Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, C.A. No. 7906-VCG (Nov. 26, 2014). This Delaware Court of Chancery decision addresses post-merger claims of indemnification and fraud regarding familiar allegations that the company purchased was not what it was believed to be by the purchasers.
The earlier Chancery opinion in this case decided in 2013 addressed an important issue for those preparing merger agreements because it held that the merger agreement did not provide that pre-merger attorney-client communications were excluded in the assets purchased by the plaintiffs. Thus, in that prior opinion, the Court of Chancery held that pursuant to Section 259 of the Delaware General Corporation Law all assets, rights, privileges and powers shall be the property of the surviving corporation in a merger. Therefore, the ownership of the pre-merger communications between the seller and their lawyers passed to the surviving entity following the merger.
That prior ruling put the defendants in this case (the sellers) in the unenviable position of giving the plaintiffs access to the privileged documents involving the merger to use in connection with drafting their amended complaint in this case. See Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, 80 A.3d 155, 156 (Del. Ch. 2013).
As the court is wont to do, this opinion features a comprehensive recitation of the factual background and the allegations prior to an analysis of the standard of review and the legal discussion. The first 49 pages of the 76-page decision described the factual background, the allegations and the procedural posture on this motion to dismiss pursuant to 12(b)(6).
The court reviewed in detail the heightened pleading standard for fraud claims pursuant to Rule 9(b).
The court also discussed the similarity between claims of aiding and abetting a breach of fiduciary duty, and civil conspiracy claims. See footnote 231.
There was also a useful discussion of a claim for unjust enrichment which first requires a determination that no contract governing the relationship of the parties already exists. Although, the court acknowledged that in some situations both a breach of contract and an unjust enrichment claim may survive a motion to dismiss when pled as alternative theories of recovery. See footnote 259.