In another Delaware “first in the nation,” Vice Chancellor Laster of the Court of Chancery on October 15, 2012, in EORHB, Inc. v. HOA Holdings LLC (C.A. No. 7409-VCL) ordered the parties to “show cause” why computer assisted review should not be used for discovery of electronically stored information (“ESI”) in that matter. After a
Kevin F. Brady
Person Not a Director or Officer But Asserts “Control” Over Corporation is Proper Defendant in Section 225 Action
Aequitas Solutions, Inc. v. Anderson, et al., C.A. No. 7249-ML (September 28, 2012).
Issue Presented:
Whether a Section 225 action fails to state a claim where plaintiff was not seeking relief against the defendant in his individual capacity and the defendant did not purport to be a director, officer or shareholder of the…
Specific Performance Awarded; Reformation Based on Mistake Rejected
CC Finance LLC v. Wireless Properties, LLC, C.A. No. 5927-VCN (October 1, 2012).
Why is this case noteworthy? The ruling provides practical insights into (i) the standards for summary judgment in a reformation case and the Court’s role in reformation of contracts; (ii) the proof required for proving mistake (mutual or unilateral) at…
Court Denies Motion for Protective Order Limiting Who Can View Confidential Information
Czarninski Baier de Adler v. Upper New York Investment Company, LLC, C.A. No. 6896-VCN (Sept. 28, 2012).
Why is this case important? This decision addresses some of the practical problems parties face when dealing with multi-national related litigation and protective orders limiting who can review discovery. In this case, the individuals in question…
D&O Corporate Counsel Checklist Published by ABA
In the August edition of the ABA’s Business Law Today, the Business Section’s Committee on Director and Officer Liability (under the very capable direction of James Wing of Holland & Knight) has just issued a brief commentary and a checklist for use by corporate counsel who must manage the creation or renewal of an executive…
Conspiracy Theory of Personal Jurisdiction Over Director Survives Motion to Dismiss
Hospitalists Of Delaware, LLC v. Lutz, C.A. No. 6221-VCP (Aug. 28, 2012).
In this derivative and direct action, the plaintiffs, two judgment creditors of defendant Cubit Medical Practice Solutions, Inc., a dissolved Delaware corporation, accused Cubit’s three directors, its controlling stockholder, and three other entities within the same corporate family of participating in an…
Confidential Court of Chancery Arbitration Proceedings Found Unconstitutional — Violate Qualified Right of Access
Delaware Coalition for Open Government v. Hon. Leo E. Strine, Jr., et al., D. Del. C.A. No. 1:11-1015 (Aug. 30, 2012).
Issue Presented:
Do the Court of Chancery’s confidential arbitration proceedings violate the First Amendment’s qualified right of access?
Answer: Yes. As a general rule, proceedings cannot be closed to the public except in…
Motion in Appraisal Case to Enforce Third-Party Subpoena to Fox Broadcasting for “American Idol” Revenue Denied
Huff Fund Inv. P’ship v. CKx Inc., C. A. No. 6844-VCG (Del. Ch.) (August 15, 2012).
Issue Presented:
In this appraisal action, is the relevance of the financial information of Fox Broadcasting, a non¬party to the litigation and the merger, regarding American Idol outweighed by the potential harm the disclosure of that information would…
Court Validates Action by Written Consent to Elect New Board
Keyser v. Curtis, C.A. No. 7109-VCN (July 31, 2012).
Issues Presented:
(i) whether plaintiffs are entitled to a declaration, pursuant to 8 Del. C. § 225, that they comprise the board of directors of Ark Financial Services, Inc.;
(ii) whether one of the signatories to the 2011 Written Consent actually owned the shares he…
New York Court Adopts Tooley Test for Identifying Derivative v. Direct Actions
The New York Supreme Court Appellate Division, First Department issued a decision in Yudell v. Gilbert, Case No. 600404/08 (Aug. 7, 2012) affirming the dismissal of an action regarding a joint venture. See decision here. The Court, in analyzing the difference between a direct and a derivative action, stated that “New York lacked…