Frank Reynolds, who has been covering Delaware corporate decisions for various national publications for over 40 years, prepared this article.

The full Delaware Supreme Court recently issued a guidepost decision that found a challenge by Moelis & Company investors of the investment bank’s 2014 stockholder agreement—after a delay of nine years—was barred by a laches defense because the pact’s provisions were “voidable” rather than “void” under Delaware corporate law in Moelis & Company v. West Palm Beach Firefighters Pension Fund, et. al., No. 340, 2024 (Del. Jan. 23, 2026).

The unanimous ruling, written by Justice Gary Traynor, reversed a Chancery ruling that the shareholders’ delay was not fatal to the action because the agreement clearly interfered with the corporate board’s right to manage the business and affairs of the corporation in violation of the requirements of 8 Del. C. § 141(a). 

Suit 6 yrs. Over\due?

The high court’s opinion found that everything the plaintiff needed to file its claim was available in 2014. Because the complaint was only voidable, the challenge to the validity of the agreement was time-barred expressly by 10 Del. C. § 8106’s three-year statute of limitations or by analogy under the doctrine of laches.

Background

According to the court record, Kenneth Moelis, a veteran investment banker, founded Moelis & Company, an independent investment bank, that was immediately successful in securing and performing advisory work on high-profile M&A transactions and soon  expanded globally.  Kenneth Moelis had served as Moelis & Company’s CEO and chaired its board of directors since its founding.  In 2014, Moelis & Company announced an initial public offering of its Class A common stock and changed its corporate structure in preparation for the IPO.

That change in structure was viewed by an investor as inequitable to stockholders in the two-part company. In March 2023, the West Palm Beach Firefighters’ Pension Fund, a Class A stockholder since November 2014, filed this lawsuit against Moelis claiming that the provisions of the stockholders’ agreement were facially invalid because they violate § 141 of the Delaware General Corporation Law. The complaint requested a declaratory judgment that these provisions are invalid and unenforceable, and both sides sought summary judgment.

The Court of Chancery concluded that the challenged provisions facially violated § 141(a), declared them void and unenforceable—and later awarded the plaintiff $6 million in attorney fees.

The appeal

 On appeal, Moelis argued that the Court of Chancery’s conclusion that the plaintiff’s claims were not time-barred by laches was erroneous as was its determination that the challenged provisions are facially invalid.   Since they agreed with Moelis’ timeliness argument, the justices found no need to address the other issue.  Justice Traynor noted that three months after Chancery issued its opinion, legislation was introduced in the Delaware General Assembly to “mitigate—if not annul—” the effects of the court’s opinion by amending Section 122 of the Delaware General Corporation law.   “The original synopsis of the bill left little doubt that it was drafted and passed in response to the Court of Chancery’s decision,” the Justice wrote.

“The limitations of actions applicable in a court of law are not controlling in equity,” he explained.  But “a court of equity moves upon considerations of conscience, good faith, and reasonable diligence, so, when a plaintiff advances an equitable claim or a legal claim seeking equitable relief, the Court of Chancery will instead apply the doctrine of laches to determine the timeliness of the claim.”

Void v. voidable

In differentiating between void and voidable, the high court said, “Because all the disputed actions taken at the meeting could have been  accomplished lawfully by the defendants had they done them in the proper manner—that is, with proper notice—the actions were deemed voidable, not void, and therefore subject to the equitable defenses of laches and acquiescence.”

Therefore, the way to distinguish void from voidable, “ is not whether the method actually chosen by the Moelis board to implement the challenged provisions was valid under the DGCL,” Justice Traynor  wrote.  “Instead, we evaluate whether the plaintiff has demonstrated that there are no lawful means by which Moelis could accomplish its desired governance arrangements, making the challenged provisions susceptible to cure and therefore voidable.”  However, the Court of Chancery never made that evaluation or consulted the major opinions that address the issue, he said.

Conclusion

Moreover, it was the plaintiff’s burden to demonstrate that the challenged provisions were void, but it never made more than a “cursory” effort, the Justice said.

“Our law  does not permit the maintenance of lawsuits where the plaintiff has no excuse for delay merely because the status quo of the parties or property involved has stayed the same and an adequate evidentiary record is available,” the high court concluded.

This week, Volume 2, Edition 1 of the National Law Review‘s Delaware Corporate and Commercial Law Monitor was published, beginning its second year. I’m the Editor-in-Chief. It is published monthly and emailed to a select few from the mailing lists the NLR has for their 25 other newsletters, as well as the existing subscribers of this blog who read these pages from all 50 states and over 90 countries. To be clear: this blog will continue unabated.

The 21st edition of Francis Pileggi’s annual list of key corporate and commercial decisions of the Delaware Supreme Court and the Delaware Court of Chancery has been published by The National Law Review. This year’s list does not attempt to include all important decisions of those courts that were rendered in 2025, and eschews some of the cases already extensively discussed by the mainstream press or legal trade publications. This list highlights 23 of the notable decisions that should be of widespread interest to those involved in corporate and commercial litigation or those who follow the latest developments in this area of Delaware law.

The National Law Review published this year’s annual review last week at the following link and we appreciate them making it available to all our readers: 21st Annual Review of Key Delaware Corporate & Commercial Decisions.

Frank Reynolds, who has been covering Delaware corporate decisions for various national publications for over 40 years, prepared this article.

The Court of Chancery recently ruled that Genesis CMG Holdings LLC cannot cosmetically re-word its non-compete violation charges against an ex-director/officer of the direct advertiser to avoid its obligation to advance funds for his defense in the underlying action in, Theodore Barr v. Genesis CMG Holdings, LLC, C.A. No. 2025-0981-SEM (Del. Ch. Dec. 23, 2025).

 Vice Chancellor Paul Fioravanti Jr.–who had been overseeing the advancement suit and the company’s initial claim that after resigning, ex-officer Theodore Barr tried to pirate key information and personnel from Genisis–gave a Magistrate the authority to decide dueling motions in the advancement action.  She granted Barr’s summary judgment motion on grounds that despite the re-wording, the nature of the non-compete action’s claims remained essentially the same. 

The ruling is important for corporate law as well as director and officer insurance specialists because it was decided largely based on which guidepost Chancery opinion it most resembled regarding the ability of a defendant company to reword a complaint in a way that renders it no longer eligible for advancement of defense funds: 

Carr v. Global Payments Inc.,

The Magistrate found that  Genisis’ motion to dismiss the advancement suit after the company re-worded its underlying non-compete complaint should be denied because it was akin to Carr v. Global Payments where the Court of Chancery ruled,  because “[t]he gravamen of the underlying complaint [was] that [the individual] had access to proprietary information by reason of the fact that he was a director and officer  and that he wrongly used that information for his personal benefit,” this Court denied the corporation’s motion to dismiss the individual’s advancement claim.”  Carr v. Global Payments Inc., 2019 WL 6726214, (Del. Ch. Dec. 11, 2019)

 Brown v. LiveOps, Inc.,

“Far from the concessions made in Carr, the amendments in the Underlying Action are largely cosmetic,” the Senior Magistrate noted in distinguishing the Genisis amended complaint and granting plaintiff Barr’s motion for summary judgment on the advancement issue.  In Brown v. LiveOps, the corporation had sued a former officer and director for violating “its contractual and intellectual property rights by operating a competing business” formed after the individual left the corporation, the Senior Magistrate said, noting that, in doing so, it pled that many of the competitive acts occurred before the individual left the corporation. 

“Unlike the defendant in Carr, the Defendant has not removed any cause of action, abandoned any theory of liability, or added new facts inconsistent with advancement.”  Brown v. LiveOps, Inc., 903 A.2d 324, 325 (Del. Ch. 2006).

Background

Plaintiff Theodore Barr co-founded Converze Media Group, LLC a California-based media agency that developed and executed direct response advertising strategies for its clients but sold his 45% equity interest in Converze to the Defendant and entered into an Amended and Restated Limited Liability Company Agreement with the defendant in 2023.  Under the LLC Agreement, Barr was named as an initial director of the Defendant, and entered into an employment agreement to serve as the Chief Client Officer .

It was that role and Barr’s acknowledged intimate knowledge of Converze’s business that sparked the company’s underlying suit alleging that he later misused his ability to adversely affect Converze after he sold his stock and began an allegedly competing business.  Genesis CMG Holdings, LLC v. Simplicity Media, LLC, C.A. No. 2025-0676-SEM.

But when Barr sought advancement of defense costs in that action, Converze amended and re-worded its complaint regarding his alleged violations of the non-compete pact, claiming that as amended the charges were no longer based on actions that arose from his director/officer role, so Barr is no longer entitled to advancement.

Mooted?

In her December 23 ruling on the dueling advancement motions, the senior magistrate  said at oral argument, the Defendant’s attorney conceded that, to some extent, the Initial Complaint in the Underlying Action was drafted in such a way that it could be interpreted as related to or arising out of the Plaintiff’s performance of his duties, but  contended that that the Amended Complaint “fixed the issue and cut off any post-amendment advancement.”   

The Court disagreed. “Delaware law recognizes the ability of a defendant corporation to moot an advancement dispute by removing any [claims] that would trigger an advancement right ,” the Senior Magistrate said, noting the Chancery Court’s decision in Mooney v. Echo Therapeutics, Inc., 2015 WL 3413272, (Del. Ch. May 28, 2015);

However, that ability is limited by the Carr ruling that looks to substance over form. “The mere relabeling of claims will not support [denying advancement] when the underlying litigation remains substantially the same,” she added.  Besides that, the parties agreed that   8 Del. C. § 145 is comparable and under that standard, “if there is a nexus or causal connection between any of the underlying proceedings . . . and one’s official corporate capacity, those proceedings are by reason of the fact . . .without regard to one’s motivation for engaging in that conduct,” the court said, referring to In re Genelux Corp., 2015 WL 6390232, (Del. Ch. Oct. 22, 2015).

Fees on fees?

Granting Barr’s fees petition, the Senior Magistrate held, “This Court awards fees on fees when a plaintiff successfully shows an entitlement to advancement that wrongfully was withheld by the defendant corporation.”

The Delaware Supreme Court recently reinstated the compensation package that Tesla awarded to Elon Musk and that the Delaware Court of Chancery invalidated in two separate prior rulings, in the matter styled In re Tesla, Inc. Derivative Litigation, Del. Supr., No. 534, 2024 (Dec.19,2025). As one might expect, commentary about this ruling has already been extensive in the short time since the decision was handed down. A representative sample of the many articles in legal publications and the mainstream press is the recent Wall Street Journal editorial.

I typically eschew writing about opinions that have already been the subject of extensive analysis, so for this opinion I will simply provide my pithy insights on what I think are its most noteworthy aspects.

The most consequential aspect of this decision is the result—as compared to the reasoning. Delaware’s high court did not find that the Chancellor was wrong in deciding that the compensation package did not satisfy the entire fairness test, but instead the court found it would be “inequitable” not to pay Musk for the six years covered by the compensation package during which he performed work.

The most notable part of the Supreme Court’s reasoning was that rescission was not an appropriate remedy to the extent that the parties could not be returned to their respective positions before this litigation started—if the compensation package was denied to Musk. For example, the period of time that the compensation package covered had already expired.

Instead, the High Court awarded nominal damages of $1 and granted attorneys’ fees based on quantum meruit and an hourly rate as opposed to the more typical method in these cases which awards fees on a percentage basis, and which was used by the Court of Chancery.

Much more can be written and will be written about this decision, but for my limited purposes another observation is that the court, in a per curiam decision, avoided substantial blowback that would have resulted if the trial court’s rejection of the compensation package were upheld.

The court made its decision on the merits alone. But judges are human. A different result, at the very least, would have generated a reaction from the person whose compensation was at issue and who has over 230 million followers on his social media platform. He has an impact on this planet, and beyond this planet, far greater than any human being in many generations.

A recent decision from the Delaware Court of Chancery is a gem of a pithy ruling that is chock-full of practical principles. The elements of a claim for fraud, which is the same in Delaware as fraudulent inducement, may be basic, but this letter ruling provides a useful restatement of the law.

In iSense, LLC v. Biomerieux, Inc., et al., C.A. No. 2023-1221-SKR (Del. Ch. Dec. 4, 2025), the court also features the somewhat unusual requirements for a successful motion to strike under Rule 12(f), which permits a party to strike a pleading for several reasons, including the one employed here, for “any insufficient defense.” The court referred to several other related lawsuits in Delaware involving a dispute over the licensing and sub-licensing of certain medical patents.

This short blog post will only highlight the noteworthy basic and esoteric rules and substantive law that have widespread application for corporate and commercial litigators.

Highlights

  • Court of Chancery Rule 12(f) allows a party to move to strike from a pleading “any insufficient defense.” Though not applicable here, it also allows a party to move to strike any material that is “redundant, scandalous, immaterial, or not pertinent.”
  • The court explained that such motions are “granted sparingly and only when clearly warranted with all doubt being resolved in the non-moving parties’ favor.” Slip op. at 6.
  • The court instructed that a motion to strike “reaches formal defects only” and will be denied “if the defense is sufficient under law.” Id. (footnotes omitted).
  • The affirmative defense at issue was a rejoinder to a breach of contract claim and the argument was that fraudulent inducement was a defense to the enforcement of the contract if it existed.
  • The court recognized fraudulent inducement as an appropriate affirmative defense to a breach of contract, but the court concluded that the defendant failed to allege the required element of reliance. Id.
  • The court recited the five necessary elements for a fraud claim, which in Delaware are the same as for fraudulent inducement. Id. at 7.
  • Court of Chancery Rule 9(b) provides the fraud must be pled with particularity including when it is raised as an affirmative defense, although “conditions of a person’s mind may be alleged generally.” Id. at 7. (footnotes omitted).
  • The reliance required for establishing fraud as a claim or an affirmative defense requires a party to “allege—at minimum—particularized actual allegations from which the court may reasonably infer reasonable reliance. The court and plaintiff “should be able to understand how the alleged fraud caused this injury.” Id. at 8. (footnotes and internal quotations omitted).
  • Even though the issue of reliance is generally not suitable for a motion to dismiss based on the fact intensive inquiry needed, the court found that reliance was not alleged in the affirmative defense, even in a conclusory fashion, which prevented the court from reasonably inferring a basis for reliance. Id. at 9.
  • As a procedural practice tip, the court refused to accept an explanation about reliance at oral argument because it was not included in the actual pleadings. Id. at 10 and footnote 43.
  • In closing, the court the court hinted at the possibility that the defendant might seek leave to amend his affirmative defenses.

Postscript: The author of this decision was Superior Court Judge Sheldon K. Rennie, who was sitting by designation as a Vice Chancellor.

Frank Reynolds, who has been covering Delaware corporate decisions for various national publications for over 40 years, prepared this article.

The Delaware Court of Chancery recently barred Credit Glory Inc.‘s president from bringing breach of fiduciary duty claims against an ex-officer/director of their credit aid company based on the same ‘” abhorrent” sexual harassment conduct that caused his termination and $1.8 million in judgments against him and the company in New York courts. Brola v. Lundgren, C.A. No. 2024-1108-LWW (Del. Ch.  Dec. 1, 2025). 

The court dismissed plaintiff Alex Brola’s derivative suit, finding it seeks to extract a second recovery “this time under the expansive theory of fiduciary duty”. Brola argued that ex-officer/director Christopher Lundgren’s actions were selfish, illegal, and thus a breach of the duty of loyalty. 

But “Delaware law does not reach so far. The defendant’s misconduct was interpersonal, not a matter of corporate internal affairs,” the vice chancellor ruled.  “After the New York court provided a remedy through the employment laws, this court cannot—and should not—supply a second one.”

Corporate law specialists will want to examine the court’s differentiation between the duty of officers and supervisors, the reasoning for its conclusion that plaintiff Brola cannot rely on Court of Chancery Rules 12(b)(2), 12(b)(6), and 23.1.12, and why  the complaint fails to plead demand futility or damages.

Background

According to the record, Lundgren misused his positions as director, Vice President and Secretary of a Delaware-chartered credit repair assistance company based in New York to victimize two female employees so intensely that they resigned and successfully brought actions before the Equal Employment Opportunity Commission and lawsuits in New York state court against both him and Credit Glory.

CGI founder Brola then brought a derivative action in Delaware to recover the economic damage that Lundgren’s allegedly disloyal conduct caused to the closely held company. Lundgren moved to dismiss on procedural and jurisdictional grounds.  The court found Brola failed to carry his burden on both requirements.

Jurisdiction’s two bedrock requirements:

  • statutory basis for service of process.

Because Brola claims that Lundgren breached the duty of loyalty he owed to Credit Glory as an “officer and director,” the second clause of Section 3114(a) is satisfied, the court said. 

  •  requisite ‘minimum contacts’ with the forum:

Whether the alleged abuse of power states a claim for breach of fiduciary duty, rather than a personal issue, is a merits question, like the issue of whether  Lundgren’s alleged use of his corporate seat to carry out the challenged acts satisfies due process, the court found.

Demand futility

The vice chancellor ruled that, “The core issue is whether corporate law can be broadened to encompass interpersonal workplace disputes. It cannot.” That’s because, “Delaware law governs internal affairs—the discretionary management of business assets, oversight of enterprise-level risks, and fulfillment of the fiduciary promise,” she wrote.

She explained that fiduciary duty, “guards against self-dealing, conflicted transactions,” and bad faith conduct comprises both “fiduciary conduct motivated by an actual intent to do harm” and “intentional dereliction of duty.”  She said that doctrine is “exacting, but narrow.”

This ruling distinguished the recent Chancery decision in McDonald’s, highlighted on these pages. That opinion found, under different facts, a breach of fiduciary duty related to a more pervasive sexual harassment set of circumstances–but one cannot ignore the obvious tension between the two cases.

In the instant decision, the court held that Brola distorts the meaning of bad faith beyond recognition, wrongly seeking to transform it into a “general morality code” that includes every instance when “an officer engages in unlawful harassment,” the court warned, concluding that Lundgren’s deplorable actions were taken as a supervisor—not a corporate officer.

“The legal system worked as intended,” the vice chancellor concluded.  “Equity must not sanction collateral litigation that exposes victims to unwanted scrutiny in the service of a corporate recovery and attorneys’ fees.“

Much commentary has been published about this important decision in the short time since it was issued. See, e.g., Professor Bainbridge’s extensive insights at this link.

A recent decision of the U.S. District Court for the District of Delaware addressed a federal statute that allows, under certain circumstances, discovery in a U.S. federal court to aid a lawsuit pending in another country, in the matter styled: In re Application of Vestolit GmbH and Celanese Europe B.V., Misc. No. 24-cv-1401-CFC (D.Del. Nov. 24, 2025).

Background

  • The court described the ex parte application for a subpoena that was originally granted–but emphasized that it did not prevent any other parties from moving to quash the subpoena or challenging any deficiencies in it.
  • The court also described the procedural history of the related litigation in a Dutch Court in Amsterdam, as well as comparing the prior rulings by the Dutch Court on discovery with the discovery that was sought in the U.S. Court.

Highlights

  • The court explained the authority to grant an application for discovery in aid of foreign litigation based on § 1782 of Title 28 of the United States Code if three statutory conditions are met: (1) The person from whom discovery is sought “resides or is found” within the district; (2) The discovery is “for use in a proceeding before a foreign or international tribunal”; and (3) The application is made by an “interested person.” 28 U.S.C. § 1782(a). Slip op. at 5-6.
  • The court described the four factors described in the U.S. Supreme Court’s Intel decision that are relevant to the exercise of the discretionary determination in these matters. Id. at 6.
  • The court discussed other cases that expounded on the various nuances of the requirements to be satisfied and the need to interface with any determinations the foreign courts may have made about discovery.
  • The court declined to award a request for fees from Shell Chemical under Rule 45 ([d])(1), 28 U.S.C. § 1927, or under the court’s inherent power and broad discretion because the subpoenas in this case were “not fairly characterized as blatantly defective.” Id. at 19.
  • In sum, the court concluded that the applicant appeared to be using § 1782 to circumvent Dutch discovery rules. Therefore, it granted the motion to vacate the order regarding the application to obtain discovery for use in a foreign proceeding, and quashed the subpoena.

In a recent letter ruling in an LLC books and records action, the Court of Chancery, in a Magistrate’s letter ruling, found that privilege was waived despite the inadvertent disclosure of those privileged communications. Straub v. Persolve, LLC, C.A. No. 2025-0636-DH (Del. Ch. Oct. 8, 2025).

The reasoning for the result was intertwined with the finding that there was a violation of both discovery orders and deadlines in a scheduling order. My intent in this short blog post is only to provide a few of the highlights that I find most noteworthy and of widespread usefulness.

Highlights

  • In connection with the inadvertent disclosure of privileged information, out-of-state counsel, which the court refers to as OOSC, admitted that they did not take the “most reasonable step” of reviewing the documents before they were disclosed. Specifically, the court found that he “elected not to conduct a final review of the .zip production file. That basic step would have prevented the inadvertent production. OOSC’s behavior is at odds with the reasonable precautions taken by the attorneys in Kent. [In re Kent County Adequate Public Facilities Ordinance’s Litigation, 2008 WL 185 1790 (Del. Ch. Apr. 18, 2008)]. Slip op. at 9.
  • The court referred to Delaware Rule of Evidence 502 which defines the attorney-client privilege and also defines when such communications are considered confidential. Slip op. at 6.
  • The court found in this case that “a cursory, non-contextual scan of the images would have revealed a volume of documents far beyond what OOSC initially designated as responsive. This type of review could have been accomplished in minutes, is not burdensome, and is a basic responsibility of counsel.” Slip op. at 9.
  • Unlike the Kent case referred to above, the inadvertent disclosure in this case dwarfed previous disclosures and the inconsistency and shear volume would have been apparent had counsel conducted a cursory check. Id. at 10.
  • The court discussed the three criteria that will be considered to determine when disclosure will not operate as a waiver:  “(1) The disclosure is inadvertent; (2) The holder of the privilege or protection took reasonable steps to prevent disclosure; or (3) The holder promptly took reasonable steps to rectify the error, including following any applicable court procedures to notify the opposing party or to retrieve or request destruction of the information disclosed,” citing DRE 510(c). Slip op. at 7.
  • The court discussed all the factors in detail, but the most notable is that the disclosing party failed to previously disclose that he possessed relevant information, but instead created an inference that he had no access to them, even though they were discoverable. Slip op. at 11.
  • Among the important principles with broad application that the court relied on include the following: “Discovery abuse has no place in Delaware courts, and the protection of litigants, the public, and the bar demands nothing less than that Delaware trial courts be diligent in promptly and effectively taking corrective action to secure the just, speedy and inexpensive determination of every proceeding before them.” Slip op. at 12-13.
  • Also noteworthy is the court’s observance that disregarding provisions in the scheduling order that governs discovery is engaging in discovery abuse. Slip op. at 13. See Court of Chancery Rule 37(b)(2) regarding possible sanctions for discovery violations.
  • The court found that it was a misrepresentation to give the impression that the disclosing party had no access to the relevant, discoverable emails. The court found that it was a violation of the discovery rules when he failed to accurately depict his access to discoverable emails in the most general terms. Slip op. 13-14.
  • The inadvertent production revealed that the disclosing party possessed a group of responsive emails that he did not intend to provide. The court found that this was a violation of the “spirit of discovery and the scheduling order” and required sanctions. Slip op. at 15.
  • Especially noteworthy is the recitation by the court of the well-settled Delaware discovery standard that self-collection by interested parties is not a best practice. Slip op. at 15-16.
  • Lastly, the court addressed an alleged violation of the Delaware Lawyers’ Rule of Professional Conduct 4.4(b). Importantly, the court noted that Rule 4.4(b) requires notification when a party receives inadvertently produced information, but it does not govern whether an attorney receiving an inadvertently received document must return the document. Id. cmt. [2] Rather, Delaware caselaw determines such a question. Slip op. at n.4.
  • The court also observed that the Delaware Supreme Court supervises compliance with the Rules of Professional Conduct and, in general, trial judges have no independent jurisdiction to enforce them. Id. at 17.
  • The court noted in closing that the animosity between counsel led to a communication breakdown, and many, if not all, of the problems presented here could have been avoided had the lines of communication remained open. Id. at n.6.

Takeaways:

  • Even inadvertent disclosure of privileged documents can lead to waiver of a privilege.
  • The court discussed the minimum level of review of documents that will be considered reasonable prior to production in order to avoid waiver in the context of inadvertent disclosure of arguably privileged documents.
  • The Rules of Professional Conduct may require that the recipient of inadvertently disclosed data notify the sender, but only nuanced case law resolves the issue of when and under what circumstances one is entitled to claw back those documents.
  • Rule of Evidence 502 defines attorney/client privilege and when a document should be considered confidential.

A recent Delaware Court of Chancery decision is noteworthy for several key principles applied to a set of facts that involve company counsel using corporate machinery and corporate funds to join with a faction of the board to oust a board member. Dalby v. Kastner, C.A. No. 2025-0136-NAC (Del. Ch. Aug. 29, 2025), is a 100-page post-trial decision in a Section 225 action that went to trial less than three months after the complaint was filed. It deserves careful review. In this blog post I only intend to highlight certain aspects of the decision.

Key Facts

Many of the key facts in this decision raise important issues, but the narrow focus of the court’s opinion in this Section 225 action was primarily to determine whether a board member was properly ousted. He was not. The key facts include the following:

  • The founder of a company, who also owned 49% of the shares, designed a cell phone that was suitable for younger children. After bringing on investors, he was the subject of a scheme by management and a faction of the board, who were aided by outside corporate counsel, to remove the founder. Outside corporate counsel invoiced the company for all of their fees.
  • The founder, Stephen Dalby, was unaware that management and a faction of the board were secretly using company resources to further his removal from the board. When he learned of the removal effort and asked if company resources were being used to fund the effort, management and the board faction did not respond.
  • To avoid being seen as the face of the effort to oust the director, outside counsel for the company collaborated with a board faction to use an apparently neutral stockholder as the face of the removal effort. But that stockholder contributed little more than its name. The company’s outside counsel drafted all the documents for the removal and the company management continued to spearhead the effort, along with in-house counsel. When the removal was presented to the stockholders, management solicited stockholder votes and its outside counsel kept the official tally.
  • The company’s outside counsel devised a plan that would get rid of the founding director. Slip op. at 3.
  • An earlier settlement agreement that resolved prior litigation gave the founding director certain rights including an anti-dilution right. Nonetheless, outside corporate counsel prepared written consents to approve stock options that would arguably dilute the founding director as part of a plan to sideline him from the company. Slip op. at 14.
  • A board faction persuaded a lender who had already agreed to extend the due date for a note, to refuse an extension of the note in order to pressure Dalby to agree to terms that would push him aside. Slip op. at 26-29.
  • Despite at least one outside corporate counsel advising that replacement of a board member was not a default of a loan agreement, another outside corporate attorney worked with a board faction to tell Dalby that it would be a default if he exercised his right to replace a board member. This was part of the plan to coerce his consent to a scheme to oust him. Slip op. at 36-37.
  • Then the outside corporate counsel came up with another plan along with the board faction to remove Dalby from the board–and billed all of the work to the company. Slip op. at 39-40.
  • As part of the plan, the outside corporate attorney enlisted new Delaware corporate counsel to help with the plan to remove Dalby as a director. Slip op. at 40-41.
  • Delaware corporate counsel also billed the company for the plan to oust Dalby from the board. An additional firm was also hired to investigate Dalby, and they also billed the corporation for their investigation. Slip op. at 49-52.
  • Continuing to charge the company, Delaware counsel for the company contributed to a plan to have a stockholder be the “façade” to solicit stockholders to remove Dalby as a board member at the same time they were devising a plan to dilute his shares. Slip op. at 55-62.
  • The court observed that the primary goal of the board faction was not to save the company from its financial distress–but rather to oust Dalby from the board and dilute his 49% ownership. Slip op. at 70 and footnote 373.

Highlights of the Court’s Reasoning

  • The court provided extensive reasoning for why it determined that the solicitation of the stockholder votes to oust Dalby was misleading and materially false. Slip op. at 87-89.
  • Notwithstanding a vote of approximately 50.1% of the stockholders to remove Dalby as a director, the court determined that the vote was invalid because it was procured by misleading and materially false solicitation materials sent to stockholders. Slip op. at 75-79 and 86-91.
  • Notably, the court did not decide if the high bar for removal of a director “for cause” was met in this case.
  • A noteworthy procedural aspect of this case is that after Dalby sued to challenge his ouster, the corporation “took no position” in its filings with the court. Slip op. at 83.
  • Although other claims such as specific performance and details of the dilution efforts discussed by the court were not covered here, a final noteworthy aspect of this decision is that the court copied and pasted handwritten notes by board members in the body of the opinion. That should be a reminder to be careful what you write. Quotes from text messages also featured prominently in the factual portion of the opinion.

Takeaways

Two of many takeaways from this opinion are:

  • As a general matter, counsel for the company should not use company resources to oust a board member—or, in particular, pretend that a stockholder initiated a solicitation of other stockholders when the materials were prepared by management and a board faction with company counsel. For that and related reasons, the court concluded that the shareholder votes were procured by misleading and materially false proxy materials.
  • Company counsel should be more interested in the best interests of the entire company and not be advocating for a particular board faction that, according to the court, had a primary goal of ousting a board member as opposed to what might be in the best interest of the company.

Postscript

  • After this opinion, the court denied a motion seeking to stay enforcement of the court’s ruling, that denied a request for specific performance, pending an appeal. See Dalby v. Kastner, C.A. No. 2025-0136-NAC, Order (Del. Ch. Oct. 7, 2025).

Also notable: About a month before trial, the court ruled on a motion to compel by the plaintiff which was granted a few days after it was filed, but the court does not discuss in this post-trial opinion the details of that motion. One can surmise that attorney/client privilege issues abound, based on the facts of this case. See footnote 465, referencing the oral argument and rulings of the court on April 4, 2024. There was also a request for contractual fee shifting which this decision does not address.

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