効率的な契約違反—Leaf Invenergy Co. v. Invenergy Renewables LLC, No. 308, 2018 (Del. May 2, 2019)

Limited Delaware case law exists on the “efficient breach” theory. A new Delaware Supreme Court ruling examines that theory and confirms it is not a bar to recovery or an avenue for modifying damages calculations. Rather, efficient breach is the legal concept that a party might find an intentional breach to be economically advantageous if the breach’s benefits exceed the damages it might owe. Efficient breach aside, the task of Delaware courts is to interpret contracts to fulfill parties’ shared expectations at time of contracting. That is a concept the Supreme Court emphasized when reversing the Court of Chancery’s nominal damages award in this case.

Plaintiff Leaf Invenergy Company invested $30 million in Invenergy Wind LLC. As part of the investment, Leaf secured a Consent Provision that prohibited Invenergy from conducting a “Material Partial Sale” without Leaf’s consent, unless Invenergy acquired Leaf’s interest at a premium, referred to as the “Target Multiple.” Several years into the investment, Invenergy closed a $1.8 billion asset sale without first obtaining Leaf’s consent and without redeeming Leaf’s interest at the Target Multiple. Leaf sued in Delaware.

The Court of Chancery determined Invenergy had breached the Consent Provision but that Leaf was not entitled to the Target Multiple. The Court reasoned that the Consent Provision was not an either-or provision, even though, until late in the litigation, both parties had understood a failure to obtain Leaf’s consent would require redemption at the Target Multiple. Instead, the Court reasoned that Leaf was entitled only to nominal damages, given the Court’s view that Invenergy likely would not have made the Material Partial Sale if it had to pay the Target Multiple and that, in any event, Leaf was no worse off with the transaction. Applying the “efficient breach” theory, the Court of Chancery imagined a hypothetical negotiation exercise in which Leaf would have to show that it would have secured additional consideration if given the opportunity to negotiate for its consent. Ultimately, the Court of Chancery ordered the parties to complete a buyout of Leaf’s interests pursuant to a put-call provision in the operative agreement, which Invenergy exercised during the suit.

On appeal, the Supreme Court reversed, explaining that the Consent Provision was an either-or structure requiring Leaf’s consent or payment, as evidenced by the parties’ own longstanding shared interpretation. The Supreme Court also explained the trial court’s misapplication of the efficient breach theory. Centrally, damages are an issue of contractual expectations. Here, the parties’ expectations were that, for a Material Partial Sale to close, Leaf either would give consent or be redeemed at the Target Multiple. Since Leaf did not give its consent, the appropriate expectation damages were receiving the Target Multiple. Accordingly, the Supreme Court reversed the nominal damages award, substituting an award of the Target Multiple, conditioned on Leaf surrendering its membership interests.

 効率的な契約違反に興味がある方で、この判例の研究をしようと思う研究者は、いらっしゃいませんかね。効率的な契約違反についての理論的な論文は、大掛かりなので難しいとしても、どのような点が現実の事案で問題となったのかを法と経済学の観点から(どの程度、裁判官が法と経済学の議論を理解しているのかを含めて)分析すれば、面白いように思えます。

Leidos, Inc. v. Indiana Public Retirement System

Kevin LaCroix:

The U.S. Supreme Court has agreed to take up a case that will address a recurring issue that has arisen in the securities class action litigation arena – that is, whether or not the alleged failure to make a disclosure required by Item 303 of Reg. S-K is an actionable omission under Section 10(b) and Rule 10b-5.

Thomas O. Gorman:

The Supreme Court agreed to hear another securities case this week. Leidos, Inc. v. Indiana Public Retirement System, No. 16-581. … Leido , a securities class action based on Exchange Act Section 10(b) and Rule 10b-5 thereunder, presents the following question, according to the Petition for a Writ of Certiorari: “Whether the Second Circuit erred in holding – in direct conflict with the decisions of the Third and Ninth Circuits – that Item 303 of SEC Regulation S-K creates a duty to disclose that is actionable under the Section 10(b) . . .” of the Exchange Act.

株式買取請求権と取引価格

In the last couple of years, at the Chancery Court, chancellors have started moving away from the view that the court will determine fair value without regard to the merger price. Now, in certain circumstances (where the deal price is a product of a competitive or robust sales price) chancellors may consider merger price as one of the relevant factors for purposes of determining fair value.

Now this question has found its way to the Delaware Supreme Court and the parties are lining up on both sides. There are even amici! Two sets of amici have rolled up: on the one side there are law professors arguing that the court should be able to presumptively rely on merger price to determine fair value in an appraisal proceeding unless that price does not result from arm’s length bargaining (DFC Holdings – Bainbridge, et al). On the other are law professors arguing requiring a court to rely on merger price to determine fair value would run counter to the language of the statutory appraisal remedy and also not always reflect fair value (DFC Holdings – Talley, et al.

DFC Globalの件では、既に、amicus breifを紹介しておりますが、引用されているもののうち後者のamicus briefは、次のような書き出しです。こちらのbriefも錚々たる教授陣です。私は、独立当事者間の株式買取請求権の公正な価格が、取引価格に縛られないと思っているので、後者のbriefに親近感を覚えます。

Appellant urges the Court to adopt a rule of law in appraisal proceedings that presumptively requires the Court of Chancery to defer exclusively to the transaction price unless that price does not result from an arm’s-length process. Amici disagree: Doing so would be a trifecta of bad law, bad economics, and bad policy.

via Brian JM Quinn

Annual Review of Key Delaware Corporate and Commercial Decisions 2016

Francis G.X.Pileggi writes:

Delaware Supreme Court

  • Hazout v. Tsang

  • Genuine Parts Co. v. Cepec.

  • OptimisCorp v. Waite.

  • El Paso Pipeline GP Co., LLC v. Brinckerhoff

Delaware Court of Chancery

  • Marino v. Patriot Rail Company LLC.

  • In Re Trulia Inc. Stockholder Litigation.

  • Amalgamated Bank v. Yahoo! Inc.

  • Obeid v. Hogan

  • Medicalgorithmics S.A. v. AMI Monitoring, Inc.

  • Bizzarri v. Suburban Waste Services, Inc.

  • Larkin v. Shah.

Morris James:

  • In re Trulia, Inc. Stockholders Litigation, 129 A.3d 884 (Del. Ch. 2016)

  • Singh v. Attenborough, 137 A.3d 151 (Del. 2016) (ORDER); In re Volcano Corp. Stockholder Litigation, 143 A.3d 727 (Del. Ch. 2016); Larkin v. Shah, 2016 WL 4485447 (Del. Ch. Aug. 25, 2016)

  • Amalgamated Bank v. Yahoo!, Inc., 132 A.3d 752 (Del. Ch. 2016)

  • Hazout v. Tsang, 134 A.3d 274 (Del. 2016)

  • Sandys v. Pincus, 2016 WL 7094027 (Del. Dec. 5, 2016)

  • In re Appraisal of Dell, Inc., 2016 WL 3186538 (Del. Ch. May 31, 2016)

  • In re Books-A-Million Stockholder Litigation, 2016 WL 5874974 (Del. Ch. Oct. 10, 2016)

  • In re Wal-Mart Stores, Inc. Derivative Litigation, 2016 WL 2908344 (Del. Ch. May 13, 2016)

  • El Paso Pipeline GP Company LLC v. Brinckerhoff, 2016 WL 7380418 (Del. Dec. 20, 2016)

via Francis G.X.Pileggi

Salman v. United States

Stanford Law ReviewがSalman v. United Statesについて、オンラインシンポジウムを開催しています。以下の5名の著者のエッセーが読めます。

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