You Better Answer Me! What to Do When Facing a Partial Motion to Dismiss

By: Oderah C. Nwaeze & Mackenzie M. Wrobel

Once a complaint has been filed, defendants have a finite period of time to decide what to do next. Among the list of options are: (a) ignore it (the U.S. is overly litigious anyways); (b) answer the allegations; (c) move to dismiss; or (d) cower in fear and settle immediately. More often than not, defendants choose option (c).

The reality of moving to dismiss, however, is that the moving party often lacks a credible basis for dismissing the entire complaint. As a result, defendants frequently file a partial motion to dismiss on the day that a responsive pleading is due under the court’s rules (or some other date that the parties have agreed to file and serve a response). In circumstances where a plaintiff has filed a partial motion to dismiss, the parties usually — without formal agreement — focus their efforts on the partial motion, ignoring the fact that as of the deadline to file a responsive pleading, the defendant has not answered those allegations that are beyond the scope of the partial motion to dismiss. According to a recent decision from the Delaware Court of Chancery, that approach is a mistake. While the rules of civil procedure excuse a defendant from answering allegations that are subject to a partial motion to dismiss, nothing in the rules shields the defendant from failing to answer those allegations unrelated to the motion to dismiss in a timely manner.

Continue reading You Better Answer Me! What to Do When Facing a Partial Motion to Dismiss

Delaware’s War Against the “Boilerplate [Objection] Plague” Goes National

By: Oderah C. Nwaeze & Mackenzie M. Wrobel

In almost every lawsuit, as part of the discovery process, the parties will exchange information relevant to the claims and defenses at issue.  Discovery, however, is rarely as easy or collaborative as it should be.  To the contrary, parties routinely will refuse to produce materials responsive to well-tailored discovery requests without offering anything more than rote, unspecific responses to explain their tenuous positions.  In most cases, the objecting party ultimately will produce the requested documents, but only after forcing its opponent to waste time and money exchanging correspondence and participating in meet and confers.  Recognizing this unnecessary strain on resources, Delaware courts have spent the better part of a decade waging a not-so-quiet war on boilerplate objections.

Leading the charge on that front are jurists from the Delaware Court of Chancery, who refuse to allow parties to withhold discovery based on the limited details found in formulaic objections.  See Transcript of Motion to Compel Argument, Lake Treasure Hldgs. Ltd. v. Foundry Hill GP, C.A. No. 6546-VCL (Sept. 11, 2012) (“Lake Tr. at __”); Transcript of Motion to Compel Argument, Glidepath, Ltd., et al. v. Beumer Corp. et al., C.A. No. 12220-VCL (Del. Ch. Oct. 6, 2016) (“Glidepath Tr. at __”).  The Court has emphasized that the point of discovery responses is for the objecting party to detail for its adversary “what [it is] planning not to do” and why.  Lake Tr. at 22.  Otherwise, parties will waste time and money engaging in letter writing campaigns in order to flesh out objections that should have been described in the “first response.”  Lake Tr. at 22; see also Hammer v. Howard Medical, Inc., 2017 WL 1167550 (Del. Super. Feb. 14, 2017) (Stokes, J.) (granting a motion for sanctions, fees, costs against an objecting party for the continued use of general “irrelevant” or “not applicable” objections to interrogatories despite the requesting party’s efforts to seek clarification through correspondence and motion practice).

Continue reading Delaware’s War Against the “Boilerplate [Objection] Plague” Goes National

Does Delaware law support reverse veil-piercing? The Fourth Circuit says: YES!

By: Oderah C. Nwaeze & Mackenzie M. Wrobel

Although Delaware has not expressly adopted the remedy of reverse piercing of a corporate veil, the United States Court of Appeals for the Fourth Circuit believes that Delaware LLCs may be deemed the alter ego of their sole or controlling equity-holder and held jointly liable for that individual’s (or entity’s) liabilities. Indeed, in Sky Cable, LLC v. DIRECTV, Inc., 886 F.3d 375 (4th Cir. 2018), the Court of Appeals applied reverse veil-piercing to conclude that the LLCs at issue were properly co-debtors to a $2.3 million judgment against the LLCs’ sole member, Randy Coley.

At the trial level, the Western District of Virginia entered a $2.3 million judgment for DirecTV, after finding that Mr. Coley was liable for a fraud scheme involving the unauthorized transmission of DIRECTV’s programming. See Sky Cable, LLC, 886 F.3d at 377. When DIRECTV could not enforce the judgment against Mr. Coley, DIRECTV moved the district court to pierce the corporate veil of three of Mr. Coley’s LLCs, arguing that the LLCs were Mr. Coley’s alter egos. Id. The district court agreed and granted DIRECTV’s motion. Id. Among the reasons for that holding was that: (1) the LLCs were controlled solely by Mr. Coley; (2) Mr. Coley failed to observe corporate formalities and maintain proper accounting records; and (3) Mr. Coley engaged in significant commingling of assets between the LLCs and his personal finances.  Id. at 390. Continue reading Does Delaware law support reverse veil-piercing? The Fourth Circuit says: YES!

“Fraud in the Inducement” Is No Defense To Advancement Claims By Officers and Directors

On November 28, 2016, the Supreme Court of Delaware confirmed what had become a common thread in several previous decisions by the Court of Chancery–that a Delaware entity cannot avoid expansive advancement rights it has granted to its officers and directors by arguing that they had fraudulently induced the company to grant those rights.  In Trascent Mgm’t Consulting, LLC v. Bouri, No. 126, 2016 (Del. Supr.), the Supreme Court held that such a challenge to an officer’s right to advancement of fees and expenses for litigation was more properly heard during later proceedings to determine whether the officer was ultimately entitled to a right to indemnification upon the close of the underlying proceedings.

Trascent had hired Mr. Bouri as an officer and manager of the LLC with responsibility for the human resources, IT, and finance functions.  Mr. Bouri was employed pursuant to an employment agreement, which among other things, granted him broad rights to advancement of any fees and expenses he incurred in certain types of proceedings.  Trascent and Mr. Bouri parted ways, and Trascent sued Mr. Bouri for, among other things, breaches of his employment agreement.  Pointing to the terms of that employment agreement, Mr. Bouri sought advancement of his fees and expenses for defending against his former employer’s claims.  Trascent, however, argued that the same agreement upon which its claims were founded was induced by fraud, and therefore, Mr. Bouri’s claims for advancement should be denied.

The Court of Chancery rejected this defense, and the Supreme Court (with Chief Justice Strine writing for the court) affirmed that ruling.  As the Supreme Court noted:  “[A]llowing Trascent to avoid its contractual duty to make immediate advancement payments by making a belated fraudulent inducement claim would impede the efficiency of the summary mechanism provided by 8 Del. C. 145(k) and impair the public policies served by contractual advancement provisions made in reliance upon that provision of the DGCL as well as the Limited Liability Company Act,” and therefore “the Court of Chancery properly refused to delay enforcing the plain language of the contract.”

The Supreme Court, in a footnote, also noted that the reasoning and public policy supporting this ruling was equally applicable to agreements to arbitrate disputes–another area where the Court found these fraudulent inducement arguments to reflect “unproductive gamesmanship.” The court warned that parties should make such arguments to the arbitrator in the first instance and not a court in trying to avoid the contractual choice of venue for dispute resolution.

How Emails Between Counsel Can Bind Their Clients To ADR

The Court of Chancery of the State of Delaware recently issued a Memorandum Opinion finding that feuding members of a Delaware limited liability company had validly entered into an agreement to mediate, and if necessary arbitrate, their dispute where their respective counsel had engaged in an email exchange the court found to contain the elements of a binding agreement.

In Gomes v. Karnell, et al., C.A. No. 11814-VCMR (Del. Ch. Nov. 30, 2016), Vice Chancellor Montgomery-Reeves held she did not have subject matter jurisdiction to hear certain aspects of the dispute because she held that the parties were bound by the representations of their attorneys and rejected plaintiff’s arguments that no agreement could exist because it was missing essential terms.  While recognizing that there is no consensus among courts regarding what constitute the “essential terms” of an agreement to arbitrate, she found that the email exchange contained (i) evidence of assent; (ii) identified the parties to the potential ADR proceeding; (iii) identified the scope of the potential ADR proceeding and (iv) set forth the timing of the potential ADR proceeding.  The court found these terms were sufficient to constitute a binding agreement to mediate and/or arbitrate the dispute, and to the extent any other terms needed to be supplied, the parties should look to the Federal Arbitration Act.

 

Court of Chancery Critically Reviewing “Mootness” Fee Applications

In two recent decisions, the judges of Delaware’s Court of Chancery have demonstrated their intent to carefully review fee applications made by counsel for stockholder plaintiffs where the litigation has been rendered moot by actions of the company, and the litigation has been dismissed.

In In re Xoom Corp. Stockholder Litigation, C.A. No. 11263-VCG (Aug. 4, 2016), Vice Chancellor Glasscock awarded plaintiff’s counsel fees of $50,000 (of a requested $275,000) after the company rendered the litigation moot by making supplemental disclosures in advance of a transaction, and which were only marginally beneficial to the stockholders.   A few weeks earlier, in In re Keurig Green Mountain, Inc. Stockholders Litigation, C.A. No. 11815-CB (July 22,2016)(trans. ruling), Chancellor Bouchard refused to award any fees to plaintiff’s counsel (of a requested $300,000) where he found the additional disclosures by the company in advance of the transaction were of no additional value to the company’s stockholders.

A “mootness” fee application is typically filed by counsel for class or derivative plaintiffs where their litigation has arguably caused the company to take action that renders the pending litigation moot.  In the two cases discussed here, that action took the form of supplemental disclosures in advance of a stockholder vote to approve a transaction.  Once it has been determined (or conceded) that the actions of the stockholder plaintiff caused the company to take the mooting action, the court will apply “a subspecies of the common-benefit doctrine, which recognizes that, where a litigation provides a benefit to a class or group, costs necessary to the generation of that benefit should also be shared by the group or its successor.”  See In re Xoom, at p. 8.

In the Xoom matter, Vice Chancellor Glasscock declined to apply the “plainly material” standard for reviewing the value of disclosures to stockholders in advance of a stockholder vote that was announced in the Court’s earlier decision in In re Trulia, Inc. Stockholder Litigation, 129 A.3d 884 (Del. Ch. 2016).  He held that where the court is reviewing a proposed settlement that includes a broad release of claims by the stockholders, the “plainly material” standard would be appropriate.  Where, however, no such release is being sought (as in Xoom, where the litigation had been dismissed, with prejudice, as to the named plaintiff only), the Vice Chancellor found that a fee could be awarded where the disclosures have provided “some benefit to stockholders.”  To determine the fee that might be appropriate in the circumstances, the court will look to the five factors announced in Sugarland Indus., Inc. v. Thomas: (1) the benefit achieved; (2) the contingent nature of the undertaking; (3) the difficulty of the litigation and the efforts of counsel; (4) the quality of the work performed; and (5) the standing and ability of counsel.

Looking primarily at the benefit achieved, in Xoom the court found that the requested fee of $275, 000 was not warranted where the benefit achieved was marginal and where the effort expended by counsel (63 hours) on the matter would result in an implied hourly rate of $4,000/hr.  Instead, he awarded counsel for the plaintiff a fee of $50,000, which reflects an implied hourly rate of $794.00/hr.

In the Keurig matter, Chancellor Bouchard also looked primarily at the benefit achieved by the litigation efforts of the stockholder plaintiff and found that the supplemental disclosures made by the company to moot the litigation did not “confer any benefit on the corporation because they did not correct a materially misleading disclosure” in the original proxy materials.  Because he found no benefit at all had been achieved, the Chancellor rejected, in whole, the request by plaintiff’s counsel for a fee of $300,000.

Richard L. Renck
Richard L. Renck

Citing “Issue Preclusion,” the Delaware Court of Chancery Denies Advancement to a Company’s Vice President

The Delaware Court of Chancery typically holds that a corporation must advance the fees and expenses of an executive or officer-level employee who is required to defend a civil, criminal, administrative or investigative action by virtue of his or her employment with the company. Recently, however, Vice Chancellor J. Travis Laster held that a plaintiff was not entitled to advancement because he did not prove that someone with the bare title of “Vice President,” without any managerial or supervisory responsibilities, fit within the definition of “officer” found in the relevant bylaws.

The Court of Chancery’s holding in Aleynikov v. The Goldman Sachs Group, Inc., C.A. No. 10636-VCL (Del. Ch., July 13, 2016) was based, in large part, on its conclusion that it was bound by an incorrect finding by the Third Circuit in a related action because the doctrine of “issue preclusion prevent[ed] relitigation of wrong decisions just as much as right ones.”

To read the full text of the Alert, please visit www.duanemorris.com.

Update on Fee Shifting or Forum Selection Bylaws

On June 24, 2015, the Governor of Delaware signed Senate Bill No. 75, which amends the DGCL and (1) prohibits charter or bylaw provisions that would shift the company’s fees and costs of  an unsuccessful “internal corporate claim” to the stockholder prosecuting that claim, but (2) allows the certificate of incorporation or bylaws to specify that internal corporate claims be brought only in the courts of Delaware.  The text of the amendments may be accessed here.

The prohibition on fee shifting provisions was accomplished via amendments to Sections 102(f) and 109(b) of the DGCL, which provide that the certificate of incorporation or the bylaws “may not contain any provision that would impose liability on a stockholder for the attorneys’ fees or expenses of the corporation or any other party in connection with an internal corporate claim, as defined in Sec. 115 of this title.”

The Bill also created a new Section 115 of the DGCL, which addresses forum selection provisions in a company’s governance documents.  That new section provides in its entirety:

The certificate of incorporation or the bylaws may require, consistent with applicable jurisdictional requirements, that any or all internal corporate claims shall be brought solely and exclusively in any or all courts in this State, and no provision of the certificate of incorporation or the bylaws may prohibit bringing such claims in the courts of this State.  “Internal corporate claims” means claims, including claims in the right of the corporation, (i) that are based upon a violation of a duty by a current or former director or officer or stockholder in such capacity, or (ii) as to which this title confers jurisdiction upon the Court of Chancery.

The Bill also contains fairly significant revisions to Section 204, which allows for the ratification of defective corporate acts and stock, and which we will highlight in an upcoming post.

Corporate Governance In Chapter 11 – Business As Usual, With Possible Exceptions

Under the Bankruptcy Code, a debtor in possession operates its business “as usual” during the pendency of a case. Likewise, in most cases, prepetition corporate governance practices and procedures should continue post-petition. In fact, as Judge Sontchi recently held in In re SS Body Armor I, Inc., Case No. 10-1125(CSS) (Bankr. D. Del. April 1, 2015), the right of a shareholder to compel a shareholders’ meeting for the purpose of electing a new board of directors continues during bankruptcy.  Absent “clear abuse,” the automatic stay of 11 U.S.C. §  362 is inapplicable.`

Continue reading Corporate Governance In Chapter 11 – Business As Usual, With Possible Exceptions

Fee-Shifting Bylaws–Remain In A State of Flux

As we previously reported on this page, the topic of fee-shifting bylaws being adopted to shift the costs of shareholder litigation to shareholder plaintiffs and those who assist them has been the subject of activity in both Delaware’s courts and its General Assembly.  While the General Assembly is poised to take up the issue of fee-shifting bylaws in the new legislative session (the subject of an upcoming blog post), we wanted to report on the issuance of the first written decision from the Court of Chancery addressing a challenge to a fee-shifting bylaw that had been adopted by a stock corporation.

On March 16, 2015, Chancellor Bouchard issued his decision in Strougo v. Hollander, et al., C.A. No. 9770-CB (Del. Ch. March 16, 2015), in which he granted plaintiff’s motion for judgment on the pleadings, and which challenged the efficacy of a fee-shifting bylaw adopted by the board of directors of First Aviation Services, Inc.  It is important to note that the facial validity of fee-shifting bylaws was not before the court on this motion.  Rather, the plaintiff moved on a much narrower issue, that is, whether a fee-shifting bylaw adopted after he was no longer a stockholder–but before he filed litigation challenging conduct that occurred while a stockholder–was valid for that litigation.

The board of directors of First Aviation, at the behest of its controlling stockholder, adopted a reverse stock split that had the purpose and effect of freezing out the minority shareholders and taking the company private.  Plaintiff Strougo’s interest in First Aviation was eliminated via the transaction.  Shortly after the reverse stock split, First Aviation adopted the following bylaw:

Section VII.8.  Expenses for Certain Actions.  In the event that (i) any current or prior stockholder or anyone on their behalf (collectively a “Claiming Party”) initiates or asserts [any] claim or counterclaim (collectively a “Claim”), or joins, offers substantial assistance to or has a direct financial interest in any Claim against the Corporation or any director, officer, assistant officer or other employee of the Corporation, and (ii) the Claiming Party (or the third party that received substantial assistance from the Claiming Party or in whose Claim the Claiming Party has a direct financial interest) does not obtain a judgment on the merits that substantially achieves, in substance or amount, the full remedy sought, then each Claiming Party shall be obligated jointly and severally to reimburse the Corporation and any such director, officer, assistant officer or employee for all fees, costs and expenses of every kind and description (including, but not limited to, all reasonable attorneys’ fees and other litigation expenses) that the parties may incur in connection with such Claim.

First Aviation did not disclose to its former stockholders that it had adopted this new bylaw provision.  After the adoption of the bylaw, and unaware of its existence, former-stockholder Strougo filed suit in the Court of Chancery alleging that the reverse stock spit was unfair to the minority stockholders.  When the company informed Mr. Strougo and his counsel of the bylaw, plaintiff amended his pleading to also challenge the fee-shifting bylaw.

Chancellor Bouchard rejected the application of the fee-shifting bylaw to Mr. Strougo and this litigation.  Because the courts of Delaware have consistently construed bylaws as a contract between the company and its stockholders, he held the new bylaw could not apply to Mr. Strougo and his suit because it was adopted after he was no longer a stockholder, and thus, not a party to that “contract.”  Moreover, the litigation challenged conduct that occurred prior to the adoption of the fee-shifting bylaw.

While acknowledging the “serious policy questions implicated by fee-shifting bylaws in general” and the fact that the total value of the reverse stock split was less than $100,000, the Chancellor noted the reality that “applying the bylaw in this case would have the effect of immunizing the Reverse Stock Split from judicial review because, in [his] view, no rational stockholder–and no rational plaintiff’s lawyer–would risk having to pay the Defendants’ uncapped attorneys’ fees to vindicate the rights of the Company’s minority stockholders, even though the Reverse Stock Split appears to be precisely the type of transaction that should be subject to Delaware’s most exacting standard of review to protect against fiduciary misconduct.”

With this decision–and pending legislation on this front–the topic of how Delaware corporate entities might use bylaw provisions to control shareholder litigation continues to be a hot topic in Delaware corporate law.