Brinckerhoff v. Enbridge Energy Company, Inc., C.A. No. 5526-VCN (Del. Ch. May 25, 2012).

Issue Presented: Whether Brinckerhoff has a viable claim that may be remedied through rescission or reformation. 

Short Answer: No, because Brinckerhoff’s claims for rescission and reformation were waived when he failed to mention those claims in both of his briefs or at oral argument.


This matter was remanded by the Supreme Court to determine the sufficiency of Brinckerhoff’s claims for reformation or rescission under the Court of Chancery Rule 12(b)(6). The Complaint does not specify a cause of action specifically for rescission or reformation, but requests an alternative remedy to monetary damages, which is rescission of the JVA or reformation of its terms. The Court ultimately determines the requests for reformation and rescission were waived, but addresses the merits of the requests anyway.


The key point to be learned in this case is that issues not continually pressed in briefs and at oral argument may be waived. That is, if an opponent raises an issue in response to a claim by argument in a brief, and that issue is not responded to in a reply brief and also at oral argument, it may be waived.

Brinckerhoff’s primary request was relief via monetary damages, and in the alternative the Complaint sought reformation or rescission. Despite recognizing that the Defendant cited Article 6.8 of LPA and recognizing that it was an exculpatory provision, nowhere in Brinckerhoff’s answering brief, nor during oral argument on the Defendant’s motion to dismiss, did Brinckerhoff make any argument regarding rescission or reformation, thus effectively waiving those requests.


Brinckerhoff’s requests for reformation and rescission were waived.