Chancery Finds Stockholders’ Covenant Not to Sue for Breach of Fiduciary Duty of Loyalty Partially Enforceable

The Court of Chancery on Tuesday held that stockholders’ covenants not to sue for breach of fiduciary duty are enforceable subject to public policy limitations in New Enterprise Associates 14, L.P. v. Rich, C.A. 2022-0406-JTL.  Conducting a deep-dive into the history and philosophical underpinnings of fiduciary law, the Court reasoned that specific, limited, and reasonable covenants not to sue are valid, but that Delaware abhors pre-dispute waivers of suit for intentional harms.  The Court laid out a two-part test, sure to join the corporate practitioner’s lexicon of eponymous capital-t Tests swiftly:

First, the provision must be narrowly tailored to address a specific transaction that otherwise would constitute a breach of fiduciary duty.  The level of specificity must compare favorably with what would pass muster for advance authorization in a trust or agency agreement, advance renunciation of a corporate opportunity under Section 122(17), or advance ratification of an interested transaction like self-interested director compensation.  If the provision is not sufficiently specific, then it is facially invalid.

. . .

Next, the provision must survive close scrutiny for reasonableness. In this case, many of the non-exclusive factors suggested in Manti point to the provision being reasonable. Those factors include (i) a written contract formed through actual consent, (ii) a clear provision, (iii) knowledgeable stockholders who understood the provision’s implications, (iv) the Funds’ ability to reject the provision, and (v) the presence of bargained-for consideration.

Finding the covenant at issue passed the test, the Court held the covenant enforceable subject to Delaware’s policy against exculpating intentional harms.  To invoke that policy, and thereby avoid the covenant and obtain damages, a plaintiff must plead and prove that the fiduciaries acted in a manner contrary to the company’s best interest in “bad faith,” a more stringent standard than even recklessness.

Critical to the Court’s analysis was the anti-suit covenant’s placement in a stockholder-level agreement.  As the Court explained in an over-1200-word footnote discussing different conceptions of the fundamental nature of the corporate form, the covenant’s contractual placement means it merely “addresses a stockholder right appurtenant to the shares that the Funds owned as their private property” without raising the logical, practical, and normative difficulties arising from placement in the corporation’s constitutive documents, i.e. the bylaws or charter.   

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