Recent Chancery Court Opinions on Ripeness
December 10, 2014
The Delaware Court of Chancery’s ruling in Pontiac General Employees Retirement System v. Ballantine, C.A. No.9789-VCL (Del. Ch. Oct. 14, 2014) (Transcript), is the most recent statement on so-called “dead hand” proxy puts—the provisions in credit agreements that trigger an acceleration of the borrower’s indebtedness upon a change in amajority of its board within a specified timeframe. (An ordinary “proxy put” provides that the incumbent board mayapprove any non-incumbent nominee as a “continuing director” to ensure that the nominee will not be countedtoward whether a change of control has occurred, while a “dead hand” proxy put provides that any person who hasbeen nominated or elected as a result of an actual or threatened proxy contest will count toward a change of control,whether or not approved by the board.) Although the ruling is perhaps most notable as it relates to aiding andabetting claims against banks that negotiate for these provisions, it also raises interesting issues on the question ofripeness. The Delaware Supreme Court recently explained in XL Specialty Insurance v. WMI Liquidating Trust, 93A.3d 1208, 1217-18 (Del. 2014) (footnotes omitted), that “generally, a dispute will be deemed ripe if ‘litigationsooner or later appears to be unavoidable and where the material facts are static.’ Conversely, a dispute will bedeemed not ripe where the claim is based on ‘uncertain and contingent events’ that may not occur, or where ‘futureevents may obviate the need’ for judicial intervention.” .