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Showing 5 posts in Delaware General Corporation Law.

Trustee’s Claims Against Insiders For Their Action (or Inaction) in the Face of Insolvency Survives Motion to Dismiss Despite Exculpation, Business Judgement, and Deeping Insolvency Defenses

Stanziale v. Versa Capital Mgmt., LLC (In re Simplexity, LLC), Case No. 14-10569 (KG), 2017 WL 65069 (Bankr. D. Del. Jan. 5, 2017)

According to the Chapter 7 Trustee of Simplexity, LLC (“Simplexity” and together with its affiliated debtors, the “Debtors”), numerous insiders of Simplexity (the “Defendants”) breached their fiduciary duties by refusing to seek bankruptcy protection for Simplexity when faced with actions by Simplexity’s lender, including the threat to sweep all available funds, thereby failing to preserve the value of the Debtors and exposing Simplexity to employment related claims.  In this Memorandum Opinion, the Delaware Bankruptcy Court resisted the Defendants’ arguments to dismiss the Trustee’s claims. Read More ›

UPDATE – Significant Changes to DGCL Enacted

After much debate and criticism, proposed legislation making significant changes to the Delaware General Corporation Law (the “DGCL”) – previously discussed here – has been signed by Governor Markell after being passed by the General Assembly, and is set to take effect on August 1, 2015. Read More ›

Automatic Stay Held Not Applicable to Shareholder’s Right to Compel Shareholder Meeting

In re SS Body Armor I, Inc., No. 10-11255 (CSS), 2015 WL 1523775 (Bankr. D. Del. Apr. 1, 2015)

In this Opinion, Delaware Bankruptcy Court Judge Christopher S. Sontchi adopted previous holdings of the Court of Appeals for the Second Circuit and the Delaware District Court to rule that the right of a shareholder to compel a shareholder meeting for the purpose of electing a new board of directors continues during a bankruptcy proceeding unimpaired by the automatic stay.  See Manville Corp. v. Equity Sec. Holders Comm. (In re Johns-Manville Corp.), 801 F.2d 60 (2d Cir. 1986); Official Bondholder Comm. v. Chase Manhatten [sic] Bank (In re Marvel Entm’t Grp., Inc.), 209 B.R. 832 (D. Del. 1997); see also NKFW Partners v. Saxon Indus., Inc., No. 7468, 1984 WL 8234 (Del. Ch. Aug. 8, 1984).  The right extends to commencing state court proceedings to compel a shareholder meeting, but is not unfettered.  As noted by Judge Sontchi, the bankruptcy court is entitled to enjoin a meeting or the implementation of a meeting’s results if “clear abuse” is found (i.e. a showing that the shareholders’ action to elect a new board would delay and jeopardize a debtor’s reorganization).  Such injunction must be sought from either the bankruptcy court through an adversary proceeding as required by Bankruptcy Rule 7001(7) or the state court presiding over the motion to compel.  Read More ›

Significant Fee-Shifting and Forum Selection Amendments Proposed to the DGCL

The Corporation Law Council, a committee of the Delaware State Bar Association that drafts recommendations for amendments to the DGCL on an annual basis, has proposed text of a bill to amend the Delaware General Corporation Law (the “DGCL”) in considerable ways.  The proposal—which is, in large part, a reaction to recent decisions of the Delaware Supreme Court and Delaware Court of Chancery—seeks to limit the impact of fee-shifting provisions that arise in the event of unsuccessful stockholder derivative suits, as well as permit Delaware corporations to include forum selection provisions in their organizational documents with certain limitations. Read More ›

Fee-Shifting Provision in a Non-Stock Corporation’s Bylaws Can Be Valid and Enforceable Under Delaware Law

ATP Tour, Inc. v. Deutscher Tennis Bund (German Tennis Federation), No. 534, 2013 (Del. May 8, 2014)

On May 8, 2014, the Delaware Supreme Court addressed the validity of a fee-shifting provision in a Delaware non-stock corporation’s bylaws, holding that such a provision can be valid and enforceable under Delaware law if adopted by the appropriate corporate procedures and for a proper corporate purpose.   Read More ›