Blogs

Delaware Chancery Law Blog
The Delaware Court of Chancery is widely considered the preeminent forum for resolving disputes involving the internal affairs of the multitude of Delaware corporations and other business entities through which a vast amount of the world's commercial affairs is conducted. Join Carl as he helps guide you through the complex landscape of legal issues and analysis arising before this Court.
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Delaware Bankruptcy Litigation Blog
Carl shares his knowledge of Delaware bankruptcy proceedings in a blog entitled, "Delaware Bankruptcy Litigation." He offers his take on corporate bankruptcy proceedings not only in Delaware but throughout the United States, as well as industry insight on topics such as preference litigation, tenant bankruptcy and defending avoidance litigation.
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Recent Blog Posts

  • Sanctions Affirmed by Delaware Supreme Court Delaware follows the “American Rule”, which mandates that each party bear their own attorneys’ fees regardless of the outcome of the litigation.  However, as an exception to this rule, the court may order fee shifting if there is sufficient bad faith or litigation misconduct by a party.  The Delaware Supreme Court, in its recent decision of Shawe v. Elting, No. 487, 2016 (Del. Feb. 13, 2017), affirmed the Delaware Court of Chancery’s ruling granting such a fee award in light of... More
  • Delaware Bankruptcy Court Issues 2017 Local Rule Amendments Earlier this month, the U.S. Bankruptcy Court for the District of Delaware (the “Delaware Bankruptcy Court”) released an update to the Local Rules for the United States Bankruptcy Court District of Delaware (Effective February 1, 2017) (the “Local Rules”).  According to Local Rule 1001-1(e), the 2017 version of the Local Rules governs all cases or proceedings filed after February 1, 2017, and also applies to proceedings pending on the effective date, except to the extent that the Court finds that it... More
  • Indemnification of Affirmative Claims Analyzed by the Court of Chancery In the recent post-trial memorandum opinion of Dore v. Sweports, Ltd., C.A. No. 10513-VCL (Del. Ch. Jan. 31, 2017), Vice Chancellor Laster addressed indemnification for fees incurred in pursuing affirmative claims brought by an indemnified individual.  The underlying lawsuits giving rise to this indemnification action were substantially premised on the attempts of a law firm to collect legal fees.  A partner of the firm was also a director of the company, and had to defend himself when the company filed counterclaims against the plaintiffs that were... More
  • S.D.N.Y. Bankruptcy Court Dismisses Preference Action Involving International Transfer In the recent decision of Spizz v. Goldfarb Seligman & Co. (In re Ampal-American Israel Corp.), 2017 WL 75750 (Bankr. S.D.N.Y. Jan. 9, 2017), the United States Bankruptcy Court for the Southern District of New York dismissed a preference complaint filed by a trustee of chapter 7 debtor headquartered in Israel, where the payment was made from the debtor’s Israeli bank to an Israeli supplier.  The Court held that Section 547 of the Bankruptcy Code does not have extraterritorial effect and the transfer did... More
  • Delaware Supreme Court Addresses the Implied Covenant of Good Faith and Fair Dealing In a very recent Delaware Supreme Court decision, Dieckman v. Regency GP LLC, et al., No. 208, 2016 (Del. Jan. 20, 2017), the High Court reversed the Court of Chancery and upheld claims based upon breach of the implied covenant of good faith and fair dealing.  The decision is noteworthy because the limited partnership agreement disclaimed fiduciary duties, and provided for conflict resolution safe harbors which defendants asserted were met.  However, the manner in which such safe harbors were obtained... More
  • Chancery Strikes Bylaw Requiring Two-Thirds Stockholder Vote to Remove Director It goes without saying that a corporation’s bylaws must comply with the applicable provisions of the Delaware General Corporation Law (“DGCL”).  The recent decision rendered by Vice Chancellor Glasscock, Fretchter v. Zier, et al., C.A. No. 12038-VCG (Del. Ch. Jan. 24, 2017) considered whether a corporate bylaw, requiring a two-thirds stockholder vote to remove a director, complied with the DGCL. Among other things, plaintiff brought a declaratory judgment action that the removal provision of the bylaws violates Section 141(k) of the DGCL,... More
  • Insurer Allowed to Recoup Premiums Against Insurance Claims In the recent decision of Miller v. Zurich American Ins. Co. (In re WL Homes LLC, et al.), Adv. No. 11-50839 (BLS) (Bankr. Del. Jan. 10, 2017), the Delaware Bankruptcy Court addressed the affirmative defense of recoupment asserted by an insurer in defense of an adversary proceeding seeking the return of insurance premium overpayments. Background The Trustee determined that WL Homes had overpaid its premium obligations for the 2007 to 2009 term by roughly $2.2 million.  The Trustee filed an adversary proceeding against... More
  • ATopTech, Inc. Files for Chapter 11 Protection in Delaware ATopTech, Inc. (“ATopTech” or “Debtor”), an electronic design automation software company manufacturing software solutions for engineers to assist them in the physical design of integrated circuits, filed a voluntary petition for chapter 11 bankruptcy relief on January 13, 2017 in the United States Bankruptcy Court for the District of Delaware. In addition, ATopTech filed a motion to sell its businesses under section 363 of the Bankruptcy Code and has selected a stalking horse bidder. The Debtor expects that the sale will be completed... More
  • Charging Liens Clarified by Delaware Supreme Court The Delaware Supreme Court recently clarified the extent and scope of charging liens that can be asserted by Delaware attorneys against clients who fail to pay their legal bills.  In the decision of Katten Muchin Rosenman LLP v. Sutherland, No. 151, 2015 (Del. Jan. 6, 2017), the High Court overturned the Court of Chancery and held that a charging lien may be asserted against an award, when an attorney bills on an hourly rate, regardless of whether the services rendered were necessary... More
  • Abeinsa Holding Inc. Obtains Ch. 11 Plan Confirmation In the recent decision of In re: Abeinsa Holding Inc. et al., Del. Bankr. Ct. Dec. 14, 2016), Case No. 1:16-bk-10790, the Honorable Kevin J. Carey confirmed clean energy developer Abeinsa Holding Inc.’s Chapter 11 plan, which is part of the $16.5 billion global restructuring for Spanish parent Abengoa SA.  Abengoa, with operations in about 50 nations, is a major figure in clean energy and environmental sustainability engineering. The plan was confirmed over the objections of the U.S. Trustee’s office, which... More
  • Business Judgment Rule Applied When Disinterested Majority Approved Merger In Fully-Informed and Uncoerced Vote As set forth in the Delaware Supreme Court decision of Corwin v. KKR Fin. Holdings LLC, 125 A.3d 304 (Del., 2015), a board’s decision to approve a merger transaction is subject to business judgment rule presumption when the merger was approved by a disinterested majority of the company’s stockholders in a fully-informed and uncoerced vote. This rationale was applied in the recent decision of In re Solera Holdings, Inc. S’holder Litig., Cons. C.A. No. 11524-CB (Del. Ch. Jan. 5, 2017).  There,... More
  • Chancery Dismisses Complaint Alleging Breach of Duty of Disclosure Regarding Short-Form Merger In the first Chancery opinion of 2017, Vice Chancellor Montgomery-Reeves granted dismissal of a class action complaint which alleged breach of the duty of disclosure in connection with a short-form merger, in the decision of In re United Capital Corp. S’holders Litig., Cons. Case Nos. 11619-VCMR (Del. Ch. Jan. 4, 2017). Lead Plaintiff Louis B. Geser (“Plaintiff”) owned shares of common stock in United Capital Corporation (“United Capital”).  Defendant A.F. Petrocelli owned approximately 94% of the outstanding shares of United Capital before... More
  • Modular Space Corporation Files for Chapter 11 Bankruptcy Protection On December 21, 2016, Modular Space Corporation and its affiliated entities (“Modular Space” or the “Debtors”) filed for bankruptcy protection in the U.S. and Canada, to implement a plan to rework its $1 billion load of long-term debt.  Modular Space will continue its operations during what the restructuring. Modular Space makes, leases and sells office trailers, mobile offices, temporary classrooms, modular office complexes and portable storage units. A restructuring that will swap out about $400 million worth of debt for equity... More
  • Chancery Denies Motion for Reargument – RBC Capital Markets Opinion Not Applicable In the recent decision of In re OM Group, Inc. Stockholders Litigation, Cons. C.A. No. 11216-VCS (Del. Ch. Dec. 16, 2016), Vice Chancellor Slights considered a motion for reargument by the Plaintiffs challenging his prior decision dismissing the complaint.  Click here for prior decision by the Court granting motion to dismiss on Oct. 12, 2016. The Complaint alleged that in the face of a threat of shareholder activism, the OM Board rushed to sell OM on the cheap in order to avoid... More
  • Preference Actions Filed in the Seal123, Inc. Bankruptcy Proceeding From December 15-21, 2016, the Seal123, Inc. Liquidation Trust filed approximately 68 complaints seeking the avoidance and recovery of allegedly preferential and/or fraudulent transfers under Sections 544 and/or 547, 548 and 550 of the Bankruptcy Code (depending upon the nature of the underlying transactions).  The Liquidation Trust also seek to disallow claims of such defendants under Sections 502(d) and (j) of the Bankruptcy Code. The Seal123, Inc., and its affiliated debtors, filed voluntary petitions for bankruptcy in the U.S. Bankruptcy Court for... More