Voluminous commentary exists regarding the substantive comparisons between Delaware corporate law and competing states such as Texas, but an article that my partner and I published for Bloomberg Law compares the more practical aspect of expedited services that the Delaware Division of Corporations offers, such as same day service for corporate filings. Delaware still provides superior logistical advantages.

We explain why the expedited services that Delaware offers still surpass the Lone Star State despite recent improvements made by Texas.

A recent Delaware Court of Chancery decision identified more than 21 reasons why an LLC is not purely a creature of contract. Hassanein v. NTO Fund I, LLC, C.A. No. 2025-0299-DH (JTL) (Del. Ch. August 4, 2026), is noteworthy for several reasons, such as: providing an illustrative, but not exclusive, list of reasons, with copious citations to authority, why an LLC Agreement might be primarily a creature of contract—but is not purely, or only, a contractual creature. Slip op. at 9-17.

The court also observes that equitable remedies are also among the potentially available factors to consider. See footnote 50. A recent decision, by the same Vice Chancellor, that we highlighted on these pages, also addressed the issue. There is much else to commend this decision, but I only adumbrate it on these pages for purposes of whetting the appetite of serious followers of the law.

Other Highlights

  • The court provided a thorough examination of the difference between the status of an investment as a loan or equity in both the LLC and corporate contexts, as well as the consequences of that classification. Slip op. at 20-30.
  • The court recites basic contract interpretation principles that are always useful. Slip op. at 18-19.
  • The court engages in a thorough examination of the difference between a direct claim as compared to a derivative claim in both the LLC and corporate context. Slip op. at 43-55.
  • The court explains the rights of a creditor pursuant to § 18-502(b) of the LLC Act. Slip op. at 54-63.
  • See generally footnote 24 which notes that the General Assembly a few years ago abrogated the concept of incurable contract voidness.

A recent Delaware Court of Chancery decision is noteworthy for allowing an unusual procedural vehicle as a reply to counterclaims, as well as featuring an unusual initial retort to the counter-counterclaims, in the context of an intricate series of claims between and among parties involved in a dispute about the ouster an initial investor of a company. Namdar v. Immutable Holdings, Inc., C.A. No. 2024-0535-CDW (Del. Ch., July 17, 2026) (Wright, M.)

Highlights

  • After the original defendant filed counterclaims, the original plaintiff filed “counter-counter claims”, and in response to that move, a motion for more definite statement was filed and granted. After amended counter-counterclaims were filed, another motion to dismiss those amended counter-counterclaims was denied in this decision. Slip op. at 7.
  • The court concluded, with citations to supporting authority, that the Court of Chancery Rules allow counter-counterclaims, and referred to two other names by which they are also known: “counterclaims in reply” or “reply counterclaims.” Slip op. at 10 and footnote 52.
  • The court conducts an extensive analysis with copious citations to federal cases and other sources to buttress its reasoning why counter-counterclaims are allowed in Chancery, and why the defenses presented in this case were unsuccessful. Slip op. at 12-29.

Voluminous commentary addresses the substantive differences between Delaware and Texas corporate law. Less attention is given to the practical aspects of the service provided by their respective state agencies that handle filings of corporate documents, and how prompt or “user friendly” they are. Texas recently “upped their game” by providing faster service filing options–but they still do not offer the same level of expedited services as offered by the Delaware Division of Corporations.

I co-authored an article with Aimee Czachorowski published by Bloomberg Law that addresses some of those nuances.

Delaware Keeps Business Filing Edge as Texas Starts Fast Service

In Episode 3 of the Delaware Corporate Litigation Insights Podcast, hosts Francis Pileggi & Chauna Abner are joined by Lewis Brisbois partner Aimee Czachorowski to examine three recent Delaware Court of Chancery decisions that every corporate litigator should have on their radar. The trio explore how Delaware courts are approaching forum selection clauses in the wake of recent amendments to Section 122(18) of the Delaware General Corporation Law, including when fiduciary duty claims can be contractually litigated in another jurisdiction.

The hosts also analyze what it takes to establish jurisdiction over foreign executives who oversee investor-appointed directors. Finally, they review a recent decision confirming that parties who disregard a valid forum selection clause may be required to pay the opposing party’s attorneys’ fees and costs.

Listen to the full episode for key insights on practical drafting considerations, litigation strategies, and navigating corporate governance disputes and forum selection issues in Delaware. Delaware Corporate Litigation Insights: A Lewis Brisbois Podcast – Podcast – Apple Podcasts

Two recent Delaware Court of Chancery decisions awarded fees for errant pre-litigation conduct which makes then noteworthy for that point alone, although there is much else to commend them. In the matter styled Ramadurgam v. Destiny XYZ Inc., C.A. No. 2024-0057-PAF (Del. Ch. July 23, 2026), the court awarded fees for pre-litigation conduct which the court described as an independent basis to warrant fee shifting as an element of equitable relief. Slip op. at 86.

The court highlighted in a heading to the section of the opinion on this issue that the defendants’ pre-litigation conduct was “glaringly egregious and the product of unusually deplorable behavior.” Id. at 84. The court cited to multiple authorities to support its reasoning in connection with a thorough analysis of the fiduciary duty of loyalty and how it was breached in this case. Id. at 83-88. The court underscored, however, that “not every proven breach of the duty of loyalty will justify and award of attorneys’ fees damages.” Id. at 88. The nearly 100-page opinion in its original format deserves a careful review for its extensive analysis of several issues–but the limited scope of this short blog post is to highlight the aspect of the decision on fee shifting for pre-litigation conduct.

This decision should be compared on this issue with the recent Chancery ruling in Neem International CV v. Shulman, C.A. No. 2022-0187-LWW (Del. Ch. July 30, 2026). In this short letter ruling, the court relied on the bad faith exception to the American Rule to award fees for both “egregious” pre-litigation conduct, along with obstructive behavior during discovery. The court described the defendant’s conduct as “not a mere breach of contract, but extreme disloyalty.”

Notably, this letter ruling did not use the same exact formulation of the standard applied for its reasoning that pre-litigation conduct was a basis to award fees, in addition to conduct during the litigation, because it was relying on the bad faith exception to the American Rule. Cf. Ramadurgam, Slip op. at 84.

The Reem court distinguished a case where the pre-litigation conduct gave rise to the claim. To contrast the Versata decision unsuccessfully relied on by the defendant, the court explained that the defendant’s actions in this matter “infected the litigation process and forced the plaintiff to incur substantial costs to unravel the deception” which satisfied the bad faith exception. Id. at 7 (referring to Versata Enters., Inc. v. Selectica, Inc., 5 A.3d 586, 607 (Del. 2010)).

This letter ruling also explained why fees were awarded even though only 1 of 13 causes of action were successful. The court rejected objections based on alleged excessive staffing and unreasonable hours billed to the failed claims. Id. at 8. Also noteworthy was the court’s guidance that “determining reasonableness [of fees] does not require the court to examine each time entry and disbursement.” Id. See generally Rule of Professional Conduct 1.5(a).

Bonus: The court’s opinion in Ramadurgam deserves more thorough treatment for its analysis of not only the breach of the fiduciary duty of loyalty, but also for its scholarly insights into the principles of restitution, as well as comparing rescission to a constructive trust as equitable remedies. Slip op. at 75-82. Also noteworthy is the court’s citation to historic sources from Roman law on these principles, as well as its reference to a treatise on the topic published in Italian. See footnote 291. This is the first time I recall a cite in a Chancery opinion to a treatise in a foreign language.

These highlights were prepared by Maliheh Zare, a corporate and commercial litigation associate in the Delaware office of Lewis Brisbois.

The Delaware Court of Chancery recently reaffirmed that minority members of a manager‑managed Delaware LLC generally do not owe fiduciary duties to the company or its other members in Ruby Hollow, LLC v. Tharp & Assocs., LLC, No. 2024‑0318‑DG (LWW), 2026 WL 2085808 (Del. Ch. July 20, 2026).

The defendant, Tharp and Associates, LLC, held a 7% membership interest in Ruby Hollow, LLC and was not a manager.  Ruby Hollow was manager-managed, with two managers each holding 31% of its membership interests.  Id. at *1.  Ruby Hollow alleged that Tharp breached fiduciary duties by concealing information concerning operational failures at a mining site, that Tharp allegedly oversaw, from Ruby Hollow’s managers.  Id.

Earlier in the litigation, Magistrate in Chancery Gibbs dismissed the operative complaint for failure to plead facts showing a transaction that Tharp controlled under the theory of “transaction-specific control,” which refers to a doctrine requiring allegations that a minority stockholder “exercised actual control over the board of directors during the course of a particular transaction.” No. 2024‑0318‑DG (LWW), Dkt. 33, at 12, 16-17 (Jan. 29, 2026) (citation omitted).

No Control and No Fiduciary Duty

Vice Chancellor Will however declined to engage with the “transaction-specific control” concept or to apply it to the minority members of a manager-managed LLC who lacked “the structural or functional authority necessary to be treated as a controlling member.”  2026 WL 2085808, at *3.  The Court explained that to establish fiduciary duty, “a minority investor must possess ‘such formidable voting and managerial power that they, as a practical matter, are no differently situated than if they had majority voting control.’”  Id. (emphasis in original) (citations omitted).  Where a minority member’s membership interest is considerably smaller than those of the managing members and it lacks no other contractual control over the LLC, the notion of the minority member’s control is impossible as a matter of law.  Id.

Because Tharp held only a 7% interest and lacked any contractual rights conferring control over Ruby Hollow, the Court concluded that it could not, as a matter of law, be treated as a controlling member subject to fiduciary duties.  Accordingly, the Court rejected Ruby Hollow’s attempt to impose fiduciary obligations based on allegations that Tharp had provided “unfaithful service.”  Id. at *4.

Takeaways

The key takeaway is that under Delaware law, in a manager-managed LLC, a non-managing minority does not owe fiduciary duties to the LLC or its members absent facts showing actual control comparable to majority ownership.  When seeking relief against minority LLC members, one should consider contractual or tort causes of action rather than relying solely on fiduciary‑duty claims.

One of this blog’s favorite corporate law scholars, Stephen Bainbridge, reviews an article by corporate law professor, Ronald Colombo, who provides new scholarship on a contractual analysis of prayer.

He concludes his thorough analysis, in part, by observing that:

The paper’s most intellectually interesting move is not simply its comparison of prayer with contracts, but its attempt to transform a theological paradox into a question about conditional promises. 

The less than common excuse for a plaintiff not satisfying a required element of a breach of contract claim known as the prevention doctrine was addressed in the recent Delaware Court of Chancery decision styled World Energy, LLC v. Air Products and Chemicals, Inc., C.A. No. 2025-0912-MTZ (Del. Ch. July 6, 2026). The court addressed a breach of contract claim where the plaintiff unsuccessfully tried to explain its inability to establish one of the elements of a claim for breach of contract—namely that the plaintiff performed its own obligations under the contract.

Highlights

  • The prevention doctrine is an excuse for a plaintiff not satisfying an element of a breach of contract claim that the plaintiff performed its obligations under the contract because the defendant’s failures to fulfill its obligations under the contract either prevented the plaintiff, or relieved the plaintiff, from performing its own contractual duties. Slip op. at 19-24.
  • The court explained why none of the reasons provided or the facts alleged by the plaintiff justified its own non-performance of its contractual obligations notwithstanding its allegations of non-performance by the counterparty.
  • The court also reasoned that daily communications between the parties about “moving forward with work on a project” cannot be reasonably interpreted as a definite promise such that it would satisfy a required element of either promissory estoppel or equitable estoppel. Slip op. at 32-34.
  • The court explained why claims for mutual mistake and reformation were also rejected based on the facts alleged. Slip op. at 34-38.

The U.S. Supreme Court’s decision last month in Wolford v. Lopez, clarified prior U.S. Supreme Court decisions on the proper interpretation of the Second Amendment. Some courts continue to defy the supreme law of the land on this issue.

In the Wolford decision, the country’s highest court admonished the Hawaii Supreme Court that there is no separate standard of minimum rights under the U.S. Constitution for individual states. The basic principle of federalism remains well-settled that federal law provides the minimum rights that each state must provide. Although states can provide additional rights, they cannot provide fewer rights than what the United States Supreme Court or applicable federal appellate courts determine to be the minimum rights guaranteed by the U.S. Constitution.

The Hawaii Supreme Court was reversed in the Wolford case based on Hawaii’s particularly contumacious interpretation of their own laws in nearly open defiance of U.S. Supreme Court controlling authority on the Second Amendment.

Shockingly, after the recent Wolford decision, the Hawaii Supreme Court issued another decision that double-downed on their contemptible insistence on furthering their own view of the law regardless of what the U.S. Supreme Court established as minimum federal rights. They went so far as to suggest that their non-compliance was due to the U.S. Supreme Court being racist in its interpretation of constitutional rights in several recent decisions by the high court.