Katherine J Neikirk

January 04, 2012 | Delaware Business Court Insider

Reformation is an equitable remedy whereby the Court of Chancery will modify a written agreement to reflect the "true" intent of the parties. To obtain reformation, a party must establish by clear and convincing evidence that the written contract does not reflect the actual intent of the parties as a result of fraud, mutual mistake or unilateral mistake plus fraud by the other party. Reformation is not a means for courts to rewrite parties' agreements. Rather, it is a way for courts to modify an agreement so that it conforms with the parties' prior, actual intent.

By Katherine J. Neikirk Special to the DBCI

4 minute read

February 06, 2013 | Delaware Business Court Insider

The Court of Chancery's decision in In re Mobilactive Media , C.A. No. 5725-VCP (Del. Ch.), provides useful guidance to practitioners asserting or defending against a potential usurpation of corporate opportunity claim. The action arose from a joint venture between plaintiff Terry Bienstock and defendant Silverback Media PLC. Bienstock and Silverback founded Mobilactive Media LLC in 2007 to pursue mobile-marketing opportunities in North America. The Mobilactive limited liability company agreement defined the business of the company as the development and marketing of technology to enable and enhance interactive video programming and advertising content. Pursuant to Section 13.5 of the agreement, the parties agreed that Mobilactive would be the only means by which they or their affiliates would engage in the business. If one of the parties learned of an opportunity in Mobilactive's line of business, they had to present that opportunity to Mobilactive and could not engage in the business opportunity themselves without the prior written consent, and decision not to pursue the opportunity, by the other members of Mobilactive.

By Katherine J. Neikirk

6 minute read

May 29, 2013 | Delaware Business Court Insider

Absent disclosure violations, the Delaware Court of Chancery is generally reluctant to enjoin a deal if there is not another bidder on the scene. Koehler v. NetSpend Holdings, C.A. No. 8373-VCG (Del. Ch. May 21, 2013), illustrates this reluctance. Even though the plaintiff established a reasonable likelihood of success on her claim that the defendants' sale process failed to produce the best price and demonstrated irreparable harm, the Court of Chancery found the balance of equities weighed against issuance of a preliminary injunction.

By Katherine J. Neikirk

7 minute read

February 01, 2012 | Delaware Business Court Insider

The economic downturn has affected many sectors and litigation is no exception. The Delaware Court of Chancery's docket reflects, and will continue to reflect for some time to come, the consequences of the economic downturn. The most recent example of this trend is Trilogy Portfolio Co. v. Brookfield Real Estate Financial Partners.

By Katherine J. Neikirk

5 minute read

February 29, 2012 | Delaware Business Court Insider

Court of Chancery Rules 93, 94, 95 and 174 and 10 Del. C. § 347 provide an excellent opportunity for parties to mediate disputes meeting certain requirements with a Court of Chancery judge or master acting as a mediator. Rule 174 governs mediations in cases already pending in the Court of Chancery, while 10 Del. C. § 347 and Court of Chancery Rules 93, 94 and 95 govern disputes filed as "mediation only" matters in the court. Under Rule 174, parties to an ongoing case pending in the Court of Chancery may agree to mediation.

By Katherine J. Neikirk

6 minute read

May 30, 2012 | Delaware Business Court Insider

Buying a company is an expensive proposition. In addition to the purchase price, there are legal expenses, financial adviser fees and sometimes, financing costs. These expenses will arise regardless of whether the purchase turns out to be a good deal or not. Through the due diligence process and representations and warranties of the seller in the sale agreement, the buyer should obtain some protection against incurring substantial expenses to acquire a company and then learning that the acquired company is not what it appeared to be.

By Katherine J. Neikirk

5 minute read

August 22, 2012 | Delaware Business Court Insider

When does amendment of a complaint to assert a new breach of contract claim relate back to the date of the original complaint asserting different breaches of the same contract? The Court of Chancery recently addressed this issue in Central Mortgage v. Morgan Stanley Mortgage Capital Holdings LLC , C.A. No. 5140-CS (Del. Ch.).

By Katherine J. Neikirk Special to the DBCI

7 minute read

November 14, 2012 | Delaware Business Court Insider

Courts outside of Delaware have addressed the use of predictive coding in discovery and now the Court of Chancery has addressed this technology in a transcript ruling in EORHB v. HOA Holdings , C.A. No. 7409-VCL (Del. Ch.). Predictive coding is a technology that allows attorneys to train a computer program to review documents for responsiveness. Predictive coding is supposed to reduce the costs of document production by cutting down on the amount of document review by attorneys. Instead of associates, contract attorneys or overseas lawyers reviewing hundreds of thousands of documents for responsiveness, a computer program codes documents as responsive or nonresponsive. Attorneys may still review documents coded responsive by the computer program and do a quality control sampling review of documents coded as nonresponsive, but the goal is to cut down on the amount of attorney-review time. To train the computer program, attorneys will code a "seed set" of documents. The computer program then codes the remainder of the documents responsive or nonresponsive based upon the seed set. Attorneys will review some or all of the results in order to further train the computer program. According to some studies, predictive coding is at least as accurate, if not more accurate, than human review.

By Katherine J. Neikirk
 Special to Delaware Law Weekly

5 minute read

August 01, 2012 | Delaware Business Court Insider

On May 31, the Delaware Supreme Court, after an expedited appeal, affirmed the Court of Chancery's May 4 decision in Martin Marietta Materials v. Vulcan Materials, C.A. No. 7102 (Del. Ch.), enjoining plaintiff-counterclaim defendant Martin Marietta Materials from continuing to pursue its exchange offer and proxy contest to acquire defendant-counterclaim plaintiff Vulcan Materials. The Supreme Court issued its opinion, Martin Marietta Materials v. Vulcan Materials , No. 254 (Del.), explaining its judgment on July 10. For practitioners negotiating or enforcing nondisclosure agreements in sale transactions, this opinion provides useful guidance.

By Katherine J. Neikirk

6 minute read

October 12, 2011 | Delaware Business Court Insider

Agreements to negotiate in good faith can create issues for the unwary. The potential traps of such an agreement appear in the Court of Chancery's Sept. 22 decision in PharmAthene Inc. v. SIGA Technologies Inc.

By Katherine J. Neikirk and Edward M. McNally

6 minute read