A recent Delaware Court of Chancery opinion addressed issues that are of importance to commercial and corporate litigators. In CompoSecure, L.L.C. v. CardUX, LLC f/k/a Affluent Card, LLC, C.A. No. 12524-VCL (Del. Ch. revised Feb. 12, 2018), the court provided a thorough analysis of a contract dispute in a post-trial ruling that primarily relied on New Jersey law, and even though that reliance on non-Delaware law for most issues in this case guarantees cursory treatment on this blog–there are several nuggets of Delaware law which the court cited, for some of its analysis of a marketing agreement for credit cards, that have widespread application in Delaware litigation. For example, the court addressed:
- the recurring theme of “commercially reasonable efforts.” Notwithstanding the 113-page length of this comprehensive post-trial disposition, relatively pithy treatment was given to this topic that has been the subject of several Delaware decisions highlighted on these pages. Notably, this opinion at footnote 398 and the accompanying text includes a citation to a monograph by Kenneth Adams on contract drafting and the suggestion in that publication that the elusive standard of “commercially reasonable efforts” may equate with the standard of “diligence”. (Though a recent Chancery decision highlighted on these pages that interpreted an agreement requiring “diligent efforts” did not expressly or explicitly equate “diligent efforts” in that case to “commercially reasonable efforts.“)
- the perennial issue of unclean hands as a defense, at footnotes 404 to 409 and accompanying text.
- pre-judgment interest and how it is calculated, at footnote 436 and accompanying text.
As a postscript for readers who might enjoy trivia, this opinion features as plaintiff’s counsel Delaware’s former Chief Justice, Myron Steele, as well as Arthur Dent, a classmate of mine who was the editor-in-chief of the law review the same year that I was the law review’s internal managing editor. That last bit of data, plus a few dollars, may get you a small coffee at a fancy coffee shop.