In the latest iteration of this long running dispute, which has featured remands to the Court of Chancery from two appeals to the Delaware Supreme Court, the issue was whether an amendment to a counterclaim should be allowed even though the case was originally filed several years ago (prior to two separate appeals). The bottom line is that the Court granted the motion to amend under Court of Chancery Rule 15(a).
One of the noteworthy aspects of this short letter ruling for purposes of this blog is that the Court allowed the amendment of the counterclaim to include, in addition to existing claims for breach of fiduciary duty against a trustee, a consumer fraud claim under Section 2513 of Title 6 of the Delaware Code which provides for treble damages.
The Court allowed the counterclaim and rejected the argument that treble damages under the consumer fraud statute were either: (a) beyond the jurisdiction of the Court of Chancery; or (b) were beyond the scope of damages available under subchapter 8 of Chapter 25 of Title 6 of the Delaware Code.
Most notable, however, was the holding the claims were allowed to proceed in addition to the breach of fiduciary duty claims against the trustee, in part because the trustee services were determined to be included within the definition of “merchandise” under Section 2511(6) of Title 6 of the Delaware Code.
This decision may break new ground in terms of those situations where a breach of fiduciary duty may also make one subject to the treble damages under the consumer fraud statute in addition to the statutory scheme of Title 12 of the Delaware Code.