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Q3 2023 Quarterly Corporate / M&A decisions updates
28 December 2023
The Delaware courts issued a range of decisions this quarter, addressing topics from mootness fees to demand futility. Two key opinions addressed compliance with Delaware statute and court orders. In Seidman, the court awarded attorneys’ fees for an “egregious” failure to respond to a legitimate books and records request, and in Gandhi-Kapoor, the court imposed penalties on companies for failing advance litigation expenses. In two other notable cases, the courts upheld traditional principles of Delaware corporate law – in Holifield, the DE Supreme Court enforced an LLC’s freedom to include a “No Transfer Provision” in the LLC agreement; and in Newman, the Court of Chancery dismissed a suit for failure to plead demand futility for putative bad faith claims. And in Anderson, the court raised the standard for showing mootness fees in settled M&A disclosure cases to help reduce strike suits.
Brief summaries of these key decisions appear below with links to our additional commentary.
Siedman v. Blue Foundry: Egregious defense against books and record request prompts fee shifting
In Lawrence B. Seidman v. Blue Foundry Bancorp, the Delaware Court of Chancery awarded US$223,651.60 in attorneys’ fees and expenses to a plaintiff stockholder because of the defendant’s “glaringly egregious litigation conduct” in defending against a books and records request pursuant to Section 220 of the Delaware General Corporation Law. Defendant’s “serious vexatious behavior” warranted fee shifting, as the company unnecessarily prolonged litigation over a “clearly defined and established right to inspect the Company’s books and records.”
Please click HERE for a more detailed discussion of this case.
Holifield v XRI: Delaware Supreme Court reinforces primacy of freedom of contract for LLC agreements
In Holifield v. XRI Investment Holdings LLC, No. 407, 2022 (Del. Sept. 7, 2023), the Delaware Supreme Court affirmed the lower court’s determination that the defendant violated XRI Investment Holdings’ LLC agreement when he transferred his member units “for consideration” to a special purpose vehicle. The court held that the “No Transfer Provision” in the LLC agreement, which stated that a noncompliant transfer is “void” rather than “voidable,” prevailed over equitable considerations and required the Court to find the transfer incurably void. In reaching this decision, the Court reaffirmed its ruling in CompoSecure L.L.C. v. CardUX, LLC (CompoSecure II). This decision reaffirmed that LLCs are “creatures of contract” and that nothing in Delaware public policy prohibits LLC members from tailoring their rights and obligations through LLC agreements.
Please click HERE for a more detailed discussion of this case.
Anderson v. Magellan: Delaware Court of Chancery elevates standard to justify mootness fees
In Anderson v. Magellan Health, Inc., the Delaware Court of Chancery raised the standard for awarding mootness fees in settled M&A disclosure cases that resulted in supplemental disclosures, holding that fees can be awarded only where the plaintiff secures supplemental disclosures that are “plainly material” rather than just “helpful,” which was the prior standard. The court issued its ruling after substantial briefing, including the submission of an amici curiae brief by two professors, and found that the heightened standard was necessary to reduce the number of strike suits in Delaware courts and end what it termed a problematic “merger tax” created by “legally meritless disclosure claims.”
Please click HERE for a more detailed discussion of this case.
Gandhi-Kapoor v. Hone Capital, LLC: Court issues US$1,000-a-day Order to Enforce Advancement Order
In Gandhi-Kapoor v. Hone Capital, LLC, No. 2022-0881-JTL (Del. Ch. July 19, 2023), the Delaware Court of Chancery held respondents Hone Capital LLC and certain related companies in contempt for failing to either object to or advance litigation expenses to its former CFO. In doing so, the Court found that, though contempt is not generally available to enforce money judgments, it was appropriate for an advancement order because untimely advancement may prejudice the covered person’s ability to defend the underlying litigation. The Court therefore imposed equitable relief in the form of a daily US$1,000 fine. This case warns Delaware corporations that serious consequences can arise from a decision to entirely ignore advancement obligations.
Please click HERE for a more detailed discussion of this case.
Newman v. KKR: Suit dismissed by Delaware Chancery Court for failure to plead demand futility
In Newman v. KKR, the Delaware Court of Chancery dismissed a shareholder suit against Transphorm, Inc.’s Board and KKR, the largest shareholder, for failure to plead demand futility. The plaintiff alleged that the Board breached its fiduciary duties by approving an equity financing transaction (the Private Placement) in which KKR participated. The Court held that the plaintiff failed to plead demand futility because the plaintiff did not allege with particularity that Transphorm’s Audit Committee lacked independence from KKR. The plaintiff also failed to adequately allege that the Audit Committee faced a substantial likelihood of liability on the claims asserted, which distinguished this case from the recent decision in Ontario Provincial Council of Carpenters’ Pension Tr. Fund v. Walton (Del. Ch. Apr. 26, 2023). Plaintiff’s “disagreement” with the Audit Committee over the Private Placement did not amount to the allegations necessary to support a bad faith claim.
Please click HERE for a more detailed discussion of this case.
Authored by Jon Talotta, Allison, Wuertz, Christopher Pickens, Jordan Teti, Maura Allen, David R. Michaeli, Jason Chohonis, Tyler Waywell, William Winter, Christine Jiha and Shannon Zhang
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