In a recent decision, Bay Capital Finance v. Barnes and Noble Education, C.A. No. 2019-0539-KSJM (Del. Ch. Aug. 14, 2019) (transcript), the Delaware Court of Chancery interpreted and analyzed the effect of stockholder noncompliance with the express requirements of an advance notice bylaw. In its decision, the Court of Chancery closely scrutinized the particular facts and…

In the English language, the phrase “death by a thousand cuts” is an idiom that refers to a series of bad events, none of which is devastating on its own but, when added together, result in disaster. In many large trials, this idiom is an appropriate metaphor for the use of pretrial motions. This is particularly…

Most contracts for the purchase and sale of commercial real property include among the remedies for breach a provision for the seller to receive or retain the contract deposit as liquidated damages for the purchaser’s breach. At times, the contract will also provide for other remedies, whether damages or equitable relief (e.g., specific performance), in addition…

In Saba Capital Master Fund, Ltd. v. BlackrockCredit Allocation Income Trust, the Delaware Courtof Chancery held that the failure by a shareholderseeking to nominate a competing slate of directors ina proxy contest to timely complete and return directorquestionnaires pursuant to the board’s requestfor additional information regarding the nomineesunder the company’s advance notice bylaw couldnot serve as…

In West v. Access Control Related Enterprises, LLC, et al, C.A. No. N17C-11-137 MMJ [CCLD], Judge Johnston granted in part and denied in part a motion to dismiss. The case arose from the termination of William West, CFO and COO of Access Control Related Enterprises, LLC (“ACRE”). Prior to West’s termination, LLR Equity Partners (“LLR”) purchased…

In the second quarter of 2019, the CCLD judges handled numerous contract cases and, in a series of opinions, reinforced that the implied covenant of good faith and fair dealing should be applied “sparingly.” There was also a multi-week jury trial in a case involving a dispute over a business acquisition.

In WSFS Financial Corporation and Wilmington Savings Fund Society, FSB v. Great American Insurance Company, C.A. No. N18C-09-088 EMD [CCLD], Judge Davis granted in part and denied in part the defendant’s partial motion to dismiss the plaintiffs’ breach of contract and implied covenant of good faith and fair dealing claims. The action arose from an insurance…

In a lengthy bench ruling, Judge Wallace partially granted and partially denied a plaintiff’s motion to dismiss a first-amended counterclaim, and denied a motion to strike an affirmative defense. Smart Sand, Inc. v. US Well Services LLC, C.A. No. N19C-01-144 PRW [CCLD] involved a dispute over a contract for frac sand. The counter-claimant alleged that the…

In P&TI Acquisition Company, Inc., v. Morgenthaler Partners VII, LP, et al., C.A. No. N18C-08-059 AML [CCLD], Judge LeGrow dismissed breach of contract and breach of the implied covenant of good faith and fair dealing claims against all defendants. This case stemmed from the plaintiff’s purchase of PhilTem Holdings, Inc. from the defendants in 2012 under…

On June 24, 2019, Judge Carpenter (formerly one of the four CCLD panel members) concluded a jury trial in Bracket Holding Corp. v. Express Scripts, Inc., C.A. No. N15C-02-233 WCC CCLD. The genesis of the instant dispute began in 2012 when Express Scripts, Inc. expressed interest in acquiring United BioSource LLC. In 2013, Parthenon Capital Partners,…