Francis Pileggi

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Chancery Rejects Challenge to State Contract Bid Award

A recent Delaware Court of Chancery decision rejected a challenge by an unsuccessful bidder to an award by the state of a professional services contract. This decision provides a helpful example of how difficult it remains to challenge such bid awards. Many thanks to Deputy Attorney General Larry Lewis for bringing this opinion to our attention. We … Continue Reading

Commentary from the Delaware Bench on Contractual Alternatives to Fiduciary Duties

Useful insights from the Delaware Bench were provided on the topic of contractual definitions, or limitations, on fiduciary duties in LLCs and LPs at a recent seminar. The program was moderated by Catherine Dearlove of the Delaware Bar.  Other panel members included Chief Justice Leo Strine, Jr. of the Delaware Supreme Court.  The program was … Continue Reading

Chancery Denies Rule 5.1 Motion to Maintain Confidentiality of Pleadings

This post was prepared by Brian E. O’Neill, Esq. of Eckert Seamans. The Court of Chancery recently denied a motion to maintain the confidentiality of redactions in the public version of the complaint and briefs related to the defendants’ motion to dismiss. In Oklahoma Firefighters Pension Retirement System v. Corbat, C.A. No. 12151-VCG (Del. Ch. … Continue Reading

Court Rejects Pre-Trial Restrictions on Expert Testimony

A recent short letter ruling by the Delaware Court of Chancery provides a useful tool for the toolbox of commercial and corporate litigators regarding pre-trial arguments to exclude the testimony of an expert who has prepared a report, even though in the Court of Chancery motions in limine to obtain pre-trial rulings on such evidentiary issues are … Continue Reading

Chancery Rejects Jurisdiction Over Merits of Dispute Involving Selection of Successor Arbitrator

The Court of Chancery opinion in the case styled In Re: Good Technology Corporation Stockholder Litigation, C.A. No. 11580-VCL (Del. Ch. Oct. 27, 2017), provides a pithy, persuasive analysis of a binding arbitration agreement that specifically appoints a named arbitrator–but that arbitrator later recused himself. Overview: This decision provides reasoning supported by ample citations to authority to … Continue Reading

Release Bars Claim for Excessive Pay

A recent Chancery decision dismissed a claim for excessive compensation based on a prior release that covered such claims. The ruling in Feuer v. Dauman, C.A. No. 12579-CB (Del. Ch. Oct. 25, 2017), may be useful in those instances where an analysis is necessary to determine whether a settlement encompasses subsequent claims based on events that pre-dated … Continue Reading

U.S. Supreme Court Justice Clarence Thomas

Although the focus of this blog for nearly 13 years has been, and continues to be, Delaware corporate and commercial law, along with related practice topics such as legal ethics, the topic of the U.S. Supreme Court transcends that niche and in many instances controls state law decisions even on corporate and commercial law issues. That prelude is … Continue Reading

33rd Annual Distinguished Lecture in Law

The Delaware Journal of Corporate Law of Widener University Delaware Law School presents the 33rd Annual Francis G. Pileggi Distinguished Lecture in Law Is Delaware Retreating? Randall S.Thomas John S. Beasley II Chair in Law and Business Director, Law & Business Program Professor of Management, Owen Graduate School of Management Vanderbilt Law School Friday, October … Continue Reading

Chancery Finds Breach of Obligation to Use “Diligent Efforts”

A recent Delaware Court of Chancery opinion is useful for commercial litigators who encounter the frequent situation where one party is required to use some variation on the standard of “best efforts” to either sell a product or reach certain revenue milestones, for example, in connection with a joint venture or a post-closing earn-out. In … Continue Reading

Chancery Orders Incorporation Provision in Books and Records Request

This post was prepared by Brian E. O’Neill, Esq. of Eckert Seamans. The Delaware Court of Chancery recently granted a defendant’s request to impose an incorporation provision upon a decision to grant a books and records request. That provision would deem all documents produced as incorporated by reference in any Complaint subsequently filed for purposes … Continue Reading

Chancery Finds Pre-Suit Demand Not Excused and Rejects “Regular Folks” Argument of Director Interestedness

This post was prepared by Brian E. O’Neill, Esq. of Eckert Seamans. The Delaware Court of Chancery recently dismissed a complaint for failure to adequately allege demand futility despite allegations that non-wealthy, “regular folks” directors were not disinterested based on their substantial directors’ fees. In Chester County Employees’ Retirement Fund v. New Residential Investment Corp., … Continue Reading

Chancery Excuses Pre-Suit Demand Requirement Due to Board’s Knowing Violation of Federal Regulation

This post was prepared by Brian E. O’Neill, Esq. of Eckert Seamans. The Delaware Court of Chancery denied a motion to dismiss two claims in a derivative action, finding pre-suit demand futility was established because the allegations of knowing violation of a federal regulation by the defendant directors sufficiently alleged bad faith conduct. In Kandell … Continue Reading

Chancery Refuses to Seal Courtroom for Allegedly Confidential Trial Exhibits

The Court of Chancery recently rejected a request by a non-party to seal certain trial exhibits so that they would not become part of the public trial record.  The court also rejected a request to close the courtroom to the public during trial for any testimony or argument regarding those exhibits.  ADT Holdings, Inc. v. Harris, … Continue Reading

Chancery Reviews Fiduciary Duties of Independent Board of Directors

A recent Delaware Court of Chancery decision addressed how the court will review claims against an independent and disinterested board for breach of the duty of loyalty in connection with a merger transaction. The opinion styled Kahn v. Stern, C.A. No. 12498-VCG (Del. Ch. Aug. 28, 2017), involved allegations made unsuccessfully, that the board of directors breached their duties … Continue Reading

Court of Chancery Jurist Co-Authors Article on Drafting

Vice Chancellor J. Travis Laster of the Delaware Court of Chancery co-authored with Ken Adams, an article about agreements that attempt to preempt judicial discretion.  Copious footnotes to court decisions and treatises support the helpful analysis and drafting tips provided. The article should be required reading for anyone litigating the meaning of an agreement in the … Continue Reading