Delaware Court of Chancery Spotlight
Disclaimer: The views and opinions expressed in this blog are those of the authors and do not necessarily reflect the official policy or position of the Court, its judges, or Wake Forest University School of Law.
Delaware Court of Chancery Update: October 17, 2017
Chester County v. New Residential
In the Chester County Employees’ Retirement Fund v. New Residential Investment Corp. opinion, published October 6, 2017, Vice Chancellor Montgomery-Reeves of the Delaware Court of Chancery granted the Defendants’ Motion to Dismiss under Court of Chancery Rules 23.1 and 12(b)(6). As noted by Vice Chancellor Montgomery-Reeves, this was Plaintiff’s third challenge of Defendants’ transaction underlying the original derivative claim, a sale of assets, the most recent of which had been decided on October 7, 2016. Chester County Employees’ Retirement Fund (“Chester County”), a New Residential Investment Corp. (“New Residential”) stockholder, brought derivative breach of duty claims against the members of New Residential’s board of directors and New Residential’s investment manager, Fortress Investment Group LLC (“FIG”).
Chester County alleged that New Residential overpaid in its purchase of Home Loan Servicing Solutions, Ltd.’s (HLSS’s) assets, and consequently, that FIG “received ‘large financial benefits,’… increased management fees, increased incentive fees, millions of options of New Residential stock, and advantages to the real estate assets of other Fortress-related entities.” Though Vice Chancellor Montgomery-Reeves held the facts alleged did give rise to a derivative claim, she also held that Chester County “did not plead particularized facts sufficient to raise a reasonable doubt that a majority of the directors on the New Residential board could have exercised their independent and disinterested business judgment in responding to a demand.” Consequently, Chester County’s demand was not excused as futile. Further, the Vice Chancellor held that Chester County’s claim for declaratory judgment was not ripe for judicial review.
Citing the seminal Aronson v. Lewis decision, Vice Chancellor Montgomery-Reeves held that “demand is futile if the plaintiff alleges particularized facts to raise a reasonable doubt that: ‘(1) the directors are disinterested and independent [or] (2) the challenged transaction was otherwise the product of a valid exercise of business judgment.’” This analysis is performed on a case-by-case basis, in which the Court of Chancery accepts a plaintiff’s particularized allegations of the facts as true; however, absent particularized facts in the eyes of the court, it cannot find demand to be excused as futile. Chester County failed to raise particularized facts that created a reasonable doubt regarding the independence of the New Residential board, and further to show that the board in purchasing HLSS paid well beyond what was reasonable. New Residential’s motion to dismiss was thus granted.
This decision illustrates a few important points under Delaware law worth considering. First, the business judgment rule is alive and well in Delaware and will be deferred to by the Court of Chancery as often as possible so long as some reasonable support for a business decision is apparent. New Residential and FIG took on significant liabilities in the HLSS purchase, and further, the directors were found to be appropriately independent and disinterested of the transaction; regardless of the alleged increase in fees FIG may have gained in the wake of this purchase, these facts lend themselves to deference by the court to the business judgment of the directors.
Second, this decision reaffirms and reinforces the requirements of the landmark Aronson test determining whether a derivative claimant’s demand may be excused as futile. Most especially, pleading particularized facts were highlighted as critical under this analysis, something Chester County failed to compel the Court of Chancery with in its complaint. The takeaway here is to be as particular as possible when bringing a derivative action and seeking demand futility, as failure to clear the Court’s bar will have an otherwise potentially-valid claim thrown out.
Delaware Court of Chancery Update: September 29, 2017
BTG International, Inc. v. Wellstat Therapeutics Corporation
On September 19, 2017, the Delaware Court of Chancery decided a breach of contract suit, BTG International, Inc. v. Wellstat Therapeutics Corporation. In its decision, the Court of Chancery found for Wellstat Therapeutics (“Wellstat”) on its counterclaim against its distributor, BTG International, Inc. (“BTG”), and awarded Wellstat $55.8 million plus interest. The dispute arose from BTG’s failure to satisfy its contractual obligations to help Wellstat with the distribution of Wellstat’s new drug, Vistogard, an antidote for chemotherapy drug overdose.
Vice Chancellor Laster’s opinion provides an in-depth look into the issues leading to BTG’s initial suit and Wellstat’s countersuit. Simply put, BTG and Wellstat’s relationship frayed as Wellstat’s Vistogard was undergoing the Food and Drug Administration’s (“FDA’s”) approval process. Wellstat believed BTG did not take adequate staffing steps to facilitate a successful Vistogard launch. Wellstat then demanded BTG return the distribution rights to Vistogard and compensate Wellstat for a product “relaunch;” instead of complying, BTG filed a suit against Wellstat seeking a declaratory judgment that it did not breach the distribution agreement and damages for Wellstat’s alleged breach of contract. Wellstat filed a countersuit against BTG for breach of contract, which led the parties to trial before the Court of Chancery.
The Court of Chancery held that BTG failed to use diligent efforts as the contracted distributor of Vistogard, citing a failure to anticipate a possible early FDA approval and being grossly understaffed to help bring Vistogard to the market. Further, BTG failed to develop and implement any commercial plan for distributing Vistogard, a direct violation of the distribution agreement between it and Wellstat. The Court was not convinced by BTG’s arguments that Wellstat had violated the agreement first and its breach was justified; ultimately, the Court relied upon calculations performed by BTG’s expert to determine the amount in damages to which Wellstat was entitled.
The Court’s decision involved significant reliance upon testimony provided at trial, as well as a fair amount of discernment by the Court in determining what the objective facts actually were, given the “stark differences” in the stories each side told. Vice Chancellor Laster mentions that in its analysis, the Court relied heavily upon contemporaneous documents to substantiate most of what was put forth at trial and create a usable set of objective facts.
This decision illustrates the Court of Chancery’s approach to contentious cases, where truth may be hard to come by. Additionally, it offers readers a roadmap to how a party to such a suit might benefit by recording or documenting as much as possible to help the Court construct an operable record. Vice Chancellor Laster also offers a thorough analysis of how appropriate damages can be calculated before ultimately relying upon BTG’s expert’s damages calculation, but the exercise still has value for those seeking to predict how damages in a breach of contract suit may be calculated if the suit is heard by the Court of Chancery. For those seeking an introduction to how the Court of Chancery analyzes a breach of contract case, a fairly popular action brought before the Court, before deciding it, BTG International v. Wellstat offers an excellent primer.
Introduction to the Delaware Court of Chancery
Starting this Fall 2017 semester, Wake Forest’s Journal of Business and Intellectual Law (“JBIPL”) is proud to bring you a bi-weekly report on the cutting-edge business-law related decisions of the Delaware Court of Chancery. This first post is aimed at offering readers a brief overview and introduction to Delaware’s Court of Chancery and will kick off an ongoing look at what the United States’ (and possibly the world’s) foremost business-focused judiciary is deciding upon, and what impacts those decisions may have on the business community. We hope to both serve as a resource for recent Delaware Court of Chancery decisions as well as offer our analytical insights on how these decisions might shift business law.
Most people familiar with corporate law, in the United States and elsewhere, have heard of and have relied heavily upon the guidance of Delaware’s Court of Chancery. The Court of Chancery is a non-jury trial court of equity made up of one chancellor and four vice chancellors, each of whom must be a Delaware citizen and who sits for a 12-year term following an appointment by the Delaware Governor. The Court of Chancery is oft-regarded as the authority on American corporate law, given its efficiency in deciding matters brought before it and the prolific body of work over its history on a wide variety of corporate law-related matters, dating back to its inception in 1792.
At the helm of the Court of Chancery is Chancellor Andre G. Bouchard, sworn into his position as Chancellor in 2014. Prior to his appointment, Chancellor Bouchard was a distinguished corporate and commercial litigator in Delaware. The vice chancellors are the Honorable J. Travis Laster, appointed in 2009, the Honorable Sam Glasscock III, appointed in 2011, the Honorable Tamika Montgomery-Reeves, appointed in 2015, and the Honorable Joseph R. Slights III, appointed in 2016. The Chancellor and Vice Chancellors are also joined by Masters of Chancery Morgan Zurn and Patricia Griffin, both of whom are assigned matters with which to assist by the Chancellor and Vice Chancellors as needed.
JBIPL is excited to begin this new segment of the JBIPL Blog this semester, and we hope you will enjoy the updates we plan to provide from Delaware. Stay tuned for the latest and greatest happenings from the preeminent authority on all things business law!
Zack Young is a fourth-year JD/MBA candidate at Wake Forest University. He has undergraduate degrees in Political Science and Philosophy from Marquette University. Zack plans to practice law as a corporate transactions and securities attorney upon graduation.