A recent Delaware Court of Chancery opinion is notable to the extent that it provides another example of how difficult it is to prevail on a claim for reformation of a contract.  See In re 11 West Partners, LLC, C.A. No. 2017-0568-SG (Cons.) (Del. Ch. Mar. 20, 2019). Brief Background: This case involves a three-member LLC formed by real estate investors.  Contrary to instructions given to their attorney to follow a sample agreement that…

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: This case involved an effort to obtain a declaratory judgment that would validate a defense in patent litigation pending…

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. Mar. 15, 2019). Background: The basic facts involved a challenge to the sale of a company that was orchestrated by…

Kevin LaCroix on his widely-respected blog called The D&O Diary, comments on the results of a Cornerstone Research report which found that the number of appraisal actions filed in Delaware courts declined in 2017 and 2018–compared to increases every year from 2010 to 2016. Kevin provides excellent insights and a link to the actual report from Cornerstone Research about this aspect of Delaware corporate litigation.  …

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.  In Personal Touch Holding Corp. v. Glaubach, C.A. No. 11199-CB (Del. Ch. Feb. 25, 2019), the court awarded damages for…

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, letter (Del. Ch. Mar. 5, 2019) Some readers are surprised to read about Delaware court opinions which explain that the Delaware…

A recent decision by the Complex Commercial Litigation Division of the Delaware Superior Court in Winshall, et al. v. Viacom International, Inc., C.A. No. N15C-06-137 EMD CCLD (Del. Super., Feb. 25, 2019), ruled that a claim for indemnification was not ripe until a final adjudication, after appeal, was decided.  In a matter involving a claim for indemnification for attorneys’ fees based on a finding of a breach of a merger agreement by the Court…