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Corporate and Commercial Practice in the Delaware Court of Chancery
Like the first edition, the second edition of Corporate and Commercial Practice, concentrates the analysis and discussion on those aspects of litigation practice that are peculiar to this special tribunal – the Delaware Court of Chancery.
Publisher: Matthew Bender
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It was not a problem we had fully anticipated in 1998, distracted perhaps by the knowledge that the law develops only incrementally...So we did not trouble ourselves with the effect that the evolution of the law, much less the potential for occasional tectonic conceptual shifts, would have upon our original work.” But twenty years later, this second edition corrects this misassumption by exploring and explaining this evolution in clearer and more accessible analysis of case law and legal principles. ...Now entering upon its third century, and one of the few remaining courts of equity in the United States, the Delaware Court of Chancery, in the estimation of many qualified observers, is the most broadly influential state tribunal in the nation, not only with respect to matters of internal corporate governance but as to equitable jurisprudence in general.” Like the first edition, the second edition of Corporate and Commercial Practice, concentrates the analysis and discussion on those aspects of litigation practice that are peculiar to this special tribunal – the Delaware Court of Chancery.
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Chapter 1 Introduction: The Court of Chancery of the State of Delaware
§ 1.01 Introduction.
§ 1.02 The Creation of the Delaware Court of Chancery.
§ 1.03 The Court of Chancery as a Preeminent Corporate and Business Law Tribunal.
§ 1.04 The Court of Chancery as a Court of Equity.
§ 1.05 The Composition of the Court of Chancery, Structure, Docket, and Court Rules.
§ 1.06 The Register in Chancery.
§ 1.07 Masters in Chancery.
§ 1.08 Trials to the Court; Advisory Jury Procedure.
§ 1.09 Court of Chancery Jurisdiction Over Technology Disputes and Business Mediation.
§ 1.10 Electronic Filing in the Court of Chancery.
§ 1.11 Admission to Practice Pro Hac Vice.
Annex 1 GUIDELINES TO HELP LAWYERS PRACTICING IN THE COURT OF CHANCERY
I. Guidelines for Practitioners for In-Court Hearings and Trials in the Court of Chancery
II. Guidelines on Best Practices for Litigating Cases Before the Court of Chancery
Chapter 2 Subject Matter Jurisdiction of the Court of Chancery
§ 2.01 Introduction.
§ 2.02 The Historical Antecedents of Chancery’s Equity Jurisdiction.
§ 2.03 The Sources of Equitable Jurisdiction.
§ 2.04 The Equitable “Clean-Up” Doctrine (Ancillary Jurisdiction over Legal Claims).
§ 2.05 Lack of Subject Matter Jurisdiction to Award Punitive Damages.
§ 2.06 Transfer of Suits to Other Courts (10 Del. C.
§ 1902).
Chapter 3 Service of Process, In Rem, Quasi In Rem, and in Personam Jurisdiction
§ 3.01 Service of Process (Chancery Court Rule 4).
§ 3.02 Motions to Dismiss for Lack of Jurisdiction over the Person.
§ 3.03 In Rem and Quasi in Rem Jurisdiction: Service of Process under Sections 365 and 366 of Title 10.
§ 3.04 In Personam Jurisdiction.
§ 3.05 Service of Process Under the Hague Convention.
Chapter 4 Commencement of Actions, Motion Practice, and Briefing
§ 4.01 Commencement of an Action.
§ 4.02 Motions.
§ 4.03 Briefs and Memoranda.
§ 4.04 Citations in Motions, Briefs, and Memoranda; Precedential Value of Unreported Decisions.
§ 4.05 Motions for Sanctions Under Chancery Court Rule 11.
§ 4.06 Dispositive Motions Under Chancery Court Rule 12.
§ 4.07 Chancery Court Rule 15 Motions to Amend or Supplement Pleadings.
§ 4.08 Chancery Court Rule 56 Motions for Summary Judgment.
§ 4.09 Post-Trial Motions.
§ 4.10 Motions for Expedited Proceedings.
Chapter 5 Litigation in Multiple Jurisdictions: The Court of Chancery’s Approach to Issues of Comity, Forum Non Conveniens, And Forum Selection Clauses
§ 5.01 The First-Filed Rule.
§ 5.02 Forum Non Conveniens.
§ 5.03 Injunctions in Aid of Jurisdiction.
§ 5.04 Stockholder Representative Litigation in Multiple Jurisdictions.
§ 5.05 Forum Selection Clauses.
Chapter 6 Depositions and Discovery Practice
§ 6.01 Introduction.
§ 6.02 Protecting Confidential Discovery Material (Confidentiality Orders, Confidential Filings, and the Public Right of Access to Judicial Proceedings).
§ 6.03 Motions to Stay Discovery Pending Resolution of Potentially Dispositive Pretrial Motions.
§ 6.04 Expedited Discovery.
§ 6.05 Drafting and Responding to Written Discovery Requests.
§ 6.06 Discovery of Electronically Stored Information.
§ 6.07 Deposition Practice.
Chapter 7 Privileges and Immunities
§ 7.01 The Work Product Doctrine.
§ 7.02 The Attorney-Client Privilege.
§ 7.03 The Business Strategies Immunity.
§ 7.04 Properly Raising a Privilege and Describing Privileged Documents (Privilege Logs).
Chapter 8 Court of Chancery Proceedings Relating to Mediation and Arbitration
§ 8.01 Voluntary Mediation in the Court of Chancery.
§ 8.02 Agreements to Arbitrate and Court of Chancery Proceedings Relating to Arbitration.
Chapter 9 Special Proceedings in the Court of Chancery for Delaware Entities
§ 9.01 Introduction; Nature of Summary Proceedings.
§ 9.02 Actions Relating to the Indemnification and Advancement of Expenses to Directors, Officers, Employees, and Agents of Delaware Corporations and Alternative Business Entities.
§ 9.03 Suits to Compel the Issuance of New Stock Certificates or the Registration of Stock Transfers.
§ 9.04 Rectifying Defective Corporate Acts Pursuant to Sections 204 and 205.
§ 9.05 Actions to Compel Annual Meetings of Stockholders or Members of Nonstock Corporations under Sections 211 and 215.
§ 9.06 Proceedings to Break Deadlock as to Voting of Jointly Held Shares under Section 217.
§ 9.07 Actions to Compel Inspection of Stocklist and Other Books and Records of Corporations and Alternative Business Entities.
§ 9.08 Proceedings to Compel Stockholder Elections to Fill Vacancies and Newly Created Directorships under Section 223.
§ 9.09 Judicial Review of Election Disputes and Disputed Votes Under the General Corporation Law and Delaware’s Alternative Entity Statutes.
§ 9.10 Appointment of Custodians for Solvent Corporations to Resolve Director or Stockholder Deadlock (Sections 226, 352, and 353).
§ 9.11 Appraisal Proceedings under Section 262.
Chapter 10 Dissolution and Insolvency Proceedings in the Court of Chancery
§ 10.01 Overview.
§ 10.02 Dissolutions under the Delaware General Corporation Law.
§ 10.03 The Statutory Winding-Up Period for Dissolved Delaware Corporations (Section 278).
§ 10.04 Winding Up Dissolved Corporations under Sections 280 and 281.
§ 10.05 Trust and Receivership Proceedings for Dissolved and Insolvent Corporations.
§ 10.06 Compromises and Arrangements among Corporations, Their Creditors, and Stockholders (Sections 102(b)(2) and 302).
§ 10.07 Dissolution and Winding Up of Alternative Entities.
§ 10.08 Assignments for the Benefit of Creditors in the Court of Chancery.
Chapter 11 Derivative Actions in the Court of Chancery
§ 11.01 Introduction.
§11.02 Distinguishing Derivative Claims from Individual Claims.
§ 11.03 Corporate Derivative Standing Requirements.
§ 11.04 Standing Requirements for Alternative Entity Derivative Actions.
§ 11.05 Zapata and Its Progeny: The Special Litigation Committee.
§ 11.06 Double Derivative Suits.
§ 11.07 Separate Counsel for the Corporate Nominal Defendant and Individual Defendants in Derivative Suits.
Chapter 12 Class Actions
§ 12.01 Introduction.
§ 12.02 Class Action Certification.
§ 12.03 Notice and Opt-Out Rights; Due Process Considerations.
§ 12.04 Miscellaneous Provisions of Rule 23.
Chapter 13 The Selection of Lead Counsel in and the Dismissal and Compromise of Representative Litigation in the Court of Chancery
§ 13.01 Introduction.
§ 13.02 Selection of Lead Counsel in Representative Suits.
§ 13.03 Dismissal and Compromise of Representative Suits.
Chapter 14 Interlocutory Injunction Proceedings
§ 14.01 Introduction.
§ 14.02 Motions for Expedited Proceedings and the Role of the Scheduling Conference.
§ 14.03 Preliminary Injunctions.
§ 14.04 Temporary Restraining Orders.
§ 14.05 Pleading Requirements, Rule 65, and Related Procedural Considerations.
§ 14.06 The Security Requirement.
§ 14.07 Proceedings to Recover on Injunction Bonds.
Chapter 15 Equitable Defenses
§ 15.01 Introduction.
§ 15.02 Equitable Estoppel.
§ 15.03 Waiver.
§ 15.04 Acquiescence.
§ 15.05 Ratification.
§ 15.06 The Cleansing Effects of Stockholder Approval With Respect to Breach of Fiduciary Duty Claims.
§ 15.07 Laches.
§ 15.08 Unclean Hands.
Chapter 16 Equitable Remedies and Monetary Relief in the Court of Chancery
§ 16.01 Introduction.
§ 16.02 Injunctive Relief.
§ 16.03 Specific Performance.
§ 16.04 Rescission.
§ 16.05 Reformation.
§ 16.06 Accounting.
§ 16.07 Constructive and Resulting Trusts and Equitable Liens.
§ 16.08 Subrogation.
§ 16.09 Monetary Relief in the Court of Chancery.
Chapter 17 Costs and Attorneys' Fees
§ 17.01 Introduction.
§ 17.02 The Allowance of Costs.
§ 17.03 Awards of Attorneys' Fees.
Chapter 18 Appeals and Certification of Questions of Law to the Supreme Court of Delaware
§ 18.01 Introduction.
§ 18.02 Final Judgments.
§ 18.03 Court of Chancery Rule 54(b): Partial Final Judgment.
§ 18.04 Supreme Court Rule 42: Interlocutory Appeals.
§ 18.05 Procedure for Certification of an Interlocutory Appeal.
§ 18.06 The Collateral-Order Doctrine.
§ 18.07 Certification of Questions of Law.
§ 18.08 Time for Appeal.
§ 18.09 Injunctions and Stays Pending Appeal.
§ 18.10 Standards of Appellate Review.
§ 18.11 Motions for Reargument and Issuance of Supreme Court Mandate.
TABLE OF CASES
INDEX
§ 1.01 Introduction.
§ 1.02 The Creation of the Delaware Court of Chancery.
§ 1.03 The Court of Chancery as a Preeminent Corporate and Business Law Tribunal.
§ 1.04 The Court of Chancery as a Court of Equity.
§ 1.05 The Composition of the Court of Chancery, Structure, Docket, and Court Rules.
§ 1.06 The Register in Chancery.
§ 1.07 Masters in Chancery.
§ 1.08 Trials to the Court; Advisory Jury Procedure.
§ 1.09 Court of Chancery Jurisdiction Over Technology Disputes and Business Mediation.
§ 1.10 Electronic Filing in the Court of Chancery.
§ 1.11 Admission to Practice Pro Hac Vice.
Annex 1 GUIDELINES TO HELP LAWYERS PRACTICING IN THE COURT OF CHANCERY
I. Guidelines for Practitioners for In-Court Hearings and Trials in the Court of Chancery
II. Guidelines on Best Practices for Litigating Cases Before the Court of Chancery
Chapter 2 Subject Matter Jurisdiction of the Court of Chancery
§ 2.01 Introduction.
§ 2.02 The Historical Antecedents of Chancery’s Equity Jurisdiction.
§ 2.03 The Sources of Equitable Jurisdiction.
§ 2.04 The Equitable “Clean-Up” Doctrine (Ancillary Jurisdiction over Legal Claims).
§ 2.05 Lack of Subject Matter Jurisdiction to Award Punitive Damages.
§ 2.06 Transfer of Suits to Other Courts (10 Del. C.
§ 1902).
Chapter 3 Service of Process, In Rem, Quasi In Rem, and in Personam Jurisdiction
§ 3.01 Service of Process (Chancery Court Rule 4).
§ 3.02 Motions to Dismiss for Lack of Jurisdiction over the Person.
§ 3.03 In Rem and Quasi in Rem Jurisdiction: Service of Process under Sections 365 and 366 of Title 10.
§ 3.04 In Personam Jurisdiction.
§ 3.05 Service of Process Under the Hague Convention.
Chapter 4 Commencement of Actions, Motion Practice, and Briefing
§ 4.01 Commencement of an Action.
§ 4.02 Motions.
§ 4.03 Briefs and Memoranda.
§ 4.04 Citations in Motions, Briefs, and Memoranda; Precedential Value of Unreported Decisions.
§ 4.05 Motions for Sanctions Under Chancery Court Rule 11.
§ 4.06 Dispositive Motions Under Chancery Court Rule 12.
§ 4.07 Chancery Court Rule 15 Motions to Amend or Supplement Pleadings.
§ 4.08 Chancery Court Rule 56 Motions for Summary Judgment.
§ 4.09 Post-Trial Motions.
§ 4.10 Motions for Expedited Proceedings.
Chapter 5 Litigation in Multiple Jurisdictions: The Court of Chancery’s Approach to Issues of Comity, Forum Non Conveniens, And Forum Selection Clauses
§ 5.01 The First-Filed Rule.
§ 5.02 Forum Non Conveniens.
§ 5.03 Injunctions in Aid of Jurisdiction.
§ 5.04 Stockholder Representative Litigation in Multiple Jurisdictions.
§ 5.05 Forum Selection Clauses.
Chapter 6 Depositions and Discovery Practice
§ 6.01 Introduction.
§ 6.02 Protecting Confidential Discovery Material (Confidentiality Orders, Confidential Filings, and the Public Right of Access to Judicial Proceedings).
§ 6.03 Motions to Stay Discovery Pending Resolution of Potentially Dispositive Pretrial Motions.
§ 6.04 Expedited Discovery.
§ 6.05 Drafting and Responding to Written Discovery Requests.
§ 6.06 Discovery of Electronically Stored Information.
§ 6.07 Deposition Practice.
Chapter 7 Privileges and Immunities
§ 7.01 The Work Product Doctrine.
§ 7.02 The Attorney-Client Privilege.
§ 7.03 The Business Strategies Immunity.
§ 7.04 Properly Raising a Privilege and Describing Privileged Documents (Privilege Logs).
Chapter 8 Court of Chancery Proceedings Relating to Mediation and Arbitration
§ 8.01 Voluntary Mediation in the Court of Chancery.
§ 8.02 Agreements to Arbitrate and Court of Chancery Proceedings Relating to Arbitration.
Chapter 9 Special Proceedings in the Court of Chancery for Delaware Entities
§ 9.01 Introduction; Nature of Summary Proceedings.
§ 9.02 Actions Relating to the Indemnification and Advancement of Expenses to Directors, Officers, Employees, and Agents of Delaware Corporations and Alternative Business Entities.
§ 9.03 Suits to Compel the Issuance of New Stock Certificates or the Registration of Stock Transfers.
§ 9.04 Rectifying Defective Corporate Acts Pursuant to Sections 204 and 205.
§ 9.05 Actions to Compel Annual Meetings of Stockholders or Members of Nonstock Corporations under Sections 211 and 215.
§ 9.06 Proceedings to Break Deadlock as to Voting of Jointly Held Shares under Section 217.
§ 9.07 Actions to Compel Inspection of Stocklist and Other Books and Records of Corporations and Alternative Business Entities.
§ 9.08 Proceedings to Compel Stockholder Elections to Fill Vacancies and Newly Created Directorships under Section 223.
§ 9.09 Judicial Review of Election Disputes and Disputed Votes Under the General Corporation Law and Delaware’s Alternative Entity Statutes.
§ 9.10 Appointment of Custodians for Solvent Corporations to Resolve Director or Stockholder Deadlock (Sections 226, 352, and 353).
§ 9.11 Appraisal Proceedings under Section 262.
Chapter 10 Dissolution and Insolvency Proceedings in the Court of Chancery
§ 10.01 Overview.
§ 10.02 Dissolutions under the Delaware General Corporation Law.
§ 10.03 The Statutory Winding-Up Period for Dissolved Delaware Corporations (Section 278).
§ 10.04 Winding Up Dissolved Corporations under Sections 280 and 281.
§ 10.05 Trust and Receivership Proceedings for Dissolved and Insolvent Corporations.
§ 10.06 Compromises and Arrangements among Corporations, Their Creditors, and Stockholders (Sections 102(b)(2) and 302).
§ 10.07 Dissolution and Winding Up of Alternative Entities.
§ 10.08 Assignments for the Benefit of Creditors in the Court of Chancery.
Chapter 11 Derivative Actions in the Court of Chancery
§ 11.01 Introduction.
§11.02 Distinguishing Derivative Claims from Individual Claims.
§ 11.03 Corporate Derivative Standing Requirements.
§ 11.04 Standing Requirements for Alternative Entity Derivative Actions.
§ 11.05 Zapata and Its Progeny: The Special Litigation Committee.
§ 11.06 Double Derivative Suits.
§ 11.07 Separate Counsel for the Corporate Nominal Defendant and Individual Defendants in Derivative Suits.
Chapter 12 Class Actions
§ 12.01 Introduction.
§ 12.02 Class Action Certification.
§ 12.03 Notice and Opt-Out Rights; Due Process Considerations.
§ 12.04 Miscellaneous Provisions of Rule 23.
Chapter 13 The Selection of Lead Counsel in and the Dismissal and Compromise of Representative Litigation in the Court of Chancery
§ 13.01 Introduction.
§ 13.02 Selection of Lead Counsel in Representative Suits.
§ 13.03 Dismissal and Compromise of Representative Suits.
Chapter 14 Interlocutory Injunction Proceedings
§ 14.01 Introduction.
§ 14.02 Motions for Expedited Proceedings and the Role of the Scheduling Conference.
§ 14.03 Preliminary Injunctions.
§ 14.04 Temporary Restraining Orders.
§ 14.05 Pleading Requirements, Rule 65, and Related Procedural Considerations.
§ 14.06 The Security Requirement.
§ 14.07 Proceedings to Recover on Injunction Bonds.
Chapter 15 Equitable Defenses
§ 15.01 Introduction.
§ 15.02 Equitable Estoppel.
§ 15.03 Waiver.
§ 15.04 Acquiescence.
§ 15.05 Ratification.
§ 15.06 The Cleansing Effects of Stockholder Approval With Respect to Breach of Fiduciary Duty Claims.
§ 15.07 Laches.
§ 15.08 Unclean Hands.
Chapter 16 Equitable Remedies and Monetary Relief in the Court of Chancery
§ 16.01 Introduction.
§ 16.02 Injunctive Relief.
§ 16.03 Specific Performance.
§ 16.04 Rescission.
§ 16.05 Reformation.
§ 16.06 Accounting.
§ 16.07 Constructive and Resulting Trusts and Equitable Liens.
§ 16.08 Subrogation.
§ 16.09 Monetary Relief in the Court of Chancery.
Chapter 17 Costs and Attorneys' Fees
§ 17.01 Introduction.
§ 17.02 The Allowance of Costs.
§ 17.03 Awards of Attorneys' Fees.
Chapter 18 Appeals and Certification of Questions of Law to the Supreme Court of Delaware
§ 18.01 Introduction.
§ 18.02 Final Judgments.
§ 18.03 Court of Chancery Rule 54(b): Partial Final Judgment.
§ 18.04 Supreme Court Rule 42: Interlocutory Appeals.
§ 18.05 Procedure for Certification of an Interlocutory Appeal.
§ 18.06 The Collateral-Order Doctrine.
§ 18.07 Certification of Questions of Law.
§ 18.08 Time for Appeal.
§ 18.09 Injunctions and Stays Pending Appeal.
§ 18.10 Standards of Appellate Review.
§ 18.11 Motions for Reargument and Issuance of Supreme Court Mandate.
TABLE OF CASES
INDEX