Microsoft Corp. v. Vadem, Ltd., C.A. No. 6940-VCP (Del. Ch. April 27, 2012).
Brief Overview: This opinion dealt with the esoteric issue of whether Microsoft Corporation had standing to bring derivative claims as a shareholder in, and on behalf of, Vadem, Ltd.–based on the law of the British Virgin Islands which applied because that is the law pursuant to which Vadem, Ltd. was formed. As a result of the application of that country’s somewhat archaic law, Microsoft was first required to seek leave from the High Court of the British Virgin Islands before bringing a derivative suit on behalf of Vadem, Ltd. Because it failed to do so, the Court dismissed those claims. The Court regarded the remaining claims as time-barred. The discussion of the cases that were time-barred was not especially noteworthy, and based on the recondite BVI law, this summary will make merely two passing notations that may be of more widespread interest.
Useful Rulings of Note in this Decision
One of the defendants was a dissolved Delaware corporation but pursuant to DGCL Section 278, even though it was a defunct company, because it was dissolved less than 3 years before the initiation of the lawsuit, it continued as a “body corporate” for purposes of participating in the lawsuit. Also, the Court observed that Court of Chancery Rule 44.1 allows the Court to consider “relevant material,” including an affidavit, in determining foreign law, and the determination by the Court will be treated as a ruling on the question of the law.