By James DeChene
In a front page Wall Street Journal article, Delaware’s continued status as the premier corporate friendly location is called into question. The article highlights two specific provisions, fee-shifting and appraisal arbitrage, as the primary stumbling blocks to Delaware’s long standing reputation. Legislation on fee-shifting, authorized by a state Supreme Court decision last year, was passed in order to reverse the Court’s decision that would have curtailed shareholder derivative litigation in the state by requiring the losing party to cover the attorney’s fees and costs for both sides. In addition, the article outlined the proposal of new language that would change the rate of interest paid to shareholders until their appraisal case is decided. Shareholders now accrue 5.75 percent in annual interest on the deal price while waiting the years it takes to decide an appraisal case. There are those that feel that the rate is too high and limits the downside for hedge funds, encouraging them to exercise appraisal rights. Currently, if the court decides that the amount paid in the merger was fair and the hedge fund receives nothing extra, it still receives the interest. The proposed language permits companies to pay the amount of the merger price they do not dispute and then pay interest only on the amount of any difference if the court determines a higher value, but again, this language is not expected to be voted on by the General Assembly until 2016.At the end of the day, the takeaway from the article is that:
Here’s a blog posting (via Reuters) highlighting two cases last week where Vice Chancellors Laster and Noble sent pretty clear messages around so-called “disclosure only” settlements. These rulings are illustrative of the Delaware judiciary’s deep concerns about awarding legal fees in cases where little to nothing of substance is achieved for either the corporation or its shareholders. Two other recent cases further illustrate the Court of Chancery’s ability to sort out cases on their merits:
The referenced bill on fee-shifting/forum selection created a vehicle allowing companies to ensure that Delaware is the venue for their internal corporate disputes and it’s altogether appropriate that the business world watch carefully to see if the State’s judges fairly and actively filter out weak cases brought to Delaware. No doubt there will be many strong cases where litigants (and their counsel) will be well rewarded — but each of the above rulings show that Delaware’s courts are well equipped to combat meritless litigation and mindful of a responsibility to separate the wheat from the chaff.
James DeChene is the Chamber's Senior Vice President of Government Affairs.