Mark E Felger

July 09, 2014 | Delaware Business Court Insider

A minority stockholder in a privately held corporation makes a demand to inspect the books and records of the corporation under Section 220 of the Delaware General Corporation Law. The stockholder states that the purpose of the inspection is to value his shares and to explore a possible sale of the stock. The corporation offers to provide some, but not all, of the requested documents.

By Barry M. Klayman and Mark E. Felger

7 minute read

June 11, 2014 | Delaware Business Court Insider

When are counterclaims prosecuted by a defendant subject to advancement? This question was addressed recently by the Delaware Court of Chancery in Pontone v. Milso Industries, C.A. No. 7615-VCP (Del. Ch. May 29, 2014).

By Barry M. Klayman and Mark E. Felger

7 minute read

June 04, 2014 | Delaware Business Court Insider

Can a party that retains its own counsel be liable to pay a fee to another party's counsel or to class counsel? The answer, according to the recent Court of Chancery opinion in Smith, Katzenstein & Jenkins v. Fidelity Management & Research, C.A. No. 8066-VCL (Del. Ch. April 16, 2014), is a resounding yes.

By Barry M. Klayman and Mark E. Felger

7 minute read

May 14, 2014 | Delaware Business Court Insider

Can a party that retains its own counsel be liable to pay a fee to another party's counsel or to class counsel? The answer, according to the recent Court of Chancery opinion in Smith, Katzenstein & Jenkins v. Fidelity Management & Research, C.A. No. 8066-VCL (Del. Ch. April 16, 2014), is a resounding yes.

By Barry M. Klayman and Mark E. Felger

7 minute read

April 23, 2014 | Delaware Business Court Insider

The doctrines of champerty and maintenance live on in Delaware, at least for the time being. In Charge Injection Technologies v. E.I. du Pont de Nemours & Co., C.A. No. N07C-12-134-JRJ (Del. Super., Feb. 27, 2014), interlocutory appeal refused, No. 160, 2014 (Del. Apr. 7, 2014), the Superior Court considered whether the doctrines of champerty and maintenance are dead in Delaware and held that, absent a ruling to that effect from the Delaware Supreme Court, it would continue to recognize the doctrines.

By Barry M. Klayman and Mark E. Felger

6 minute read

March 12, 2014 | Delaware Business Court Insider

We wrote recently about two cases interpreting contractual survival clauses under Delaware law. The cases—GRT v. Marathon GTF Technology, C.A. No. 5571-CS (Del. Ch. Jul. 11, 2011), and ENI Holdings v. KBR Group Holdings, C.A. No. 8075-VCG (Del. Ch. Nov. 27, 2013)—held that provisions limiting the period of time in which representations and warranties survive closing act as a statute of limitations on the nonbreaching party's ability to commence litigation for breach.

By Barry M. Klayman and Mark E. Felger

6 minute read

February 11, 2014 | Delaware Business Court Insider

Agreements, especially acquisition agreements, typically contain representations and warranties by one party to the other. The agreements also typically prescribe the duration of those representations and warranties in so-called survival clauses. The treatment of these clauses under Delaware law may surprise many practitioners. In GRT v. Marathon GTF Technology Ltd., C.A. No. 5571-CS (Del. Ch. Jul. 11, 2011), Delaware Chancery Court Chancellor Leo E. Strine Jr. held that a clause limiting the period of time in which contractual representations and warranties survive closing acts as a statute of limitations on the buyer's ability to commence litigation for breach.

By Barry M. Klayman and Mark E. Felger

7 minute read

January 15, 2014 | Delaware Business Court Insider

When does the life of a Delaware corporation end? Not as long as there are third-party claimants with claims to assert and undistributed assets available to satisfy them. In Anderson v. Krafft-Murphy, No. 85, 2013 (Del. Nov. 26, 2013), asbestos tort claimants in lawsuits pending in other jurisdictions against Krafft-Murphy Co., a dissolved Delaware corporation, sought the appointment of a receiver to enable them to lawfully pursue their claims against the corporation in those other courts beyond the statutory three-year winding-up period. The Court of Chancery had granted summary judgment in favor of the corporation, holding that claims filed more than 10 years after the date of dissolution were time-barred and should be dismissed, and claims filed less than 10 years after the date of dissolution could proceed without a court-appointed receiver.

By Barry M. Klayman and Mark E. Felger

7 minute read

December 18, 2013 | Delaware Business Court Insider

Does the Bankruptcy Code allow for triangular setoffs in swap and repurchase agreements after commencement of the debtor's bankruptcy case? In Sass v. Barclays Bank (In re American Home Mortgage Holdings), Adv. Proc. No. 11-51851 (CSS) (Del. Bankr. Nov. 8, 2013), the court held that the Bankruptcy Code does not allow parties to set off non-mutual obligations, regardless of whether the agreements are subject to the safe harbor provisions of 11 U.S.C. §§ 559-661.

By Barry M. Klayman and Mark E. Felger

6 minute read

November 13, 2013 | Delaware Business Court Insider

Is electricity a good for purposes of establishing an administrative priority claim under Section 503(b)(9) of the U.S. Bankruptcy Code?

By Barry M. Klayman and Mark E. Felger

7 minute read