Watch What You Say: Disparaging Comments May Trigger Contractual Repurchase Rights Even If Shielded From A Defamation Claim

A recent Delaware decision has demonstrated the limits of the absolute litigation privilege, holding that it did not protect an LLC member from claims that his defamatory statements triggered contractual repurchase rights of his membership interests. Absolute litigation privilege, in Delaware and many other jurisdictions, protects parties from actions for allegedly defamatory statements made during a judicial proceeding that are relevant to the case. While Judge Paul R. Wallace found absolute litigation privilege served an important interest in allowing parties to speak freely once in litigation, those public policy concerns do not always apply when a party is seeking to enforce private contractual rights resulting from the alleged breach of a non-disparagement claim. In so holding, the court demonstrated that Delaware courts will continue to show caution before allowing public policy interests to obviate the obligations in sophisticated parties’ private contracts.

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Words Matter: Different Definitions of “Commercially Reasonable Efforts” Lead to Different Results in Drug-Development Earnout Disputes

Acquisitions of biotech companies with development-stage drug candidates often include earnout agreements.  The buyer pays the seller’s stockholders with cash or stock upfront, and the seller’s stockholders are entitled to additional payments if the drug or drugs in development reach certain milestones, often culminating in FDA approval or commercialization.  Achieving those milestones can take many years and requires the buyer to make substantial investments in clinical trials and regulatory approval.  Because the right to earnout payments depends to a significant degree on a buyer’s actions in developing the asset, a seller will seek a provision in the acquisition agreement requiring the buyer to use commercially reasonable efforts in drug development.

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Eye Doctor With Blind Spot Loses LLC Manager Position

Last month, the Delaware Court of Chancery upheld an amendment of a Limited Liability Company agreement through a merger even when it had recently struck down a similar amendment in the same LLC agreement. In Campus Eye Management Holdings, LLC v. E. Bruce DiDonato, OD, Vice Chancellor Will concluded that because the LLC agreement contained no provision explicitly forbidding amendment through merger, the amendment was valid and enforceable. The ruling might not be eye-catching, but it is an important reminder that parties to an LLC agreement, and particularly those with minority power, must have a clear vision into not only the express provisions of the contract but also the implications of any gaps that will be filled by the Delaware Limited Liability Company Act, 6 Del.C. § 18-101, et seq. (the “LLC Act”).

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(Fear) the Reaper, LLC: Court of Chancery Clarifies LLC Governance Rights Upon Member Death

A recent decision from the Delaware Court of Chancery, Gurney-Goldman v. Goldman, C. A. 2023-1124-JTL (July 12, 2024), addressed a matter of first impression: What is the power of an estate’s executor to exercise an LLC member’s corporate governance rights after that member dies or becomes disabled? The case reveals a tension between the “pick your partner” principle behind much of Delaware LLC law (members choose to enter into an agreement with the other members, and not their executors) and a policy of fairness to that member who has died or suffered a disability. After evaluating the relevant statutes, Vice Chancellor Laster reasoned that, under the default rule, the executor has seemingly broad power characterized as “a proper purpose, defined as the settlement of the estate or the administration of property.” But the decision also makes clear that parties to an LLC agreement are free to contractually define “the member rights that the executor can potentially exercise.” As the decision succinctly put it: “Let a thousand contractarian flowers bloom.”

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In Case of First Impression, Court of Chancery Awards Expenditures Incurred in Third-Party Litigation as Breach of Contract Damages

On remand from the Delaware Supreme Court, the Court of Chancery has awarded XRI more than $6 million in litigation expenses and recoupment of fees advanced to a former LLC member who breached the governing LLC Agreement.  XRI Inv. Holdings LLC v. Holifield, C.A. No. 2021-0619-JTL (July 24, 2024).  The former LLC member, Gregory Holifield, breached contractual transfer provisions in connection with loans he obtained from a third-party mezzanine lender, Assurance.  After Holifield defaulted on the Assurance loans, Assurance sued XRI in Texas, claiming that XRI had violated rights to Holifield’s XRI equity that Assurance had obtained as part of the loan transaction.  XRI spent $4.1 million defending against and ultimately settling Assurance’s claims.  The Court of Chancery awarded XRI damages reflecting those expenditures in full.  The decision marks the first time a Delaware court has awarded expenses incurred in third-party litigation as breach of contract damages.  The Court of Chancery also held that XRI is entitled to recoup all attorneys’ fees previously advanced to Holifield—approximately $2 million and counting—under the indemnification provisions of the LLC Agreement.  The latter holding marks the rare occasion on which a Delaware court has allowed a company to claw back previously advanced fees.

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Chancery, Affirmed: Delaware is ‘Contractarian,’ So Please Read The Fine Print

On July 5, 2024, the Delaware Supreme Court affirmed a Court of Chancery decision in REM OA Holdings, LLC v. N. Gold Holdings, LLC that serves as a warning for parties entering a contract or other binding document to diligently review each term of the agreement, including by proactively seeking out, reviewing, and analyzing any documents incorporated by reference.

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<a target=‘_blank’ href="https://www.sidley.com/en/people/s/stern-andrew-w">Andrew W. Stern</a>

Andrew W. Stern

New York
<a target=‘_blank’ href="https://www.sidley.com/en/people/n/newell-charlotte-k">Charlotte K. Newell</a>

Charlotte K. Newell

New York
<a target=‘_blank’ href="https://www.sidley.com/en/people/a/austin-elizabeth-y">Elizabeth Y. Austin</a>

Elizabeth Y. Austin

Chicago
<a target=‘_blank’ href="https://www.sidley.com/en/people/b/bartlett-jaime-a">Jaime A. Bartlett</a>

Jaime A. Bartlett

San Francisco
<a target=‘_blank’ href="https://www.sidley.com/en/people/d/ducayet-james-w">Jim Ducayet</a>

Jim Ducayet

Chicago
<a target=‘_blank’ href="https://www.sidley.com/en/people/g/garcia-yolanda-c">Yolanda C. Garcia</a>

Yolanda C. Garcia

Dallas

<a target=‘_blank’ href="https://www.sidley.com/en/people/h/heyworth-james">James Heyworth</a>

James Heyworth

New York
<a target=‘_blank’ href="https://www.sidley.com/en/people/k/kaplan-alex-j">Alex J. Kaplan</a>

Alex J. Kaplan

New York
<a target=‘_blank’ href="https://www.sidley.com/en/people/l/lopez-jodi-e">Jodi E. Lopez</a>

Jodi E. Lopez

Los Angeles
<a target=‘_blank’ href="https://www.sidley.com/en/people/m/muenz-jon">Jon Muenz</a>

Jon Muenz

New York
<a target=‘_blank’ href="https://www.sidley.com/en/people/r/ross-ian-m">Ian M. Ross</a>

Ian M. Ross

Miami
<a target=‘_blank’ href="https://www.sidley.com/en/people/s/sheppard-hille-r">Hille R. Sheppard</a>

Hille R. Sheppard

Chicago
<a target=‘_blank’ href="https://www.sidley.com/en/people/s/sultanian-heather">Heather Benzmiller Sultanian</a>

Heather Benzmiller Sultanian

Chicago
<a target=‘_blank’ href="https://www.sidley.com/en/people/v/velevis-robert-s">Robert S. Velevis</a>

Robert S. Velevis

Dallas
<a target=‘_blank’ href="https://www.sidley.com/en/people/w/wechkin-robin-e">Robin E. Wechkin</a>

Robin E. Wechkin

Seattle

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