September 2020 – Delaware Docket

CHANCERY COURT CLARIFIES MFW PROTECTIONS MUST BE IMPLEMENTED PRIOR TO ANY SUBSTANTIVE ECONOMIC NEGOTIATIONS

Sep 30 2020

By: David Forney and Claire Suni

In In re HomeFed Corporation Stockholder Litigation, C.A. No. 2019-0592-AGB (Del. Ch. July 13, 2020), the Delaware Court of Chancery (the “Court”) found that the controlling stockholder of HomeFed Corporation undertook substantive economic negotiations with its minority stockholders in connection with a proposed squeeze-out merger transaction prior to implementing the procedural protections set forth in Kahn v. M&F Worldwide Corp. (“MFW”). As a result, the Court ruled that the appropriate standard of review for the plaintiff’s claims of breach of fiduciary duty against the controlling stockholder and the board of directors was entire fairness, and not business judgment. The Court further found that two of the company’s directors were not independent and therefore could not avail themselves of exculpatory language in the company’s certificate of incorporation. The Court denied in full the defendants’ motion to dismiss under Rule 12(b)(6) for failure to state a claim for relief.

FAILED BREACH OF CONTRACT CLAIMS UNDERSCORE CHANCERY COURT’S FOCUS ON CONTRACTUAL PLAIN LANGUAGE OVER OUTSIDE EVIDENCE

Sep 17 2020

By: Scott Waxman and Adam Heyd

In Braga Investment & Advisory, LLC v. Yenni Income Opportunities Fund I, L.P., C.A. No. 2017-0393-AGB (Del. Ch. June 8, 2020), Braga Investment & Advisory, LLC (“Braga”), a minority investor in Steven Feller, P.E., LLC (“Newco”) alleged that Yenni Income Opportunities Fund I, L.P. (the “Fund”), the majority investor in Newco, had breached a purchase agreement for interests in Newco when the Fund amended it without Braga’s consent. Braga also contended that the Fund breached its co-investment agreement with Braga when it revoked Braga’s right to receive board packages under that agreement. The Delaware Court of Chancery (the “Court”) concluded that the Fund’s amendment of the purchase agreement did not require Braga’s consent, and that the Fund did not breach Braga’s right to receive board packages based on the ordinary use of that term.

CHANCERY COURT RULES ON AGRIBUSINESS SALE FRAUD SUIT

Sep 16 2020

By: Scott E. Waxman and Marissa Leon

In Agspring Holdco, LLC, et al. v. NGP X US Holdings, L.P., et al. (C.A. No. 2019-0567-AGB), the Delaware Court of Chancery (the “Court”) tolled the statute of limitations on claims by the purchaser of an agricultural commodities company and refused to dismiss the majority of fraud and related claims against officers of the company.

Chancery Court Dismisses Former LLC Member’s Claims for Alleged Amounts Owed and Breach by Former Co-Members

Sep 16 2020

By: Scott E. Waxman and Michael C. Payant

In Terry L. Menacker v. Overture, L.L.C., et al., C.A. No. 2019-0762-JTL (Del. Ch. Aug. 4, 2020), the Delaware Court of Chancery (the “Court”) considered a motion to dismiss claims by a former member of Overture L.L.C. (the “Company”) concerning a dispute over a buyout payment allegedly due upon his withdrawal as a member, certain other alleged past-due amounts, and an alleged breach of fiduciary duty by former co-members of the Company. The Court dismissed all claims, holding that (i) the Court lacked subject matter jurisdiction over the buyout payment dispute because it was subject to arbitration; (ii) plaintiff’s allegations regarding other amounts owed failed to state claims upon which relief could be granted; and (iii) plaintiff’s claims for breach of duty were derivative claims for which plaintiff lacked standing.

Chancery Court Holds Under-Manned Board’s Acts Were Invalid but Potentially Susceptible to Validation under DGCL §205

Sep 16 2020

By: Scott E. Waxman and Michael C. Payant

In Applied Energetics, Inc. v. George Farley, et al., C.A. No. 2018-0489-JTL (Del. Ch., Aug. 3, 2020), the Delaware Court of Chancery (the “Court”) considered a motion for partial summary judgment by Applied Energetics, Inc. (the “Company”) relating to actions by George Farley (“Farley”) as sole member of the Company’s board of directors (the “Board”) and compensation committee (the “Committee”). The Court granted summary judgment for the Company that certain actions taken by Farley were invalid for failure of authorization but denied the Company’s motion for summary judgment on other claims, holding (a) that the actions could potentially be validated under §205 of the Delaware General Corporation Law (“DGCL”); and (b) Farley could potentially recover damages for an allegedly-agreed salary or under an unjust enrichment theory.

Archive:September 2020