OPINION BOUCHARD , C. In 2015, Section 115 was added to the Delaware General Corporation Law ("DGCL") codifying this Court's decision in Boilermakers Local 154 Retirement Fund v. Chevron Corp. 1 that Delaware corporations may adopt bylaws requiring that internal corporate claims be filed exclusively in Delaware. Section 109(b) of the DGCL was amended simultaneously to provide that the bylaws of Delaware corporations "may not contain any provision that would impose liability on a...
MEMORANDUM OPINION LASTER , Vice Chancellor . Petitioners Merion Capital L.P. and Merion Capital II L.P. (together, "Merion") brought this statutory appraisal proceeding to determine the fair value of their shares of stock in Lender Processing Services, Inc. ("LPS" or the "Company"). The valuation date is January 2, 2014, when Fidelity National Financial, Inc. ("Fidelity" or "FNF") completed the merger by which it acquired the Company (the "Merger"). This post-trial decision determines...
MEMORANDUM OPINION GLASSCOCK , Vice Chancellor . This matter involves a question of standing to pursue breach of fiduciary duty claims, arising from a complex merger transaction, in the context of a motion to dismiss. The Plaintiff was a preferred stockholder (and member of a purported class of former preferred stockholders) in a Delaware corporation, General Electric Capital Corporation ("GECC"). As that name indicates, the business of GECC was to provide financial services. The common...
MEMORANDUM OPINION LASTER , Vice Chancellor . Chicago Bridge & Iron Company N.V. (the "Seller") sold a subsidiary to an acquisition vehicle controlled by Westinghouse Electric Company LLC (the "Buyer"). The transaction was governed by a purchase agreement dated October 27, 2015 (the "Purchase Agreement" or "PA"). The purchase price consisted of $0 at closing, subject to (i) a post-closing purchase price adjustment and (ii) potential deferred consideration and earnout payments. The...
MEMORANDUM OPINION LASTER , V.C. In 2013, Dell Inc. completed a going-private merger in which each publicly held share of Dell common stock was converted into the right to receive $13.75 per share in cash, subject to the owner's right to seek appraisal. Holders of 38,765,130 shares demanded appraisal. Holders of 36,704,337 of those shares filed a total of thirteen different appraisal petitions. The law firm of Grant & Eisenhofer P.A. ("G&E") represented the claimants in ten of the...
MEMORANDUM OPINION GLASSCOCK , Vice Chancellor . In 2011, Duke Energy Corp. ("Duke" and prior to July 2, 2012, "Old Duke") entered a merger agreement with another electric utility company, Progress Energy, Inc. ("Progress"). Old Duke and Progress were both large regional utilities, with significant operations in North Carolina, among other states. Under the agreement, the successor company would also be known as Duke Energy Corp. (in context, "New Duke"). The initial board of directors of...
MEMORANDUM OPINION MONTGOMERY-REEVES , Vice Chancellor . This decision sprouts from a dispute regarding the extent of discovery to which the plaintiff is entitled, but has significance that extends far beyond that. Plaintiff iBio, Inc. and defendant Fraunhofer USA, Inc. are two biopharmaceutical companies that have enjoyed a relatively successful commercial relationship. The parties' relationship stagnated and then came crumbling down when a third-party company—PlantForm Corporation—...
MEMORANDUM OPINION MONTGOMERY-REEVES , Vice Chancellor . This action is an appeal filed under 19 Del. C. 1609 by Appellant, the City of Wilmington (the "City"), from a decision by the Public Employment Relations Board ("PERB" or the "Board") affirming the decision of a binding interest arbitrator (the "Arbitrator") in the parties' collective bargaining negotiations. 1 Pursuant to the Police Officers' and Firefighters' Employment Relations Act ("POFERA"), the City and Appellee, the...
MEMORANDUM OPINION MONTGOMERY-REEVES , Vice Chancellor . This post-trial opinion grants a plaintiff-director's demand for the advancement of legal fees and expenses incurred defending against criminal proceedings in India and civil proceedings in the United States. The plaintiff served as a director and officer of the defendant-company's India subsidiary for many years, but this dispute arises from his service as a director of two additional entities, one owned by the subsidiary and the...
OPINION MONTGOMERY-REEVES , Vice Chancellor . The plaintiffs in this action are former public stockholders of a company that was acquired for $18 per share in an all-cash merger. Just five months prior, the target company had declined an offer of $24 per share from the same acquiror. After the companies announced the merger, the plaintiffs brought this action against the target company's board of directors and its financial advisor. The gist of the plaintiffs' complaint is that the board...
MEMORANDUM OPINION SAM GLASSCOCK, III , Vice Chancellor . This matter is before me after expedited discovery and a two-day trial, in light of the imminent proposed merger (the "Proposed Transaction") between The Williams Companies, Inc. ("Williams"), a Delaware corporation, and Energy Transfer Equity, L.P. (the "Partnership" or "ETE"), a Delaware limited partnership. The companies are substantial participants in the gas pipeline business. The Proposed Transaction is an unusual structure,...
MEMORANDUM OPINION BOUCHARD , C. In December 2012, Dennis Wilson, the founder of lululemon athletica, inc. ("Lululemon" or the "Company") established a trading plan designed to comply with federal securities laws whereby he delegated to a brokerage firm the authority to sell some of his Lululemon shares under certain conditions. On June 5, 2013, Wilson learned that Christine Day intended to resign from her position as the Company's Chief Executive Officer. On June 7, the brokerage firm...
MEMORANDUM OPINION GLASSCOCK , Vice Chancellor . This case presents a twist on the usual requirement under Rule 23.1 that an individual stockholder intending to bring a suit derivatively on behalf of his corporation first make a demand that the board of directors pursue the cause of action, or demonstrate that the board, as then constituted, would be incapable of acting in the corporate interest, thus excusing demand. In order to properly apply this requirement to the instant facts, I...
MEMORANDUM OPINION LASTER , Vice Chancellor . The petitioners owned shares of common stock of Dell Inc. (the "Company"). In 2013, the Company completed a merger that gave rise to appraisal rights (the "Merger"). The petitioners sought appraisal. Based on the evidence presented at trial, the fair value of the Company's common stock at the effective time of the Merger was $17.62 per share. I. FACTUAL BACKGROUND Trial took place over four days. The parties introduced over 1,200 exhibits and...
MEMORANDUM OPINION GLASSCOCK , Vice Chancellor . The duty of loyalty under which a corporate director must act is exacting, but narrow. That duty, properly understood, allows directors wide latitude to take action and embrace risk for the benefit of the corporation. The exacting constraints include that such action must be in the interest of the corporation and its owners, the stockholders; the duty prohibits actions for the benefit of the director herself, or others to whom she is...
OPINION LASTER , Vice Chancellor . Nominal defendant Cogentix Medical, Inc. (the "Company") has scheduled its annual meeting for May 20, 2016 (the "Annual Meeting"). Before the actions challenged in this case, its board of directors (the "Board") had eight seats staggered into three classes. Three were designated for Class I directors, three for Class II directors, and two for Class III directors. The Class I directors will stand for election at the Annual Meeting. Before the events...
MEMORANDUM OPINION BOUCHARD , C. In April 2012, the New York Times published an expos describing the cover-up of an alleged bribery scheme at Wal-Mart de Mexico ("WalMex"), a subsidiary of Wal-Mart Stores, Inc. ("Wal-Mart"). On the heels of this article, Wal-Mart stockholders filed fifteen lawsuits in Arkansas and Delaware asserting derivative claims on behalf of Wal-Mart. One of the stockholders in Delaware demanded access to Wal-Mart's books and records under Section 220 of the...
MEMORANDUM OPINION BOUCHARD , C. In April 2012, the New York Times published an expos describing the cover-up of an alleged bribery scheme at Wal-Mart de Mexico ("WalMex"), a subsidiary of Wal-Mart Stores, Inc. ("Wal-Mart"). On the heels of this article, Wal-Mart stockholders filed fifteen lawsuits in Arkansas and Delaware asserting derivative claims on behalf of Wal-Mart. One of the stockholders in Delaware demanded access to Wal-Mart's books and records under Section 220 of the...
OPINION LASTER , Vice Chancellor . Respondent Dell Inc. completed a merger (the "Merger") that gave rise to appraisal rights. A stockholder only can pursue an appraisal if the stockholder "neither voted in favor of the merger ... nor consented thereto in writing." 8 Del. C. 262(a) (the "Dissenter Requirement"). The appraisal statute defines the term "stockholder" as "a holder of record of stock in a corporation." Id. (the "Record Holder Requirement"). Fourteen of the appraisal...
MEMORANDUM OPINION SAM GLASSCOCK, III , Vice Chancellor . This matter involves an entity, Premium of America, LLC ("POA"), formed by a bankruptcy court to receive the assets of two affiliated companies, Beneficial Assurance Ltd. and Premium Escrow Services, Inc. (collectively, "Beneficial"). Beneficial was in the viatical life-insurance business—that is, it purchased existing life insurance policies, designated itself as beneficiary of those policies, and assumed the obligation to make the...
