FINAL JUDGMENT: that the following Defendants are liable for the following claims arising from the purchase and sale of the NAA 2005-AR6 3A1, NHELI 2006-FM1 1A, NHELI 2006-HE3 1A1, NHELI 2006-FM2 1A1, NHELI 2007-1 IIA1, NHELI 2007-2 1A1, and NHELI 2007-3 1A1 certificates (the “Certificates”), as further set forth in this judgment…
See also Federal Housing Finance Agency v. Nomura Holding America, Inc., 2015 WL 2183875 (S.D.N.Y. May 11, 2015)
Quadrant Structured Products Co. v. Vertin, 2015 WL 2062115 (Del. Ch. May 4, 2015):
Plaintiff Quadrant Structured Products Company, Ltd. (“Quadrant”) owns debt securities issued by defendant Athilon Capital Corp. (“Athilon” or the “Company”), a Delaware corporation. Quadrant contends that Athilon is insolvent and has asserted derivative claims for breach of fiduciary duty against the individual defendants, who are members of Athilon’s board of directors (the “Board”).
To bring a derivative action, a creditor-plaintiff must plead and later prove that the corporation was insolvent at the time the suit was filed. This decision also rejects the defendants’ attempt to establish irretrievable insolvency as the metric for determining when a creditor has standing to sue derivatively. To bring a derivative action, the creditor-plaintiff must plead and later prove insolvency under the traditional balance sheet or cash flow tests. See
For purposes of summary judgment, there is evidence which, when viewed in favor of the non-moving party, supports a reasonable inference that Athilon was insolvent at the time Quadrant filed suit. The defendants’ motion for summary judgment on the breach of fiduciary duty claims is therefore denied.
In Re Cornerstone Theraputics Inc, Stockholder Litigation; Leal v. Meeks, 2015 Del. LEXIS 231 (Del. May 14, 2015) (footnotes omitted):
These appeals were scheduled for argument on the same day because they turn on a single legal question: in an action for damages against [*3] corporate fiduciaries, where the plaintiff challenges an interested transaction that is presumptively subject to entire fairness review, must the plaintiff plead a non-exculpated claim against the disinterested, independent directors to survive a motion to dismiss by those directors?1 We answer that question in the affirmative. A plaintiff seeking only monetary damages must plead non-exculpated claims against a director who is protected by an exculpatory charter provision to survive a motion to dismiss, regardless of the underlying standard of review for the board’s conduct–be it Revlon, Unocal, the entire fairness standard, or the business judgment rule.
The Court of Chancery in both of these cases denied the defendants’ motions to dismiss because it read the precedent of this Court to require doing so, regardless of the exculpatory provision in each company’s certificate of incorporation. Under the Court of Chancery’s analysis, even if the plaintiffs could not plead a non-exculpated claim against any particular director, as long as the underlying transaction was subject to the entire fairness standard of review, and the plaintiffs were therefore able to state non-exculpated claims against the interested parties and their affiliates, all of the directors were required to remain defendants until the end of litigation. The Court of Chancery was reluctant to embrace that result but felt that it was the reading most faithful to our precedent.
In this decision, we hold that even if a plaintiff has pled facts that, if true, would require the transaction to be subject to the entire fairness standard of review, and the interested parties to face a claim for breach of their duty of loyalty, the independent directors do not automatically have to remain defendants.