Kirsten Zeberkiewicz at Morris James LLP

Chancery Confirms the Challenges in Pleading Caremark and Non-Shareholder Action Disclosure Claims

Fisher v. Sanborn, C.A. No. 2019-0631-AGB (Del. Ch. Mar. 30, 2021) - Under Court of Chancery Rule 23.1, a plaintiff attempting to bring a derivative action on behalf of a corporation faces a heightened “particularized”...more

4/27/2021 / Board of Directors , Breach of Duty , Caremark claim , Demand Futility , Derivative Suit , Fiduciary Duty , Shareholders

Chancery Dismisses Unripe Contribution Claim but Finds That Corporate Director and Officer Adequately Pled Right to...

Wunderlich v. B. Riley Fin., Inc. et al., C.A. No: 2020-0453-PAF (Del. Ch. Mar. 24, 2021) - Delaware corporations may provide indemnification rights to their directors and officers either through the corporation’s...more

4/20/2021 / Breach of Contract , Indemnification , Mergers , Motion to Dismiss

Chancery Denies Claim Arising Out of Controller’s Announced Intention to Oppose a Transaction Unfavorable to His Interests

RCS Creditor Trust v. Schorsch et al., C.A. No: 2017-0178-SG (Del. Ch. Mar. 18, 2021) - Controlling shareholders of a Delaware corporation owe fiduciaries duties, but those duties do not require controllers to sacrifice...more

4/20/2021 / Breach of Duty , Controlling Stockholders , Fiduciary Duty , Independent Directors

Chancery Finds Implied-in-Fact LLC Agreement

Robinson v. Darbeau, C.A. No: 2019-0853-KSJM (Del. Ch. Mar. 1, 2021) - As Robinson v. Darbeau demonstrates, Delaware law recognizes implied limited liability company agreements. Plaintiff operated a daycare as a sole...more

4/15/2021 / Business Formation , Limited Liability Company (LLC) , LLC Agreements , Operating Agreements

Superior Court Addresses Scope of Privilege Waiver in Dispute Involving The American Bottling Company, Coke, and Bodyarmor

The American Bottling Co. v. BA Sports Nutrition, LLC et. al, C.A. No: N19C-03-048-AML CCLD (Del. Super. Feb. 11, 2021) - Delaware courts generally uphold the attorney-client privilege, including by recognizing waivers...more

3/4/2021 / Breach of Contract , Mergers , Privilege Waivers , Tortious Interference

Chancery Applies Forum Non Conveniens Analysis to Grant Partial Stay of Dispute Between LLCs and Former Manager

AG Resource Holdings, LLC v. Thomas Badford Terral, C.A. No. 2020-0850-JRS (Feb. 10, 2021) - In AG Resource, the Court of Chancery was tasked with determining whether it or a Louisiana state court should resolve similar...more

3/3/2021 / Breach of Contract , Employment Contract , Forum Non Conveniens , Jurisdiction , LLC Agreements , Non-Compete Agreements

Chancery Addresses Standing Defense And Control Allegations In Abandoned Tender Offer Dispute

In re WeWork Litig., C.A. No. 2020-0258-AGB (Del. Ch. Dec. 14, 2020) - This decision is the companion to another dismissal opinion in same case of the same date and arising out of the same abandoned multi-step tender...more

2/8/2021 / Breach of Contract , Breach of Duty , Controlling Stockholders , Fiduciary Duty

Chancery Resolves Dispute Between Competing Special Committees, Finding Second Committee Could Not Voluntarily Dismiss Suit...

In re WeWork Litigation, C.A. No. 2020-0258-AGB (Del. Ch. Dec. 14, 2020) - This decision addresses a matter of first impression arising out of a dispute pitting two special committees of the same company, WeCompany...more

2/8/2021 / Board of Directors , Breach of Contract , Breach of Duty , Fiduciary Duty , Motion to Dismiss

Chancery Dismisses First-Filed Action Involving Delaware Choice of Law and Forum Selection Clause for Forum Non Conveniens

Focus Fin. Partners, LLC v. Holsopple, C.A. No. 2020-0188-JTL (Del. Ch. Nov. 2, 2020) - Defendant moved on forum non conveniens grounds to dismiss an action brought by a recent hire’s former employer to enforce various...more

1/22/2021 / Forum Non Conveniens , FRCP 12(b)(3) , Jurisdiction , Motion to Dismiss , Personal Jurisdiction

Chancery Dismisses Derivative Action for Failure to Plead Demand Futility Despite Unocal Enhanced Scrutiny

Gottlieb v. Duskin, C.A. No. 2019-0639-MTZ (Del. Ch. Nov. 20, 2020) - Defendants moved to dismiss a derivative action for failure to plead demand futility under Rule 23.1. The complaint alleged that the director...more

1/22/2021 / Board of Directors , Breach of Duty , Demand Futility , Derivative Suit , Fiduciary Duty , Shareholders

Delaware Supreme Court Affirms CCLD Ruling Relying on Expert’s “Dual Hypothetical World” Damages Model for Measuring...

XL Ins. Am., Inc., et al. v. Noranda Aluminum Holding Corp., No. 444, 2019 (Del. Oct. 2, 2020) - An aluminum manufacturer (the “Insured”) decided not to rebuild and resume operations at its facility following two...more

12/17/2020 / DE Supreme Court , Insurance Industry , Insurance Litigation , Property Damage , Property Insurance

Chancery Denies Sellers’ Request for Dismissal, Finding That Fraud Claims Were Timely Filed and Properly Pled

Agspring Holdco, LLC v. NGP X US Holdings, L.P., C.A. No. 2019-0567-AGB (Del. Ch. July 30, 2020) - This opinion concerns a buyer’s attempt to plead fraud in connection the acquisition of a business. The Court denied in the...more

9/9/2020 / Breach of Duty , EBITDA , Fiduciary Duty , Fraud , Private Equity

Chancery Addresses Burdens for Valuation-Related Books-and-Records Inspections, While Finding Defendant’s Asserted Lack of Records...

Woods v. Sahara Enterprises, Inc., C.A. No. 2020-0153-JTL (Del. Ch. July 22, 2020) - This decision concerning statutory inspection rights under Section 220 of the Delaware General Corporation Law clarifies the requirements...more

9/1/2020 / Board of Directors , Books & Records , Fiduciary Duty , Section 220 Request , Shareholder Litigation , Shareholders

In Post-Trial Opinion, Chancery Finds for Defendant, Rejecting Claims Alleging Breach of Purchase Agreement and Right to “Board...

Braga Investment & Advisory, LLC v. Yenni Income Opportunities Fund I, L.P., C.A. No. 2017-0393-AGB (Del. Ch. June 8, 2020) - In this post-trial opinion, the Court of Chancery held in favor of defendant Yenni Income...more

7/31/2020 / Acquisitions , Breach of Contract , Contract Terms , Purchase Agreement

Chancery Dismisses Action Involving Unusual Issue of Personal Jurisdiction

Sustainability Partners LLC, v. Jacobs, C.A. No. 2019-0742-SG (Del. Ch. June 11, 2020) - In this action involving “an unusual issue of personal jurisdiction,” plaintiff Sustainability Partners LLC (“SP” or the “Company”)...more

7/31/2020 / Breach of Contract , Forum Selection , FRCP 12(b)(2) , Motion to Dismiss , Personal Jurisdiction

Chancery Declines to Follow Transcript Ruling, Finds Plaintiff is Entitled to Advancement of Fees Incurred in Underlying Action...

Day v. Diligence, Inc., C.A. No. 2020-0076-SG (Del. Ch. May 7, 2020) - By letter ruling, the Court of Chancery held that plaintiff, a director and former officer of the entity defendant, (“Plaintiff”), was entitled to the...more

7/7/2020 / Advancement , Attorney's Fees , Delaware General Corporation Law , Directors

Chancery Provides Guidance on Rule 23.1 “With Particularity” Pleading Standard in Continuing Investors Bancorp Stock Awards and...

Elburn v. Albanese, C.A. No. 2019-0774-JRS (Del. Ch. Apr. 21, 2020) - Finding that the stockholder plaintiff (the “Plaintiff”) had satisfied the Rule 23.1 “with particularity” pleading standard, the Court of Chancery...more

5/28/2020 / Board of Directors , Breach of Duty , Demand Futility , Derivative Suit , Fiduciary Duty , Shareholders

Kirsten Zeberkiewicz

Morris James LLP

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