Tag Archives: francis pileggi

Delaware Supreme Court Addresses Independence of Directors

A recent Delaware Supreme Court opinion addressed the independence and disinterestedness of corporate directors in the context of adequately pleading pre-suit demand futility as a prerequisite for pursuing a derivative claim. In Marchand v. Barnhill (Del. June 19, 2019), the court reversed the Court of Chancery’s dismissal of the case for failure to establish demand futility. … Continue Reading

Mid-Year Review of Key Delaware Corporate and Commercial Decisions

Over the last 14 years that I have published this blog, I have compiled an annual review with a list of key Delaware corporate and commercial decisions that have widespread utility to practitioners, especially those court decisions that are not widely covered by other legal publications or the mainstream press. On a few occasions, I have prepared a mid-year … Continue Reading

Chancery Orders Mandatory Indemnification per DGCL Section 145(c)

A recent Delaware Court of Chancery decision ordered mandatory indemnification based on success in underlying litigation pursuant to DGCL § 145(c), in the matter styled:  Brown v. Rite Aid Corporation, C.A. No. 2017-0480-MTZ (Del. Ch. May 24, 2019). Issue Addressed:  Whether dismissal of the underlying litigation based on a technical argument was “success” for purposes of … Continue Reading

Forum Selection Clause Interpreted Based on Austrian Law

A forum selection clause, controlled by Austrian law, was recently interpreted by the Delaware Court of Chancery as a mandatory forum selection clause requiring the dispute to be litigated in Vienna.  In Germaninvestments A.G. v. Allomet Corporation, C.A. No. 2018-0666-JRS (Del. Ch. May 23, 2019), the court also determined that the choice of law provision … Continue Reading

Chancery Grants Advancement on Counterclaims

A recent Delaware Court of Chancery bench ruling granted advancement in connection with defensive counterclaims against a former officer and director.  In Dodelson v. AC Hold Co., Inc., C.A. No. 2019-0029-SG (transcript) (Del. Ch. May 21, 2019), the court interpreted the provisions of a charter with advancement provisions, and reasoned that advancement was warranted. An … Continue Reading

Court Orders Waiver of Privilege Due to Deficient Privilege Log

A recent bench ruling from the Court of Chancery granted a motion to compel production of documents improperly withheld as privileged–and in the process ordered that privilege was waived due to the deficient preparation of the privilege log.  See Mountain West Series of Lockton Companies, LLC v. Alliant Insurance Services, Inc., C.A. No. 2019-0226-JTL (transcript) … Continue Reading

Miscellaneous Delaware Corporate and Commercial Practice Updates

This post is an aggregation of miscellaneous worthwhile Delaware corporate litigation developments that was easier to present as one post instead of multiple smaller posts: 1.     Case Law Regarding Importance of Formalities to Modify Pretrial Scheduling Orders: A Delaware Supreme Court opinion of several years ago, highlighted on these pages, emphasized that informal extensions of a … Continue Reading

Chancery Denies Indemnification Claim Seeking Recoupment of Advancement

A recent Court of Chancery decision rejected an attempt to recoup advancement based on the terms of an indemnification clause. See Computer Sciences Corporation v. Pulier, C.A. No. 11011-CB (Del. Ch. May 21, 2019), for this recurring issue in Delaware corporate and commercial litigation. Issue Addressed:  May a company recoup, via an indemnification claim, the amounts … Continue Reading

Delaware Supreme Court Addresses Damages for Breach of Consent-Rights, and Efficient Breach Theory

A recent Delaware Supreme Court decision is noteworthy for: (1) addressing damages for breach of consent-rights, as well as (2) discussing the concept of efficient breach.  In Leaf Invenergy Company v. Invenergy Renewals LLC, No. 308, 2018 (Del. Supr., May 2, 2019), the en banc court also engaged in a rare reversal of a Court … Continue Reading

Chancery Applies Corporate Advancement Case Law to LLC Context

A recent Delaware Court of Chancery decision interpreted the advancement provisions of an LLC Agreement by applying case law interpreting DGCL Section 145 in the corporate context.  In Freeman Family LLC v. Park Avenue Landing LLC, C.A. No. 2018-0683-TMR (Del. Ch. Apr. 30, 2019), the court reviewed the applicability of “defined phrases” that are familiar … Continue Reading

Chancery Interprets Contractual Indemnification Clause

A recent Delaware Court of Chancery decision interpreted an indemnification clause and rejected the applicability of equitable defenses to a strictly legal claim.  I highlighted the recent decision in NASDI Holdings v. North American Leasing, Inc., C.A. No. 2017-0399-KSJM (Del. Ch. Apr. 8, 2019), in an article published in the current issue of the Delaware … Continue Reading

Chancery Considers Exception to Production of Attorney-Client Privileged Communications

A recent short ruling from the Delaware Court of Chancery examined one of the exceptions to the general rule that attorney-client privileged information is not subject to production. In Tigani v. Tigani, C.A. No. 2017-0786-KSJM (Del. Ch. April 10, 2019), the court addressed a motion to compel documents from various law firms that were withheld … Continue Reading

Third Circuit Strikes Delaware Constitutional Requirement of Political Balance in Judicial Appointments to State Courts

A recent decision by the U.S. Court of Appeals for the Third Circuit in Adams v. Governor of Delaware, upheld a prior ruling which found unconstitutional a provision in the Delaware State Constitution that mandates a balance between Republicans and Democrats on the state bench in connection with the appointment of judges by the Governor.  … Continue Reading

The Intersection of Corporate Law and the Political Activity of CEOs

Professor Stephen Bainbridge, the nationally-recognized, prolific corporate law expert, known to readers of this blog (among other reasons) for citations in Delaware court opinions to his scholarship, provides scholarly commentary and citation to multiple sources regarding the corporate law implications for the political activity of CEOs–including some who think of themselves as social justice warriors. The … Continue Reading

Recent Decision Clarifies Safe Harbors in DGCL § 144 for Board Action

The following article appeared in the current issue of the Delaware Business Court Insider: Recent Decision Clarifies Safe Harbors in DGCL § 144 for Board Action By: Francis G.X. Pileggi* and Chauna A. Abner** The recent Superior Court decision in Toedtman v. Turnpoint Medical Devices, Inc., C.A. No. N17C-08-210 RRC (Del. Super. Ct., Jan 23, … Continue Reading

Court Dismisses Suit Against Firearms Dealer Based on Immunity Statute

The Delaware Superior Court recently dismissed a claim against Cabela’s in connection with the sale at their Delaware location of a firearm based on a Delaware statute that bars civil liability for damages sought against the seller of firearms when the seller complied with all applicable statutes and regulations. In Summers v. Cabela’s Wholesale, Inc., … Continue Reading

No Equitable Jurisdiction for This Declaratory Judgment Suit

A recent Delaware Court of Chancery opinion provides a reminder of the limited jurisdiction of Delaware’s court of equity and why not all suits for declaratory judgment satisfy the narrow subject matter jurisdiction of the Court of Chancery.  See Takeda Pharmaceuticals U.S.A., Inc. v. Genentech, Inc., C.A. No. 2018-0384-MTZ (Del. Ch. Mar. 26, 2019). Background: … Continue Reading

Consent to Jurisdiction Implied by Adoption of Forum Selection Bylaw

A recent Delaware Court of Chancery decision is noteworthy for its finding that the adoption of a forum selection bylaw implied consent to jurisdiction to the extent that it required lawsuits by stockholders against the company to be filed in Delaware.  See In re: Pilgrim’s Pride Corp. Derivative Litigation, C.A. No. 2018-0058-JTL (consol.) (Del. Ch. … Continue Reading

Chancery Finds Usurpation of Corporate Opportunity

Delaware case law is well-established regarding the aspect of the fiduciary duty of loyalty that prohibits a corporate director from usurping a corporate opportunity. A recent decision from the Delaware Court of Chancery applies that well-settled prohibition in a flexible manner to a set of facts that have apparently not been squarely addressed in prior precedent.  … Continue Reading

Delaware Courts and Legal Ethics

A recent decision by the Delaware Court of Chancery provides an example of those rare instances where the court refers a violation of legal ethics to the Office of Disciplinary Counsel for investigation, as compared to the court itself determining the appropriate penalty. See Charter Communications Operating LLC v. Optymyze, LLC, et al., C.A. No. 2018-0865-JTL, … Continue Reading
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