Laches – Delaware Docket

Don’t Sit on Your Legal Rights, Even with Your Family – Master in Chancery Recommends Dismissal of Former Member’s Claims Against His Family LLC, Based on Laches

Oct 22 2021

In Robert Boyd Fitzgerald v. Fitzgerald Home Farm, LLC, Civil Action No. 2019-0410-PWG (Del. Ch. April 16, 2021), Master in Chancery Patricia W. Griffin (“Master Griffin”) recommended the Court of Chancery (the “Court”) dismiss a complaint seeking damages and reinstatement as a member of a family limited liability company, with prejudice. Master Griffin found that the action was barred by laches because the statute of limitations for the alleged breach had run and equitable tolling did not apply.

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 Late Breach of Fiduciary Duty Claim Is Barred By Laches

Aug 04 2020

By: Annette Becker; Pouya Ahmadi; Julia Knitter

In Gallagher Industries, LLC v. William M. Addy, et al., C.A. No. 2018-0106-SG (Del. Ch. May 29, 2020), the Delaware Court of Chancery (the “Court”) held that because Gallagher Industries, LLC (the “Plaintiff”) decided not to pursue an appraisal action following a problematic cash-out merger five years earlier, the Plaintiff’s tolling claim against William M. Addy and Joseph E. Eastin (the “Defendants”) for breach of fiduciary duty for disclosure weaknesses was barred by laches.

CHANCERY COURT FINDS THAT FAILURE TO EXERCISE THE APPROPRIATE DEGREE OF DILIGENCE IN BRINGING CLAIMS CAN RESULT IN THEM BEING TIME BARRED AT THE MOTION TO DISMISS STAGE

Jun 04 2019

By: David Lehman and Calvin Kennedy

In Richard Forman v. CentrifyHealth Inc. et al., C.A. No. 2018-0287-JRS (Del. Ch. April 25, 2019), the Court of Chancery found that a stockholder’s failure to exercise the “degree of diligence” which fairness requires and delay in prosecuting claims was sufficient grounds to bar by laches a variety of claims; the standard used by the Court to determine the unreasonableness of the plaintiff’s delay was the analogous statute of limitations period for the respective claim. The Court also found that the plaintiff’s claims of fraud and unjust enrichment that were not barred sufficiently alleged specific misrepresentations, justifiable reliance on those misrepresentations, and the defendants’ gains resulting from the misrepresentations.

WHEN SOMEONE SHOWS YOU WHO THEY ARE, BELIEVE THEM THE FIRST TIME, OR RISK YOUR CLAIMS BEING TIME BARRED

Mar 27 2019

By Scott Waxman and Adrienne Wimberly

In Winklevoss Capital Fund, LLC et al. v. Stephen Shaw, et al., C.A. No. 2018-0398-JRS, the Delaware Court of Chancery, in a Memorandum Opinion, granted a Motion to Dismiss counterclaims against individual Plaintiffs Tyler and Cameron Winklevoss and their investment firm (altogether “Plaintiffs”) because the claims were barred by laches. In an attempt to capitalize on the publicity from their depiction in the movie The Social Network, the Winklevoss twins, Tyler and Cameron, launched an investment firm, Winklevoss Capital Fund, LLC (WCF). The twins selected Treats! LLC, founded by Stephen Shaw, to be one of their first investments. Treats! LLC owns and operates Treats! magazine, a print and digital magazine depicting nude and semi-nude photographs of models and celebrities. In August 2012, WCF invested $1,310,000 in Treats! in exchange for 1,310,000 series A preferred units under a written Purchase Agreement and Amended LLC Agreement. WCF also loaned Treats! $20,000 as evidenced by a promissory note delivered in October 2012. However, the business relationship between the parties quickly soured as the twins refused to allow Shaw to publicly announce their investment in Treats! and the twins believed Shaw was mismanaging the company.

Stockholder’s Suit for Directors’ Fiduciary Breach Related to Acquisitions and Stock Repurchases Dismissed With Prejudice for Failure to Plead Demand Futility and to State Viable Claims, Directors Found to be Disinterested Regardless of 10-Q Filing Stating Action Without Merit

Nov 30 2018

By: Remsen Kinne and Adrienne Wimberly

In Tilden v. Cunningham et. al., C.A. No. 2017-0837-JRS (Del. Ch. Oct. 26, 2018), the Delaware Court of Chancery granted the motion of directors of Delaware corporation Blucora, Inc. (“Blucora”) named as Defendants to dismiss a derivative action and dismissed Plaintiff’s complaint with prejudice, holding that the Plaintiff, a Blucora stockholder, failed to plead demand futility and failed to state viable claims under Rule 12(b)(6). This derivative action stems from three transactions Blucora entered into between 2013 and 2015: 1) an acquisition of Monoprice, Inc. (“Monoprice”), 2) the acquisition of HD Vest (“HD Vest”), and 3) several stock repurchases.

CHANCERY COURT GRANTS MOTION TO DISMISS RELATING TO ALLEGED BREACH OF FIDUCIARY DUTIES BY DIRECTORS OF A DISSOLVED CORPORATION

Aug 27 2018

By: Scott E. Waxman and Joseph Phelps

In Akrout v. Jarkoy, No. 2017-0473-JRS (Del. Ch. July 10, 2018), the plaintiff Nabil Akrout sought a declaration that the dissolution of Intelligent Security Systems International, Inc., Delaware corporation (“ISSI”), was void, and alleged that three individual director-defendants had breached their fiduciary duties to him by failing to apprise him of ISSI’s dissolution and financial condition. Akrout also alleged that the dissolution deprived him of accrued salary and dividends.

Chancery Court Denies Motions for Summary Judgment in Case Brought by Minority Stockholders against Controlling Stockholders for Diversion of Equity as a Result of Breach of Duties

Mar 11 2016

By Whitney Smith and Kevin Szu-Tu

In Fotta v. Morgan, C.A. No. 8230-VCG (Feb. 29, 2016), Vice Chancellor Glasscock denied cross motions for summary judgment and granted a motion to dismiss for failure to comply with Rule 23.1. After determining that factual issues remained as to causes of action brought by certain stockholders of First Orion Corp. for waste, breach of fiduciary duty, and statutory claims, the Court of Chancery was unable to determine whether a significant creditor to nominal defendant First Orion Corp. used its control over the board of directors to divert equity to itself in breach of duties owed to the common stockholders.

Court of Chancery Discusses Statute of Limitations in Claim for Indemnification

Aug 14 2015

By Scott Waxman and Stephanie S. Liu

In Francis S. Branin, Jr. v. Stein Roe Investment Counsel, LLC, et al, the Court of Chancery considered whether Plaintiff’s claim for indemnification for expenditures related to litigation that had begun in 2002, but not was resolved with finality until 2012, was time-barred. The Court concluded that the statute of limitations on Branin’s indemnification claim did not begin to run until the underlying litigation was resolved, and thus his claim was timely. The Court granted Branin’s motion to strike Defendants’ affirmative defenses and granted his motion for summary judgment on Defendants’ obligation to indemnify him. The Court also found that Branin was entitled to prejudgment simple interest at the statutory legal rate, as well as fees incurred in successfully prosecuting his indemnification claim.

After Plaintiff Francis S. Branin, Jr. (“Branin” or the “Plaintiff”) resigned from Bessemer Trust, N.A. (“Bessemer”) on July 12, 2002, he began working for Defendant Stein Roe Investment Counsel LLC (“SRIC LLC”). On November 22, 2002, Bessemer sued Branin for improperly soliciting its clients and impairing its goodwill in violation of a New York implied covenant (“New York Action”). In 2012, after a decade of litigation, Branin successfully defended against all claims. On April 17, 2013, Branin turned to the Court to enforce a purported indemnification right against SRIC LLC, Stein Roe Investment Counsel, Inc., and Atlantic Trust Group, Inc. (collectively, the “Defendants”).

A Corporation’s Advancement of Legal Fees and Expenses to Its Officers and Directors

Dec 31 2014

By Holly Vance and Sophia Lee Shin

This case involves a plaintiff who sought advancement for his legal fees and expenses in connection with insider trading charges. In opining on the defendant’s motion to dismiss or stay the action and the plaintiff’s motion for summary judgment, the Court considered various issues, including the four-factor analysis of McWane and the difference between advancement and indemnification.

Nipro Diagnostics, Inc. (“Nipro”), the defendant, acquired Home Diagnostics, Inc. (“HDI”) on March 15, 2010. Soon after the merger, the SEC began an investigation of George H. Holley (“Holley”), the founder and chairman of HDI and the plaintiff in this case, for suspicious trading in HDI stock around the time of the merger announcement (the “SEC Investigation”). On May 20, 2010, Holley requested that HDI advance his expenses in the SEC Investigation, and executed an undertaking (required with any advancement) promising to repay HDI for any advanced expenses if it were ultimately determined that Holley was not entitled to indemnification. From June 2010 to November 2010, Nipro advanced Holley’s expenses relating to the SEC Investigation. On January 13, 2011, the SEC commenced an action against Holley for violating federal securities laws by disclosing information about the merger (the “SEC Action”). On February 4, 2011, Holley was indicted in the U.S. District Court for the State of New Jersey for insider trading (the “Criminal Action”). On August 19, 2011, the New Jersey U.S. Attorney’s Office obtained a stay of the SEC Action. Holley eventually pled guilty to two counts of insider trading in the Criminal Action.

Catagory:Laches