In In re Terraform Power, Inc. Stockholders Litigation, C.A. No. 2019-0757-SG (Del. Ch. November 24, 2020), the Delaware Court of Chancery (the “Court”) granted defendants’ Application for Certification of Interlocutory Appeal, giving the Delaware Supreme Court (the “Supreme Court”) an opportunity to clarify its decision in Gentile v. Rossette (“Gentile”) under which stockholders’ claims for a specific type of breach of fiduciary duty can have “dual character” as both derivative and direct. The Court relied on two factors under Delaware Supreme Court Rule 42 (“Rule 42”)—whether consideration of the appeal may end the litigation, and whether review of the appeal may serve considerations of justice—and held that the matter presented “a rare case” in which an interlocutory appeal was justified.Read More
In Acela Investments LLC v. Raymond DiFalco, Case No. 2018-0558-AGB (Del. Ch. June 28, 2019), the Delaware Court of Chancery addressed an application for certification of an interlocutory appeal of the Court’s decision in the underlying case (the “Memorandum Opinion”) and a motion for stay pending appeal.Read More
In In Re Cornerstone Therapeutics Inc. S’holder Litig., 2014 WL 4418169 (Del. Ch. Sept. 10, 2014), Defendant directors of Cornerstone Therapeutics Inc. (“Cornerstone”) brought a motion to dismiss based on an exculpatory provision in Cornerstone’s certificate of incorporation pursuant to Section 102(b)(7) of the Delaware General Corporation Laws in the context of a controlling stockholder freeze-out merger. In the memorandum opinion, the Court denied the motion to dismiss, finding that, since entire fairness applied to the transaction at the outset, the director defendants must await a determination of entire fairness at trial before the Court could consider whether they were exculpated by the provision. The director defendants moved for interlocutory appeal under Delaware Supreme Court Rule 42 challenging the denial of the Court’s decision regarding the motion to dismiss.
This decision considers the motion for interlocutory appeal. The Court held that the defendant directors are entitled to an interlocutory appeal of the order denying the motion to dismiss. An interlocutory appeal may be certified by the Court only when the appealed decision (1) determines a substantial issue, (2) establishes a legal right, and (3) meets one or more criteria further enumerated in Rule 42, including that the decision falls under any of the criteria for certification of questions of law set forth in Rule 41. Here, the denial of the motion, if reversed, would result in dismissal of the defendant directors from the suit, so it is a substantial issue. Further, it establishes a legal right in that it necessitates the defendant directors be held as parties to the litigation. Finally, it satisfies the further “conflicting decisions” qualification set forth in Rule 41(b)(ii) because decisions of the Courts of Chancery have been conflicting as to whether, in a transaction subject to entire fairness review at the outset, in which there is a claim for “breach of duty on the part of facially disinterested directors who negotiated …. or otherwise facilitated the transaction needs to be specifically pled” and whether an exculpatory provision must be ignored at the motion to dismiss stage to await consideration of entire fairness at trial. As a result, the Court granted the defendant directors’ application for certification of interlocutory appeal.