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Delaware Court of Chancery “Overrules” Federal Court

I’ve often heard the claim that one reason to incorporate in Delaware is that the courts won’t surprise you.  When I hear this, I recall the surprise, and even outrage, in the aftermath of Smith v. Van Gorkom, 488 A.2d 858 (Del. 1985) .  See, e.g., Fischel, The Business Judgment Rule and the Trans Union Case, 40…

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Court Applies California Demand Requirement To Scottish Company (Again)

Last December, I wrote about U.S. District Court Judge Jeremy Fogel’s decision in Johnson v. Myers, 2011 U.S. Dist. LEXIS 112897 (N.D. Cal. Sept. 30, 2011).  The case involved an attempt by some of the stockholders of a liquidated Scottish corporation to maintain a breach of contract action derivatively.  The contract at issue included a California…

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When A Corporation Dissolves, Does The Attorney-Client Privilege Live On?

Generally, a corporation’s suit for legal malpractice results in a waiver of the attorney-client privilege.  When the corporation’s suit is brought derivatively, however, the privilege is not waived.  McDermott, Will & Emery v. Superior Court, 83 Cal. App. 4th 378, 383 (2000).  Therein lies a problem. If the attorney-client privilege is not waived by the filing…

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Does The In Pari Delicto Defense Apply In Derivative Actions?

“In pari delicto” is a Latin phrase meaning in equal fault.  It is an equitable defense that precludes a plaintiff from recovering for an injury that arose from a wrongdoing in which she participated.  In a shareholder derivative suit, the plaintiff is the corporation.  If a shareholder derivative suit is brought against the corporation’s directors and officers, is the in pari delicto defense…

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California Appellate Court Decides California Law Applies “For Now” to Shareholder Derivative Suit Against Directors of a Nevada Corporation

Kruss v. Booth is a “must read” for lawyers confronting Section 2115 of the California Corporations Code. Section 2115 represents the California legislature’s attempt to thumb its nose at the internal affairs doctrine. That doctrine holds that the internal affairs of a corporation should be governed by the law of the state of incorporation. Section…

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