless, for anyone who needs to know, or is interested in, Delaware law on blockholder directors, as well as witness tampering, this gem-filled ruling is useful for its latest iterations of the Supreme Court’s perspective on these topics. A few selected quotes from the decision follow:

  • “… we are reluctant to accept the notion that it vindicates the board‘s right to govern the corporation to encourage board factions to develop Pearl Harbor-like plans to address their concerns about the company‘s policy directions or the behavior of management. Rather, it has long been the policy of our law to value the collaboration that comes when the entire board deliberates on corporate action and when all directors are fairly accorded material information.8”
  • Footnote 8 is eminently quotable:

“See, e.g., Lippman v. Kehoe Stenograph Co., 95 A. 895, 899 (1915) (Each member of a corporate body has the right to consultation with the others and has the right to be heard upon all questions considered . . . .(citation omitted)); id. at 897 ([T]here is a deeper reason [for not permitting directors to act by proxy] based on the association of each director with each of the others, of which association none of the associates can divest himself while remaining a member. In other words, a director cannot authorize any one to act for him, because his associates are entitled to his judgment, experience and business ability, just as his associates cannot deprive him of his rights and powers as director.); Hall v. Search Capital Grp., Inc., 1996 WL 696921, at *2 (Del. Ch. Nov. 15, 1996) (Absent a governance agreement to the contrary, each director is entitled to receive the same information furnished to his or her fellow board members. (citation omitted)); see also J. Travis Laster & John Mark Zeberkiewicz, The Rights and Duties of Blockholder Directors, 70 BUS. LAW. 33, 35 (2015) (Delaware corporate law embraces a board-centric model of governance. This model expects that all directors will participate in a collective and deliberative decision-making process.); id. at 41 (Given that the DGCL allocates fundamental decision-making power to the board as a whole, and not to any individual director qua director, all directors must have the opportunity to participate meaningfully in any matter brought before the board and to discharge their oversight responsibilities. In more granular terms, directors must be afforded, at a minimum, (i) proper notice of all board meetings, (ii) the opportunity to attend and to express their views at board meetings, and (iii) access to all information that is necessary or appropriate to discharge their fiduciary duties, including the opportunity to consult with officers, employees, and other agents of the corporation.).”

  • “… we do not embrace the Court of Chancery‘s framework for analyzing whether the defendant directors behaved inequitably by intentionally concealing from Morelli and other directors their intention to amend the stockholders agreement. That framework seems to assume that if all directors are required to be given fair notice of the agenda for a special meeting, a director with board appointment rights might in some cases use them, and thereafter elect new directors. That might, of course, happen. But if those directors breach their fiduciary duties, our law has potent remedies that the other stockholders can seek.7”
  • “When a board faction calls a special meeting, and is dishonest about its intention to use that meeting to alter a stockholder‘s board appointment rights, the Court of Chancery‘s analysis should involve a considered evaluation of whether intentional duplicity toward fellow board members is consistent with the fiduciary duties those directors owe to the company and its stockholders, including stockholders who are entitled to rely upon stockholder agreements executed in conformity with the DGCL.10  Biasing that analysis by describing it as involving the creation of a class of super directors is unhelpful. Although it may be that directors who own large amounts of stock and have considerable voting power are entitled to no more fair notice than independent directors, surely they are entitled to equal treatment and we doubt that one would label independent directors super directors if they complained after being blindsided by a board majority at a special meeting. Our law should develop in future cases when the outcome turns on it.” [i.e., not this case.]

 

Supreme Court Raises Threshold to Sue Non-Delaware Corporations in Delaware

 The Delaware Supreme Court decided today, over a dissenting opinion, that a non-Delaware corporation cannot be sued in Delaware, even if it is registered to do business in Delaware, if the basis for the suit against it in Delaware is unrelated to the fact that it is registered to do business in Delaware as a foreign corporation. Genuine Parts Co. v. Cepec, Del. Supr., No. 528, 2015 (April 18, 2016). This ruling should be compared generally with an unrelated recent opinion of the Delaware Supreme Court, in Hazout v. Tsang, highlighted on these pages, that interpreted a statute to make it easier to impose jurisdiction in Delaware over directors and officers of Delaware corporations.

This recent Supreme Court opinion in Genuine Auto Parts needs to be read by anyone who wants to understand the latest iteration of Delaware law on the two types of personal jurisdiction and, in particular, the difference between general jurisdiction and specific jurisdiction as it applies to foreign corporations who are registered to do business in Delaware. The court distances itself from a decision of almost thirty years ago in Sternberg v. O’Neil, 550 A.2d 1105 (Del. 1988), in connection with applying the registration statutes at Sections 371 and 376 of Title 8, as well as the long-arm statute at Section 3104 of Title 10 of the Delaware Code.

In sum, Delaware’s high court applies the U.S. Supreme Court decision in Daimler AG v. Bauman, 143 S. Ct. 746 (2014), to interpret the Delaware statutes requiring foreign corporations to register to do business in Delaware to mean, for purposes of an analysis of personal jurisdiction consistent with the Due Process Clause of the U.S. Constitution, as follows: “In most situations where the foreign corporation does not have its principal place of business in Delaware, that will mean that Delaware cannot exercise general jurisdiction over the foreign corporation.” This ruling has wide application for those engaged in the practice of commercial litigation in Delaware and other types of civil litigation involving corporations.

 

Chancery Rejects Advancement Claim for Fees on Fees

Generally, a successful claim for advancement of legal fees for a former director or officer entitles the prevailing party to “fees on fees” incurred for obtaining the favorable ruling. A recent ruling from the newest member of the Delaware Court of Chancery explains the limitations or the contours of that general rule. In Wong v. USES Holding Corp., C.A. No. 11475-VCS (Del. Ch. April 5, 2016)(“Wong II“), the court denied a motion for reargument of a prior ruling on that issue by the most recently retired member of the court. Wong v. USES Holding Corp., C.A. No. 11475-VCN (Del. Ch. Feb. 26, 2016)(“Wong I“).

This useful decision concerning this perennial issue in corporate litigation can be most easily highlighted by noting that the issue addressed was: when the “fees on fees” started to accrue. After a thoughtful review of both the controlling bylaws and DGCL Section 145 (e), the court reasoned that the obligation of the corporation to advance fees, and thus the triggering of the fees on fees, did not commence until the required undertaking by the former officer was submitted.

This pithy decision deserves a place in my annually updated chapter in a book published by the ABA that provides an annual review of the key decisions from Delaware and around the country on the topic of advancement and indemnification of directors and officers. The 2016 edition with 2015 cases is expected to be available imminently from the ABA and was co-written by yours truly along with my colleagues Gary Lipkin and Aimee Czachorowski. Information about the last publication is available at this link.

Supplement: Frank Reynolds of Thomson Reuters has published an article about this case that provides more factual background and practical insights.

Chancery Upholds Waiver of All Fiduciary Duties and Bars All Claims

The recent opinion from the Delaware Court of Chancery in Dieckman v. Regency GP LP, C.A. No. 11130-CB (Del. Ch., March 29, 2016), provides a useful reminder that the Delaware statutes for alternative entities, such as the LP in this case, allow for a waiver of all fiduciary duties. The only exception to that rule is that the implied covenant of good faith and fair dealing cannot be waived, but that is a porous net that does not save many claims and is a notoriously difficult theory to prevail on. See 6 Del. C. Section 17-1101(d)(allowing elimination of fiduciary duties in LP).Traffic Lights, Road Sign, Red, Yellow

This helpful opinion is also noteworthy for, in essence–in my words, reminding readers that claimants should look to federal law and not Delaware law in those cases where all fiduciary duties are waived under state law. See footnote 62. The court suggests a potential basis in federal law to seek remedies for disclosure violations and related claims, where Delaware law offers little or no solace in these situations. This noteworthy judicial observation should be compared to the many scholarly articles that decry the “creeping federalization” of corporate law, which for many years has threatened to displace Delaware as the nation’s leading source for corporate governance jurisprudence and a leading forum for corporate litigation. See, e.g., the scholarly articles of Professor Mark Roe and Professor Stephen Bainbridge, among many others. Footnote 62 refers to federal statutes that may be a source of potential claims when all fiduciary duties are waived under state law.

The decision cites to many prior Delaware opinions in which a provision in an LP agreement provides a procedure for handling conflicted, affiliated transactions by which a committee will “sanitize” such transactions. The court also notes that by contrast, fiduciary duties cannot be waived in the corporate context and the “cleansing procedure” of shareholder ratification in the corporate context is also dependent upon both sufficient disclosures and a majority of disinterested stockholders approving such contested transactions. See, e.g., footnote 30 for cases cited on this point.

Another practical iteration of Delaware law in this opinion for those who make their living in the vineyards of corporate and commercial litigation, relates to the elements of “tortious interference with contract”. One of the elements of such a claim is “an intentional act that is a significant factor in causing the breach of the contract.” An important exception to that requirement, however, exists when: “defendant’s wrongful conduct … induces the termination of the contract, irrespective of whether termination is lawful.” See footnote 74 for supporting case law.

Chancery Grants Advancement Based on LLC Agreement

The recent Delaware Court of Chancery opinion in Hyatt v. Al Jazeera American Holdings II, LLC, C.A. No. 11465-VCG (Del. Ch. March 31, 2016), is useful for those who need to be aware of the latest iteration of Delaware law on advancement of fees incurred by former officers and directors, which is one of the more common forms of corporate litigation. This is the latest in an ongoing series of rulings in Delaware involving a transaction in which the media company known as Al Jazeera, based in the Middle East, purchased a cable TV company in the U.S. which was owned at least in part by the former politician, Al Gore, as well as Joel Hyatt. Some of those decisions have been highlighted on these pages.

Introduction: The court begins the opinion with the apt description of many advancement cases being indicative of “Hirer’s Remorse”, to the extent that advancement is given to employees, officers and directors as an inducement for them to accept their positions for the benefit of a corporation, but afterwards when those corporations need to make payments pursuant to those advancement obligations, they often resist and try to find reasons not to pay.

Background. This case involves a twist on that typical pattern. Al Jazeera assumed the obligations of advancement from the company that it purchased. The underlying litigation began when Hyatt and Gore sued Al Jazeera to collect money that was placed in escrow after the transaction. Al Jazeera then counterclaimed against Hyatt and Gore contending that they breached provisions of the merger agreement based on certain alleged misrepresentations and related claims. It was undisputed that the initial claims in the suit filed by Hyatt and Gore were not covered by advancement. This case involved whether the counterclaims against Hyatt and Gore entitled them to advancement of their fees and expenses.

Key Facts: In large measure the case turned on whether the counterclaims against Hyatt and Gore were made against them in their capacities as former officers and directors. The court analyzes each of the counterclaims separately and found that most of them did assert allegations based on the actions of Gore and Hyatt as former officers and directors of the company. The analysis was based on the terms of the merger agreement which incorporated the advancement provisions in the LLC operating agreement.

Notably, the court found that fee shifting provision in the relevant agreement did not supersede the advancement obligation and that the shifting of fees provision was silent on the issue of advancement.

Useful Nuggets include the following:

Although indemnification and advancement rights are closely related, each are ‘distinct types of legal rights,’ and the ‘right to advancement is not ordinarily dependent upon a determination that the party in question will ultimately be entitled to be indemnified.’” See footnotes 31 and 32. The foregoing statement perhaps encapsulates the counterintuitive nature of the concept of advancement and is the aspect that most commonly frustrates many corporations who find it difficult to advance fees and expenses when they are at least personally convinced that ultimately the former officer and director will not be entitled to indemnification.

Another nugget of legal insight in this case refers to the application of cases interpreting Section 145 of the Delaware General Corporation Law to advancement provisions in LLC operating agreements. Footnote 38 in the opinion and the accompanying text explain how the court often applies the reasoning in cases interpreting Section 145 to the interpretation of language in an LLC operating agreement or other agreements that often incorporate the same statutory advancement language verbatim from Section 145. In this case for example, the operating agreement conferred advancement on former officers and directors that incurred expenses “by reason of the fact” that the person was a former officer and a director. That language tracks the language in Section 145 of the DGCL. The court cites to other cases that have relied on Section 145 jurisprudence to interpret provisions in agreements that use the same or similar language as the statute.

The court referred to Section 18-108 of the Delaware LLC Act as giving broad authority to LLCs to provide indemnification by contract. Specifically, the court in this case found that the parties intended to import the “strictures” of Section 145 by using the same language in their agreement. The court also allowed for “fees on fees” which is a well-established principle to cover the costs of litigation to the extent that a party prevails in establishing the right to advancement, as in this case.

Chancery Rescinds Contract Based on Unconscionability

The Delaware Court of Chancery recently issued a magnum opus on the topic of rescinding a contract based on unconscionability. James v. National Financial, LLC, C.A. No. 8931-VCL (Del. Ch. Mar. 14, 2016). This opinion is destined to be the definitive work on this aspect of Delaware law and should be of interest to those engaged in commercial litigation.finance-charge-hi

This opinion has much to commend it and deserves a more extensive synopsis, but for purposes of this short blog post I will focus on the court’s mini-treatise on unconscionability in the context of a contract. This 72-page opinion is a sequel to a prior decision in this case which imposed penalties for discovery violations. That decision was highlighted on these pages. A separate article could be written based on the scholarly analysis the court provided about the legal aspects of the “working poor’s plight” and how they are taken advantage of by consumer finance companies. In this case, the interest rate charged for a modest loan was more than 800%. Despite the defendant’s attempt to characterize it as something else, the court used equitable powers that focus on substance over form to determine that the essence of the disputed transaction was a payday loan that Delaware recently prohibited by statute–but that was only one part of the unconscionability analysis.

Contract Principles Addressed

The court explained that the doctrine of unconscionability is an exception to the broad support for freedom of contract in Delaware law. Delaware law is strongly inclined to respect the voluntary agreement of parties and will only interfere “upon a strong showing that dishonoring the contract is required to vindicate a public policy interest even stronger than freedom of contract.” Generally, “parties who sign contracts and other binding documents or authorize someone else to execute those documents on their behalf, are bound by the obligations that those documents contain.” Slip op. at 21. Unconscionability in the context of contracts has been defined as a contract “such as no man in his senses and not under delusion would make on the one hand, and no honest or fair man would accept, on the other.”

The court provides extended definitions and historical explanations of the concept of unconscionability with citations to copious legal sources. The court referred to the definition in the Uniform Commercial Code at Section 2-302. Although technically limited in scope to the sale of goods, Delaware decisions have also applied Section 2-302 more broadly. See footnote 10.

The court observed that unconscionability is a concept that is used sparingly and requires that a court find that “the party with superior bargaining power used it to take unfair advantage of his counterpart.” Moreover, the terms must be so one-sided as to be oppressive. The court identified ten factors that guide the analysis of unconscionability. See Slip op. at 24-25.

The court also explained the difference between substantive unconscionability and procedural unconscionability. The concept of substantive unconscionability tests the substance of the exchange. An agreement is substantively unconscionable if the terms evidence a gross imbalance that “shocks the conscience.” This means a bargain on terms “so extreme as to appear unconscionable according to the mores and business practices of the time and place.”

By contrast, procedural unconscionability refers to the procedures that led to the contract with a goal of evaluating whether seemingly lopsided terms might have resulted from arms’-length bargaining. The court focuses on whether the weaker party could make a meaningful choice. The concept is “broadly conceived to encompass not only the employment of sharp bargaining practices and the use of fine print and convoluted language, but also a lack of understanding and an inequity of bargaining power.”

Court’s Reasoning

The two dimensions of unconscionability are not two separate prongs but rather the analysis is unitary and it is generally agreed that “if more of one is present, then less of the other is required.” Of the ten factors based on the Fritz case, six relate to substantive unconscionability.

The court conducted a thorough and probing examination and application of the six factors that apply to substantive unconscionability, as well as the four factors that are used to analyze procedural unconscionability. See Slip op. at 46-47.

The court explained that if a contract is found unconscionable, the proper remedy it to declare it invalid because it is void. See Restatement (Second) of Contracts, Section 208, cmt. g.

The court found that the defendant was using an interest-only, non-amortizing installment loan to evade Delaware’s Payday Loan Law. The court then went on to observe applicable equitable principles that include: “equity regards substance rather than form,” and also equity enforces the rights and duties which “spring from the real relations of the parties.” In substance, the court found that the disputed loan in this case, in essence, was a payday loan which was in violation of the applicable Delaware statute.

Although it will not be covered in this short blog post, the court’s opinion provides a useful analysis of a violation of the Truth in Lending Act. See 15 U.S.C. Section 1601(a). The court held that the violation of that Act entitled the plaintiff to an award of reasonably attorneys’ fees and costs. The court instructed the plaintiffs’ counsel to submit a Rule 88 affidavit.

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 raise a fiduciary duty question if no financial statement were prepared in order to keep the minority “in the dark.” The Ravenswood Investment Company, L.P. v. Winmill & Co. Inc., C.A. No. 7048-VCN (Transcript) (Del. Ch. Feb. 25, 2016). Note that transcript rulings are often cited as “good authority” in Delaware briefs (and formal court opinions.)

The short transcript ruling follows many other decisions in this long running dispute between the parties, and some of those prior Delaware rulings have been highlighted on these pages. Three statements of law that are helpful for purposes of those engaged in Delaware corporate and commercial litigation can be summarized as follows:

1)         There is no duty per se to provide financial statements in a closely-held company when stockholder action is not being requested. See Slip op. at 7.

2)         Based on the facts of this case, the court did allow a claim for breach of fiduciary duty based on the allegation that no financial statements were provided or even created as a means of thwarting a pending Section 220 claim and “keeping the stockholders in the dark.”

3)         The court allowed an amendment to a complaint in a case that appears to have been languishing for several years although the transcript does not elaborate on the potential justification for that situation transpiring.

SUPPLEMENT: Keith Bishop on his California Corporate and Securities Law blog, comments on this case by noting that despite Delaware law, if a Delaware company has its main office in California or regularly holds board meetings there, it may be required to produce annual reports pursuant to California law.

SUPPLEMENT II: The estimable Professor Stephen Bainbridge provides scholarly insights about this decision with citations to authorities and learned commentary.

Supreme Court Reinforces Second Amendment Rights

The recent decision from the United States Supreme Court in Caetano v. Massachusetts, 577 U.S. _ (March 21, 2016), includes a concurring opinion that is a forceful reiteration of the Supreme Court’s position on the Second Amendment.  As many readers know, the decision in McDonald v. Chicago, 561 U.S. 742, 750 (2010), held that the Second Amendment right to bear arms is fully applicable to the states.  McDonald was a sequel to the Supreme Court decision in District of Columbia v. Heller, 554 U.S. 570, 582 (2008) (Scalia, J.). The Heller decision emphasized that the Second Amendment protects an individual right to keep and bear arms.  In the Caetano case, the U.S. Supreme Court granted a writ of certiorari, vacated the judgment of the Supreme Judicial Court of Massachusetts, and remanded for further proceedings not inconsistent with the per curiam opinion.  The Caetano opinion strongly criticized the Massachusetts court for failing to follow Heller in several respects.  That court failed to recognize a stun gun as among the types of weapons that are protected under the interpretation of the Second Amendment in Heller.

Justice Alito and Justice Thomas joined in a concurrence which strongly rebuked the Massachusetts court for flagrantly ignoring the clear rulings in Heller.  The concurring opinion of Justices Alito and Thomas could be viewed as a way of honoring the author of the Heller opinion, Justice Scalia.  The concurrence reminded the Massachusetts court of several basic principles in Heller including the following:

“It is settled that the Second Amendment protects an individual right to keep and bear arms that applies against both the Federal Government and the States, District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 561 U.S. 742 (2010).  That right vindicates the ‘basic right’ of ‘individual self-defense.’”  Id. at 767; see Heller, supra, at 599, 628.

This case involved a woman who obtained a stun gun to protect herself against an abusive former boyfriend who towered over her by nearly a foot and outweighed her by close to 100 pounds.  The Supreme Court opinion described how after work one evening, her ex-boyfriend confronted her and started screaming.  She stood her ground, displayed the stun gun, and told him that she would not take his abuse, and if he did not leave her alone she would use the stun gun on him.  It worked.  The ex-boyfriend left her alone.  Subsequently, in an unrelated incident, the police found the stun gun in her purse and arrested her because apparently the possession of a stun gun is in violation of a Massachusetts statute, even though the possession of the stun gun may have saved her life.

Justice Alito explained the connection between the right to bear arms and the basic right of self-defense:  “By arming herself, Caetano was able to protect against the physical threat that a restraining order had proved useless to prevent.”  Slip op. at 2.

Justice Alito also explained that Heller confirmed that:  “The Second Amendment extends, prima facie, to all instruments that constitute bearable arms . . .”  554 U.S. at 582.  Justice Alito expressed discontent that the Massachusetts court defied the reasoning in Heller.  The reasoning of the Massachusetts court, instructed Justice Alito, “poses a grave threat to the fundamental right of self-defense.”  The concurrence observed that:

  “A State’s most basic responsibility is to keep its people safe.  The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself.  . . . If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of State authorities who may be more concerned about disarming the people than about keeping them safe.”

This concurrence by Justices Alito and Thomas reinforces the vitality of the Heller and McDonald decisions and gives hope to those who cherish the Bill of Rights.

Postscript: The Delaware Supreme Court’s opinion interpreting the Delaware Constitution’s version of the Second Amendment, known as Article I, Section 20, was reinforced in the opinion styled Doe v. Wilmington Housing Authority, highlighted on these pages. The natural right to self-defense that each person is born with transcends the typical corporate and commercial litigation fare typically found on this blog.

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