Corporate Governance

Delaware's Top Five Worst Shareholder Decisions for 2008 (#1)

By J. Robert Brown

Wood v. Baum, 953 A.2d 136 (Del 2008)

We chose this case not because of its legal reasoning, which was bad enough, but because of the tone set by the state Supreme Court with respect to the treatment of parties who appear in the Delaware courts.  In that case, the Court, in a completely gratuitous fashion, chose to include in the opinion a disparaging reference by the Chancery Court to plaintiff's complaint.

• The Court of Chancery noted that "though the complaint is 80-some pages long and is a model of prolixity, it fails to state any basis on which the Court could reasonably conclude that the demand futility standard is met."

As we noted, the use of the word prolix is not meant as a complement.  Moreover, the term has been used in numerous cases to describe something submitted by plaintiffs.  The courts have never used the word to describe a submission by management.  The attitude also ignores the excessive pleading standards imposed on plaintiffs by the courts. 

But the use of the term sets a tone.  It is the Supreme Court condoning harsh language in describing plaintiffs and shareholders.  Perhaps it explains why so many lower court cases do the same thing.  Thus, in In re Lear Corp., 2008 Del. Ch. Lexis 121 (Del. Ch. June 2, 2008), VC Strine described the claims brought by plaintiffs as "inflammatory and conclusory charges of wrongdoing." But the most egregious slap concerned the complaint. He didn't like that either and had this to say about the efforts of plaintiffs' counsel:

• The amended complaint in this case is an unwieldy document comprised of 208 paragraphs. As the case evolved, the complaint simply grew, with the plaintiffs adding on to their original complaint without any attempt at editing.

The statement was unnecessary even if true (which it wasn't).  But in any event, the language was intemperate and adding nothing to the legal reasoning in the case.  Lear is not unusual.  When one wonders why these outbursts are allowed to take place, they need only look to the tone set by the Delaware Supreme Court.

Full post as published by The Race to the Bottom on January 02, 2009 (boomark / email).