In Allied Capital Corp. v. GC-Sun Holdings, L.P., 2006 WL 3437507 (Del. Ch. Nov. 22, 2006), read opinion here, the Chancery Court rejects the argument that entities with common equity ownership can never conspire illegally with one another. The case included many claims surrounding an alleged scheme to make a debt uncollectible and to subordinate it to equity.
The court distinguished this issue from the separate question of whether corporate managers can be held civilly liable for conspiring among themselves and with their own corporation. See, e.g., Amaysing Tech. Corp. v. Cyberair Communications, Inc., 2005 WL 578972 at *7 (Del. Ch. 2005)(answering that question in the negative unless the corporate agents were acting for their own personal financial gain rather than for the benefit of the corporation. In that case, a very generous salary for little work did not satisfy the personal gain exception.) Notably, the Allied court respectfully disagreed with, and distinguished, a recent Chancery Court decision holding that a parent entity is incapable of conspiring with its wholly-owned subsidiary. See, Transamerica Airlines, Inc. v. Akande, 2006 WL 587846 at *6 (Del. Ch. 2006).
In what the Allied court referred to as a "jurisprudentially-intergalactic campaign" to sue anyone possibly liable on a promissory note, the court also addressed claims for breach of contract, breach of implied covenants of good faith and fair dealing, tortious interference with contract, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, fraudulent conveyance, civil conspiracy and unjust enrichment.
In Allied, the Chancery Court also made clear in a more elegant manner than I can briefly describe here, how disinclined it is to find "implied terms" that are not clearly stated in an agreement but that one party now wants the court to include. See, supra at *10 and n. 30 (courts "should be most chary" about implying a term that the parties could have easily drafted to expressly provide for it). There is much more hornbook law in the opinion about contract interpretation, including how a motion to dismiss is a procedurally proper posture for the court to decide questions of law about contract interpretation. Id. at *8.