Simon Says, “Freeze!”: Court of Chancery Confirms that Company Counsel Must Play Neutral When Equal Ownership Board Is Deadlocked
Recently, in Kundrun v. AMCI Group, LLC, the Delaware Court of Chancery resolved a dispute at the intersection of corporate governance and litigation control by closely examining the intended allocations of authority within a company’s LLC agreement. The Court focused on the agreement’s division of authority among the company’s (i) two equal-equity owners, who comprised the company’s two-member board vested with management authority, and (ii) an executive chairman—one of the two board members—with authority to manage the day-to-day operations of the business. Reading the agreement as a whole, the Court concluded that it did not authorize one member of a deadlocked, evenly split board to direct the actions of company counsel when the matter at issue falls outside the business’s day-to-day operations. In resolving the issue, the Court reaffirmed the long-standing principle that, when a company board is evenly deadlocked in a dispute that effectively is bilateral, company counsel must stay neutral and may not side with one board member or faction over another.
Potential Control Won’t Do: Court of Chancery Confirms Common Law Standards for Actual Control Regarding Challenged Transactions
Recently, in Witmer v. Armistice Capital, LLC, Delaware’s Court of Chancery dismissed a stockholder plaintiff’s derivative suit against Armistice Capital, LLC, a large investor in Aytu Biopharma, Inc., for, among other things, purported breaches of fiduciary duty and aiding and abetting fiduciary breaches, in connection with two transactions for which the plaintiff alleged Aytu overpaid, the investor improperly benefited, and the investor exercised control.
The Final Chapter: Delaware Supreme Court Affirms Ruling in Favor of Larry Ellison and Safra Catz for NetSuite Deal Litigation
On January 21, 2025, the Delaware Supreme Court affirmed the Court of Chancery’s post-trial opinion in favor of the Defendants in In re Oracle Corp. Derivative Litigation.
It Took Seven Years But PE Firm Proves No Conflict In Sale Transaction
In 2022, the Defendants in Manti Holdings, LLC v. The Carlyle Group Inc. lost a battle—the Delaware Court of Chancery denied their motion to dismiss claims of breaches of fiduciary duties in connection with the 2017 sale of Authentix Acquisition Company, which had been majority-owned by affiliates of a private equity firm. Earlier this month, following a week-long trial, they won the war when the court ruled for them on the remaining claims in the case.
Five Delaware Cases All Venture Capital Players Should Know
Now and then this blog publishes compendiums of bedrock decisions and key principles of which M&A and Corporate Governance practitioners, and their clients, should be aware. This post takes the opportunity to highlight five relatively recent and important decisions that have shaped Delaware legal practice and discourse involving venture capital investment. Counsel representing investors and other players in emerging growth companies should familiarize themselves with this digest.
A Reminder of Board Primacy: Delaware Court of Chancery Invalidates Stockholder Agreement Provisions Encroaching on Board-Level Decisions
On February 23, 2024, the Delaware Court of Chancery issued an opinion in West Palm Beach Firefighters’ Pension Fund v. Moelis & Co. invalidating certain stockholder agreement provisions that gave a significant stockholder broad pre-approval rights over corporate actions. The opinion serves as a reminder of the contours of board authority under DGCL Section 141(a) and how contractual agreements may “improperly constrain a board’s authority.” It remains to be seen if the decision will be appealed, but at present, it should be evaluated by parties considering contractual provisions that may directly or indirectly limit director decision-making.
“A Bad Bull”: Chancery Court Rejects Plaintiffs’ Fee Application in Oracle Derivative Litigation
Plaintiffs’ bid for a US$5 million mootness fee in In re Oracle Corp. Derivative Litigation, C.A. No. 2017-0337-SG was denied by Vice Chancellor Glasscock, who noted that “not even great counsel can wring significant stockholder value from litigation over an essentially loyal and careful sales process.”
The First Test Passed: Corporations Are Free To Use Identity-Based Voting, For Now…
In a recent ruling on summary judgment, the court found that Bumble, Inc.’s “identity-based voting” does not violate Sections 212(a) or 151(a) of the Delaware General Corporation Law (the “DGCL”). Colon v. Bumble, Inc., et al., C.A. No. 2022-0824-JTL. However, the court left open for another day the question of whether such a governance structure is equitable.
Entire Fairness Does Not Require Perfection
The Delaware Supreme Court recently held in In re Tesla Motors Stockholders’ Litigation, ___ A.3d ___, 2023 WL 3854008 (Del. Jun. 6, 2023) (“Tesla”), that an entire fairness analysis does not require perfection, so long as the acquisition itself was the result of fair dealing and fair price. Practitioners and boards engaging with a potentially conflicted transaction would be well served to study this opinion with care, particularly where the potential acquiror cannot (or chooses not to) employ a special committee of independent directors to handle negotiations.
Potential Control Does Not Equal Actual Control: Business Judgment Rule Protects Oracle-Netsuite Transaction
In a May 12, 2023 opinion following trial and post-trial argument, the Delaware Court of Chancery found for defendants Oracle founder Larry Ellison and CEO Safra Catz in In re Oracle Derivative Litigation, 2017-0337-SG, a shareholder derivative litigation case arising out of Oracle’s US$9.3 billion acquisition of NetSuite. The 10-day bench trial took place in July and August 2022 before Vice Chancellor Glasscock, and included two days of testimony by Catz and one day of testimony by Ellison, among other witnesses. The Court’s decision comes several months after plaintiffs’ voluntary dismissal, following the post-trial argument, of then-defendant Renée James, the Chair of a Special Committee of the Oracle Board overseeing the acquisition.
