Submitted by Prof. Paul L. Regan

In a telephonic ruling announced earlier this week in In re Complete Genomics, Inc. Shareholder Litigation, Dec. Ch., Consol. C.A. No. 7888-VCL (Nov. 27, 2012), Vice Chancellor J. Travis Laster preliminarily enjoined Complete Genomics, Inc. from enforcing a standstill agreement containing a potentially problematic “don’t ask, don’t waive” provision. This provision purported to contractually preclude the other party to the standstill agreement (identified in the hearing only as “Party J”) from making a request — either publicly or privately — to the board of Genomics that the company waive the restrictions in the standstill that otherwise prevented Party J from making an acquisition proposal for Genomics. Thus under the “don’t ask” terms of the standstill, even a polite request by Party J to Genomics for permission to make a topping bid for Genomics would itself be a breach a contract in violation of Party J’s promise not to ask for such a waiver.

Vice Chancellor Laster concluded (on a preliminary basis involving an assessment of whether the shareholder plaintiff had shown a reasonable probability of success on the merits), that Party J’s “don’t ask, don’t waive” promise was unenforceable as tending to induce a violation of the Genomics directors’ fiduciary duties to be informed in continuing to recommend a sale of control transaction to the shareholders. Said the Court: “by agreeing to this provision, the Genomics board impermissibly limited its ongoing statutory and fiduciary obligations to properly evaluate a competing offer, disclose material information, and make a meaningful merger recommendation to its stockholders.”

Party J was one of a handful of potential suitors with whom Genomics had signed confidentiality and standstill agreements before providing access to the company’s confidential financial and business information. Genomics is a biotech life sciences company that has developed and commercialized an innovative DNA sequencing platform so it made especially good sense to protect its propriety know-how and confidential financial data as part of any auction process. Following due diligence by potential bidders and the ensuing auction, Genomics entered into a merger agreement pursuant to which it agreed to be acquired in a two-step tender offer and merger transaction with a U.S-based subsidiary of Chinese firm BHI-Shenzen.

A few weeks before this most recent, decision Vice Chancellor Laster denied the shareholder plaintiff’s earlier attempt to obtain a preliminary injunction against enforcement of the Genomics merger agreement with BHI and that transaction remains pending. The effect of this latest ruling is to free Party J to make a topping bid while the BHI tender offer is outstanding. Whether Party J might make such an offer is unknowable and the Court found irreparable harm, justifying the preliminary injunction against enforcement of the standstill with Party J, in the contract’s prevention of this information from flowing to the Genomics board from Party J as a potential bidder.
In preliminarily enjoining Genomics from enforcing the “don’t ask, don’t waive” standstill with Party J in the context of a pending change of control transaction with BHI, Vice Chancellor Laster relied in significant part on former Chancellor Chandler’s bench ruling in Phelps Dodge Corp. v. Cyprus Amax Minerals Co., 1999 Del. Ch. LEXIS 202 (Sept. 27, 1999). There it will recalled, the Court reasoned that a “no-talk” provision in a merger agreement was improper because it prevented the directors of Cyprus Amax, in advance and under all circumstances, from making an informed decision whether to refuse to negotiate with potential suitor Phelps Dodge. Chancellor Chandler memorably described such a provision as improper because it was “the legal equivalent of willful blindness, a blindness that may constitute a breach of a board’s duty of care….”

In Genomics Vice Chancellor reasoned that the “don’t ask, don’t waive” provision was equivalent to “a bidder-specific no-talk clause” of the type the Court in Phelps Dodge found troublesome. The Genomics directors effectively prevented themselves from being fully informed because the standstill contractually precluded Party J from even requesting a possible waiver of the standstill so as to make a further acquisition proposal. Under those circumstances, the Court reasoned, the Genomics board could not fulfill the fiduciary obligation to be informed in continuing to recommend the BHI transaction to Genomics shareholders.

Vice Chancellor Laster made clear that a “don’t ask, don’t waive” standstill that only precluded public requests for a waiver could pass fiduciary muster so long as the agreement allowed for a private, non-public request. Under such circumstances the potential bidder has a contractually viable path forward to communicating (albeit privately) to the target its interest in making a bid. Likewise the target directors would maintain their ability to fulfill their fiduciary duty to remain fully informed in continuing to recommend an already-approved pending transaction or, if warranted, changing that recommendation in favor of a new superior proposal.

The Court’s decision in Genomics understandably relies on Phelps Dodge and perhaps a visceral aversion to contractual provisions that would seem to handcuff the board of a company undergoing a sale of control from receiving a later topping bid, or even more embryonically, from even receiving a request for permission to make a topping bid.

On the other hand, one could argue that a well-advised board of a corporation undergoing a sale of control might legitimately make use of a “don’t ask, don’t waive” standstill in furthering stockholder welfare. For example, the board of the selling corporation might ask its financial advisor to solicit interest from possible bidders, with due diligence access and subsequent auction participation conditioned on each bidder agreeing to a “don’t ask, don’t waive” standstill. Under the auction rules set out by the board, all bidders would be given a timeline, and contractual permission, for the submission of one bid and one bid only — the highest and best offer each bidder is able and willing to make. Such bids would be made with the understanding (and contractual limitation) that there would be no further rounds of bidding, and topping etc. The standstill thus would prevent any such serial attempts to bid. One could argue that such an auction arrangement could benefit stockholders by shortening the auction process and encouraging the highest and best offers up front. Any other bidder not part of the original auction process, i.e., who had not signed a standstill, could theoretically lob in a topping bid later and the board of would have to consider that new information in keeping with its fiduciary duties.

Of course one might prefer to run an auction differently than in the manner suggested above, but our law makes clear that while the directors have an obligation (in Revlon mode) to act reasonably to seek the highest value for the stockholders, there is no legally required blueprint for how to run an auction. And there’s the rub. Does a “don’t ask, don’t waive” standstill, when used as suggested above, amount to just another one of many legitimate ways to run an auction in good faith? Or, as Genomics suggest, does a “don’t ask, don’t waive” standstill cross the fiduciary line by creating an improper impediment to the realization of that value by preventing the directors from having all information reasonably available in making their continuing recommendation to stockholders?

The November 28, 2012 opinion by Vice Chancellor Laster in Feeley v. NHAOCG, LLC represents the latest round in the ongoing debate about whether those with managerial authority in Delaware LLCs have fiduciary duties as a default matter. We have addressed this issue extensively on this site, most recently in Prof. Luke Scheuer’s post about the Delaware Supreme Court’s (non)decision on this issue in Auriga v. Gatz.

Vice Chancellor Laster’s decision ratchets up one notch the Court of Chancery’s commitment to the proposition that such default duties exist. Although the Chancellor’s opinion to the same effect in Auriga now has no precedential value, Vice Chancellor Laster has now ruled the same way in a case in which the issue was squarely presented. Chancellor Strine’s discounted opinion was relied upon not as precedent, but so as to “afford his views the same weight as a law review article, a form of authority the Delaware Supreme Court often cites.”

Three Widener Law students on the Transactional Law Competition Team recently placed highly in a nationwide online competition hosted by LawMeets.

Over 800 registered participants, ranging from law students at schools such as Berkeley and John Marshall, to practicing attorneys and even a group of investment bankers from one of the big investment banks participated in the LawMeets course, which consisted of four exercises over two intensive weeks. The results of those exercises were then peer-reviewed and ranked.

Second-year student Deniz Uzel placed 9th in “the anatomy of an acquisition agreement” and an astonishing 1st in the “due diligence” assignment, bringing her overall rank to 20th place. Second-year student Randy MacTough placed 13th and 21st in two of the online assignments: “the anatomy of an acquisition agreement” and “indemnification.” Second-year student Amber Marsano placed 4th in the “indemnification” assignment.

LawMeets is an educational program founded by by Professor Karl Okamoto, the Director of the entrepreneurship law program at Drexel University’s Earle Mack School of Law. LawMeets offers students an opportunity to improve their lawyer-client skills by addressing hypothetical client problems with short video responses that are voted on by their peers. Legal experts then offer critiques of the highest rated student responses.

The entire Widener Law community congratulates Deniz, Randy, and Amber on their impressive work!

Professor Luke M. Scheuer

The Delaware Supreme Court’s November 7 opinion in Gatz Properties, LLC v. Auriga Capital Corp. has left open the question of whether the Delaware’s Limited Liability Company Act (the “LLC Act”) imposes default fiduciary obligations on a limited liability company’s (an “LLC”) managers.  In Gatz, the Supreme Court affirmed the Court of Chancery’s opinion and held that a company’s manager had breached its contractual fiduciary duties to minority members under the company’s LLC agreement.  However, in a blistering rebuke, the Supreme Court rejected as “dictum without any precedential value” the Court of Chancery’s conclusion that the manager had breached default fiduciary duties under the LLC Act.  The Court further “decline[d] to express any view regarding whether default fiduciary duties apply as a matter of statutory construction.”

The decision is problematic for practitioners and investors who have assumed that in the LLC context, fiduciary obligations exist unless they are disclaimed in a company’s LLC agreement.  Going forward, attorneys will undoubtedly inform their business clients (both managers and investors) that any fiduciary obligations should be addressed in an LLC agreement.  However, unrepresented investors may be caught off-guard because fiduciary duties are a basic element of all other business forms.  As the LLC becomes the default form for new businesses (including small businesses that are often formed without legal counsel), many less well advised investors may assume that managers have a minimum level of responsibility and not realize that they are required to include language in the LLC agreement to create such obligations.

The ruling is also part of a line of cases that contrasts the high standard historically required for those managing business entities with the low modern standard.  The great Benjamin Cardozo articulated fiduciary duties in the following high minded terms: “[n]ot honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior . . . the level of conduct for fiduciaries [has] been kept at a level higher than that trodden by the crowd.”  In the intervening 80 years, fiduciary duties have been watered down to the point where they are bare minimal standards that can be waived (or might not even exist as a default) for LLCs.  The Court may be correct that the Delaware legislature is the best group to decide the default fiduciary duty issue.  Until they do, Delaware is placing LLC investors at risk for the benefit of managers, and is encouraging the degradation of business culture.

A blog entry on the oral argument before the Supreme Court was previously posted to this site by Ben Chapple (Widener Law ’13).

On November 9, 2012, the Delaware Journal of Corporate Law, with the Institute, hosted the 28^th Annual Francis G. Pileggi Distinguished Lecture in Law. This year’s lecturer was Professor Lyman P.Q. Johnson. Professor Johnson has taught at Washington and Lee University School of Law since 1985—holding the Robert O. Bentley Professorship since 1995—and beginning in 2008, he was appointed to the faculty of the University of St. Thomas School of Law in Minneapolis, where he currently serves as the LeJeune Distinguished Chair in Law. Professor Johnson’s lecture was titled Unsettled and Unsettling Issues in Corporate Law. The lecture revisited two fundamental issues in corporate law: (1) the central role of the business judgment rule (BJR) in fiduciary litigation, and (2) whether there is a mandated corporate purpose. The majority of the lecture was devoted to the former issue, but Professor Johnson discusses both issues in great detail in his forthcoming article that will be published in Volume 38 of the Delaware Journal of Corporate Law.

Following an introduction by Delaware Supreme Court Justice Henry duPont Ridgely, the lecture began with Professor Johnson acknowledging that the law surrounding the BJR is “seemingly settled,” in that it is clear that the rule applies to directors. He went on to note, however, that it is less clear whether the BJR applies to officers or controlling shareholders. Professor Johnson continued by discussing how this deeply entrenched rule has evolved over the last three decades through the decisions in Sinclair (1971), Aronson (1984), and Cede (1991). The professor argued that it is inappropriate to adhere to a rule of law simply because it has been used for a long period and has proposed a rethinking of the BJR, ultimately arguing that the rule is unnecessary and should be deemphasized.

Professor Johnson articulates six reasons in support of this thesis. First, he argues that the BJR is under inclusive, so it should not serve as a “unified vessel.” Further to this point, he stated that fiduciary duties are broader in scope, and therefore are the more appropriate focus. Second, he asserts that the BJR is a maxim of historical accident that grafted the duty of care into the BJR framework. Professor Johnson believes that this fiduciary duty should be showcased, not engrafted with the BJR. Third, the professor contends that emphasizing fiduciary duties over the BJR still provides ample deference to the directors. To this end, he argues that there is no need for an Aronson or Sinclair presumption because ample deference and business latitude remains by maintaining the gross negligence standard. Fourth, he believes that elevating the focus to fiduciary duties streamlines the analysis and rationales with other areas of law; he cited, for example, agency law where you would only need to ask two questions: (1) did a fiduciary duty exist?, and (2) if so, was that duty breached? Fifth, Professor Johnson asserts that emphasizing the BJR “hinders optimal conduct” through depriving directors of having an affirmative duty because the rule presumes that the director complied with his or her fiduciary duties. Sixth, and perhaps closely tied to his fourth point, he argues that elevating fiduciary duties over the BJR will facilitate a better understanding of corporate law for those who do not specialize in the subject matter, i.e. law students and many out-of-state practitioners who practice Delaware corporate law.

To put it modestly, some of those in attendance were a bit taken aback by Professor Johnson’s proposal, particularly the part relating to removing the presumption afforded by the BJR. One attendee of note, former-Vice Chancellor Stephen Lamb, expressed concern that denying directors the presumption will increase the number of meritless suits, and then proceeded to ask if the professor had considered this effect, and if so, whether a heightened pleading standard would be an appropriate solution. Professor Johnson acknowledged that he did not take into account these considerations, but stated that he will consider the implication before his forthcoming article goes to press. The Institute’s director, Professor Lawrence Hamermesh, also asked Professor Johnson what, if any, past decisions would have a different outcome under his proposed model that elevates fiduciary duties over the BJR. Professor Johnson responded that he could not think of a case where the result would be altered; however, the process to reach the result would be more streamlined under his proposed approach.

Vice Chancellor Glasscock’s November 5, 2012 opinion in Rich v. Fuqi International, Inc. addresses the recurrent and fascinating exercise in federalism that arises when state law requires a corporation to convene an annual meeting of stockholders, but federal law forbids the necessary solicitation of proxies due to the corporation’s inability to supply the required audited financial statements. The ostensible collision makes for interesting reading, and Francis Pileggi’s blog entry on the opinion is a good place to start.

In 2008, the SEC adopted Rule 200.30-1(e)(18) in an effort to avoid the ostensible collision in a way that gave effect to the legitimate goals of both state and federal law. Simply put, the Rule permits the Director of the Division of Corporation Finance to exempt an issuer from the demands of Rules 14a-3(b) and 14c-3(a), where the corporation demonstrates that it:

(i) Is required to hold a meeting of security holders as a result of an action taken by one or more of the applicant’s security holders pursuant to state law;
(ii) Is unable to comply with the requirements of Rule 14a-3(b) or Rule 14c-3(a) … ;
(iii) Has made a good faith effort to furnish the audited financial statements before holding the security holder meeting;
(iv) Has made a determination that it has disclosed to security holders all available material information necessary for the security holders to make an informed voting decision in accordance with Regulation 14A or Regulation 14C (§§240.14a-1 – 240.14b-2 or §§240.14c-1 – 240.14c-101 of this chapter); and
Absent a grant of exemptive relief, it would be forced to violate either state law or the rules and regulations administered by the Commission.

The defendant corporation (Fuqi International) was originally sued over two years ago, having failed to convene an annual meeting since July 2008. Unable to obtain audited financial statements, Fuqi persuaded the plaintiff stockholder on multiple occasions to defer his application for relief, but the plaintiff’s patience evidently wore out earlier this year, and on June 1, 2012 he successfully obtained a formal order compelling the meeting.

Note that until this point, Fuqi’s request to the SEC staff to exempt it from the pertinent proxy rules was more than arguably a non-starter under Rule 200.30-1(e)(18), because Fuqi was not yet under legal compulsion in the stockholder action to convene an annual meeting. The Vice Chancellor’s order, however, directed Fuqi to again formally seek an exemption from the SEC, this time with an order in hand. According to Fuqi, the SEC has not yet acted on that application, leaving the company in a position of being required to solicit proxies by no later than November 17, as necessitated by the order of the Court of Chancery, but doing so at risk of violating the proxy rules.

In that context, Fuqi went back to the Vice Chancellor, not directly seeking an extension of any sort, but seeking relief permitting it to appeal to the Delaware Supreme Court, via partial judgment or certification of an interlocutory appeal. It is this application that the Vice Chancellor denied. As I read his opinion, he essentially lost patience with the extended delay in convening the meeting that Delaware law requires, and he partly blamed Fuqi for not fully pressing its exemptive application to the SEC until this June:

It also bears mentioning that Fuqi has caused the very uncertainty it now seeks to resolve. Fuqi chose to withdraw its 2011 exemption request because SEC staff purportedly suggested that a formal opinion denying the exemption would prejudice Fuqi in the SEC’s investigation into Fuqi’s original financial restatement. In withdrawing its application, Fuqi made a tactical decision to forego obtaining a formal decision from the SEC. Given that Fuqi was in the midst of negotiating this action, Fuqi was presumably aware that the lack of a final SEC decision was an important consideration of the Court’s decision in Newcastle Partners, and Fuqi should be prepared to accept the consequences of its choice.

I can see how this analysis could be frustrating to Fuqi: it’s being placed in a difficult position, and not having been subject to an order compelling it to convene meeting, there was arguably nothing it could have done before June 1, 2012 to formally pursue an exemptive application with the SEC.

But rather than criticize the Vice Chancellor, Fuqi, or the Commission, let’s step back a bit and ponder how a sensible, coordinated state and federal response to the situation should proceed – instead of proceeding as an exercise in brinksmanship, with both state and federal authorities asserting priority for their respective roles and policy concerns.

First, let’s acknowledge the utility of the Commission’s approach in adopting Rule 200.30-1(e)(18): at the very least, it affords a way for the Commission to set aside any inflexible unwillingness to permit a stockholder meeting to go forward in the absence of audited financial statements. That’s a good thing, as the Vice Chancellor reminds us, because “a stockholder’s right to a meeting is especially strong when financial management is so questionable as to delay the provision of audited financial statements for three full years.”

On the other hand, what if there’s no indication that the annual meeting will do anything other than re-elect incumbent directors in an uncontested vote? What if there’s no indication that a stockholder meeting would address concerns about inadequate leadership by the board or the senior officers of the company? In that circumstance, is the state interest in protecting the stockholder franchise a compelling consideration? Or does the Commission’s legitimate interest in promoting complete and accurate financial disclosures take priority in that circumstance, given investors’ general interest in the maintenance of such disclosures?

In an effort to answer these questions as they pertain to the present situation, I’d start by pointing out that I see nothing in the facts of the case indicating that the plaintiff holds a significant block of stock, nor anything indicating that the plaintiff intends to pursue or assist in the election of a competing slate of directors, or do anything else that would alter the composition of the board. In fact, the plaintiff and his counsel in the annual meeting suit are now pursuing a parallel derivative lawsuit in the Court of Chancery – nothing inherently wrong with that, but it’s not the usual technique for a stockholder attempting to promote a change in board composition. Anyway, and in a previous entry on this blog, I have questioned inflexible and undue obeisance to the idea that the annual meeting is indispensable.

In the pending situation, it may well be that Fuqi has satisfied the minimum requirements of Rule 200.30-1(e)(18), but surely the staff’s discretion in regard to exemptive applications doesn’t require that the exemption be granted in all cases where those minimum requirements are met. Surely the staff can and should evaluate how an exemption might or might not serve the larger interests of investors, as opposed to an abstract interest of stockholders in exercising the right to elect directors in an uncontested election.

From where I sit, then – a comfortable armchair – and based on the facts described in the Vice Chancellor’s opinion (and the facts not described there), I’d deny Fuqi’s exemption application, if I were the Director of the Division of Corporation Finance, and when Fuqi returns to the Delaware courts, as the Vice Chancellor’s order contemplated it could do, with a fully mature conflict of obligations, I’d stay the order compelling the convening of the annual meeting, subject to periodic review, unless and until it appeared that there was a reasonable prospect that the meeting would involve more than a formality of re-electing incumbent directors.

The October 15, 2012 report by the SEC pursuant to Section 504 of the JOBS Act examines the question whether the Commission has sufficient enforcement authority to address evasions of Rule 12b5-1. The new report has some provocative nuggets in it:

1. Strikingly, it reports that about 87% of companies currently in the ’34 Act reporting system by virtue of Section 12(g) (having had more than 500 stockholders of record) would not become subject to those reporting requirements under the increased threshold adopted in the JOBS Act.

2. Lest anyone rush to the conclusion that this statistic is alarming, the report (in footnote 70) cites recent empirical studies that suggest that the likely contraction of the application of reporting requirements is a good thing: according to those studies, companies not subject to public reporting obligations obviously avoid “disclosure costs related to revealing information to competitors.” Less obviously, but more interestingly, “there is also evidence that private companies have less myopic investment strategies compared to their public peers, and are more sensitive in responding to new investment opportunities.”

3. The 500 nonaccredited investor limit added by the JOBS Act creates additional detection problems, where special purpose vehicles might be used to aggregate the holdings of multiple such investors.

The report ultimately concludes that there isn’t enough information at the moment to request additional enforcement authority. It’s important to note what the new report (understandably, given the Congressional mandate) does not ask: whether tying Exchange Act registration to numbers of record stockholders makes sense any more in an age where, as the report explains, “the vast majority of investors own their securities as a beneficial owner through a securities intermediary,” unlike the system in place when the number of record holders was chosen to determine applicability of the registration requirement.

The suggestion that private companies have “less myopic investment strategies compared to their public peers” is yet more evidence that conscientious investors and managers in public companies could stand to rethink and reshape the quality of discourse about corporate performance.

Back in August, Professor Scheuer discussed the first whistleblower award issued by the SEC here. Following a recent whistleblower award development, Susan Lyon from NerdWallet authored a blog post titled, Understanding the New SEC Whistleblower Program: Breaking down the Largest Whistleblowing Rewards in U.S. history. In this post, Susan discusses how the IRS recently paid a former UBS banker Bradley Birkenfeld $104 million for his role as a whistleblowing informant, who provided the IRS with valuable insider information, resulting in a giant settlement with UBS. Susan explains,

The Dodd-Frank Act’s whistleblower program, established under the SEC, is the most recent attempt at strengthening and speeding up federal whistleblower programs.  While the DOJ, SEC, and IRS continue to push forth their own whistleblowing programs, the debate concerning proper retribution and consequences for such informants rages on.

Susan turned to five experts with the question: Is the SEC’s new program working, and is it better than the old IRS program? One expert—Institute Director and Professor of Corporate and Business Law Lawrence Hamermesh—provided the following insight:

“Clearly the one thing that Congress saw and wanted to fix was an insufficient incentive system for whistleblowers who had witnessed corporate misconduct.  So they decided to effectively hold out a ‘carrot’ – a portion of the money recovered as a result of any information the whistleblower provided.

The big question is how this will interact with internal corporate grievance and reporting programs already in place.  Firms were afraid the SEC program would take the wind out of their sails, but instead the program may actually bolster internal practices because the same person can now both report internally and to the SEC.  The commission did an admirable job setting up a reasonable balance between them to harmonize the two mechanisms.  We’ve now seen two claims addressed but the SEC can’t say much more about how well the program is working without threatening whistleblower anonymity.”

The remaining four experts include: (1) Tom Devine, Legal Director of the Governmental Accountability Project, who explains how the SEC has implemented the gold standard of whistleblower programs by protecting the whistleblower from industry retaliation; (2) Eva Marie Carney, Partner at RK&O LLP and former Assistant General Counsel at the SEC, who highlights the advantages of being able to anonymously report fraud to the SEC; (3) Professor Richard Moberly, Associate Dean at the University of Nebraska School of Law, who notes the unique aspects of the SEC program set up by Dodd-Frank in providing both strong retaliation protection as well as financial incentives; and (4) Professor Geoffrey Rapp, the Harold A. Anderson Professor of Law and Values at the University of Toledo College of Law, who draws attention to the key differences between SEC, IRS and FCA whistleblower programs.

To review Susan’s post and view the experts’ commentary, please visit here.

Ben Chapple (Widener Law ’13) attended the oral argument on September 19, 2012, before the Delaware Supreme Court in Gatz Properties v. Auriga Capital Corp.  (No. 148, 2012).  This is the case in which Chancellor Strine’s opinion concluded, following a lengthy analysis, that members and managers of a Delaware LLC owe fiduciary duties to the LLC by default, and that such duties exist unless excluded by the LLC agreement.

Ben files the following dispatch, and makes two predictions about the outcome:  (1) the Court may avoid deciding what standard of judicial review applies in the case, by holding that the result would be unaffected even if the entire fairness standard does not apply; and (2) the Court will likely determine that the defendant contractually owed fiduciary duties under the LLC agreement, and therefore it is unnecessary to decide whether such duties exist by default.

*          *          *

In the opinion below, the Court of Chancery held that a majority owner and manager of a LLC (“Gatz”) breached his fiduciary duties when he attempted to obtain ownership interests of the minority members in bad faith.  In deciding the case, Chancellor Strine found that traditional fiduciary duties of care and loyalty apply to LLCs unless the parties contract them away; thus, it was held that there are “default” fiduciary duties. As a result of this holding, many academics and practitioners have closely followed this appeal, anticipating that the Supreme Court will finally weigh in on this interesting issue, which was the subject of an online symposium here late last year. What follows is a brief overview of the oral argument and a couple predictions about the Court’s holding.

Defendant’s Arguments

On appeal, Gatz argued that LLCs are creatures of contract, not common law, and the LLC agreement at issue was unambiguous in its terms that certain conflict transactions were appropriate. Gatz further argued that the Court of Chancery implicitly applied the entire fairness standard, and that decision was contrary to terms of the LLC agreement. Justice Ridgely responded by asking Gatz’s counsel, “Wouldn’t the case be the same even without the entire fairness standard?” Counsel replied that the “prism” through which one views the facts makes a considerable difference, and the burden shift associated with the entire fairness standard was devastating to Gatz’s case.  To this end, Gatz argued that because Chancellor Strine turned a “safe harbor” provision—section 15 of the LLC agreement[1]—into an entire fairness provision, the legal prism should be corrected. Gatz asserted that reading entire fairness into section 15 is inappropriate because if the parties intended to limit transactions they would have done so contractually, which, Gatz contends, they did not. Gatz explained that although the LCC agreement imposed fiduciary duties—for example, as a result of section 15—section 16[2], as written, should have prevented the application of those duties in present case. Gatz argued that although the LLC agreement does not explicitly state that no fiduciary duties apply to certain conflict transactions, under Delaware law the applicable standard that is contractually identified should be enforced and respected by the courts. At the end of Gatz argument, Justice Jacobs stated, “Since [Gatz] conceded that some fiduciary duties apply, to that extent it was unnecessary for the trial court to interpret the LLC statute about default fiduciary duties.” Gatz responded, briefly, by reiterating his previous point that although the LLC agreement imposed fiduciary duties, section 16 of the agreement prevented the application of the duties in the case sub judice.

Plaintiffs’ Arguments

The appellee, Auriga Capital Corp. (“Auriga”), focused its portion of the argument on the contention that Gatz waived the claim that fiduciary duties did not apply—by default or otherwise. Auriga asserted that Gatz repeatedly admitted, throughout pre-trial stages, that fiduciary duties applied and it, like Chancellor Strine, relied on these representations. Auriga asserted that fiduciary duties, whether based on contract or common law, are the same—(1) the duty of loyalty, and (2) the duty of care—and based on the facts of the case, the Court does not need to address whether duties exist by default because they existed by contract, namely as a result of section 15. Additionally, Auriga stated that the “law review” portion of the trial court’s opinion—relating to whether fiduciary duties exist by default—was not addressed by the parties below, and therefore the Court should not decide this issue because it was not “vigorously debated” at trial.

Two Predictions

(1) Based on Justice Ridgely’s question—”Wouldn’t the case be the same even without the entire fairness standard?”—the Court may avoid deciding this issue by holding that the result of the case is unaffected regardless of whether the entire fairness standard applies; and (2) the Court, consistent with avoiding this issue, will likely limits its analysis by determining that Gatz contractually owed Auriga fiduciary duties as a result of section 15 of the LLC agreement, and therefore it is unnecessary to decide whether they exist by default.

The annual report of the Institute of Delaware Corporate and Business Law is now available here. We’ve already begun a busy year of programming (see this report on last week’s visit by Prof. Mohsen Manesh of the University of Oregon School of Law.)