The Defend Trade Secrets Act: One Year Later

Posted on April 27, 2017 by - Uncategorized

Introduction

The Defend Trade Secrets Act of 2016 (DTSA) was signed into law by former President Obama and became effective on May 11, 2016, amid much fanfare. At the time of its passage, the law was described as the “most significant expansion” of federal law in intellectual property since the Lanham Act in 1946. The DTSA provided a federal cause of action for trade secret misappropriation. In addition, it provided for a specialized seizure remedy, as well as an immunity provision designed to protect employees who might disclose trade secrets when allegedly reporting violations of the law.

The DTSA’s impact over the past year has been limited. Although the DTSA has made it easier for trade secret litigants to establish federal jurisdiction and thus get into federal court, there have been no sweeping changes in trade secret litigation. To date, federal courts do not appear enamored by the extra case load, and nearly all of the federal court decisions have continued to predominantly rely on pre-existing state and federal law and remedies. Despite the widespread publicity, both the seizure remedy and the immunity provision have had extremely minimal application and impact to date. See Bradford K. Newman & Esther Cheng, Federal Trade Secrets Protection: Law Would Create More Problems than It Solves, Daily J., Apr. 28, 2016.

This article provides an overview of the recent developments in DTSA trade secret litigation over the course of the past year. For more detailed information, please refer to the “Employee Mobility, Restrictive Covenants, and Trade Secrets Chapter” of Recent Developments in Business and Corporate Litigation, which was released in April 2017.

Creating a Federal Cause of Action

The DTSA creates the first federal civil cause of action and suite of statutory remedies for the misappropriation of trade secrets in the United States and provides a single uniform cause of action for trade secret misappropriation across the states. Prior to its enactment, as a civil matter, trade secret misappropriation claims (as opposed to Computer Fraud and Abuse Act claims pursuant to 18 U.S.C. § 1030) were governed exclusively by state laws. (Although most states have enacted the Uniform Trade Secrets Act (UTSA), there are still two outliers that protect trade secrets under unique state statutes or common law: New York and North Carolina.) Plaintiffs who sued for trade secret misappropriation in different states faced some longstanding and well-understood differences in legal standards and procedural requirements. The DTSA was purportedly intended to create a uniform body of federal trade secret law while establishing jurisdiction for claims brought pursuant to the DTSA in the federal courts.

On its face, however, the DTSA does not pre-empt state law, meaning that a party can file suit under the DTSA in federal court and plead a state law claim arising out of the same facts. In practice, this means that the DTSA’s primary function to date has been to create a path for plaintiffs to litigate what historically were essentially state law trade secret claims in federal court.

The DTSA cause of action is similar to those brought pursuant to the UTSA. The DTSA at 18 U.S.C. § 1836(b)(1) allows a plaintiff to bring a civil action for misappropriation of a trade secret only if the “trade secret is related to a product or service used in, or intended for use in, foreign or interstate commerce”—an easy showing in today’s world. Under the DTSA at section 1836(b)(3)(B)(5), “misappropriation” is defined much like it is under the UTSA and means: (a) acquisition by a person who knows (or has reason to know) the trade secret was acquired by improper means; or (b) disclosure or use of the trade secret by a person who used “improper means” to acquire the trade secret or had certain knowledge. Notably, the term “improper means” does not include reverse engineering or independent derivation under section 1836(b)(3)(B)(6).

Monetary and Injunctive Relief

Under section 1836(b)(3)(B) of the DTSA, a party can recover injunctive relief, monetary damages, and attorney’s fees. A discussion of injunctive relief follows. (To date, no court has reached the damages stage of a DTSA case, and thus, monetary relief is not addressed in this article.)

Injunctive relief is permitted under section 1836 (b)(3)(A)(i) of the DTSA to prevent any actual or threatened misappropriation on terms “the court deems reasonable.” To prevent plaintiffs from pursuing inevitable disclosure claims and claims aimed at restraining employee mobility, section 1836 (b)(3)(A)(i)(I) provides that injunctive relief may only be issued if it does not “prevent a person from entering into an employment relationship,” and if the “conditions placed on such employment” are “based on evidence of threatened misappropriation and not merely on the information the person knows.” In addition, under section 1836 (b)(3)(A)(i)(II), the injunctive relief ordered must not conflict with any applicable state laws. Injunctive relief is also available under section 1836(b)(3)(A)(ii) if affirmative actions are required to protect the trade secret and the court determines it is appropriate. At a high level, experienced practitioners will recognize there is little about this standard that could be deemed novel under the Federal Rules of Civil Procedure or state corollaries.

Since the enactment of the DTSA, federal courts have not hesitated to grant injunctive relief based solely on existing state and federal law that predates the DTSA. Frequently, the analysis focuses on traditional application of the Federal Rules of Civil Procedure’s injunctive relief provision and either ignores the existence of the DTSA claim in the complaint, or analyzes the dual state-law/DTSA basis for a traditional injunction in tandem.

For example, in Henry Schein, Inc. v. Cook, No. 16-CV-03166-JST, 2016 WL 3418537 (N.D. Cal. Jun. 22, 2016), the court granted a motion for preliminary injunction after finding, inter alia, that Henry Schein, Inc. had established a likelihood of success on its claims of trade secrets misappropriation brought under both the DTSA and California Uniform Trade Secrets Act (“CUTSA”). In making this decision, the court analyzed both the DTSA and CUTSA claims simultaneously.

Similarly, in Engility Corp. v. Daniels, No. 16-CV-2473-WJM-MEH, 2016 WL 7034976, at *10 (D. Colo. Dec. 2, 2016), the Colorado district court granted a preliminary injunction under both the DTSA and the Colorado Uniform Trade Secrets Act. Notably, as part of the preliminary injunction in Engility Corp., the court enjoined Daniels and his new company from competing for certain business for a period of one year. The court noted that, although the DTSA prohibits injunctions that “conflict with an applicable State law prohibiting restraints on the practice of a lawful profession, trade, or business,” such as Colorado’s statutory restrictions on noncompete provisions, the injunction was necessary to prevent Daniels and his new company from taking advantage of trade secrets in their possession and therefore fell within an exception to Colorado’s statutory noncompete restrictions. The court did not separately analyze the proprietary of the injunction under the Colorado Uniform Trade Secrets Act, merely concluding that, despite its less specific provision regarding injunctive relief, it “probably has the same sorts of restrictions as the DTSA.”

In Panera, LLC v. Nettles, No. 4:16-CV-1181-JAR, 2016 WL 4124114, at *4 (E.D. Mo. Aug. 3, 2016), Panera LLC, a restaurant chain, moved for a temporary restraining order against Michael Nettles, a former employee, and his new employer, Papa John’s International, Inc., in the Eastern District of Missouri under both the Missouri Uniform Trade Secrets Act (MUTSA) and the DTSA. The court granted the motion based on the MUTSA claim and declined to analyze the DTSA claim in the context of a footnote, which pointed out that, “although the Court’s analysis has focused on Panera’s Missouri trade secrets claim, an analysis under the Defend Trade Secrets Act would likely reach a similar conclusion.”

Finally, in Earthbound Corp. v. MiTek USA, Inc., C16-1150 RSM, 2016 WL 4418013, at *11 (W.D. Wash. Aug. 19, 2016), a Washington district court also granted a temporary restraining order under both Washington state law and the DTSA based on strong circumstantial evidence of defendant’s misappropriation of confidential and trade secret information about Earthbound’s current and prospective customers, pending projects, bids, pricing, product design, and other elements of its business, which would lead to irreparable harm if not enjoined.

The takeaway in the year following the DTSA’s enactment is that, although the DTSA provides a new basis for federal court jurisdiction, absent extraordinary circumstances, practitioners should expect federal judges to analyze injunctive requests largely according to traditional notions of what is required for such relief.

Ex Parte Civil Seizures

One of the most widely publicized features of the DTSA is section 1836(b)(3)(d), which permits trade secrets misappropriation plaintiffs to request, on an ex parte basis, seizure of the alleged trade secrets before giving any notice to the defendant. Specifically, this provision provides at section 1836(b)(2)(A)(i) that “only in extraordinary circumstances” may the court issue an order “providing for the seizure of property necessary to prevent the propagation or dissemination of the trade secret that is the subject of the action.” To order an ex parte seizure, the court must find under section 1836(b)(2)(A)(ii)(IV)–(VIII) that: (1) the plaintiff is likely to succeed on the merits; and (2) if notice were provided, the defendant would likely “destroy, move, hide, or otherwise make such matter inaccessible.” The court must then find under section 1836(b)(2)(A)(ii)(III) that the harm in denying the ex parte application “outweighs the harm to the legitimate interests of the person against whom seizure would be ordered” and “substantially outweighs the harm to any third parties who may be harmed by such seizure.” To avail themselves of this relief, applicants cannot have publicized the requested seizure under section 1836(b)(2)(A)(ii)(VIII).

Federal Courts Are Extremely Hesitant to Grant a Request for the Seizure Remedy

On a nationwide basis, federal courts generally have limited relief under the DTSA to what was already available under the Federal Rules of Civil Procedure and developed state law. For example, in OOO Brunswick Rail Mgmt. v. Sultanov, No. 5:17-cv-00017, 2017 WL 67119, *2–3 (N.D. Cal., Jan. 6, 2017), the court declined to issue a seizure order against Sultanov, a former employee accused of trade secret misappropriation, to seize the company-issued laptop and mobile phone in his possession, despite finding that the plaintiff had satisfied the requirements for a temporary restraining order (i.e., a likelihood of success on the merits of its trade secret claims and irreparable harm in the absence of injunctive relief). The court cited the DTSA’s requirement that seizure orders may be issued only if other forms of equitable relief would be inadequate. It then found that, in this case, such a remedy was “unnecessary” because the court would order Sultanov to deliver the devices to the court at the time of the hearing without accessing or modifying them in the interim.

Similarly, in Magnesita Refractories Co. v. Mishra, 2017 WL 365619 (N.D. Ind. Jan. 25, 2017), the court noted that the DTSA’s seizure provision did not apply because the existing relief, an ex parte temporary restraining order authorizing the seizure of the defendant’s personal laptop computer, was sufficient. The court had ordered the seizure under the traditional temporary restraining order provision in Federal Rule of Civil Procedure 65 after it was shown that there was a “strong likelihood that [Mishra, the former employee] was conspiring to steal [the employer’s] trade secrets contained in the laptop.” The court rejected Mishra’s argument that he was denied the due process provided under DTSA’s seizure provision and denied his motion to vacate the temporary restraining order.

As of the publication of this article, a federal court has granted a request for the seizure remedy in a published decision only in a single, extraordinary circumstance. In Mission Capital Advisors, LLC v. Romaka, No. 16-civ-5878 (S.D.N.Y. July 29, 2016), the District Court for the Southern District of New York ordered a seizure against a defendant, Romaka, only after the defendant first violated a temporary restraining order. Romaka was a former employee of a commercial real estate company and had downloaded contact lists from his former employer without authorization. He then falsely represented that he had deleted this data. In reality, Romaka simply changed the file names and failed to comply with the existing temporary restraining order. As a result, the court granted an order allowing for the seizure of the contact lists, but because only the customer lists had been described with sufficient particularity, the court denied such a request for all other confidential information.

The Future Impact of the Seizure Provision

The early headline from a nationwide review of the initial DTSA cases is an emerging trend by federal courts to look warily on requests to issue DTSA seizure remedies in routine cases where traditional remedies would suffice. Courts are giving great deference to the statutory phrase “extraordinary circumstances” and refraining from finding as much in most cases, despite allegations typically included in the complaint to the contrary.

Should courts become more inclined to grant the seizure order provided under the DTSA, this remedy would prove effective for trade secret owners who seek to immediately enjoin trade secret misappropriators in the most extreme cases from using and disclosing their trade secrets or, for example, from fleeing the country. On the other hand, the seizure provision may also subject over-eager plaintiffs to substantial damages. In addition, although the seizure provision contains a long list of substantive requirements, an emphasis on confidentiality, and procedural safeguards, until the federal trial and appellate courts provide further guidance in the form of published decisions, there is certainly potential for this provision of the DTSA to lead to exploitive tactics, particularly by plaintiffs bringing misappropriation claims based on anticompetitive motives. This scenario could lead to the “potential for abuse of this provision by ‘trade secret trolls’ and larger companies seeking to use the DTSA for competitive advantage against smaller players.” See Bradford K. Newman & Esther Cheng, Federal Trade Secrets Protection: Law Would Create More Problems than It Solves, Daily J., Apr. 28, 2016. It might also lead to the seizure of company trade secrets by competitors who never should have had access rights to those secrets in the first place. Fortunately, as noted, courts seem to favor a conservative approach, faithful to the statutory text of the seizure provision, signaling the bench’s acknowledgement that it will indeed take “extraordinary circumstances” not found in the commonplace to-and-fro of trade secret litigation.

The Employee Immunity Provision

Another notable provision of the DTSA is its public policy immunity provision at 18 U.S.C. § 1833(b), which offers immunity from liability for the confidential disclosure of a trade secret to a government official or an attorney in order to report a violation of the law. The immunity provision at section 1833(b)(1) protects individual employees from civil or criminal liability for the disclosure of a trade secret that: (a) is made “in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney” and solely for “the purpose of reporting or investigating a suspected violation of law”; or (b) is made in a complaint or document “filed in a lawsuit or other proceeding” so long as the filing is made under seal. This provision also allows for the use of trade secret information in an anti-retaliation lawsuit. Specifically, if an employee files a lawsuit for retaliation by the employer for “reporting a suspected violation of law,” then the employee is permitted under section 1833(b)(2) to disclose the trade secret to his or her attorney and use the trade secret information in the court proceeding so long as the trade secrets are filed under seal and not disclosed, except pursuant to a court order.

Under the immunity provision at section 1833(b)(3)(A), an affirmative duty is placed on employers to provide notice of the provision in “any contract or agreement with an employee that governs the use of a trade secret or other confidential information.” An employer can also comply with a notice requirement under section 1833(b)(3)(B) by providing a “cross-reference” to a policy given to the relevant employees. The cross-reference can be an amendment to the contract, which informs the employee of the existence of the immunity provision and “sets forth the employer’s reporting policy for a suspected violation of law.” Failure to comply with the notice requirement prevents an employer from recovering exemplary damages or attorney’s fees in an action against the employee under the DTSA.

No court has so far sanctioned an employee’s actions under the DTSA’s immunity provision; thus, this provision has had minimal impact. Bradford K. Newman, Protecting Intellectual Property Law in the Age of Employee Mobility (American Law Media 2014); 2017 updates at §12-7. In Unum Grp. v. Loftus, No. 4:16-CV-40154-TSH, 2016 WL 7115967 (D. Mass. Dec. 6, 2016), a Massachusetts federal court considered and rejected the argument of Loftus, a former employee of Unum Group, based on the DTSA immunity provision, that Unum Group’s trade secrets misappropriation claims should be dismissed because he took documents containing trade secrets to pursue legal action against the plaintiff for alleged unlawful activities. The court found Loftus’ contentions that his actions were immune under the DTSA unpersuasive because there was nothing in the record to support this affirmative defense at the motion-to-dismiss stage of litigation because discovery had not yet been conducted to determine the significance of the documents taken or their contents, it was not ascertainable from the complaint whether the former employee used, was using, or planned to use those documents for any purpose other than investigating potential violation of law, and no whistleblower suit had been filed. As such, the court found that Loftus’ actions were simply impermissible “self-help discovery” and ordered the return of the documents.

Despite the limited case law to date, the DTSA’s immunity provision likely will be raised repeatedly and thus become the subject of scrutiny by the federal trial courts, given that it is anticipated that employees accused of trade secret theft will continue to invoke this provision as part of their defense. For example, when a company discovers evidence that an employee secretly downloaded trade secrets in connection with exiting the company and files suit under the DTSA, the accused will likely claim that they took the trade secrets for the purpose of providing them to their attorney as part of an “investigation” into suspected violation of some law. Given that this defense is not available under the UTSA, and many states in fact specifically outlaw such “self-help” remedies, hedging against this defense may be one of many reasons why a DTSA plaintiff would also want to bring a claim under the UTSA.

Future Implications of the Defend Trade Secrets Act

At this point, apart from conferring federal jurisdiction over most of the trade secret claims, which would heretofore be governed exclusively by state law, and absent diversity jurisdiction, would be litigated solely in state courts, the DTSA in practice has been something less than a “seismic event.” Federal courts have correctly credited the statutory language that prohibits the seizure remedy absent “extraordinary circumstances,” which, despite being pled in every complaint, is rarely present. In addition, although practitioners should expect to see the employee immunity provision invoked on an increasing basis, it will require unique circumstances to get any traction as well.

Are there any action items in light of the DTSA that companies can employ to strengthen their trade secret protections? The answer is most certainly “yes.” Companies should have qualified counsel review policies and agreements to ensure they contain the language required under the DTSA in order to recoup attorney’s fees in the case where an employee unsuccessfully invokes the DTSA’s immunity provision. Beyond that, companies should continually be assessing and improving how they protect their most valuable confidential employee from insider (employee) threats, including devising and utilizing a high-risk departure program designed to safeguard the most valuable trade secrets upon the departure of key executives.

Finally, given that the DTSA does provide for a seizure remedy, in all cases where a company is faced with a DTSA claim, it is essential to conduct a privileged review of immediate measures to employ in order to minimize the ongoing threat to a third party’s trade secrets (if any) and, thus, decrease the likelihood of a seizure remedy granted.

Conducting Business with Tribes in the Aftermath of the Dollar General Supreme Court Split: What You and Your Clients Need to Know

Posted on April 27, 2017 by - Uncategorized

Introduction

With the U.S. Supreme Court’s 4–4 split in Dollar Gen. Corp. v. Mississippi Band of Choctaw Indians, 136 S. Ct. 2159 (2016), tribal members and nonmember individuals and businesses are left to wonder who really wins in this tie. The split decision provided no written opinion and operates as an affirmation of the Fifth Circuit’s decision upholding the jurisdiction of the Mississippi Band of Choctaw tribal court over tort claims brought by a member of the Choctaw tribe against a corporation doing business on reservation land. This decision serves as a significant reminder that anyone doing business on tribal lands must be cognizant that tribal court jurisdiction likely may apply over any disputes that arise.

Overview of Tribal Jurisdiction

Over 30 years ago, the U.S. Supreme Court created two exceptions to the general rule that Indian tribes cannot exercise civil jurisdiction over nonmembers in Montana v. United States, 450 U.S. 544, 565–66 (1981). The first of the two Montana exceptions, also known as the “consensual relationship” exception, establishes that a tribe may regulate the activities of nonmembers entering consensual relationships with the tribe or members thereof through “commercial dealing, contracts, leases, or other arrangements.” Methods of such regulation include “taxation, licensing, or other means.”

Despite this evident pronouncement that tribal courts may, under certain circumstances, exercise jurisdiction over nonmembers, approximately 20 years after the Montana decision, the Supreme Court itself recognized that tribal courts had yet to exercise jurisdiction over a nonmember defendant in any context whatsoever, leaving many to question for two decades whether, and under what circumstances, nonmembers may be subject to tribal court jurisdiction. See generally Nevada v. Hicks, 533 U.S. 353 (2001) (finding Montana’s proscriptions to fall short of dispositive in the case “when weighed against the State’s interest in pursuing off-reservation violations of its laws.”).

Dollar General’s Procedural Posture

The factual background of Dollar General sounds in tort. Dolgencorp operates a Dollar General store on the Choctaw reservation in Mississippi, located on land held by the United States in trust on behalf of the Mississippi Band of Choctaw Indians (the Tribe). The Dollar General store is operated pursuant to a lease agreement with the Tribe and a business license issued by the Tribe to Dolgencorp. Dolgencorp, Inc. v. Mississippi Band of Choctaw Indians, 746 F.3d 167, 169 (5th Cir. 2014). The Tribe conducts the Youth Opportunity Program (YOP), a project which places young members of the Tribe in short-term, unpaid positions—similar to internships—for educational and training purposes. The manager of the Dollar General store, Dale Townsend (Townsend), agreed to participate in this program. Townsend was not a member of the Tribe. Thereafter, the YOP program placed a 13-year-old tribal member (Doe) at the store. Doe later accused Townsend of sexual molestation.

In January 2005, Doe filed suit against Townsend and Dolgencorp in the Choctaw tribal court, alleging that Dolgencorp was vicariously liable for Townsend’s actions and asserting the store negligently hired, trained, or supervised Townsend. Doe further claimed the assault caused severe mental trauma, seeking “actual and punitive damages in a sum not less than 2.5 million dollars.”

Townsend and Dolgencorp filed motions in tribal court seeking to dismiss Doe’s claims for lack of subject matter jurisdiction—both of which were denied. The parties appealed to the Choctaw Supreme Court, which upheld the denials based on a Montana-based analysis and found subject matter jurisdiction applicable over both defendants. Dolgencorp and Townsend then filed a new action in the U.S. District Court for the Southern District of Mississippi against the tribal defendants, alleging that the tribal court lacked jurisdiction over them and seeking to enjoin the prosecution of Doe’s tribal court suit.

The crux of the Dollar General case revolves around interpreting the meaning and implications of the Supreme Court’s decision in Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008). Unfortunately, for clarity’s sake, the Supreme Court resolved that case on other grounds, though it originally granted certiorari to decide whether Montana’s undefined “other means” language included adjudicating civil tort claims in tribal court.

In Plains Commerce, a bank that sold land to tribal members sought to avoid tribal court jurisdiction in the wake of the transaction. The court decided via a fractured 5-4 vote in favor of finding the bank not subject to the lawsuit filed in tribal court, despite having entered into a consensual agreement with tribal members. The court found that tribes lack inherent authority to regulate the sale of non-Indian land, regardless of the form of regulation, thus failing to apply and analyze in any meaningful manner Montana’s first exception.

In Dollar General, Dolgencorp claimed that the Plains Commerce decision narrowed the first Montana exception. Specifically, for tribal jurisdiction to apply, the party seeking to establish jurisdiction must show that: (1) the nontribal entity or individual agreed to a consensual relationship; and (2) the relationship impacts to some degree tribal self-government or internal relations.

Dolgencorp asserted that, because the consensual relationship between Dolgencorp, Townsend, and the tribal parties does not implicate tribal self-governance or internal relations, tribal jurisdiction could not be asserted. Dolgencorp further argued that “tribal sovereignty is subordinate to Congressional authority as a practical matter, and inconsistent with federal concepts of sovereignty.”

The tribal defendants countered that Plains Commerce did not alter the Montana exceptions in any manner, and that a plain showing of a consensual relationship between the tribe and nontribal parties supports a finding of consent to tribal jurisdiction. The Tribe also relied on a contract with Dollar General that “explicitly bound” the corporation to tribal court, arguing further that a sexual assault case addressed tribal health and welfare and thus was clearly subject to tribal jurisdiction.

The Mississippi District Court in Dollar General agreed with the tribal defendants’ arguments in favor of jurisdiction and granted summary judgment in their favor. Dolgencorp Inc. v. Mississippi Band of Choctaw Indians, 846 F. Supp. 2d 646, 653–654 (S.D. Miss. 2011) (“In the court’s opinion, defendants have the better of this argument. Montana identified nonmembers’ consensual relationships with tribes and their members, which involve conduct on the reservation (and particularly on Indian trust land), as a circumstance that warrants tribal civil jurisdiction over matters arising from those relationships.”). The court refused to read any narrowing of Montana’s exception through the Plains Commerce decision and subsequent jurisprudence.

Dolgencorp challenged the district court’s determination that Montana’s consensual relationship exception had been met. However, the Fifth Circuit Court of Appeals affirmed the district court’s decision. In doing so, the court held that Doe was essentially an unpaid intern, unquestionably creating a consensual relationship of commercial nature. Dolgencorp, Inc. v. Mississippi Band of Choctaw Indians, 746 F.3d 167, 173 (5th Cir. 2014) (“In essence, a tribe that has agreed to place a minor tribe member as an unpaid intern in a business located on tribal land on a reservation is attempting to regulate the safety of the child’s workplace. Simply put, the tribe is protecting its own children on its own land. It is surely within the tribe’s regulatory authority to insist that a child working for a local business not be sexually assaulted by the employees of the business.”).

It is important to note that the Fifth Circuit did not establish a commercial relationship as a prerequisite to the assertion of tribal jurisdiction. By rejecting Dolgencorp’s assertion that Plains Commerce narrowed the Montana exception, the appellate court established a higher-level, more general focus when determining an activity’s impact on the Tribe’s interest in regulating the activity.

Fifth Circuit Judge Smith wrote a biting dissent, emphasizing that: (i) Montana’s narrow exception applies only when the conduct questioned is encompassed under a tribe’s authority to “protect tribal self-government or to control internal relations”; and (ii) even if this initial barrier had been met, the nexus between Dolgencorp’s participation in the YOP and the full body of Indian tort law was too weak to permit tribal jurisdiction over Dolgencorp. Judge Smith opined that Dolgencorp could not have anticipated that its consensual relationship with Doe via the YOP program would subject it to any and all tort claims actionable under tribal law; thus, an insufficient nexus existed to satisfy Montana’s first exception. He postured that this first exception “envisages discrete regulations consented to ex ante; the majority, to the contrary, upholds an unprecedented after-the-fact imposition of an entire body of tort law based on Dolgencorp’s participation in a brief, unpaid internship program.”

The Supreme Court’s Dollar General Split

The Supreme Court granted a petition for a writ of certiorari to Dollar General and its parent company, Dolgencorp (together, Dolgencorp), to evaluate whether Dolgencorp could be brought under tribal jurisdiction to adjudicate civil tort claims against nonmembers under the first exception enumerated in Montana. See generally Dollar General, 136 U.S. at 2159. The tribal court approached the Supreme Court’s review with unlikely odds, having won only two Supreme Court cases involving tribal interests, compared to nine losses, since 2005. In addition to its wide recognition as a pro-business bench, the Supreme Court itself acknowledged in 2001 that it had never found a tribal court to have jurisdiction against nonmembers under the first Montana exception.

The Tribe, however, did have some support. For example, although the Supreme Court had never held as such, the Fifth Circuit pointed out that, in its view, every circuit court to address whether tribal courts may exercise jurisdiction over tort claims against nonmembers under Montana’s first exception have held or assumed that they may validly do so. Dolgencorp, Inc., 746 F.3d at 173 n.3. Additionally, the Department of Justice (DOJ) filed an amicus brief in support of the Tribe’s positions and supported the Fifth Circuit’s decision that the Tribe had jurisdiction over Doe’s tort claims because it has the ability to regulate conduct occurring on tribal land, irrespective of Montana’s rule or exceptions. Brief for the United States as Amicus Curiae, Dollar General Corp. v. Mississippi Band of Choctaw Indians, 2015 WL 2228553, at 9–10 (U.S.).

On June 23, 2016, the Supreme Court issued its Dollar General ruling, with a 4–4 split decision, affirming the decision of the Fifth Circuit and upholding tribal court jurisdiction over Doe’s tort claims against Dolgencorp. Because of the tie, no written opinion was issued by the court; thus, the decision does not operate as direct precedent outside of the Fifth Circuit (which includes Mississippi, Louisiana, and Texas). Nevertheless, this does provide persuasive precedent for other jurisdictions and “affirms the longstanding legal principle that tribal courts have civil jurisdiction over non-Indian conduct arising from consensual relations on Indian reservations.” Indeed, with the Dollar General decision, the Supreme Court voted three out of three times in favor of upholding tribal sovereignty in major Indian law cases in 2016, including Nebraska v. Parker, 136 S. Ct. 1072 (2016) and U.S. v. Bryant, 136 S. Ct. 1954 (2016). Both Bryant and Dollar General dealt with tribal courts’ ability to protect tribal members from domestic violence and sexual assault.

Notwithstanding the Supreme Court decision, much uncertainty remains as to the scope of tribal jurisdiction over nonmember individuals and organizations conducting business on tribal land. This uncertainty carries the ability to adversely impact both tribes and their business partners. One result of this jurisdictional uncertainty is the potential withdrawal of businesses from operating and transacting on tribal land. For tribal communities “in which unemployment is already high and access to commercial services (like low-cost merchandise stores) is low,” this may be a very real negative consequence of continuing jurisdictional uncertainty. Petition for Writ of Certiorari, Dollar General Corp. v. The Mississippi Band of Choctaw Indians, 2014 WL 2704006, at 17 (U.S.).

Conclusion

The Supreme Court’s decision is quite impactful on business relationships between tribes and companies and individuals seeking to do business with tribes. Dolgencorp’s petition for a writ of certiorari even anticipated the serious implications of the Supreme Court’s future decision, noting that it affects “tens of thousands of nonmember corporations and individuals who do business on tribal reservations.” Dollar General serves to solidify tribal courts’ jurisdiction and ability to protect members from intentional torts committed within the context of an employer/employee relationship when the business is located within tribal land. Because Indian tribes “generally [do not] have criminal jurisdiction over non-Indians,” this affirmation of a tribe’s ability to seek a civil remedy serves as “the only deterrent to unlawful actions committed by non-Indians who are working or doing business on the reservation.” The suit will now continue in tribal court for a hearing on its merits.

As a result of Dollar General, businesses simply must be aware that any disputes arising on tribal lands may be subject to tribal court jurisdiction, and they should familiarize themselves with the court’s rules and procedures.

Recent Developments in Business and Corporate Litigation 2017

Posted on April 27, 2017 by - Uncategorized

The Business and Corporate Litigation Committee is pleased to present its annual mini-theme issue of Business Law Today. The breadth of business litigation faced by today’s companies is staggering. So, too, is the attendant cost and risk. The Business and Corporate Litigation Committee (BCLC) is the home within the ABA Business Law Section (BLS) for lawyers, in-house counsel, judges, and law students interested in dispute resolution, including litigation, arbitration, and mediation for business clients, as well as substantive issues for business litigators. Our members from around the United States and beyond are approximately 2,000 strong, making the BCLC one of the ten largest committees in the BLS. We have approximately 35 subcommittees in which you can develop your knowledge, connections, and leadership.

To join our growing committee, any BLS member may join the BCLC for free here. Many of our members have found an opportunity to flourish as authors, to show their expertise in particular areas of the law. For example, the BCLC has, for numerous years, authored the indispensable Recent Developments in Business and Corporate Litigation (formerly the Annual Review). The 2017 edition contains 19 chapters authored by over 150 committee members. This single volume—which you can purchase here—is divided into five parts:

  1. Litigation and Dispute Resolution Practice
  2. Civil Business Claims
  3. Business Associations Law
  4. Employment & Labor Law
  5. Finance & Securities Litigation & Arbitration

Committee members regularly write articles for the Section’s Business Law Today publication, as evidenced by this mini-theme issue. These articles represent hot legal topics including (1) the Defend Trade Secrets Act; (2) conducting business on Native American lands after the Supreme Court decision in Dollar General; (3) recent developments in the Delaware Supreme Court on director independence; and (4) authenticating digital evidence at trial. In addition, the BCLC has its own newsletter—The Network—which offers further writing opportunities for committee members.

The BCLC takes great pride in its quality programming and special events. The committee participates actively in the BLS Spring, Annual, and Fall Meetings, and it typically presents 11 CLE programs annually. BCLC regularly presents non-CLE programs and special events, such as the Tips from the Trial Bench program, the Woman Business and Commercial Advocates Reception, and the Annual Pro Bono and Public Service Project. Our popular committee dinners held at each meeting are regularly co-sponsored by the Judges’ Initiative Committee and ADR Committee.

If you missed the Section Spring Meeting in New Orleans, please join us at the Section Annual Meeting in Chicago on September 14–16. The benefits of the BCLC are many, and your experience can be tailored to your individual practice and needs. We are an inclusive and collaborative group—please check out the BCLC webpage here. I hope to see you soon at a future meeting!

From the Uniform Law Commission: In the World of Alternative Entities What Does “Good Faith” Mean?

Posted on March 23, 2017 by - Uncategorized

With this issue, in cooperation with the Uniform Law Conference, we initiate a column on the law of incorporated entities, principally, limited liability companies The column will appear every other month and discuss issues as they develop around the country.

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Over the past several decades, “good faith” has become increasingly important in the law of business organizations. The phrase appears five times in the newest version of the Uniform Limited Liability Company Act (ULLCA (2013)), more than 40 times in the official comments, and has similar importance in the newest versions of the uniform general and limited partnership acts. The phrase also has fundamental importance in the Delaware law of “alternative entities” (discussed below) and was central cases clarifying the reach of liability-limiting charter provisions under Delaware corporate law’s famous section 102(b)(7).

One might think, therefore, that “good faith” can be defined easily or, at least, definitively. But the term is polysemous, a chameleon whose meaning changes dramatically depending on the context. Depending on context and on jurisdiction, the term indicates a test that is either entirely subjective or has both subjective and objective aspects. In one context, the objective standard is a very lax duty of care reclassified as part of the duly of loyalty. In another context, the word “objective” has a meaning radically different from the “reasonableness” concept typically associated with an “objective” test.

This column concerns the law of limited liability companies and partnerships, where the most important context for “good faith” is the implied contractual obligation (or covenant) of good faith and fair dealing. The obligation, which is not a fiduciary duty, originated in the common law of contracts but in recent has years developed its own, special character as applied to operating and partnership agreements.

The goal of this column is to explain how LLC and partnership law understand and apply the implied contractual covenant. We start where the obligation originated, consider briefly the codification provided in the Uniform Commercial Code (UCC), and then address the special character reflected in Delaware law and the newest versions of the uniform LLC and partnership acts.

Under the common law of contracts, the obligation of “good faith and fair dealing” is an implied and inescapable term of every agreement. Per the Restatement (Second) of Contracts, § 201, “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” The official comments suggest that a complete definition is impossible—the duty “excludes a variety of types of conduct characterized as involving ‘bad faith’ because they violate community standards of decency, fairness or reasonableness,” but “[a] complete catalogue of types of bad faith is impossible.”

This type of impossibility is a boon to litigators and a bane for transactional lawyers. “Good faith,” as codified by the Uniform Commercial Code (UCC), is little better. Under UCC, § 1-201(20), “‘[g]ood faith’ . . . means honesty in fact and the observance of reasonable commercial standards of fair dealing.” Presumably, the UCC’s concept of usage of trade imparts some content to “reasonable commercial standards of fair dealing.” Nevertheless (and arguably as a result), those standards assess a contract obligor’s conduct from a perspective disconnected from the language of the contract. The results can be startling, as in K.M.C. Co. v. Irving Trust Co., 757 F.2d 752 (6th Cir. 1985), which used such standards to hold that: (i) a lender’s exercise of its totally discretionary right to call a demand note was objectively unreasonable; and therefore (ii) the lender was liable for the collapse of the borrower’s business.

As will be seen, the uniform acts and Delaware law are more friendly to transactional lawyers (and their clients), although both the ULC and Delaware case law have flirted at least briefly with an objective standard divorced from the words of the parties’ agreement. For example, in Policemen’s Annuity & Benefit Fund of Chicago v. DV Realty Advisors LLC, No. CIV.A. 7204-VCN, 2012 WL 3548206 (Del. Ch. Aug. 16, 2012), the Delaware Court of Chancery considered the implied covenant in the context of a limited partnership agreement which required the limited partners to act “in good faith” if they chose to remove the general partner but did not define good faith. The court decided to “presume that the parties intended to adopt Delaware’s common law definition of good faith as applied to contracts” and then resolved the matter in light of the UCC definition of the implied convent—including that definition’s objective aspect.

On appeal, DV Realty Advisors LLC v. Policemen’s Annuity & Ben. Fund of Chicago, 75 A.3d 101(Del. 2013), the Delaware Supreme Court affirmed the judgment but flatly ended the flirtation: “This Court has never held that the UCC definition of good faith applies to limited partnership agreements.”

Recent Delaware decisions have moved toward greater precision, mooring both “good faith” and “fair dealing” to the words of the parties’ contract. The pivotal case is Gerber v. Enter. Products Holdings, LLC, 67 A.3d 400, 418-19 (Del. 2013) in which the Delaware Supreme Court stated:

“Fair dealing” is not akin to the fair process component of entire fairness, i.e., whether the fiduciary acted fairly when engaging in the challenged transaction as measured by duties of loyalty and care . . . It is rather a commitment to deal “fairly” in the sense of consistently with the terms of the parties’ agreement and its purpose. Likewise, “good faith” does not envision loyalty to the contractual counterparty, but rather faithfulness to the scope, purpose, and terms of the parties’ contract. Both necessarily turn on the contract itself and what the parties would have agreed upon had the issue arisen when they were bargaining originally.

Gerber further explained that, because the actual words of the agreement control the application of the implied covenant:

An implied covenant claim . . . looks to the past. It is not a free-floating duty unattached to the underlying legal documents. It does not ask what duty the law should impose on the parties given their relationship at the time of the wrong, but rather what the parties would have agreed to themselves had they considered the issue in their original bargaining positions at the time of contracting.

(Emphasis added.)

At one time, the Uniform Law Commission (ULC) appeared to do more than merely flirt with the vagueness of the common law/UCC approach. In RUPA Section 404(d), a uniform act codified the implied covenant of good faith and fair dealing for the first time. Comment 4 to that section stated:

The meaning of “good faith and fair dealing” is not firmly fixed under present law. “Good faith” clearly suggests a subjective element, while “fair dealing” implies an objective component. It was decided to leave the terms undefined in the Act and allow the courts to develop their meaning based on the experience of real cases.

Having courts “develop” meaning as they go hardly makes for the rule stability that transactional lawyers seek. In 2001, the ULC adopted a new uniform limited partnership act with the same codifying language, ULPA (2001), § 305(b), but the official comment to the provision took a decidedly different approach:

The obligation of good faith and fair dealing is not a fiduciary duty, does not command altruism or self-abnegation, and does not prevent a partner from acting in the partner’s own self-interest. Courts should not use the obligation to change ex post facto the parties’ or this Act’s allocation of risk and power. To the contrary, in light of the nature of a limited partnership, the obligation should be used only to protect agreed-upon arrangements from conduct that is manifestly beyond what a reasonable person could have contemplated when the arrangements were made.

About a decade later, the ULC began a project to harmonize both the language and commentary of uniform unincorporated business entity acts. The uniform general partnership, limited partnership, and limited liability company acts each codify the implied covenant, and the harmonization project changed both the statutory language and the official commentary. All three acts now expressly characterize the implied covenant as “contractual.” And, in their respective official comments, all three acts interweave the 2001 “non-abnegation” language with quotations from the Delaware cases quoted above.

Thus, under both Delaware law and the uniform acts, the implied obligation of good faith and fair dealing is a cautious enterprise, intended only to preserve the fruits of the bargain—as evidenced by the words of the contract—from one party’s lack of prescience and the other party’s desire to exploit that lack. As Vice Chancellor Laster explained in Allen v. El Paso Pipeline GP Co., L.L.C., No. CIV.A. 7520-VCL, 2014 WL 2819005 (Del. Ch. June 20, 2014)

No contract, regardless of how tightly or precisely drafted it may be, can wholly account for every possible contingency. Even the most skilled and sophisticated parties will necessarily fail to address a future state of the world . . . because contracting is costly and human knowledge imperfect. . . .

Thus, properly understood and delimited, implied covenant analysis resembles the rule for determining whether a party’s contractual duties are discharged by supervening impracticably. As explained in Restatement (Second) of Contracts § 261, cmt. b (1981): “In order for a supervening event to discharge a duty . . ., the non-occurrence of that event must have been a ‘basic assumption’ on which both parties made the contract.” As for the implied contractual covenant, again in the words of Vice Chancellor Laster in the El Paso case, “parties occasionally have understandings or expectations that were so fundamental that they did not need to negotiate about those expectations.”

Or put another way: both doctrines identify situations or claims that—if contemplated at the time of contracting—would have been deal breakers.

In the next column—“Delineating the Implied Covenant and Providing for ‘Good Faith’”—can an operating or partnership agreement shape the implied covenant, even to the extent of creating safe-harbors? What should never be done when making “good faith” an express requirement?

A Fully Informed and Disinterested Stockholder Vote Cleanses Transactions Tainted by Board Conflicts

Posted on March 23, 2017 by - Uncategorized

Recently, in In re Merge Healthcare Inc., C.A. No. 11388-VCG, 2017 WL 395981 (Del. Ch. Jan. 30, 2017), the Delaware Court of Chancery dismissed a complaint, which alleged that the board of directors of Merge Healthcare, Inc. breached its fiduciary duties in connection with its approval of a merger with IBM, because a majority of the disinterested, fully informed, and uncoerced stockholders of Merge approved the acquisition. The decision is the latest in a series of opinions from the court in the wake of the Delaware Supreme Court’s decision in Corwin v. KKR Financial Holdings LLC, 125 A.3d 304 (Del. 2015) and confirms that, where a majority of a corporation’s fully informed, disinterested, and uncoerced stockholders approve a transaction other than with a controlling stockholder, the business judgment rule will apply absent waste even if the transaction was approved by a conflicted board majority. The decision also helps to clarify some uncertainty created by various decisions of the Court of Chancery as to the effect of Corwin on interested director transactions.

Corwin and Interested Director Transactions

In Corwin, the Delaware Supreme Court held that “when a transaction not subject to the entire fairness standard is approved by a fully informed, uncoerced vote of the disinterested stockholders, the business judgment rule applies.” Because of Corwin’s literal holding, the decision created some uncertainty over whether all transactions subject to the entire fairness standard of review were incapable of being cleansed by a fully informed, uncoerced, and disinterested stockholder vote or whether just controlling stockholder transactions were not capable of being cleansed. Historically, transactions tainted by a conflicted board majority, but not a controlling stockholder, were reviewed under the entire fairness standard of review unless the transaction had been approved by a fully informed and disinterested stockholder vote or a special committee of disinterested and independent directors. The effect of a single cleansing mechanism on controlling stockholder transactions was merely to shift the burden of proof of entire fairness from defendants to plaintiffs because of the inherent coercion deemed present when a controller either stands on both sides of the transaction or extracts personal benefits from the transaction. Thus, there was some reason to believe that not all transactions subject to the entire fairness standard were incapable of being cleansed under Corwin—just transactions subject to the entire fairness standard ab initio because of a controlling stockholder.

Corwin suggested that fully informed, uncoerced, and disinterested stockholder approval of a conflicted board decision should be given cleansing effect, but the issue was not squarely before the court. Specifically, the court did not consider allegations that the entire fairness standard applied to its review of a merger because of a conflicted board majority, but rather whether entire fairness applied to the court’s review because of a controlling stockholder. Nevertheless, the court’s dictum was instructive. The court noted that “[f]or sound policy reasons, Delaware corporate law has long been reluctant to second-guess the judgment of a disinterested stockholder majority that determines that a transaction with a party other than a controlling stockholder is in their best interests.” In addition, the decision affirmed the Court of Chancery’s holding below, which stated that “even if the plaintiffs had pled facts from which it was reasonably inferable that a majority of [] directors were not independent, the business judgment standard of review still would apply to the merger because it was approved by a majority of the shares held by disinterested stockholders . . . in a vote that was fully informed.”

Subsequently, in City of Miami General Employees v. Comstock, C.A. No. 9980-CB, 2016 WL 4464156 (Del. Ch. Aug. 24, 2016), the Court of Chancery gave cleansing effect to a fully informed, uncoerced stockholder vote approving a merger only after determining that plaintiff failed to allege facts sufficient to establish that a majority of the members of the target’s board of directors were belaboring under disabling conflicts. In this case, the alleged conflicts related to the directors’ purported desire to obtain board seats in the surviving entity and inability to act independently from an interested party. The court ultimately dismissed plaintiff’s claims because the transaction was not subject to entire fairness review and the business judgment presumption applied under Corwin. The fact that the court determined that Corwin’s cleansing effect applied only after concluding that a majority of the members of the board were disinterested and independent suggested that the court did not believe that Corwin’s cleansing effect would have applied if a majority of the members of the board were conflicted.

By contrast, in Larkin v. Shah, C.A. No. 10918-VCS, 2016 WL 4485447 (Del. Ch. Aug. 25, 2016), the Court of Chancery stated that “[i]n the absence of a controlling stockholder that extracted personal benefits,” where a majority of a corporation’s fully informed, disinterested, and uncoerced stockholders approve the transaction, the business judgment rule will apply “even if the transaction might otherwise have been subject to the entire fairness standard due to conflicts faced by individual directors.” Like Comstock, Larkin involved claims that a majority of the members of a target’s board faced disabling conflicts when approving a merger. The alleged conflicts related to certain board members having contemporaneous employment with venture capital firms that held stock in the target corporation and the directors’ expectation of employment with the surviving entity following the merger. In rejecting plaintiffs’ claims and applying Corwin to dismiss plaintiffs’ complaint, the court made clear “that [] proper stockholder approval of [a] transaction [will] cleanse any well-pled allegations that [a] transaction was the product of board-level conflicts that might trigger entire fairness review . . . .”

Consistent with the court’s decision in Larkin, Merge Healthcare clarifies that, with respect to conflicted board transactions, a disinterested, fully informed stockholder vote will have a cleansing effect on the transaction.

Factual Background: In re Merge Healthcare

This case involved the acquisition of Merge Healthcare, Inc. by IBM. Prior to the merger, Merge’s Chairman, Michael Ferro, owned approximately 26 percent of Merge’s outstanding stock through an affiliated fund which also provided consulting services to Merge. As a result of the consulting agreement, Merge would have paid Ferro’s affiliated fund a $15 million cash fee in connection with Merge’s acquisition by IBM but for the fact that Ferro subsequently agreed to waive the fee in exchange for an increase in the offer price. The merger was completed on October 13, 2015. Nearly 80 percent of Merge’s stockholders voted in favor of the merger.

Following closing, plaintiffs brought this action, alleging, among other things, that (i) the Merge board ran an unfair sales process and deprived stockholders of the true value of Merge and (ii) the Merge board breached its duty of disclosure by disseminating materially misleading and incomplete information to the stockholders in connection with the proxy statement filed as part of the merger. Defendants moved to dismiss plaintiffs’ complaint on the basis of the ratifying effect of the Merge stockholder vote.

Parties’ Arguments: In re Merge Healthcare

Plaintiffs argued that the entire fairness standard of review should apply to the merger between Merge and IBM because a majority of the members of Merge’s board were conflicted, and Ferro was a controller. According to plaintiffs, Ferro’s relationships with the other board members, as well as his stock ownership in Merge, allowed him to control Merge and its board. Plaintiffs maintained that Ferro used the merger with IBM to satisfy an urgent need to sell illiquid stock holdings in Merge. Finally, to demonstrate that the merger vote had not been fully informed, plaintiffs alleged various disclosure violations related to the financial analysis performed by Goldman Sachs, Merge’s financial adviser. Specifically, plaintiffs argued that (i) the proxy statement failed to disclose Goldman’s treatment of stock based compensation as a cash expense, (ii) the unlevered free cash flows used by Goldman were not those disclosed in the proxy statement, and (iii) the proxy statement inadequately described the present value of Merge’s net operating losses. In addition, plaintiffs contended that defendants failed to disclose that the true purpose of Ferro’s waiver of the consulting fee was to avoid the creation of a special committee rather than to obtain a price increase from IBM.

In response, the director defendants relied upon the cleansing effect of Corwin, contending that, because the vote of the stockholders approving the merger was fully informed, disinterested, and uncoerced, defendants were entitled to the presumptions of the business judgment rule absent waste.

The Court’s Holdings: In re Merge Healthcare

The court held that the vote of Merge’s stockholders cleansed the transaction, entitling the Merge directors to the presumptions of the business judgment rule under Corwin. In so doing, the court, citing Larkin, held that, in the absence of a controlling stockholder that extracted personal benefits from the transaction, a fully informed, uncoerced, and disinterested stockholder vote results in the application of the business judgment rule “even if the transaction might otherwise have been subject to the entire fairness standard due to conflicts faced by individual directors.” Thus, the court found largely irrelevant the allegations that Merge board members were conflicted and focused on whether Ferro was a controller who extracted personal benefits not shared equally with the minority. The court assumed for purposes of its analysis that Ferro was a controlling stockholder of Merge and found Ferro’s interests were fully aligned with the minority stockholders because of his pro rata treatment in the merger. The court rejected plaintiffs’ claim that Ferro had orchestrated the merger to sell his Merge stock because Ferro had been selling his stock in Merge for the past six years. Additionally, the court emphasized that Ferro’s waiver of the fee under the consulting agreement removed any unique benefit that he might have received in the merger.

Next, the court held that plaintiffs’ disclosure claims arising from Goldman Sachs’ summary of the analysis underlying its fairness opinion failed. Regarding plaintiffs’ contention that the reason for Ferro’s waiver of the fee under the consulting agreement was not disclosed, the court found that disclosure of Ferro’s subjective intent to waive the fee was not required.

Conclusion

The court’s decision in Merge Healthcare highlights the evolution of the court’s jurisprudence under Corwin. Specifically, Merge Healthcare confirms that a fully informed stockholder vote will cleanse a transaction in order to apply the business judgment rule to a board’s decision to approve the transaction even if a majority of the directors are interested in the transaction. Such a holding is not necessarily surprising—prior to Corwin, numerous Court of Chancery decisions held that the business judgment rule applied to a conflicted board’s decision to approve a merger where the stockholder vote approving the transaction was fully informed, disinterested, and uncoerced. Some confusion ensued after the Delaware Supreme Court held in Gantler v. Stephens, 965 A.2d 695 (Del. 2009) that stockholder ratification of a transaction is limited to “circumstances where a fully informed shareholder vote approves director action that does not legally require shareholder approval in order to become legally effective.” However, in Corwin, the Delaware Supreme Court narrowly interpreted Gantler as a decision focused on the common law doctrine of ratification and not on the question of what standard of review applies if a transaction not involving a controller is approved by an informed, voluntary vote of disinterested stockholders. The court’s decision in Merge Healthcare clarifies that, with respect to the approval of interested director transactions by a fully informed, disinterested, and uncoerced stockholder vote, the effect of Corwin was to remove any doubt cast on the cleansing effect of a stockholder vote created by Gantler v. Stephens.

DOJ Releases Under-the-Radar Paper on “Evaluation of Corporate Compliance Programs”

Posted on March 23, 2017 by - Uncategorized

In February 2017 the Department of Justice (DOJ) Fraud Section quietly released a short paper entitled “Evaluation of Corporate Compliance Programs,” which sheds more light on how the Department’s new compliance expert will differentiate effective compliance programs from those that are superficially pretty. In the paper, the Fraud Section reiterates that the factors it considers in deciding whether to investigate, charge or negotiate with a corporation (called the “Filip Factors”) necessarily require a fact-specific assessment. And the topics the Fraud Section considers in conducting its assessment—like tone at the top, third party risk assessments and compliance resources—are not new. Yet, the paper provides an important glimpse into “common questions that we may ask” in evaluating how an individual organization passes muster under the Filip Factors. Many of the “sample questions” highlight where the Fraud Section will press to ferret out those corporations that have simply adopted a check-the-box compliance program, versus those that have embraced compliance as a cultural imperative.

Sample Topics

The paper enumerates 11 sample topics that the Fraud Section “has frequently found relevant in evaluating a corporate compliance program.” Many of these topics appear in the US Sentencing Guidelines, the DOJ and SEC FCPA Guidance from November 2012, and other compliance resources. Nonetheless, their presence here shows their durability as measures by which corporations will be judged. The topics include:

  • Analysis and remediation of underlying misconduct, including root cause analysis of compliance failures and whether similar incidents occurred in the past
  • Senior and middle management words and deeds to convey and model proper behavior
  • Autonomy and resources of compliance function including stature, qualifications and funding
  • Operational integration of compliance policies and procedures into a control framework
  • Risk assessment process and the role of metrics
  • Incentives and disciplinary measures and whether they are effective, consistent, and fairly meted out
  • Continuous improvement, periodic testing, and review

Thematically, the topics convey that a successful compliance program responds and reacts to each compliance failure. Compliance needs to bear the visible support of top—and middle—management and run under the leadership of well-resourced compliance professionals. Compliance does not exist isolated from a company’s day-to-day operations and strategic decision making, but is integrated throughout both.

“Common Questions” To Probe A Company’s Compliance Program

The Fraud Section is careful to note that it “does not use any rigid formula to assess the effectiveness of corporate compliance programs” and that each company’s “risk profile and solutions to reduce its risks warrant particularized evaluation.” Yet, the paper sets forth “common questions” that the Fraud Section may ask in making that individualized determination.

Many of the questions coalesce around three critical avenues to explore whether the company has embedded compliance into its culture: (1) the company’s processes for lessons learned, (2) the effectiveness of its gatekeepers and (3) the integration of compliance into the business.

Processes for lessons learned. These questions probe whether the company is learning from prior compliance mistakes or simply punishing the wrongdoer without seeking and correcting systemic failures. For example:

  • “Were there prior opportunities to detect the misconduct in question, such as audit reports identifying relevant control failures . . . ? What is the company’s analysis of why such opportunities were missed?”
  • “What controls failed or were absent that would have detected or prevented the misconduct? Are they there now?”
  • “Has the company’s investigation been used to identify root causes, system vulnerabilities, and accountability lapses, including among supervisory manager and senior executives?”
  • “What information or metrics has the company collected and used to help detect the type of misconduct in question? How has the information or metrics informed the company’s compliance program?”

Effectiveness of gatekeepers. These questions explore not only stature and skill of compliance personnel and personnel in other control functions in the organization, but also whether reports of misconduct get to the right responders. For example:

  • “What has been the turnover rate for compliance and relevant control function personnel?”
  • “Who reviewed the performance of the compliance function and what was the review process?”
  • “Has the company outsourced all or parts of its compliance functions to an external firm or consultant? . . . How has the effectiveness of the outsourced process been assessed?”
  • “Has there been clear guidance and/or training for the key gatekeepers . . . in the control processes relevant to the misconduct?”
  • “Has the compliance function had full access to reporting and investigative information?”

Integration of compliance into the business. Many of the Fraud Section’s questions attempt to shine on light on whether a company has woven compliance into its day-to-day business, from board room to the floor.

Questions include:

  • “What specific actions have senior leaders and other stakeholders (e.g., business and operational managers, Finance, Procurement, Legal, Human Resources) taken to demonstrate their commitment to compliance . . . ?”
  • “What compliance expertise has been available on the board of directors?”
  • “What role has compliance played in the company’s strategic and operational decisions?”
  • “Have business units/divisions been consulted prior to rolling [new policies and procedures] out?”

These questions suggest that the Fraud Section will continue to press on a key vulnerability that plagues the compliance efforts of many organizations: how to translate a well-designed compliance program into the cultural fabric of the company. And prosecutors will not likely be impressed without demonstrable proof of action at all levels of the organization and across all aspects of its business.

The Delaware Supreme Court Confirms That New Castle County’s Unified Development Code Is Constitutional

Posted on March 23, 2017 by - Uncategorized

Facts and Procedural History

On December 7, 2016, the Delaware Supreme Court sitting en banc heard oral argument in Golf Course Assoc, LLC v. New Castle County. The Delaware Supreme Court agreed with the county and affirmed the Delaware Superior Court’s opinion that New Castle County’s Unified Development Code (UDC) did not violate the U.S. Constitution. Golf Course Assoc, LLC v. New Castle County, 2016 WL 7176721 (Del. Dec. 9, 2016).

In Golf Course Assoc., Toll Brothers, Inc. submitted an application to the New Castle County Department of Land Use and the New Castle County Council to construct a housing development on a golf course near Route 48 (Lancaster Pike) outside of Wilmington, Delaware. In determining whether to accept or reject such a proposal, the department relies on the process outlined in the UDC, a process which is based on the concept of concurrency—whether the infrastructure necessary to support the proposed development exists or will exist by the time the development is complete. The first step in this process is to determine the “carrying capacity” for a proposed development, or how much development the surrounding infrastructure will support. In this case, the main issue was the traffic carrying capacity which, pursuant to the UDC, is determined by a Traffic Impact Study (TIS). Once a TIS has been completed, the developer must provide it to the Delaware Department of Transportation (DelDOT) for its written review and comment. The primary metric for measuring traffic congestion is the Level of Service (LOS) of intersections within the area of influence of the proposed development. The LOS for intersections is calculated by traffic engineers using a standard formula, which considers the number of vehicles and the amount of time spent waiting at an intersection at peak travel times. The proposed development in this case would impact the intersection of Lancaster Pike and Centerville Road.

The TIS prepared in 2010 rated the intersection of Lancaster Pike and Centerville Road as LOS “F” and anticipated that in 2016 the intersection would continue to operate at LOS “F.” DelDOT’s engineering firm, hired to review the TIS, assessed the intersection and determined that in 2010 the LOS rating was a “D” and projected that it would be at LOS “F” in 2016. An “F” rating for 2016 meant that the anticipated congestion at the intersection would exceed the standards allowed by the UDC and that the intersection would be in failure.

Toll Brothers had anticipated that traffic at the intersection would pose a problem to its proposed development and, as a result, designed a remedy to fix the congestion. Toll Brothers’ remedy was estimated to cost $1.1 million. Through negotiations with DelDOT, Toll Brothers offered to pay for this proposed remedy. DelDOT, however, preferred another remedy with an estimated cost of $3.5 million, but was willing to accept Toll Brothers’ $1.1 million as a contribution to DelDOT’s preferred solution.

Based on the traffic congestion issue, the New Castle County Department of Land Use disapproved Toll Brothers’ TIS. Accordingly, Toll Brothers’ record plan could not be filed. At the time the county disapproved the TIS, the statutory time period, including two authorized extensions totaling 180 days, had run and thus Troll Brothers’ record plan was deemed expired.

Following the expiration of its record plan, Toll Brothers appealed the county’s disapproval of the TIS and the resulting expiration of the plan to the New Castle County Board of Adjustments. Among other claims, Toll Brothers argued that an unconstitutional exaction had occurred. The board disagreed with Toll Brothers and dismissed its constitutional challenge. However, raising the unconstitutional exaction issue to the board preserved it for judicial review. The board agreed that pursuant to the UDC the plan had properly expired and that there was no constitutional violation. Toll Brothers subsequently filed an appeal with the New Castle County Superior Court. After briefing and oral argument, Judge Parkins of the Superior Court found in favor of the county, issuing its own well-reasoned opinion. The Superior Court’s decision was then appealed to the Delaware Supreme Court.

Toll Brothers’ Constitutional Claim

Toll Brothers argued before the board, the Superior Court, and the Delaware Supreme Court that the department and board’s rejection of the TIS constituted a violation of its constitutional rights under the “unconstitutional conditions” doctrine found in the Nollan/Dolan/Koontz trilogy of cases. This constitutional challenge involves the Takings Clause of the Fifth Amendment of the U.S. Constitution, made applicable to the states through the Fourteenth Amendment, which provides: “[N]or shall private property be taken for public use, without just compensation.” Dolan v. City of Tigard, 512 U.S. 374, 383-84 (1994) (internal citations omitted).  The public policy behind the Takings Clause is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960).

The Koontz Test

The unconstitutional conditions doctrine was first addressed in a 5–4 decision by the U.S. Supreme Court in Nollan v. California Coastal Commission, where a landowner wanted to tear down his existing beach front house to build a new one. In order to do so, the owner needed to obtain a building permit from the California Coastal Commission. The commission required the landowner to provide a public easement across his property before it would issue a permit. The state argued that this easement was necessary to protect the public’s view of the beach, assist the public in overcoming the “psychological barrier” to using the beach, and prevent congestion on the public beach. The U.S. Supreme Court struck down this requirement as an unconstitutional exaction stating:

[T]he lack of nexus between the condition and the original purpose of the building restriction converts that purpose to something other than wait it was. The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose, but without payment of compensation. Whatever may be the outer limits of “legitimate state interest” in the taking and land-use context, this is not one of them. In short, unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but “an out-and-out plan of extortion.”

Seven years after the U.S. Supreme Court issued its opinion in Nollan, it was asked to clarify the “required degree of connection between the exactions and the projected impact of the proposed development.” Dolan v. City of Tigard, 512 U.S. 374, 386 (1994).  This question was left unanswered in Nollan because the court concluded that the connection did not meet “even the loosest standard.” In another 5–4 decision by the U.S. Supreme Court in Dolan v. City of Tigard, the court adopted a “rough proportionality” test which, while there is “[n]o precise mathematical calculation,” requires that the state demonstrate “some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.”

It was not until 2013 that the U.S. Supreme Court would again address this doctrine in Koontz v. St. Johns River Water Mgmt. Dist. 133 S. Ct. 2586, 2593 (2013). In Koontz, in response to the state’s demand for property from a landowner for a Management and Storage of Surface Water permit and a Wetlands Resource Management permit, the landowner refused to transfer the property. Because there had been no actual taking due to the landowner’s refusal, this action raised the question as to whether the Takings Clause was applicable where there had been no actual taking of property. The court in Koontz also addressed the question of whether the Takings Clause was implicated when the State demanded money as opposed to an interest in land. The U.S. Supreme Court, in yet another 5–4 decision, found that under such circumstances the test enumerated in Nollan and Dolan was applicable. Specifically, as to the monetary issue, the court noted that a monetary obligation on a specific piece of land is a sufficient link between the government’s demand and the property to implicate the central concern in Nollan and Dolan, namely that “the risk that the government may use its substantial power and discretion in land-use permitting to pursue governmental ends that lack an essential nexus and rough proportionality to the effects of the proposed new use of the specific property at issue, thereby diminishing without justification the value of the property.” The court further explained that there could be a violation of the Takings Clause even though there was no property of any kind actually taken:

Extortionate demands for property in the land-use permitting context run afoul of the Takings Clause not because they take property but because they impermissibly burden the right not to have property taken without just compensation. As in other unconstitutional conditions cases in which someone refuses to cede a constitutional right in the face of coercive pressures, the impermissible denial of a governmental benefit is a constitutionally cognizable injury.

In Koontz the court made clear that in order to make out a claim for an unconstitutional exaction, there must first be a demand. This point was made most clear by Justice Kagan’s dissenting opinion in Koontz. This dissent provides in pertinent part:

Nollan and Dolan apply only when the government makes a “demand[]” that a landowner turn over property in exchange for a permit. I understand the majority to agree with that proposition: After all, the entire unconstitutional conditions doctrine, as the majority notes, rests on the fear that the government may use its control over benefits (like permits) to “coerc[e]” a person into giving up a constitutional right. A Nollan–Dolan claim therefore depends on a showing of government coercion, not relevant in and ordinary challenge to a permit denial. Before applying Nollan and Dolan, a court must find that the permit denial occurred because the government made a demand of the landowner, which he rebuffed.

Concerns Following Koontz

Following the majority’s opinion in Koontz there was widespread concern that local governments would stop negotiating with, and making suggestions to, developers about how to meet permitting criteria and, that instead would simply deny applications that did not meet municipal standards or improperly accept development plans. This was a concern because collaboration between the developer and local government “is essential to an orderly and efficient system of land use regulation.” Julie A. Tappendorf & Matthew T. DiCianni, The Big Chill?—The Likely Impact of Koontz on the Local Government/Developer Relationship, 30 Touro. L. Rev. 455, 471-72 (2014). Indeed, as part of the development process, local governments and developers often meet and discuss possible negative impacts of the proposed development and ways to mitigate concerns in an attempt to reach an agreement. Commentators have suggested that Koontz prevents these discussions from taking place by providing an additional, unnecessary risk of possible lawsuits based on an unconstitutional exaction theory. Specifically, the suggestion is that if the local government participates in what has become the normal back-and-forth with the developer, at any time during that process the developer could cease talks and file suit claiming a taking based on the unconstitutional exaction doctrine. The local government, therefore, has no incentive to take part in those discussions for fear of being accused of making a demand. This necessarily prevents local governments and land developers from reaching agreements that work for both parties and, in effect, prevents a property owner, like the one in Koontz, from having an “opportunity to amend their applications or discuss mitigation options.”

Another concern resulting from the Koontz decision is that if local governments do decide to partake in discussions with the developers, the developers are incentivized to only offer the “easiest and cheapest mitigation condition” because if that is rejected they can race to the courthouse claiming an unconstitutional exaction. See Michael Farrell, A Heightened Standard for Land Use Permits Redefines the Power Balance Between the Government and Landowners, 3 U. Balt. J. Land & Dev. 71, 74 (2013). The Koontz decision, therefore, places the developer in a stronger negotiation position forcing local governments to accept an unfavorable offer or risk litigation.

Applying the Koontz Test to Toll Brothers’ Claims

In Golf Course Assoc., LLC, the board, Superior Court, and, by extension, the Delaware Supreme Court found that the county never made a demand on Toll Brothers. Specifically, it was noted that there was no evidence in the record indicating that negotiations between the county and Toll Brothers had occurred. In fact, the New Castle County Department of Land Use  asserted that it had no authority to negotiate with Toll Brothers (or other developers for that matter). Instead, the negotiations occurred between Toll Brothers and DelDOT. However, as the court noted, when it comes to traffic, DelDOT plays merely an advisory role. The court held that in order to implicate the constitutional exaction doctrine the county has to negotiate with the developer and not DelDOT. In the absence of such negotiations and, in turn, a demand by the county, Toll Brothers’ Nollan/Dolan/Koontz constitutional exaction claim failed.

The Superior Court properly noted that at most there was a denial of a land use permit which, by itself, was insufficient to amount to a constitutional violation. The Superior Court further clarified that a statutory restriction, evenly applied, does not constitute an unconstitutional exaction under the trilogy. The court held that the exaction “must come in the form of a demand arising from an administrative requirement particular to the requested land use permit,” something that was absent in this case.

Conclusion—The Impact

The Delaware Supreme Court’s decision to affirm the Superior Court’s opinion seemingly addresses many of the concerns discussed by commentators following the Koontz decision. Specifically, the Superior Court’s decision, upheld by the Supreme Court, implies that a local government can negotiate with a developer, and avoid an exaction claim, so long as the negotiations involve a non-binding governmental agency which only has an advisory role. By using such an agency (such as DelDOT in this case), the local government does not have to outright reject a plan that fails to satisfy the governing municipality’s rules. Instead, negotiations can occur and an agreement that works for both parties can be reached between the developer and the governmental agency, which is then ratified by the local government. In addition, the non-binding governmental agency can provide the developer with advice on how to meet the permit requirements without fear of possible litigation. Further, the developer’s incentive to offer the “easiest and cheapest mitigation condition” is taken off the table because if such an offer is rejected by the non-binding governmental agency that, in it of itself, does not constitute an unconstitutional exaction.

The Superior Court and Delaware Supreme Court’s decisions not to needlessly expand the unconstitutional exaction doctrine to applications of zoning and subdivision laws serve several additional key public policy considerations. First, the decision prevents a developer from having a constitutional right to taxpayer-funded level of service improvements for water, sewer, and traffic. Had the Superior Court ruled differently, a developer would have had a constitutional right to infrastructure improvements because the county could not deny the application under concurrency laws without violating the Takings Clause. Second, the Superior Court’s decision prevents the public from bearing the responsibility of funding infrastructure improvements merely because a developer seeks to personally profit from a proposed housing development. Lastly, it prevents government officials from being forced to make frequent ad hoc judgments as to whether certain code requirements constitute an unconstitutional exaction.

Disclosure: The case discussed in the article represents one of only a handful of state appellate courts to have, so far, considered and applied the U.S. Supreme Court’s application of the takings provisions under the Fifth and Fourteenth Amendments to the U.S. Constitution found in the Nollan/Dolan/Koontz trilogy of cases in connection with land use decisions and processes. Municipalities, developers, land owners, and the lawyers representing them will have an interest in seeing the latest application of those U.S. Supreme Court cases to the rejection of a planned residential community substantially impacting traffic/transportation.

If Clients Are Not the Center of Your World, You Will Be on the Periphery of Theirs

Posted on March 23, 2017 by - Uncategorized

The legal profession is changing. In making that statement, we do not refer to the increasing penetration of technology into how lawyers practice (although that is certainly the case), nor do we refer to the continuing consolidation within the ranks of law firms as regional and mid-size firms merge or create or join networks to compete with the larger firms. We refer instead to the changing dynamics of the relationships between in-house law departments and their external providers of legal service, including law firms.

The emergence and growth of corporate law departments as an ongoing fixture in the legal firmament remains one of the primary indicators—and the primary cause—of change in the legal profession with respect to corporate clients over the past few decades. As companies created and increased the size of their law departments (the largest law departments now include over 1,000 professionals), they have also improved the professional competencies of those departments to include considerable expertise in areas besides just those substantive specialties pertinent to the companies’ business operations. For some time, the in-house bar has been pursuing greater and greater sophistication in the application of business concepts and methodologies to their management of legal service. For example, where they once asked law firms for invoices with detailed time-entry data (often receiving considerable pushback when they did), law departments now expect such firms to apply sophisticated project-management techniques and other tools to their company’s matters.

They have also revisited their selection and retention of outside counsel. Data-driven selection methods (e.g., requests for proposals for legal service, seeking and using experiential information from candidate firms) now represent an accepted methodology. Perhaps more relevant for our purposes is the “convergence” movement, which seems to continue unabated. “Convergence” denotes the disciplined reduction by a law department in the number of law firms with which it works in an effort to forge greater efficiencies and closer relationships with the firms remaining on its “roster.”

By reducing the number of law firms with which it works, a corporate law department creates greater leverage in its dealings with the firms that remain. This leverage enables the law department to achieve several things: (1) it can assure itself of the technical competence of those remaining firms by utilizing that competence as the “price of admission to the dance”; (2) it can design the parameters of the relationship it wishes to have with those firms, secure in the belief that they will be willing and able to bear some costs associated with recalibrating the relationship; and (3) it can design better metrics for the management of legal service due to the smaller number of firms—and lawyers—with which it will work and manage going forward.

All of this means that the selection and retention of law firms by corporate law departments increasingly will revolve around “relationship issues.” By “relationship issues,” we do not mean to suggest that developing personal friendships with in-house lawyers by offering entertainment in the form of invitations to professional sporting events, musical performances, or high-priced dinner discussions will lead to greater business for law firms. Rather, corporate law departments increasingly will select those law firms that “get it” and demonstrate a willingness to work with their in-house compatriots as equal partners and in the way that each specific law department wants, even if that differs from how those firms work with their other clients.

The Implications of Change

What does this portend for the law profession and, in particular, for law firms? First, the future likely will involve much greater competition for a company’s business and, specifically, for its billings. Such competition will be different in terms of both quality and quantity because the inelasticity of the time-based billing paradigm has caused corporate clients, led by the in-house bar, to explore alternative means of delivering legal counsel and related services that their business operations need. Second (and this is related to the first point), the client’s substantive needs and service-focused preferences will dominate the selection process. The choice of which service provider to use increasingly will revolve around the relationship issues discussed above as expressed by the client. How can law firms successfully address those issues? The short answer is that they must make the client’s service preferences the central focus of their service delivery.

“Value”—What Do Clients Want and What Does It Mean?

The Association of Corporate Counsel (ACC) launched the ACC Value Challenge in 2008 “to reconnect the value and the cost of legal services.” ACC determined not to provide in the ACC Value Challenge a single definition of “value,” opting instead to exhort ACC members to discuss the issue with their outside legal-service providers and develop their own definitions of the term to suit their respective company’s needs. In the context of legal service, of course, the term “value” has not had a clear-cut or easily measureable meaning. Slightly more than one year after ACC launched the ACC Value Challenge, one commentator wrote, “[m]uch remains confused and unclear about that term.” R. Morrison, Making Some Sense Out of the Value Gap, Nat’l L. J. (Nov. 9, 2009).

Although a single definition remains elusive (at least at this stage of the dialogue within the profession), we can identify some traits or characteristics of higher-value legal service that could help us to forge something approaching a working definition. These traits (referred to herein as value-related qualities, or VRQs) may not comprise a definition in the pure sense of that word. They may, however, allow in-house and outside attorneys to develop a shared language to assist the company’s in-house and outside lawyers to provide legal service that more closely mirrors its value-related needs and expectations. In light of the variation among clients’ perceptions of value, perhaps we should not seek a single definition of “value,” but instead a framework or approach with which to construct a context-specific definition of the term.

VRQs can enable in-house and outside counsel to engage in a collaborative process to determine fee structures that more closely align outside counsel’s interests with those of their clients. Simultaneously, VRQs can provide the basis for more specific measures of the success of those arrangements and other aspects of the client-counsel relationship, including some that are less tangible. In short, VRQs can serve as that framework or approach to the conundrum represented by value.

In light of the confusion and uncertainty surrounding the concept of value, how can we successfully approach the challenge of defining and delivering high-value legal service? We must begin with the basics, recognizing that value does not exist in a vacuum and is not an immutable constant like the speed of light. Rather, it represents the relationship between the “cost” of something and the “benefit” that one enjoys from it. The cost may include more than out-of-pocket expense, and the benefit may be expressed in other than monetary terms.

In this way, the ACC Value Challenge really represents an effort to “recalibrate” value and cost, rather than to “reconnect” them. A connection between value and cost has always existed, but the relationship between them has become more and more attenuated and unsatisfactory as in-house counsel frequently have experienced instances where the cost outweighed the benefits. They have increasingly come to view the hourly rate as an incentive for outside counsel that does not coincide with clients’ interests in cost-effective service.

The benefit that a company derives from legal service can flow from several sources. Some transactions, such as real-estate-secured loans, simply cannot be effected without addressing legal matters; the legal service is integral to achieving the business goal. The resolution of business disputes typically involves the disputants’ lawyers, although companies can and do resolve their differences without much lawyering in many instances. Concluding such transactions and disputes so as to advance one or both parties’ business interests constitutes the benefit realized.

In other situations, legal service may be less central to the business activity, but by expediting that activity, preventing law-related complications, or taking advantage of opportunities that exist by virtue of statutory or regulatory structures, legal service can serve an important supportive role in achieving the business’s goals, allowing the company to realize more business benefit from the situation than it would have without the lawyers’ involvement. It might even add some value to the parties’ exertions distinct from their primary business-oriented focus.

What sort of “costs” might a client realize or incur in the context of legal service? (These include some costs that can arise from the purpose for securing legal service, such as litigation, rather than just as a direct result of the legal service itself.) Although some costs are “hard” costs (like legal fees, transaction-associated costs, expert fees and other out-of-pocket expense), others are less measureable, but just as real. They can include:

  • reputational harm
  • diversion of corporate executives’ attention from the business
  • heightened regulatory scrutiny
  • poisoned business relationships
  • distraction of company personnel aware of, but not primarily involved in, the matter

When assessing the value of legal service, one should account for as many costs associated with the matter as possible. The ultimate determination of the value of that service should reflect its net impact on the client’s position. If that position has improved, taking into account both costs and benefits realized from the representation, then the legal service provided positive value to the client. If that position has deteriorated, the legal service may have subtracted value from the business or the transaction.

When developing a framework with which to define value in the context of legal services, keep in mind that the determination of the value of the legal service ultimately is the client’s to make. The primary determinant should consist of the degree to which legal service contributes to the client’s achievement of its business goals for the assignment. Inasmuch as the client retains counsel in order to achieve its goals with minimal law-related complications and such counsel should serve the client’s interests, the value of that service must be measured in the same context. Ultimately, then, value lies in the eyes of the client (or, for in-house counsel, the in-house clients with whom they work). S. Lauer, The Value-Able Law Department 4 (Ark Group 2010).

For each client, each law-related matter or project represents an often vastly different set of issues and risks. Each client’s appetite for risk varies from those of other business organizations. The legal-service provider must take this into account when delivering legal service. A client that willingly assumes a high level of risk may opt for legal service that elevates cost control to a higher plane even though “cutting corners” might invite greater legal scrutiny and risk. A client that cannot afford or does not want any law-related exposure, on the other hand, might be willing to pay some form of premium for the assurance that such will not occur. Satisfying clients with such disparate attitudes requires a finer calibration of effort by the lawyers (even without the lawyers knowingly assuming high risk).

Understanding how different VRQs matter to the client in a particular set of circumstances can provide the grounding needed to render that calibration. Is cost control the most important aspect of the work to the client at that time? Is a rapid resolution of the issue of greatest concern? Is complete vindication of its position in a dispute the only possible outcome the client would accept?

VRQs can also serve as the basis for a more informed discussion by client and counsel of possible alternatives to the hourly rate as the means of calculating a fee arrangement. Despite a great deal of discussion over the years of the “evils” of the hourly rate and a recognition that it can distort the efforts of client and counsel to reach a common vision with respect to cost control and budgetary certainty, it continues to serve as the basis for the great bulk of legal fees paid by business clients. For a discussion of the incentives of the hourly rate that disserve clients, see P. Lamb, Alternative Fee Arrangements: Value Fees and the Changing Legal Market ch. 2 (Ark Group 2011) (“You get what you pay for.”).

How do VRQs do so? By enabling counsel to focus on more discrete, measureable elements of value rather than the somewhat vague, nebulous term in its full scope. VRQs allow the dialogue of client and counsel to advance in such a way as to allow for more meaningful application of VRQs to that client’s situation. Rather than design a fee arrangement that delivers greater value to the client, VRQs permit the design of fee arrangements that align the thinking of in-house and outside counsel on particular criteria that, in the client’s eyes, represent ways in which the legal service can yield it greater business benefit. The incentives in that arrangement, based on VRQs, should lead to behavior by the lawyers that more directly reflects the client’s value-related expectations.

Satisfying Client Demands and Meeting Expectations

Understanding value and its subsidiary components (i.e., VRQs) intellectually and applying those terms to the daily practice of law require a thorough familiarity with both client demands and expectations. We suggest the following framework to reach that understanding.

Figure 1 helps the reader visualize the relationship between VRQs and client expectations. In that figure, specific VRQs are grouped to reflect typical, overarching, value-related goals of a corporate client to which they relate (the points of the pentagon). The internal triangle identifies the usual parties involved in handling a legal matter for such a client and demonstrates that all parties involved in that engagement (illustrated by the triangle within the pentagon) can influence the achievement of value or a failure to do so. The points on the triangle remain the same for the majority of legal engagements. Depending on the client’s identified VRQs for the engagement, however, the roles of the entities on the points of the triangle might differ from those for another engagement, as could the impact each entity has on satisfying the identified VRQs. In the majority of cases, the role of in-house counsel will be that of project manager in addition to legal counsel for the business unit.

When thinking about what value means to a client and using Figure 1 as a framework for discussion, one quickly sees that several VRQs could be made part of an engagement. One VRQ can structure an understanding of the cost-management expectation, e.g. budgets, predictability and “no surprises.” Level-of-service elements can emphasize teamwork, urgency, communications, and innovation. Elements around corporate goals, expertise, and resolution will also frame the value equation for this matter.

These VRQs do not stand alone or act independently. They are related and should be integrated and balanced. In some situations, cost management may trump all other VRQs, whereas resolution and urgency might outweigh cost in others. Corporate goals around reputation could very well be the key VRQ. Acknowledging the complex nature of legal services today, it is essential in every situation that counsel always demonstrate teamwork and innovation. Once the VRQ framework has been established for any one engagement, the appropriate roles and responsibilities become more evident.

In the center of the VRQ balancing act stands the in-house counsel. He or she serves as the quarterback of the team. Achieving the goal of each particular play (that play’s VRQ) requires engaging the disparate talents of all members of the team in the right sequence. Experienced project management and communication skills are keys to success. Let’s look at an example.

Corporation A has been served with a lawsuit that involves sifting through years of electronic media, such as e-mail, memos, internal policies, and referenced websites. Approximately half of the data that must be reviewed resides on headquarters servers, whereas the other half is spread across multiple field servers. The request covers 15 years of material. How can VRQs help shape the e-discovery effort of this matter?

Tackling e-discovery clearly requires teamwork if cost goals are to be achieved. The first steps of identifying where the data resides within the corporate IT structure and establishing a strategy for collecting it could be varied in approach. The task might be assigned to a third-party data-processing vendor and priced by the terabyte, but the vendor’s learning curve could be protracted, and missteps along the way are possible. What about using the company’s IT professionals to do the initial data gathering? Have them partner with the third-party service provider at every step of the way. Alternatively, if requisite software is available in house, assign an IT manager to execute the gathering per specifications agreed to by all counsel.

What if, during the contract attorney review, the responsive document hit rate seems extraordinarily low? Full speed ahead? Probably not. VRQs designed to address level of service would suggest that the results-driven component of the model is not being achieved. Perhaps additional expertise is required for the review of the criteria used to identify potentially responsive documents. Efficient communications and “no surprises” expectations again come into play. The attorney in charge serves as a project manager in order to get the project back on track, and the existence of the VRQ framework plays an important role in evaluating performance and value attainment by all involved.

Another example involves a company with a national footprint. Initially, a decentralized approach was deemed the best model to address a portfolio of relatively predictable and routine legal disputes. One firm’s performance stood above the rest. Thinking about the previous reference to convergence, the company’s law department initiated discussions to determine whether there was a model that would reduce the costs of managing the portfolio. Each of the models suggested required the development of specialized software. Thinking about a firm’s willingness to bear some of the costs associated with recalibrating and expanding their relationship with this client, one firm offered to assume the development costs for the software and was willing to host the software behind its firewall. That firm’s willingness demonstrated a best-foot-forward approach to the client’s work by investing in the relationship. Doing so served the client’s stated VRQs of reasonable cost and greater consistency among matters. Complete, transparent, and reasonable cost estimates were provided the client for decision-making purposes, and the law firm was able to identify a new competency in its marketing materials for other and potential clients. In this case, VRQs related to Level of Service, Corporate Goals, Expertise, and Cost Management were drivers of the recalibrated relationship.

Now, how do we know everyone is dancing to the same beat? In both examples, cost management was an evident VRQ. Costs related to e-discovery can be and often are unpredictable, unless the client has a grasp of previous experience. Still, the range of cost projections can be extreme. Agreeing to track costs on a per-document basis for variable costs and identifying elements of fixed cost, no matter the volume, should be achievable. Monthly reporting? Probably not frequent enough for variable costs. Expectations based on volume can be projected, and ranges can be established. Weekly variable costs can be reported, unless something drives cost outside of projected ranges, e.g., too many hits, interesting observations, etc. Then, pick up the phone!

Level of service can be evaluated based on feedback from key constituencies. A survey can be an effective way to solicit feedback if the survey is crisp, does not give the responder a clear line of sight to “ho hum” responses, and gives the responder an opportunity to expand on concerns and to make suggestions for improvement. (Responders that take the time to write additional feedback must be specifically acknowledged.) Expertise can also be subjected to feedback surveys.

One of the co-authors was responsible for the appeal of an adverse jury verdict. Due to the nature of the case and its implications on a portfolio-wide basis, three law firms were involved in the appeal. Soon after that verdict, the co-author called a meeting of the three firms to be held in the state in which the verdict was rendered (one of the three firms was based in that state, and the other two were based elsewhere). The host firm was represented by three attorneys (one associate and two partners—one of whom had been responsible for the matter during the trial phase, and the other of whom was a former chief justice of that state that the client had selected to “quarterback” the appeal). The second firm sent a senior partner and a senior associate, and the third firm sent one senior associate.

During the meeting, the senior partner of the second firm tried to take charge of the meeting, despite the presence of the host firm’s senior partners. After the meeting concluded and upon returning to the office, the author sent the three firms a memorandum assigning each firm a role during the appeal with delineated responsibilities. The author of the memorandum wanted to reduce redundant efforts and potentially overlooked issues that could result when three firms operate somewhat independently. The senior partner of the second firm (who had tried to run the planning meeting) objected to the memorandum, claiming that he had an ethical obligation to consider any issue that he deemed significant despite the other firms’ involvement. The presence of three eminently qualified firms (and a corporate law department with several hundred in-house attorneys) did not sway him from his view. Did that attorney’s actions demonstrate a sensitivity to and appreciation of the client’s VRQs and its desire for close collaboration among the firms? Decidedly not. Once an agreement has been reached regarding VRQs, determining a feedback mechanism or evaluative metric should be relatively easy. If it is not, perhaps the VRQ needs refinement.

We have been discussing VRQs as they apply to the management of legal matters; however, they also can be used to improve the general management of the corporate legal department. How many firms still casually send annual rate increase letters to their clients? Too many, we suspect.

Those letters usually attempt to justify increasing baseline rates or to recognize associates who have broken through to another billing level or status. The baseline increase in rates generally bears no resemblance to overall economic growth and inflation. (For years, corporate America provided two- to four-percent salary increases, and the U.S. economy struggled to keep pace. What was the rationale that many firms used to ask clients for across-the-board, 10-percent increases in hourly rates?) In some cases, clients fire a preemptive shot across the bow of the ship in the form of a letter such as this:

Dear Firm: We will not accept across-the-board rate increases for the next fiscal year. For those associates you deem entitled to an increase due to achievement, please provide us your firm’s specific performance rationale. We will then solicit input from our professional(s) in charge of the matters on which this associate works, analyze historical rate increases, and let you know if we find the increase appropriate.

Does such a process make sense? Does it feel client-centric? We believe that the answer is obvious.

We are not suggesting that rate increases are never justified. We are suggesting that the VRQ framework can help firms and clients arrive collaboratively at a mutually suitable rate structure, even if a firm is still wedded to the hourly rate methodology as a representation of the value of its legal service. A couple of VRQs jump off the page as particularly useful when discussing firm rate increases: expertise, communications, budgets, “no surprises,” and appropriate cost are examples. If the client is truly your focus, especially from the “long-term relationship” perspective, the model will help in other, nonmatter-specific business processes. Let us look at a couple and hypothesize how thinking differently about rate increases helps a firm become more client-centric.

Communications. How do you think a client would feel about receiving a thoughtful letter from the relationship partner seeking feedback about the services provided during the past fiscal period, feedback regarding specific attorney performance, and feedback suggesting how the firm could improve its overall performance in the next fiscal period? Specific performance data reflective of the client’s expressed VRQs enables you to negotiate from an informed position of strength in terms consistent with the client’s needs and expectations. Where increases may be warranted, the request can be effectively tailored using VRQs.

Budget Consciousness. Managing costs against a budget is a corporate mantra. Being over budget should signal an immediate problem for the relationship your firm enjoys with its client. Typically, professionals do not simply wake up one morning and find key matters suddenly over the budget set with the client. Potential cost overruns usually build over time. Do alarms go off if 50 percent of an annual budget has been spent during the first three months of a fiscal period? Do a firm’s systems allow it to monitor costs similarly to its client’s methodology? Is it a crime to be over budget? Clearly so, if a firm and its client do not know why! Keeping track of expenditures against a budget on a frequent schedule benefits both parties.

Summary

Corporate clients are demanding higher-value legal service because they have seen their legal fees continue to escalate without a demonstration of increased, proportionate business value. To address that demand in a systematic fashion, law firms need an approach that is simple, practical, and consistent. Moreover, whichever approach law firms use must also enable them to address clients’ interest in alternative fee arrangements in a similar way.

Alternative fee arrangements based on the VRQ framework will provide law firms the tools to design metrics and management systems that take into account a variety of fee arrangements because the measurement will be client satisfaction regardless of the specifics of the fee arrangement and without direct relationship to the dollars and cents of those fee arrangements, however those fees are calculated. The benefits of incorporating VRQs into a law firm’s service delivery can extend, however, beyond better fee arrangements; VRQs can lead to improved client relationships, enhanced client satisfaction, and more efficient and effective representation. In other words, they can enable a law firm to set itself up to succeed in the increasingly competitive environment for corporate representation.

Delaware Courts Reinforce That Shielding against Fraud Claims Based on Extra-Contractual Statements and Omissions Requires Precise Drafting—But No Magic Words

Posted on March 23, 2017 by - Uncategorized

Introduction

In M&A transactions, the negotiation of contractual provisions intended to protect against claims for fraud based on extra-contractual statements may be contentious. A series of recent decisions from the Delaware Court of Chancery has provided additional insight into the effectiveness of such “anti-reliance” clauses as a tool for establishing the “universe” of information upon which a potential post-closing fraud claim may (or may not) be based.

Under well-established Delaware law, emerging from the seminal decision in Abry Partners V, L.P. v. F&W Acquisition LLC, 891 A.2d 1032 (Del. Ch. 2006), an anti-reliance provision will effectively bar a fraud claim provided that the language reflects a clear disclaimer of extra-contractual statements. This result is based on the view that a prima facie element for fraud is reasonable reliance, and Delaware law recognizes the right of parties to bargain for a provision that precludes a party’s reliance on any statement (or omission) not contained within the agreement’s four corners. A typical formulation of an anti-reliance provision consists of an integration clause in conjunction with an “exclusive representation” clause—which disclaims reliance on any information not expressly embodied in a representation in the executed agreement. Although the decisions discussed in this article largely reinforce Delaware precedent as to enforceability of anti-reliance clauses, they remain instructive in reminding practitioners to guard against the foot faults associated with the inexact drafting of such provisions.

Prairie Capital III L.P. v. Double E Holding Corp., 132 A.3d 35 (Del. Ch. 2015).

In Prairie Capital, the purchasers under a stock purchase agreement asserted fraud claims based on allegedly falsified sales data provided by the company’s management. The agreement included an integration clause as well as an exclusive representations clause stating that the purchaser relied only on its own diligence and the seller’s express representations. The agreement, however, did not contain an express representation by the purchaser disclaiming reliance on extra-contractual statements. The Chancery Court dismissed the fraud claim, concluding that the integration clause and exclusive representations clause, when read together, were sufficient to “add up” to an enforceable anti-reliance clause.

Notably, the Chancery Court reasoned that although the exclusive representations clause was framed positively (i.e., purchaser’s representation that it was relying only on the specific representations in the agreement) rather than negatively (i.e., purchaser’s representation that it was not relying on any representations other than as set forth in the agreement), it was equally operative in establishing the “universe of information” on which a purchaser could assert reliance. The Chancery Court explained that no formulation of “magic words” is necessary under Delaware law to form an effective anti-reliance clause, provided that the relevant language unequivocally demonstrates that the purchaser was not relying on extra-contractual information. In this respect, Prairie Capital may be read as a subtle departure from the Delaware decision in Anvil Holding Corp. v. Iron Acquisition Co., Inc., 2013 WL 2249655 (Del. Ch. May 17, 2013). In Anvil Holding, the Court of Chancery found that a disclaimer provision that lacked an explicit statement of non-reliance by the purchaser, in conjunction with a clause broadly reserving the purchaser’s right to assert fraud claims, nullified the anti-reliance provision in order to allow a fraud claim based on extra-contractual statements to proceed.

A corollary point addressed in Prairie Capital is the interplay between an anti-reliance clause and a fraud claim based on fraudulent concealment (or omission) versus a claim based on affirmative misrepresentations. The Chancery Court rejected the position that the relevant anti-reliance clause did not bar a fraud claim based on fraudulent concealment due to the failure to explicitly disclaim the purchaser’s reliance on the “omission” of any information by the seller. The Chancery Court reiterated that the critical inquiry in interpreting anti-reliance language is the “universe” of information identified in the agreement upon which the parties structured their bargain; rather than focusing on the distinction between “misrepresentations” and “omissions.” The Chancery Court observed the symbiotic relationship between fraudulent misrepresentations and fraudulent concealment—which potentially can allow an aggrieved party to simply recast a “misrepresentation” as an “omission” for purposes of a fraud claim. Prairie Capital’s observation that “magic words” are not necessary to preserve the effect of an anti-reliance clause represents a slight variation in approach in comparison to the decision in TransDigm Inc. v. Alcoa Global Fasteners, Inc., 2013 WL 2326881 (Del. Ch. May 29, 2013), in which the Court of Chancery found a claim for fraudulent concealment viable where the acquisition agreement was silent as to a disclaimer of the “accuracy and completeness” of the representations.

The decision in Prairie Capital is interesting in its refusal to elevate “form over substance” in analyzing anti-reliance clauses, however, it would be perilous to view the decision as being representative of a material shift in the approach of Delaware courts in strictly construing anti-reliance clauses. While Prairie Capital recognizes that a failure to include “magic words” may not preclude the effectiveness of an otherwise robust anti-reliance clause, the Chancery Court expressly acknowledged that “transaction planners can limit their risk by using tested formulations.” As such, relying on precisely drafted anti-reliance clauses using familiar “magic words” remains the most efficient means of producing the desired outcome in avoiding liability for fraud grounded in extra-contractual statements.

FDG Logistics LLC v. FDG Associates, LP, 131 A.3d 842 (Del. Ch. 2016).

The FDG Logistics decision expanded on Prairie Capital and provided further clarity as to the analysis of anti-reliance clauses under Delaware law. FDG Logistics reaffirmed a bright-line standard in assessing the effectiveness of an anti-reliance provision—namely whether the party claiming reliance on an extra-contractual statement has unambiguously agreed in the contract not to rely on extra-contractual statements. In FDG Logistics, the acquirer in a merger asserted common law fraud claims based on extra-contractual statements made before execution of the merger agreement. The merger agreement included both an integration clause and an exclusive representations clause providing that no representations were being made beyond those embodied in the merger agreement. However, the merger agreement did not contain a reciprocal affirmative disclaimer of reliance by the acquirer on any representations outside the four corners of the merger agreement. The Chancery Court held that failure to include such an affirmative disclaimer of reliance by the acquirer precluded dismissal of the common law fraud claim. The Chancery Court observed generally that whether the anti-reliance language is framed positively or negatively is of less consequence than whether the disclaimer is framed from the point of view of the aggrieved party attempting to rely on the extra-contractual statements. FDG Logistics reiterates that the starting point under Delaware law as to the enforceability of an anti-reliance clause is whether the disclaimer is made by the party asserting fraud. In a sense, FDG Logistics reaffirmed that the “magic words” of establishing an unambiguous intent on behalf of the aggrieved party are a precondition to a viable anti-reliance provision.

Haney v. Blackhawk Network Holdings, Inc., 2016 WL 769595 (Del. Ch. Feb. 26, 2016).

In Haney, a stockholder representative asserted a fraudulent inducement claim following a merger, alleging that the acquirer failed to disclose an exclusivity provision in a contract to which the acquirer was a party. The exclusivity provision prevented the target company from entering into a post-merger contract with a customer, thereby depriving the former stockholders of the target company of earn-out consideration. The merger agreement included a fraud carve-out from the exclusive remedies provision as well as an integration clause, but did not contain an express anti-reliance provision. Despite the fact that the integration clause provided that no party made representations other than expressly set forth in the merger agreement, the Chancery Court concluded that the integration clause, standing alone, was not adequate to preclude fraud claims based on extra-contractual statements. It did so on the ground that the integration clause failed to rise to the level of an unambiguous acknowledgment of non-reliance by the allegedly aggrieved party, as required by Delaware law.

Haney reaffirms the decisions in Prairie Capital and FDG Logistics finding that an integration clause itself (without any corresponding exclusive representations clause) is insufficient to establish an unambiguous contractual acknowledgement of non-reliance on information outside the four corners of the agreement. The Haney decision illustrates that parties must be mindful of the inclusion of an anti-reliance provision in transactions where the acquirer makes representations that may affect an earn-out.

IAC Search, LLC v. Conversant LLC, C.A. No. 11774-CB (Del. Ch. Nov. 30, 2016).

The Court of Chancery’s most recent decision in IAC Search dismissed a claim for fraudulent inducement under a stock and asset purchase agreement based on the provision of allegedly false sales information furnished during due diligence. The agreement included an integration clause as well as a representation by the acquirer that it conducted its own diligence process and relied only on the agreement’s express representations. The Chancery Court found the relevant provisions to be in line with the precedent in Abry, Prairie Capital and FDG Logistics as adding up to a “clear disclaimer of reliance on extra-contractual statements” that barred the fraud claim. The IAC Search decision reiterated that this exclusive representations clause, framed from the aggrieved party’s perspective, circumscribed the “universe of due diligence information” on which that party relied (and did not rely) in executing the agreement. Further, the Court of Chancery noted Delaware’s public policy in respecting freedom of contract and that the acquirer was a sophisticated party that negotiated for express representations concerning similar financial metrics provided during the diligence process.

Practical Takeaways

These decisions refine existing Delaware law regarding the enforceability of anti-reliance clauses, and are instructive to practitioners seeking to avoid potential hazards. The decisions reinforce the importance of precise drafting in crafting effective anti-reliance language. Among other things, it is important to include within the anti-reliance provision as broad a scope as possible as to the source of the extra-contractual statements, which can include not only the parties, but their affiliates and representatives as well. In addition, it is important to establish the relevant “universe” of information covered by the anti-reliance provisions, such as financial projections or management presentations. Similarly, the acquisition agreement should specify what information, such as material contracts, that have been “made available” to a party for purposes of certain representations. By defining more specifically documents that were “made available” (e.g., those that were uploaded to a virtual data room as of a date certain prior to closing), parties can preserve a snapshot of this information and mitigate against the risk of subsequent disputes as to the “universe” of information relied upon with respect to the relevant representations and warranties.

Similarly, the scrutiny of disclaimer language by Delaware courts dictates that careful attention should be given to avoid “back doors” that can negate the intended purpose of such anti-reliance clauses. For example, Delaware courts will enforce anti-reliance clauses relating to representations outside of the agreement but will not read such clauses so broadly as to permit a party to insulate itself from liability for intentional misrepresentations within the agreement’s four corners. In this respect, practitioners should be mindful of a broad carve-out for “fraud” from an anti-reliance provision, since the use of the term “fraud,” standing alone, may not necessarily be interpreted as being limited only to an intentional misrepresentation. Finally, choice of law potentially impacts the efficacy of an anti-reliance provision, since California and, to a lesser degree, New York, interpret such provisions differently than Delaware. As such, the utility of an anti-reliance clause in guarding against the specter of extra-contractual fraud claims can be a significant consideration in negotiations over choice of law. Delaware law provides significant assurances to parties seeking protection against fraud liability for extra-contractual statements—but only by taking advantage of the “playbook” outlined by the Court of Chancery. An ounce of prevention by including an enforceable anti-reliance provision in an agreement can be worth a pound of cure in preserving a party’s interest under Delaware law

It’s a Bird, It’s a Plane, No, It’s a Board-Managed LLC!

Posted on March 23, 2017 by - Uncategorized

One of the perceived benefits of the LLC form is the flexibility that exist with respect to inter se management structure. Although many statutes provide skeletal defaults for when the LLC elects to be either “member-managed” or “manager-managed,” these are only default rules that may, in any particular LLC, be modified in the manner the participants desire. One not uncommon modification is structuring an LLC that is managed by a “board.” Given that the structures are, with the exception of LLCs organizing in the three states discussed below, free-form, the clarity or ambiguity of the structure is dependent upon the precision of the drafting employed in the operative agreement. We have found that there often is a great deal of ambiguity in these provisions. In addition, a number of decisions, Obeid v. Hogan and Richardson v. Kellar the most prominent, counsel caution against using a board because doing so may unintentionally incorporate (pun intended) additional law.

The (Perceived) Benefits of a “Board” Management Structure

The perceived benefit of organizing an LLC with a “board” management structure is, in our assessment, based upon the familiarity with that format as utilized traditionally in the corporation. For example, when three independent venturers come together to organize a joint project, by utilizing a board to which each of the members may appoint one or more participants, each is assured that its viewpoint will be presented and considered. For example, particularized drafting of quorum provisions requiring at least one representative of each of the participants can further enhance those perceived protections.

This is not to say, however, that the “board” appointed with respect to an LLC is equivalent to the board of directors of a corporation. Initially, the board of directors of a corporation is sui generis; it is created by statute and exists independently of the shareholders. A corporation typically will have directors before it even has shareholders (see, e.g., MBCA §§ 2.6.21, 8.01). The faculty of the board to manage the affairs of the corporation is likewise dictated by statute (see MBCA §§ 8.01, 8.31) and, absent narrow circumstances, courts have rejected efforts to restrict or even eliminate the authority of the board of directors (see, e.g., CA, Inc. v. AFSCME Employee Pension Plan, 953 A.2d 227 (Del. 2008)).

In contrast, the “board” of an LLC is a creature of contract. Being foreign to the LLC acts of almost every state, the board will have such structure, authority, and limitations as are defined in the relevant operating agreement. This paradigm raises a variety of interesting issues. For example, corporate law does not conceptualize the board of directors as an agent of or otherwise representing the shareholders. Conversely, if the members of an LLC create a board and delegate to it particular authority, at least on an inter se basis, the board is exercising authority collectively delegated by the members and may be viewed, collectively, as their agent. The question raised is whether the board is then acting as an agent of the members collectively, or whether the board is the controller of the LLC that acts as to third parties as the principal. The implications of this shift in paradigm must be considered in the drafting of any operating agreement utilizing a board structure.

There are as well a significant number of implicit and explicit consequences of electing that an LLC will be “manager-managed” and then utilizing a “board.” For example, where an LLC has multiple managers, most statutes provide that each manager, acting individually, is an agent on behalf of the LLC and can bind it to transactions in the ordinary course (see, e.g., KRS § 275.135(2)(b)). If there is an organized board, is it intended that it be a collegial body, none of whose constituents have, by virtue of that office, agency authority on behalf of the venture (that being the corporate rule), or is there a collegial body for making decisions, but each constituent thereof is still a “manager” with agency authority on behalf of the LLC? In a corporation, the rule is already fixed, but in an LLC one option or the other must be selected in order to avoid a patent ambiguity in the agreement.

Another open question is the ability of a member of a board to vote by proxy. Many operating agreements give members and managers the express authority to vote by proxy, and certain LLC acts provide a default rule allowing proxy voting (see, e.g. Del. Code Ann. tit. 6, § 407). Conversely, except in Louisiana, directors may not vote by proxy (see, e.g., ABA Corporate Director’s Guidebook 8 (2011); MBCA § 8.20, comment). Are the members of the “board” of a particular LLC allowed to vote by proxy? A well-crafted operating agreement must address that question. In the absence of doing so, there will be ambiguity as the available analogies provide conflicting, indeed entirely opposing, answers.

Statutory Board Structures

As noted above, the “board-managed” LLC is foreign to almost every LLC act; however, there are three exceptions. The LLC acts of Minnesota, North Dakota, and Tennessee each provide for a statutory board-managed structure that may be elected (see Minn. Stat. § 322C.0407(4) (2016); N.D. Cent. Code § 10-32.1-39(4) (2016); Tenn. Code Ann. § 48-249-401(c) (2015)). If a particular venture desires to have a board-managed structure, organizing under one of these acts may be an effective means of achieving that outcome. Subject to modification in a particular operating agreement, the statutory rules with respect to the board-managed structure should reduce a transaction cost incurred in drafting an operating agreement for a board-managed LLC formed in another state.

The Problem of “Corporification”

“Corporification” is the term, possibly invented by Steve Frost, to describe the incorporation (pun intended) into LLCs of concepts and principles that have arisen in the context of corporations. See Steven G. Frost, Things You Thought You Knew About Delaware Law, But Maybe Don’t … Recent Delaware Partnership and LLC Case Law, J. Passthrough Entities, May-June 2013 at 25. Oftentimes the utilization of concepts developed initially in corporate law into an LLC leads to either confusing or unintended consequences because there exists ambiguity as to the degree to which corporate law is intended to be incorporated. A pair of recent cases provide clear illustration of these problems: Obeid v. Hogan, No. 11900-V CL, 2016 BL 185285 (Del. Ch. June 10, 2016) and Richardson v. Kellar, 2016 NCBC 60, 2016 WL 4165887 (Sup. Ct. N.C. Aug. 2, 2016).

The Obeid v. Hogan dispute arose out of a pair of LLCs: Gemini Equity Partners, LLC and Gemini Real Estate Advisors, LLC. Each of these LLCs was owned one-third by Plaintiff William T. Obeid, one-third by Christopher S. La Mack, and one-third by Dante Massaro. Between the two LLCs, they held in excess of $1 billion in real estate assets, including 11 hotels and 22 commercial properties. Prior to the disputes addressed in the litigation, Obeid managed the hotel properties while La Mack and Massaro managed the commercial properties. Defendant Hogan is a retired federal judge who was retained to serve as the special litigation committee on behalf of both the LLCs. Throughout the litigation, the court referred to Gemini Equity Partners, LLC as the Corporate LLC and to Gemini Real Estate Advisors, LLC as the Manager-Managed LLC.

The Corporate LLC, organized in Delaware, utilized a board of directors comprised of Obeid, La Mack, and Massaro through July, 2014, at which time La Mack and Massaro removed Obeid. With respect to the Manager-Managed LLC, Obeid, La Mack, and Massaro each served as a manager.

On July 1, 2014, La Mack and Massaro voted to remove Obeid as the president of the Manager-Managed LLC, installing Massaro in his place. Although Obeid remained a manager, Massaro took on day-to-day control of the Manager-Managed LLC. After a flurry of litigation ranging from North Carolina to federal and state courts in New York, the Corporate LLC and the Manager-Managed LLC, under the control of La Mack and Massaro, hired the Brewer firm to serve as outside counsel. One of its recommendations was that a retired federal judge be hired to serve as a special litigation committee to respond to a derivative action filed in New York with respect to both the LLCs. After a meeting at which no formal resolutions were adopted, the Brewer firm circulated the names of two retired federal judges it had identified as appropriate to serve as the special litigation committee. Hogan ultimately was retained to serve in that role pursuant to an engagement letter signed by La Mack and Massaro. Crucially for the outcome of this decision, Hogan was not appointed a director of the Corporate LLC nor a manager of the Manager-Managed LLC. Upon learning that Hogan had been so retained, Obeid filed this action in Delaware seeking a determination that Hogan could not act as special litigation committee on behalf of either LLC or otherwise take any action with respect to the derivative suit. In addition, Obeid sought a declaratory judgment that his removal as a director of the Corporate LLC was invalid.

With respect to Hogan’s service as the special litigation committee for the Corporate LLC, after setting forth its ultimate conclusion that he could not do so, the court began its analysis with a telling section heading: “The Implications of Mimicking a Corporation’s Governance Structure.” From there the court observed that LLCs may design their inter se management structure as they see fit, citing Robert L. Symonds, Jr. & Matthew J. O’Toole, Delaware Limited Liability Companies § 9.01[B] at 9-9 (2015) for the principle that “[v]irtually any management structure may be implemented through the company’s governing instrument.” The court wrote:

Using the contractual freedom that the LLC Act bestows, the drafters of an LLC agreement can create an LLC with bespoke governance features or design an LLC that mimics the governance features of another familiar type of entity. The choices that the drafters make have consequences. If the drafters have embraced the statutory default rule of a member-managed governance arrangement, which has strong functional and historical ties to the general partnership (albeit with limited liability for the members), the parties should expect the court to draw analogies to partnership law. If the drafters have opted for a single managing member with other generally passive, nonmanaging members, a structure closely resembling and often used as an alternative to a limited partnership, then the parties should expect a court to draw analogies to limited partnership law. If the drafters have opted for a manager-managed entity, created a board of directors, and adopted other corporate features, then the parties to the agreement should expect a court to draw on analogies to corporate law. Depending on the terms of the agreement, analogies to other legal relationships may also be informative. (citation and footnotes omitted).

Although going on to recognize that there are limitations in drawing analogies among LLCs and other organizational forms, the court, citing Elf Autochem N. Am., Inc. v. Jaffari, 727 A.2d 286, 293 (Del. 1998), observed that, “the derivative suit is a corporate concept grafted onto the LLC form” and concluded that, “absent other convincing considerations, case law governing corporate derivative suits is generally applicable to suits on behalf of an LLC.”

Having determined that the corporate law governing special litigation committees in derivative actions would be applicable to the corporate LLC, the court turned its attention to the decision in Zapata Corp. v. Maldonado, 43 A.2d 779 (Del. 1981). After an extensive review of that decision and the role of the special litigation committee, the court noted an absence of situations in which the special litigation committee was comprised of nondirectors and observed that, because derivative litigation does not fall into the ordinary course, these matters must, in the corporate context, be resolved by the board. The court observed that, “A board may not make a similarly complete delegation to an officer or a non-director. Doing so would risk an improper abdication of authority. Hence the requirement exists that a Zapata committee be made up of directors.” From there the court ultimately concluded that, “Judge Hogan is not a director of the Corporate LLC. Consequently, under the Corporate LLC Agreement, he cannot function as a one-man special litigation committee on behalf of the Corporate LLC.”

Turning to the manager-managed LLC, even as the court acknowledged it was not utilizing a board of director management model, it concluded that the manager-managed system employed was sufficiently analogous to a board structure to justify the application of Zapata and the ultimate determination that Hogan could not, with respect to that LLC, serve as a special litigation committee. “In my view, the resulting structure is sufficient to cause the reasoning that governed the Corporate LLC to apply equally to the Manager-Managed LLC.”

This brings us back to corporification. The drafter of the LLC agreement for the Corporate LLC wrote into the document significant aspects of the laws of corporate derivative actions. From that utilization, the court assumed that the entire body of law governing derivative actions, including the law developed exclusively through court decisions, was intended to be applied in the context of this LLC. In effect, the court read into the express terms of the LLC agreement the common-law penumbra of derivative actions. Whether that is what was actually intended by the drafter is unknown. Did the drafter intend that the common law of derivative actions be incorporated by a deemed incorporation by reference, or did the drafter intend that only so much of that law as was set forth in the agreement would apply? Curiously, the court did not reference the terms of the merger clause of either LLC agreement.

Richardson v. Keller, 2016 NCBC 60, 2016 WL 4165887 (Sup. Ct. N.C. Aug. 2, 2016), decided by the North Carolina Business Court, involved the interpretation of an operating agreement that incorporated by reference the usual authority of the president of a North Carolina corporation. In the course of its opinion, the court explained that the authority of the president of a corporation is open to interpretation.

This case arose out of an application by Richardson for a preliminary injunction, which relief was ultimately granted. Richardson, through a wholly owned LLC, and Kellar, through another wholly owned LLC, were the two, 50-percent members of a North Carolina LLC named TransWorld Medical Devices, LLC (TW Devices). Richardson and Kellar were the two directors of TW Devices. The organic documents of that company were quite specific in detailing the purpose of the company—namely, the development of a variety of cardiovascular-related medical devices. Ultimately, TW Devices became a shareholder in a subsequently organized corporation, Cleveland Heart, Inc. (CHI), which was also owned in part by the Cleveland Clinic Foundation. Kellar ultimately sought to marginalize Richardson, unilaterally voting the interest of TW Devices in CHI, asserting that he could do so in his alleged capacity as CEO/president of TW Devices.

At this juncture, the question turned ultimately on whether TW Devices was merely a holding company with respect to an interest in CHI, or rather had other business purposes. The court held that TW Devices was not a mere holding company. On that basis, the voting of TW Devices’s interest in CHI was an extraordinary matter that needed to be resolved by the LLC’s two-member board of directors. On the basis that Kellar was, in effect, stripping Richardson of his right to participate in those decisions, the requested temporary injunction was granted.

Back to corporification. Initially, Kellar argued that, because TW Devices should be viewed as a mere holding company, he had the capacity to vote the shares as the president/CEO thereof under the operating agreement. In furtherance thereof, he pointed to section 4.12(a) of the TW Devices operating agreement, which provides:

Any officer . . . shall have only such authority and perform such duties as the Board may, from time to time, expressly delegate to them. . . . [U]nless the Board otherwise determines, if the title assigned to an officer of the Company is one commonly used for officers of the business corporation formed under the North Carolina Business Corporation Act, then the assignment of such title shall constitute the delegation to such officer of the authority and duties that are customarily associated with such office, including the authority and duties that a President may assign to such other officers of the Company under the North Carolina Business Corporation Act.

The only problem was that, even as the operating agreement sought to incorporate the authority of an officer, including the president, those are actually open questions under North Carolina law. Rather:

North Carolina law does not provide definitive guidance regarding the “customary” authority possessed by corporate presidents. The Business Corporation Act does not define the duties or powers possessed by officers. North Carolina’s leading commentator on corporate law has noted that:

The allocation of authority and duties among corporate officers is usually outlined to some extent, either specifically or generally, by the corporate bylaws, and is then further defined in more detail by the directors and by the officers themselves. To the extent that these respective functions of corporate officers and agents are not thus defined by the corporation, they may be defined by the law and custom is developed by normal practices.

Russell M. Robinson, II, Robinson on North Carolina Corporation Law § 16.01 (7th ed. 2015) (footnotes omitted).

Corporification rears its head again; the operating agreement incorporated the unresolved point of a president’s authority even as it made the two members subject to the standards applicable to corporate directors. An LLC with two individual members is not the type of entity that most practitioners would envision adopting a corporate structure governed by corporate law. The dispute suggests that at least one of the parties did not envision the incorporation of corporate law. These cases illustrate that the use of corporate labels and principles may add uncertainty and provide the members of an LLC with a management structure they had not envisioned.