Topic: Laches

Chancery Court Denies Motions for Summary Judgment in Case Brought by Minority Stockholders against Controlling Stockholders for Diversion of Equity as a Result of Breach of Duties

By Whitney Smith and Kevin Szu-Tu

In Fotta v. Morgan, C.A. No. 8230-VCG (Feb. 29, 2016), Vice Chancellor Glasscock denied cross motions for summary judgment and granted a motion to dismiss for failure to comply with Rule 23.1.  After determining that factual issues remained as to causes of action brought by certain stockholders of First Orion Corp. for waste, breach of fiduciary duty, and statutory claims, the Court of Chancery was unable to determine whether a significant creditor to nominal defendant First Orion Corp. used its control over the board of directors to divert equity to itself in breach of duties owed to the common stockholders.

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Court of Chancery Discusses Statute of Limitations in Claim for Indemnification

By Scott Waxman and Stephanie S. Liu

In Francis S. Branin, Jr. v. Stein Roe Investment Counsel, LLC, et al, the Court of Chancery considered whether Plaintiff’s claim for indemnification for expenditures related to litigation that had begun in 2002, but not was resolved with finality until 2012, was time-barred. The Court concluded that the statute of limitations on Branin’s indemnification claim did not begin to run until the underlying litigation was resolved, and thus his claim was timely. The Court granted Branin’s motion to strike Defendants’ affirmative defenses and granted his motion for summary judgment on Defendants’ obligation to indemnify him. The Court also found that Branin was entitled to prejudgment simple interest at the statutory legal rate, as well as fees incurred in successfully prosecuting his indemnification claim.

After Plaintiff Francis S. Branin, Jr. (“Branin” or the “Plaintiff”) resigned from Bessemer Trust, N.A. (“Bessemer”) on July 12, 2002, he began working for Defendant Stein Roe Investment Counsel LLC (“SRIC LLC”). On November 22, 2002, Bessemer sued Branin for improperly soliciting its clients and impairing its goodwill in violation of a New York implied covenant (“New York Action”). In 2012, after a decade of litigation, Branin successfully defended against all claims. On April 17, 2013, Branin turned to the Court to enforce a purported indemnification right against SRIC LLC, Stein Roe Investment Counsel, Inc., and Atlantic Trust Group, Inc. (collectively, the “Defendants”).

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A Corporation’s Advancement of Legal Fees and Expenses to Its Officers and Directors

By Holly Vance and Sophia Lee Shin

This case involves a plaintiff who sought advancement for his legal fees and expenses in connection with insider trading charges. In opining on the defendant’s motion to dismiss or stay the action and the plaintiff’s motion for summary judgment, the Court considered various issues, including the four-factor analysis of McWane and the difference between advancement and indemnification.

Nipro Diagnostics, Inc. (“Nipro”), the defendant, acquired Home Diagnostics, Inc. (“HDI”) on March 15, 2010. Soon after the merger, the SEC began an investigation of George H. Holley (“Holley”), the founder and chairman of HDI and the plaintiff in this case, for suspicious trading in HDI stock around the time of the merger announcement (the “SEC Investigation”). On May 20, 2010, Holley requested that HDI advance his expenses in the SEC Investigation, and executed an undertaking (required with any advancement) promising to repay HDI for any advanced expenses if it were ultimately determined that Holley was not entitled to indemnification. From June 2010 to November 2010, Nipro advanced Holley’s expenses relating to the SEC Investigation. On January 13, 2011, the SEC commenced an action against Holley for violating federal securities laws by disclosing information about the merger (the “SEC Action”). On February 4, 2011, Holley was indicted in the U.S. District Court for the State of New Jersey for insider trading (the “Criminal Action”). On August 19, 2011, the New Jersey U.S. Attorney’s Office obtained a stay of the SEC Action. Holley eventually pled guilty to two counts of insider trading in the Criminal Action.

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Wolst v. Monster Beverage Corporation, C.A. No. 9154-VCP (Del. Ch. October 3, 2014) (Noble, V.C.)

By David Bernstein and Meredith Laitner

On October 3, 2014, the Delaware Chancery Court issued its ruling in Wolst v. Monster Beverage Corporation, C.A. No. 9154-VCP (Del. Ch. October 3, 2014) (Noble, V.C.), rejecting the plaintiff’s request to inspect Monster Beverage Corporation’s books and records pursuant to Section 220 of the Delaware General Corporation Law.

The plaintiff’s stated purpose for her request to inspect Monster’s books was to determine whether there was a basis for her to bring a derivative suit against Monster based on insider trading that occurred seven years ago.  A class action regarding the insider trading had been settled for $16.25 million and a prior derivative suit, in which the plaintiff had been a participant, had been dismissed for failure to make a demand on the Board.  Subsequently a demand on the Board had been made and rejected.

The Court held that the possible new derivative suit that was the reason for the plaintiff’s Section 220 demand was time-barred by laches. Further, Vice Chancellor Noble refused to extend to derivative claims the general rule that a class action tolls the statute of limitations for the members of the class pursuing individual direct claims.

WolstvMonsterBeverage

Capano v. Capano, C.A. No. 8721-VCN (June 30, 2014)

By Eric Feldman and Sophia Lee Shin

Capano, et al. v. Capano, et al. is a consolidated case involving three brothers that came before the Delaware Court of Chancery, in which Joseph and Gerry Capano each filed a complaint against Louis Capano.

Facts

Louis, Joseph and their father, Louis Sr., were equal partners in a Delaware partnership, Capano Investments. Upon Louis Sr.’s death, the partnership structure changed such that Louis and his son controlled 48.5% of the partnership, Joseph and his son controlled 48.5%, and Gerry (as the beneficiary with voting control of CI Trust) controlled 3%. In 2000, the partnership was subsequently converted into a Delaware limited liability company, Capano Investments, LLC (“CI-LLC”), with the same membership and respective ownership interests as those of the partnership

In 2000, Louis and Gerry executed two documents that purportedly granted Louis an interest in CI Trust: (1) Gerry granted Louis the “Power to Direct”, an irrevocable proxy to direct CI Trust’s trustee (at the time, Daniel McCollom) to vote its interest in CI-LLC; and (2) Gerry granted Louis the “Option” to purchase Gerry’s interest in CI Trust, but only with the consent of CI Trust’s trustee, and at a purchase price of $100,000 and the forgiveness of a $100,000 advance. Both the Power to Direct and the Option were signed by Louis and Gerry and had “(SEAL)” printed next their signatures.

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