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.
https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png00Robin E. Wechkinhttps://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.pngRobin E. Wechkin2024-10-01 09:03:562024-10-01 10:18:33Words Matter: Different Definitions of “Commercially Reasonable Efforts” Lead to Different Results in Drug-Development Earnout Disputes
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”).
https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png00James Heyworthhttps://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.pngJames Heyworth2024-09-24 09:03:142024-09-23 11:46:05Eye Doctor With Blind Spot Loses LLC Manager Position
https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2023/05/MN-18360_Updated-Enhanced-Scrutiny-Blog-imagery_833x606_11.jpg606833Elizabeth Y. Austinhttps://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.pngElizabeth Y. Austin2024-09-12 10:01:362024-09-12 10:07:49The Dog That Didn’t Bark: Court of Chancery Decision Reaffirms the Strength of the Demand Futility Standard
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.”
https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png00Robert S. Velevishttps://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.pngRobert S. Velevis2024-09-05 09:07:002024-08-26 12:20:16(Fear) the Reaper, LLC: Court of Chancery Clarifies LLC Governance Rights Upon Member Death
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.
https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png00Yolanda C. Garciahttps://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.pngYolanda C. Garcia2024-08-22 09:04:282024-08-22 09:38:50In Case of First Impression, Court of Chancery Awards Expenditures Incurred in Third-Party Litigation as Breach of Contract Damages
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.
https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/12/MN-18360_Updated-Enhanced-Scrutiny-Blog-imagery_833x606_13.jpg606833Jodi E. Lopezhttps://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.pngJodi E. Lopez2024-08-19 09:02:462024-08-16 11:56:09Chancery, Affirmed: Delaware is ‘Contractarian,’ So Please Read The Fine Print
Last month, in Bricklayers Pension Fund of Western Pennsylvania v. Brinkley, Delaware’s Court of Chancery dismissed a stockholder plaintiff’s derivative suit against the directors and officers of Centene Corporation for purported breaches of fiduciary duty in connection with their oversight of company compliance with Medicaid laws and regulations. The Court concluded that the plaintiff failed to establish demand futility pursuant to Court of Chancery Rule 23.1. Put another way, the plaintiff failed to demonstrate that it had standing to pursue claims on behalf of Centene.
https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png00Vincent J. Margiottahttps://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.pngVincent J. Margiotta2024-08-15 09:02:382024-08-14 10:32:52Chancery Court Reminds Bricklayers of Sturdy Foundation Required to Plead Demand Futility for Caremark Claims
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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.
(more…)
Robin E. Wechkin
Seattle
rwechkin@sidley.com
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”).
(more…)
James Heyworth
New York
jheyworth@sidley.com
Alexandra Bieler
New York
abieler@sidley.com
The Dog That Didn’t Bark: Court of Chancery Decision Reaffirms the Strength of the Demand Futility Standard
In July, in Vladimir Gusinsky Revocable Tr. v. Hayes, No. CV 2022‑1124‑MTZ (July 23, 2024), Vice Chancellor Zurn issued an opinion reiterating the high bar a plaintiff must overcome to excuse demand.
(more…)
Elizabeth Y. Austin
Chicago
laustin@sidley.com
William J. Lawrence
Chicago
bill.lawrence@sidley.com
(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.”
(more…)
Robert S. Velevis
Dallas
rvelevis@sidley.com
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.
(more…)
Yolanda C. Garcia
Dallas
ygarcia@sidley.com
Robin E. Wechkin
Seattle
rwechkin@sidley.com
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.
(more…)
Jodi E. Lopez
Los Angeles
jlopez@sidley.com
Maseeh Moradi
Chicago
mmoradi@sidley.com
Chancery Court Reminds Bricklayers of Sturdy Foundation Required to Plead Demand Futility for Caremark Claims
Last month, in Bricklayers Pension Fund of Western Pennsylvania v. Brinkley, Delaware’s Court of Chancery dismissed a stockholder plaintiff’s derivative suit against the directors and officers of Centene Corporation for purported breaches of fiduciary duty in connection with their oversight of company compliance with Medicaid laws and regulations. The Court concluded that the plaintiff failed to establish demand futility pursuant to Court of Chancery Rule 23.1. Put another way, the plaintiff failed to demonstrate that it had standing to pursue claims on behalf of Centene.
(more…)
Vincent J. Margiotta
New York
vmargiotta@sidley.com
Andrew W. Stern
New York
astern@sidley.com
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