For my latest ethics column, now in its 25th year, for the national publication of the American Inns of Court called The Bencher, in the January/February 2024 edition, I highlight a decision of the Delaware Court of Chancery that addressed litigation misconduct in a summary proceeding under Section 220 of the Delaware General Corporation Law. That provision allows stockholders who satisfy certain prerequisites to seek corporate books and records on an expedited trial schedule.
In Myers v. Academy Securities, Inc., C.A. No. 2023-0241-BWD, Order (Del. Ch., Oct. 2, 2023), Magistrate in Chancery Bonnie David explained the circumstances that satisfied the “glaringly egregious” standard which allows the Court to shift fees as an exception to the American Rule, as compared to awarding fees based on contractual or statutory provisions.
The article also cites to other recent Chancery decisions on this topic that support an anecdotal observation: litigation tactics that meet the “glaring egregious” standard are becoming more common of late.