Photo of Andrea Feathers

In Swipe Acquisition Corp. v. Krauss, CA No. 2019-0509-PAF, 2021 WL 282642 (Del. Ch. Jan. 28, 2021), the Delaware Court of Chancery held that California public policy prohibited a purported waiver of a contractual party’s right to assert a claim under the California Securities Act by reason of a Delaware choice of law provision in the parties’ stock purchase agreement.  Delaware courts will not enforce a choice of law provision if it would be contrary to a fundamental policy of the state whose law would apply but for the choice of law provision (here, California).  California law prohibits contractual waivers of the California Securities Act unless the party seeking to enforce the waiver can show that it will not diminish the plaintiff’s statutory rights under California law.  The Court held that because the plaintiff could not assert a claim under the Delaware Securities Act (due to a lack of nexus with Delaware), and none of the plaintiff’s other claims would provide the same as or greater rights than its California Securities Act claim, enforcing the choice of law provision would be contrary to California’s public policy.  Swipe Acquisition thus further defines the contours of a party’s ability to waive its rights under the California Securities Act by way of a choice of law provision.
Continue Reading Delaware Court of Chancery Holds that a Contractual Delaware Choice of Law Provision Did Not Waive Plaintiff’s Claim Under the California Securities Act

In Quadrant Structured Products Co., Ltd. v. Vertin, C.A. No. 6990-VCL, 2015 WL 2062115 (Del. Ch. May 4, 2015), the Delaware Court of Chancery held that a creditor plaintiff needs only establish that a corporation was insolvent at the time the suit was filed in order to establish standing to sue derivatively on behalf of the corporation.  Creditors do not need to show that the corporation was continuously insolvent throughout the litigation to maintain standing, nor do they need to show that the corporation was “irretrievably insolvent.”  The decision clarifies a murky area of Delaware law regarding creditor-led derivative suits and may further broaden the situations in which creditors can assert derivative breach of fiduciary duty claims.
Continue Reading Delaware Chancery Court Holds that Creditor Plaintiffs in Derivative Suits May Satisfy Standing Requirement by Showing Corporation’s Insolvency at Time of Suit, Regardless of Later Solvency

In Quadrant Structured Products Co. v. Vertin, C.A. No. 6990-VCL, 2014 Del. Ch. LEXIS 193 (Del. Ch. Oct. 1, 2014), the Delaware Court of Chancery held that when creditors of insolvent firms assert derivative claims, they need not meet the contemporaneous ownership requirement applied to stockholder-plaintiffs.  Section 327 of the Delaware General Corporation Law requires that in any derivative suit brought by a stockholder of a corporation, the plaintiff must be a stockholder at the time that the fiduciary wrong allegedly occurred.  The Court held that Section 327 refers only to stockholder-plaintiffs, thus the contemporaneous ownership requirement does not apply to creditor-plaintiffs bringing derivative suits.  However, the Court stated that its reasoning did not necessarily excuse creditor-plaintiffs from complying with other substantive doctrines of shareholder derivative suits.  In dicta, the Court declined to address whether creditors must satisfy the pre-lawsuit demand requirement, but the Court’s emphasis on the requirement’s importance leaves the door open for applying it to creditors in a future decision.
Continue Reading Delaware Court of Chancery Rejects Contemporaneous Ownership Requirement For Creditors Asserting Derivative Claims

In Morrical v. Rogers, No. A137011, 2013 Cal. App. LEXIS 811 (Cal. App. Oct. 10, 2013), the California Court of Appeal, First District, held that the summary procedures set forth in California Corporations Code § 709 may be used to contest corporate elections predicated upon complex and substantive allegations of corporate or directorial misconduct, such as conflicts of interest and breaches of fiduciary duty.  The Court rejected defendants’ argument that the California Legislature intended to limit Section 709 proceedings to challenges predicated upon technical or procedural irregularities in the corporate election process.  This decision reinforces the broad authority of California state courts to adjudicate even complex matters in summary proceedings in order to determine the validity of corporate elections.
Continue Reading California Court of Appeal Holds That Challenges to Corporate Elections Under Corporations Code Section 709 May be Predicated Upon Breach of Fiduciary Duty and Conflict of Interest Allegations