Ashby & Geddes is pleased to announce that for the eighth consecutive year the firm has been named to U.S. News & World Report’s and Best Lawyers’® “Best Law Firms” list.  The publication’s 2021 list recognized the firm’s Litigation – Merger & Acquisitions practice in its National Rankings, Tier 3.  In Regional Rankings, which , each of the firm’s core practice groups achieved a Tier 1 designation, including in the fields of (a) Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law, (b) Bet-the-Company Litigation, (c) Commercial Litigation, (d) Corporate Litigation, (e) Litigation – Patent, and (f) Litigation – Securities.

According to U.S. News, firms included in the 2021 Edition of are recognized for professional excellence with consistently impressive ratings from clients and peers.  Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.  The 2021 rankings are based on 8.3 million evaluations of 110,000 lawyers from more than 22,000 firms.  Ranked firms, presented in three tiers, are listed on a national and regional-based scale.  Firms that received a tier designation reflect the high level of respect a firm can earn among other leading lawyers and clients in the same communities and practice areas.  The 2021 “Best Law Firms” rankings can be seen in their entirety by visiting  www.bestlawfirms.usnews.com.

Ashby & Geddes is pleased to announce that it has once again been named to U.S. News and Best Lawyers® “Best Law Firms” List (2020 ed.) in multiple practice areas, including bankruptcy and corporate, commercial and patent litigation.  Firms included in the 2020 Edition of “Best Law Firms” are recognized for professional excellence with consistently impressive ratings from clients and peers.  Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.  The 2019 rankings are based on the highest number of participating firms and highest number of client votes received on record.  The 2020 “Best Law Firms” rankings can be seen in their entirety by visiting  www.bestlawfirms.usnews.com.

In its inaugural list published on October 3, Forbes magazine named Ashby & Geddes one of the top corporate law firms in the United States. Of approximately 400,000 law firms in the U.S., only 243 were selected. Ashby & Geddes is one of only two Delaware-based firms to make the list, and is the smallest firm from the Philadelphia-Delaware region. In addition to recognizing Ashby & Geddes as a whole, Forbes specifically noted the strength of the firm’s bankruptcy practice. Forbes partnered with market research company Statista to develop its rankings, and utilized survey responses from 2,500 attorneys nationwide.

Ashby & Geddes is pleased to announce that its attorneys were again selected by their peers for inclusion in the 26^th edition of The Best Lawyers in America^©. The attorneys and their respective fields of practice recognized include:  Steven J. Balick (Litigation – Patent), Stephen E. Jenkins (Commercial Litigation and Corporate Law), and William P. Bowden (Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law).

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence.  Best Lawyers lists are compiled based on an exhaustive peer-review evaluation.  Almost 87,000 industry leading lawyers are eligible to vote (from around the world) and almost 10 million evaluations were received on the legal abilities of other lawyers based on their specific practice areas around the world. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor.  Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

Ashby & Geddes, P.A. is pleased to announce that the United States Court of Appeals for the Third Circuit has appointed Karen B. Owens, a member of the firm since 2014, as a United States Bankruptcy Judge for the District of Delaware.

“Karen is among the most talented attorneys I have ever had the pleasure of working with over the course of my career. Karen embodies intellect, integrity, dedication to craft and professionalism, and she will strengthen a deep and respected bench,“ said Bill Bowden, managing partner of Ashby & Geddes. “We will greatly miss her legal acumen and professionalism, but we will miss her more as a friend and trusted colleague. We congratulate her on this tremendous accomplishment, and we have no doubt that she will be an outstanding bankruptcy judge.”

For the entirety of her career, Ms. Owens has focused her practice in the area of bankruptcy and restructuring, where she regularly represented debtors and creditors in numerous large and complex chapter 11 cases. Among others, Ms. Owens represented lenders, bondholders, indenture trustees, and various estate professionals, including creditor and equity committees, examiners and future claims representatives, both in Delaware and other jurisdictions.

Ms. Owens is a graduate of Penn State University and American University, Washington College of Law, where she graduated summa cum laude, Order of the Coif, and served as the Associate Managing Editor of the American University Law Review.

Ms. Owens officially will assume her duties on June 17, 2019 in a private ceremony. Once sworn, Ms. Owens will serve a fourteen year term.

The 2019 edition of Chambers USA: America’s Leading Lawyers for Business has recognized nine Ashby & Geddes attorneys as “Leading Individuals” in their respective areas of practice: Steven J. Balick (Intellectual Property), William P. Bowden (Bankruptcy/Restructuring), John G. Day (Intellectual Property), Catherine A. Gaul (Chancery), Stephen E. Jenkins (Chancery), Andrew C. Mayo (Intellectual Property), Ricardo Palacio (Bankruptcy/Restructuring), Karen B. Skomorucha Owens (Bankruptcy/Restructuring), and Philip Trainer, Jr. (Chancery).  In addition, the firm was ranked for excellence in three of its practice areas: Bankruptcy/Restructuring, Chancery, and Intellectual Property.

Ashby & Geddes’ Bankruptcy/Restructuring practice is “highly regarded for its sophisticated counsel on complex reorganization matters,” and “walking into court with them gives you extra credibility.”  Head of the group, Bill Bowden, is regarded by peers as a “shining star” with a wealth of experience handling Chapter 11 cases, while Rick Palacio was described as a “very smart lawyer” who is “excellent at addressing urgent issues quickly, efficiently and intelligently.”  Karen Owens was praised as being “very knowledgeable about the Bankruptcy Code,” and as having “great relationships with other professionals and judges.” 

The firm’s Chancery practitioners are a “respected team with a strong track record in the Court of Chancery.”  Sources commented that they were “extremely comfortable with their knowledge of Delaware law, expertise and credibility.”  Steve Jenkins is praised for his “responsiveness, collaborative approach, knowledge and professionalism.”  Lee Trainer is “highly knowledgeable, very responsive and good at navigating contentious matters in cases.”  Catherine Gaul was described as “very responsive” and “incredibly smart and very knowledgeable about local practice in the Court of Chancery.”

Chambers describes Ashby & Geddes’ Intellectual Property attorneys as “adept at handling a range of work on both the plaintiff and defense side of IP litigation,” and as having “a diverse client base including companies from the biotechnology, computer software and telecommunications industries.”  Steve Balick was described as “a very wise and senior local counsel who has very good insight into judges and very good instincts about what arguments are good.” John Day was noted for his “wealth of knowledge of Delaware courts,” and for being “highly responsive” with “excellent judgment.”  Andrew Mayo was noted for his expertise in patent infringement lawsuits, including Hatch-Waxman litigation, and breach of contract actions relating to intellectual property license agreements, and described as being “knowledgeable about local practice and Delaware judges.”

Chambers and Partners assesses business lawyers across the country using independent researchers to conduct in-depth interviews with clients and lawyers.  Individual lawyers and firm practice areas are ranked on the basis of legal knowledge, experience, ability, effectiveness, and client-service.  For more information about Chambers and Partners, visit here.

Ashby & Geddes is pleased to announce that it has once again been named to U.S. News and Best Lawyers® “Best Law Firms” List (2019 ed.) in six practice areas.  Notably, Ashby & Geddes’s “Litigation – Mergers & Acquisitions” practice has been recognized on a national level with a National Tier 3 ranking.  In addition, its rankings for Metropolitan Tier 1 include three practice areas:  “Commercial Litigation,” “Corporate Law,” and “Litigation – Securities.”  Metropolitan Tier 2 includes two practice areas – “Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law” and “Litigation – Patent.”

Firms included in the 2019 Edition of “Best Law Firms” are recognized for professional excellence with consistently impressive ratings from clients and peers.  Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.  The 2019 rankings are based on the highest number of participating firms and highest number of client votes received on record.  To be eligible for a ranking, a firm must have a lawyer recognized first in The Best Lawyers in America, which recognizes the top five percent of practicing attorneys in the U.S.  Over 16,000 lawyers provided more than 1,125,000 law firm assessments, and almost 12,000 clients provided more than 107,000 evaluations.  Ranked firms, presented in three tiers, are listed on a national and regional-based scale.  Firms that received a tier designation reflect the high level of respect a firm can earn among other leading lawyers and clients in the same communities and practice areas.  Awards were given in 75 national practice areas and 122 metropolitan practice areas.  The 2019 “Best Law Firms” rankings can be seen in their entirety by visiting  www.bestlawfirms.usnews.com.

Ashby & Geddes is pleased to congratulate Randall J. Teti, who has been selected as the 2018 winner of the Bruce M. Stargatt Legal Ethics Writing Competition. This annual writing competition is sponsored by the Delaware Bar Foundation and is open to Delaware attorneys who have been admitted to practice for five years or less. Mr. Teti’s article will be published in an upcoming edition of “Delaware Lawyer” magazine, a quarterly publication distributed by the Delaware Bar Foundation.

Ashby & Geddes is pleased to announce that its attorneys were again selected by their peers for inclusion in the 24^th edition of The Best Lawyers in America^©. The attorneys and their respective fields of practice recognized include:  Steven J. Balick (Litigation – Patent), Stephen E. Jenkins (Commercial Litigation and Corporate Law), and William P. Bowden (Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law).

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence.  Best Lawyers lists are compiled based on an exhaustive peer-review evaluation.  Almost 87,000 industry leading lawyers are eligible to vote (from around the world) and almost 10 million evaluations were received on the legal abilities of other lawyers based on their specific practice areas around the world.  For the 2019 Edition of The Best Lawyers in America^©, 7.8 million votes were analyzed, which resulted in almost 60,000 leading lawyers being included in the new edition.  Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor.  Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

Ashby & Geddes is pleased to congratulate Karen B. Skomorucha Owens and Katharina Earle, who have been selected as 2018 winners of Lawyer Monthly magazine’s Women in the Law Awards for their insolvency and restructuring work in the United States.  The annual Women in the Law Awards celebrates and highlights, among other things, the achievement of women in the legal profession across the globe and recognizes female legal experts that have influenced the wider legal profession in their jurisdiction.  You may access the publication and learn more about Ms. Owens and Ms. Earle here.

The 2018 edition of Chambers USA: America’s Leading Lawyers for Business has recognized nine Ashby & Geddes attorneys as “Leading Individuals” in their respective areas of practice: Steven J. Balick (Intellectual Property), William P. Bowden (Bankruptcy/Restructuring), John G. Day (Intellectual Property), Catherine A. Gaul (Chancery), Stephen E. Jenkins (Chancery), Andrew C. Mayo (Intellectual Property), Ricardo Palacio (Bankruptcy/Restructuring), Karen B. Skomorucha Owens (Bankruptcy/Restructuring), and Philip Trainer, Jr. (Chancery).  In addition, the firm was ranked for excellence in three of its practice areas: Bankruptcy/Restructuring, Chancery, and Intellectual Property.

Ashby & Geddes’ Bankruptcy/Restructuring practice is “highly regarded for its sophisticated counsel on complex reorganization matters.”  Head of the group, Bill Bowden, is noted for his “experience in bankruptcy law, and familiarity and working relationships with the Delaware bankruptcy Bench,” while Rick Palacio was described as a “very clear thinker, articulates issues well and has a very good presence in court.”  Karen Owens was praised as “outstanding” and “smart, responsive and always on top of things.”

The firm’s Chancery practitioners are a “highly recommended team with a strong track record in the Court of Chancery.”  Sources commented that “the level of responsiveness and quality of the service are first-rate.”  Steve Jenkins is “a highly regarded practitioner” known to be an “extraordinarily effective” attorney who “understands the Delaware courts very well,” while Lee Trainer is “incredibly responsive, highly knowledgeable and very practical.”  Catherine Gaul was praised for her “sound judgment” and someone who has a “great sense of the best way to accomplish things.”

Chambers describes Ashby & Geddes’ Intellectual Property attorneys as “adept at handling a range of work on both the plaintiff and defense side of IP litigation,” with market commentators reporting that “[t]hey are a really good shop and have some really good attorneys,” who “are always easy to work with and well prepared” and who “provide thoughtful commentary on strategy in Delaware.”  Steve Balick was described as “very conscientious, thoughtful and responsive,” while John Day was noted for being “a great attorney who is responsive, knowledgeable, and technical.”  Andrew Mayo was described as “hard-working and smart” and as having “great credibility with the judges.”

Chambers and Partners assesses business lawyers across the country using independent researchers to conduct in-depth interviews with clients and lawyers.  Individual lawyers and firm practice areas are ranked on the basis of legal knowledge, experience, ability, effectiveness, and client-service.  For more information about Chambers and Partners, visit here.

Following the recall of millions of vehicles equipped with malfunctioning Takata air bag inflators (the so-called “PSAN Inflators”), TK Holdings, Inc. and certain of its affiliates (the “Debtors”) filed for chapter 11 bankruptcy protection in June 2017 to effectuate the sale of substantially all of their non-PSAN Inflator assets to Joyson KSS Auto Safety, S.A. and certain of its subsidiaries or affiliates as part of a global sale of the non-PSAN Inflator assets of the Debtors’ ultimate parent, Takata Corporation.  The United States Bankruptcy Court for the District of Delaware, the Court overseeing the Debtors’ bankruptcy proceedings, appointed Roger Frankel as the legal representative for Future Claimants – i.e. those individuals who sustain personal injuries after the filing of the bankruptcy arising from or related to PSAN Inflators or their component parts manufactured by the Debtors or their affiliates prior to the effective date of a chapter 11 plan of reorganization in the Debtors’ bankruptcy cases.  Mr. Frankel selected, among others, Ashby & Geddes to represent him as the Future Claimants’ Representative in the proceedings.

Following expedited and contested complex restructuring proceedings, a global settlement was reached in February 2018 among all key stakeholders, including the Future Claimants’ Representative, and embodied in the Fifth Amended Joint Chapter 11 Plan of Reorganization of TK Holdings Inc. and Its Affiliated Debtors (the “Plan”), which was confirmed by the Court on February 21, 2018.  The Plan contemplates the creation and funding of a trust – the “PSAN PI/WD Trust” – that will assume responsibility for present and future “PSAN PI/WD Claims” asserted against the Debtors and certain third-parties, and is expected to be funded with approximately $130 million of contributions, subject to possible additional contributions from various sources.  The Plan is expected to go effective in early April.

Ashby & Geddes Bankruptcy and Insolvency attorneys William P. Bowden, Karen B. Skomorucha Owens, and Katharina Earle and Corporate and Commercial Litigation and Counseling attorneys Philip Trainer, Jr. and Catherine A. Gaul represent Mr. Frankel in the Debtors’ bankruptcy proceedings.

Ashby & Geddes helped a major Delaware law firm defeat a motion to disqualify it during expedited litigation.  Working with the law firm’s general counsel, an A&G team helped to brief, and argued, the expedited motion in front of Delaware Chancellor Andre G. Bouchard.

Defendants in the case claimed that the law firm was conflicted because of work previously done for their financial consultant, and on September 29, 2017 they and the consultant filed a motion to disqualify the firm. A&G was asked to represent the law firm and together with the firm’s general counsel, working under an extremely expedited schedule, drafted and submitted a brief that vigorously disputed defendants’ claims.  Oral argument was held on October 11, 2017, just twelve days after the motion was filed.

On November 21, the Chancellor issued an opinion holding that (1) there was no implied attorney-client relationship between the law firm and the defendants; and (2) that defendants had failed to establish that the firm’s representation of the plaintiffs would prejudice the fairness of the proceedings, and accordingly denied the motion in its entirety. Dollar Tree, Inc. et al. v. Dollar Express LLC, et al. C.A. No 2017-0411-AGB, (Del. Ch. Nov. 21, 2017).

Ashby & Geddes is proud to announce that its attorneys were once again selected by their peers for inclusion in the 24^th edition of The Best Lawyers in America^©. The attorneys and their respective fields of practice include:  Steven J. Balick (Litigation – Patent), Stephen E. Jenkins (Commercial Litigation and Corporate Law), and William P. Bowden (Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law).

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence.  Best Lawyers lists are compiled based on an exhaustive peer-review evaluation.  Over 83,000 leading attorneys globally are eligible to vote, and they have received more than 13 million votes to date on the legal abilities of other lawyers based on their specific practice areas around the world.  For the 2017 Edition of The Best Lawyers in America©, 7.3 million votes were analyzed, which resulted in almost 55,000 leading lawyers being included in the new edition.  Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

The 2017 edition of Chambers USA: America’s Leading Lawyers for Businesshas recognized eleven Ashby & Geddes attorneys as “Leading Individuals” in their respective areas of practice: Andrew D. Cordo (Chancery), Steven J. Balick (Intellectual Property), William P. Bowden (Bankruptcy/Restructuring), John G. Day (Intellectual Property), Catherine A. Gaul (Chancery), Stephen E. Jenkins (Chancery), Tiffany Geyer Lydon (Intellectual Property), Andrew C. Mayo (Intellectual Property), Ricardo Palacio (Bankruptcy/Restructuring), Karen B. Skomorucha Owens (Bankruptcy/Restructuring), and Philip Trainer, Jr. (Chancery).  In addition, the firm was ranked for excellence in three of its practice areas: Bankruptcy/Restructuring, Chancery, and Intellectual Property.

Ashby & Geddes’ Bankruptcy/Restructuring practice is “[e]steemed” for its work with “both debtors and creditors, and noted for its substantial creditors’ committee and creditors’ rights expertise.”  Head of the group, Bill Bowden, is noted for being “fantastic to deal with,” while Rick Palacio was described as a “smart guy with a nice disposition” who handles a range of bankruptcy matters, and Karen Owens was noted as being “remarkably talented” and as possessing a “great relationship with judges.”

The firm’s Chancery practitioners are a “highly recommended team with a strong track record in the court of Chancery.”  Steve Jenkins was noted as being “extremely smart” and “very well respected by the judges,” while Lee Trainer has an “encyclopedic knowledge of Delaware corporate disputes.”  Catherine Gaul is “terrific: incredibly personable and very smart,” and Andrew Cordo is praised for his broad range of experience in corporate and commercial disputes.

Chambers describes Ashby & Geddes’ Intellectual Property attorneys as providing “excellent client service” and as being a “go-to firm in Delaware.”  Steve Balick is a seasoned practitioner who has a “very strong reputation in the market,” while John Day “is very responsive, very knowledgeable, and possesses very good tactical judgment.”  Tiffany Lydon “is well versed in handling disputes in a wide range of industries,” and Andrew Mayo is a “[v]ery good lawyer” with a “fine reputation for his work in technology sector IP disputes.”

Chambers and Partners assesses business lawyers across the country using independent researchers to conduct in-depth interviews with clients and lawyers.  Individual lawyers and firm practice areas are ranked on the basis of legal knowledge, experience, ability, effectiveness, and client-service.  For more information about Chambers and Partners, visit here.

Ashby & Geddes is proud to announce that it has once again been named to U.S. News – Best Lawyers® “Best Law Firms” list (2017 ed.) in six practice areas.  Notably, Ashby & Geddes’s “Litigation – Mergers & Acquisitions” practice has been recognized on a national level with a National Tier 3 ranking.  In addition, it’s rankings for Metropolitan Tier 1 include five practice areas:  “Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law,” “Commercial Litigation,” “Corporate Law,” “Litigation – Securities,” and “Litigation – Mergers & Acquisitions.”  Metropolitan Tier 2 includes one practice area – “Litigation – Patent.”

Firms included in the U.S. News – Best Lawyers® “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers.  Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise. The 2017 rankings are based on the highest number of participating firms and highest number of client ballots on record.  To be eligible for a ranking, a firm must have a lawyer listed in The Best Lawyers in America, which recognizes the top 4 percent of practicing attorneys in the US.  Over 21,000 attorneys provided almost 700,000 law firm assessments, and almost 8,000 clients provided more than 47,000 evaluations.  Ranked firms, presented in tiers, are listed on a national and/or metropolitan scale.  Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism, and their integrity.  Awards were given in 74 national practice areas and 122 metropolitan practice areas.  The 2017 “Best Law Firms” rankings can be seen in their entirety by visiting bestlawfirms.usnews.com.

Ashby & Geddes successfully moved to dismiss all of the state law claims and many of the bankruptcy related claims against AgFeed Industries, Inc.’s (“AFI”) former Chief Executive Officer, K. Ivan F. Gothner. The Trustee of the AgFeed Liquidating Trust (the “Trustee”) filed numerous complaints against AFI’s former directors, officers and professionals related to purported accounting fraud in China and false financial reporting to the Securities and Exchange Commission and AFI shareholders. Despite giving the Trustee leave to re-plead previously dismissed claims in the original complaint, the Court found that the Second Amended Complaint (the “Complaint”) fared no better, dismissing nearly all of the claims with prejudice and “reiterate[ing] its profound concerns with respect to the dissipation of monies otherwise available for distribution to stakeholders being burned up in litigation of dubious merit and questionable collectability.”

Applying Nevada law, the Court found that the Complaint failed to plead many of the elements necessary to state a claim for breach of fiduciary duty. For instance, the Complaint failed to allege that Gothner made the false disclosures or knew that the disclosures were false at the time made. With regard to the breach of loyalty claim related to compensation received under his employment agreement and company transactions with third parties, among other things, the Complaint failed to allege that Gothner stood on both sides of the transaction. Moreover, the Trustee’s Caremark claim was defeated by the Complaint’s own allegations, which detailed the actions taken by Gothner and the board to investigate, address and disclose the wrongdoing in China.

The fraudulent transfer claim related to “a number of payments” Gothner received under his employment agreement was dismissed. Allegations that Gothner received an aggregate amount of money over a year and a half period were insufficient, and the Complaint contained only conclusory allegations that the alleged transfers were not for reasonably equivalent value. Importantly, the Complaint did not allege that Gothner received any compensation that he was not owed under his employment agreement. The actual fraud claims were likewise dismissed as the Complaint did not sufficiently identify the transferor and contained only conclusory allegations. Counts VIII and IX of the Complaint were dismissed because recoupment and setoff are defenses, not causes of action. Lastly, the Court found that the Trustee lacked standing to bring the intentional misrepresentation by nondisclosure claim as fraud claims belong to the stockholders, not the company. Even so, the Complaint failed to allege that the stockholders justifiably relied on the allegedly false statements.

The only causes of action that survived the motion to dismiss were constructive fraudulent transfers in the amount of $261,000. Because any potential setoff defense that the Trustee may raise will be capped at that amount, the Court directed that the balance of Gothner’s proof of claim for amounts owed under his employment agreement be paid immediately.  A copy of the Court’s Opinion can be found here.

Ashby & Geddes attorneys William P. Bowden, Andrew D. Cordo, Stacy Lynn Newman and F. Troupe Mickler IV represented Mr. Gothner in this action.

Ashby & Geddes and co-counsel Kaye Scholer LLP have secured a significant post-trial victory in the Delaware Court of Chancery for Medicalgorithmics S.A. (“Medicalgorithmics”), a publicly traded Polish corporation that developed and manufactures a remote cardiac monitoring system known as the PocketECG.  On August 18, 2016, following a five-day trial, Chancellor Bouchard issued a memorandum opinion finding that defendants AMI Monitoring, Inc. and Spectocor LLC (collectively, “Defendants”) materially breached the parties’ exclusive licensing agreement by seeking to develop a product to replace Medicalgorithmics’ PocketECG without first providing notice of termination.

In April 2015, Medicalgorithmics terminated the agreement based on its theory that Defendants were in material breach.  Medicalgorithmics promptly filed a complaint in the Court of Chancery against Defendants, seeking declaratory judgment that Medicalgorithmics’ termination was valid, damages for Defendants’ breach of the agreement, and costs and attorneys’ fees.  Defendant AMI Monitoring, Inc. (“AMI”) counterclaimed, alleging that Medicalgorithmics overcharged AMI for device orders.

In his post-trial opinion, Chancellor Bouchard found that Defendants had secretly sought to develop a product to replace the PocketECG without first giving notice of termination to Medicalgorithmics, which constituted a material breach of the agreement.  As a result, the Court found that Medicalgorithmics was entitled to declaratory judgment that its termination was valid, as well as damages for Defendants’ breach.  In addition, the Court found that Medicalgorithmics was entitled to its costs and attorneys’ fees in the litigation pursuant to an indemnification provision in the agreement.  The Court further found that AMI’s counterclaims were meritless and, accordingly, that Medicalgorithmics was entitled to entry of judgment in its favor dismissing all of AMI’s counterclaims with prejudice.

The case is Medicalgorithmics S.A. v. AMI Monitoring, Inc. d/b/a Spectocor, et al., C.A. No. 10948-CB.  The Court’s decision can be found here.

Ashby & Geddes attorneys Philip Trainer, Jr. and Marie M. Degnan, along with a litigation team from Kaye Scholer LLP, represented Medicalgorithmics in this action.

Ashby & Geddes is proud to announce that its attorneys were once again selected by their peers for inclusion in the 23^rd edition of The Best Lawyers in America^©. The attorneys and their respective fields of practice include:  Steven J. Balick (Litigation – Patent), Stephen E. Jenkins (Commercial Litigation and Corporate Law), and William P. Bowden (Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law).

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence.  Best Lawyers lists are compiled based on an exhaustive peer-review evaluation.  Over 83,000 leading attorneys globally are eligible to vote, and they have received more than 13 million votes to date on the legal abilities of other lawyers based on their specific practice areas around the world.  For the 2017 Edition of The Best Lawyers in America©, 7.3 million votes were analyzed, which resulted in almost 55,000 leading lawyers being included in the new edition.  Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

The 2016 edition of Chambers USA: America’s Leading Lawyers for Businesshas recognized eight Ashby & Geddes attorneys as “Leading Individuals” in their respective areas of practice: Andrew D. Cordo (Chancery), Steven J. Balick (Intellectual Property), William P. Bowden (Bankruptcy/Restructuring), John G. Day (Intellectual Property), Stephen E. Jenkins (Chancery), Tiffany Geyer Lydon (Intellectual Property), Ricardo Palacio (Bankruptcy/Restructuring), and Philip Trainer, Jr. (Chancery).  In addition, the firm was ranked for excellence in three of its practice areas: Bankruptcy/Restructuring, Chancery, and Intellectual Property.

Ashby & Geddes’ Bankruptcy/Restructuring practice “is highly regarded for its sophisticated counsel on complex reorganization matters,” while head of the group, Bill Bowden, is noted for being “very well-respected,” and Rick Palacio was described as “very personable, very practical, does a very good job on his feet.”

The firm’s Chancery practitioners “have an excellent reputation in the Chancery Court and the work they have provided is top quality.” Steve Jenkins was noted as being “really first-rate” and “very capable,” while Lee Trainer is “acclaimed for his work in a broad range of matters,” and Andy Cordo is praised as “an extraordinarily competent lawyer.”

Chambers describes Ashby & Geddes’ Intellectual Property attorneys as “[o]utstanding in every respect. They give excellent advice at a reasonable price.”  Steve Balick “is praised for his expertise representing corporate clients in patent litigation and other matters in the science and technology areas,” while John Day “is highly responsive, gives good advice, is very experienced and knowledgeable about the Wilmington legal community,” and Tiffany Lydon “attracts particular praise for her responsiveness to matters.”

Chambers and Partners assesses business lawyers across the country using independent researchers to conduct in-depth interviews with clients and lawyers.  Individual lawyers and firm practice areas are ranked on the basis of legal knowledge, experience, ability, effectiveness, and client-service.  For more information about Chambers and Partners, visit here.

Ashby & Geddes is pleased to announce that several of the firm’s attorneys have been included in the 2016 Delaware Super Lawyers list.  The Ashby & Geddes attorneys named are:

• Stephen E. Jenkins – Business Litigation
• Toni-Ann Platia – Business Litigation (Rising Star)

Previous firm recipients of the Rising Star designation have been:

• Gregory A. Taylor – Bankruptcy: Business
• Karen B. Skomorucha Owens – Bankruptcy: Business

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law.  For more information about Super Lawyers, visit SuperLawyers.com.

The Rising Star list is developed using the same research techniques as Super Lawyers.  However, the candidate must be either 40 years old or younger or in practice for 10 years or less.  Only 2.5 percent of attorneys within a state are recognized as Rising Stars.

Ashby & Geddes is proud to announce that it has once again been named to U.S. News – Best Lawyers® “Best Law Firms” 2016 edition in six practice areas.  Notably, Ashby & Geddes has improved its rankings in Metropolitan Tier 1 in one practice area since last year.  It’s rankings for Metropolitan Tier 1 now include five practice areas:  “Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law,” “Commercial Litigation,” “Corporate Law,” “Litigation – Securities,” and “Litigation – Mergers & Acquisitions.”  Metropolitan Tier 2 includes one practice area – “Litigation – Patent.”

Firms included in the U.S. News – Best Lawyers® “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers.  Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise. The 2016 rankings are based on the highest number of participating firms and highest number of client ballots on record.  To be eligible for a ranking, a firm must have a lawyer listed in The Best Lawyers in America, which recognizes the top 4 percent of practicing attorneys in the US.  Over 21,000 attorneys provided almost 700,000 law firm assessments, and almost 8,000 clients provided more than 47,000 evaluations.  Ranked firms, presented in tiers, are listed on a national and/or metropolitan scale.  Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism, and their integrity.  Awards were given in 74 national practice areas and 122 metropolitan practice areas.  The 2016 “Best Law Firms” rankings can be seen in their entirety by visiting bestlawfirms.usnews.com.

Ashby & Geddes is proud to announce that three of its attorneys were selected by their peers for inclusion once again in The Best Lawyers in America^© 2016 in their respective fields of practice:  Steven J. Balick (Litigation – Patent), Stephen E. Jenkins (Commercial Litigation and Corporate Law), and William P. Bowden (Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law).

Since it was first published in 1983, Best Lawyers^® has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which almost 50,000 leading attorneys cast nearly five million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

The 2015 edition of Chambers USA: America’s Leading Lawyers for Businesshas recognized five Ashby & Geddes attorneys as “Leading Individuals” in their respective areas of practice: Steven J. Balick (Intellectual Property), William P. Bowden (Bankruptcy/Restructuring), John G. Day (Intellectual Property), Stephen E. Jenkins (Chancery), and Philip Trainer, Jr. (Chancery).  In addition, the firm was ranked for excellence in three of its practice areas: Bankruptcy/Restructuring, Chancery, and Intellectual Property.

Ashby & Geddes’ Bankruptcy/Restructuring practice has “contributed to the development of the law through significant involvement in cutting-edge reorganization matters,” while head of the group, Bill Bowden, is praised for being “smart, industrious and someone who takes great efforts to solve problems.”

The firm’s Chancery practioners were found to be “extremely competent and reliable, and they know what needs to be done to win cases.”  Chambers described Steve Jenkins as “very quick to pick up complicated concepts and translate them into a practical approach with the court,” and as being “very well respected by the Delaware Bar.”  Lee Trainer is “an excellent lawyer with a very good courtroom demeanor who handles a wide variety of cases.”

Chambers describes Ashby & Geddes’ Intellectual Property attorneys as doing “an excellent job” with “the capability to do everything. They have an incredible knowledge of the court system and provide substantive comments and strategic advice.” Steve Balick is described as “tremendous” and having “really balanced judgment,” and John Day is noted as giving advice that “is always spot-on.”

Chambers and Partners assesses business lawyers across the country using independent researchers to conduct in-depth interviews with clients and lawyers.  Individual lawyers and firm practice areas are ranked on the basis of legal knowledge, experience, ability, effectiveness, and client-service.  For more information about Chambers and Partners, visit here.

Ashby & Geddes is pleased to announce that 5 of the firm’s attorneys have been included in the 2015 Delaware Super Lawyers list, including 3 attorneys listed as Rising Stars.  The Ashby & Geddes attorneys named are:

• Lawrence C. Ashby – Business Litigation
• Stephen E. Jenkins – Business Litigation
• Amanda Winfree Herrmann – Bankruptcy: Business (Rising Star)
• Gregory A. Taylor – Bankruptcy: Business (Rising Star)
• Karen B. Skomorucha Owens – Bankruptcy: Business (Rising Star)

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. Ashby & Geddes is to be included in the 2015 Super Lawyers business edition, as it has been in prior years, as well. For more information about Super Lawyers, visit SuperLawyers.com.

The Rising Star list is developed using the same research techniques as Super Lawyers.  However, the candidate must be either 40 years old or younger or in practice for 10 years or less.  Only 2.5 percent of attorneys within a state are recognized as Rising Stars.

CanCan Development, LLC, a company formed to develop a casino in D’Iberville, Mississippi, obtained a judgment for nearly $1 million against its former manager, Sandra Manno, for breaching her fiduciary duty of loyalty and wasting company funds by taking unauthorized compensation, withdrawing nearly $100,000 in cash from the company’s bank account for her personal use, and spending hundreds of thousands of dollars on lavish meals, hotels, flights and entertainment for herself and her friends.  Plaintiffs also successfully defeated Ms. Manno’s counterclaims for wrongdoing by CanCan’s managers and majority member for continuing to develop the project after she was fired, dissolving the company after no financing could be obtained, and moving forward with a new entity to develop a casino on the same land that CanCan had tried to develop.  The Delaware Court of Chancery found after a four day trial that while Ms. Manno breached her fiduciary duties, no duties to CanCan or its members had been breached by the plaintiffs in their dissolution of CanCan and development of the Scarlet Pearl, a premiere hotel and casino soon to open on CanCan’s proposed site in D’Iberville.  The Court’s decision can be found here.

Stephen E. Jenkins and Catherine A. Gaul represented the plaintiffs-counterclaim defendants in this action.

In Merion Capital LP v. BMC Software, Inc., C.A. No. 8900-VCG (Del. Ch. Jan. 5, 2015), Ashby & Geddes obtained a decision from the Delaware Court of Chancery holding that petitioners Merion Capital LP and Merion Capital II LP (collectively, “Merion”) were entitled to an appraisal of shares of stock they purchased after the record date for the stockholder vote on the underlying merger and owned of record on the date of their demand for appraisal.  The Court’s decision can be found here.

Pursuant to 8 Del. C. § 262, Merion sought appraisal of 7,629,100 shares of common stock of BMC Software, Inc. (“BMC”) in connection with a merger in which BMC was taken private by a consortium of private equity investors.  Merion had purchased the shares of stock on the open market after the record date for the stockholder vote on the merger.  Prior to the stockholder vote, Merion, as the record holder of the shares, delivered to BMC a demand for appraisal.  Following the effective date of the merger, Merion timely filed a petition for appraisal in the Court of Chancery.

BMC moved for summary judgment, contending that Merion was required to prove that each specific share of stock for which Merion sought appraisal was not voted in favor of the merger by a prior beneficial owner.  The Court rejected BMC’s contention, finding that the unambiguous language of Delaware’s appraisal statute did not give rise to any such share-tracing requirement.  Crediting Merion’s argument, the Court held that in order to perfect appraisal rights, a petitioner must show that the record holder of the shares for which appraisal is sought: (1) held the shares on the date it made a demand for appraisal; (2) continuously held the shares through the effective date of the merger; (3) timely delivered to the corporation a written demand for appraisal; and (4) did not vote in favor of the merger.  Because it was undisputed that Merion had satisfied those four requirements, the Court held that “Merion has perfected its right to have its 7,629,100 shares of BMC common stock appraised by this Court” and denied BMC’s motion for summary judgment.

Ashby & Geddes attorneys Stephen E. Jenkins, Steven T. Margolin, Marie M. Degnan, and Phillip R. Sumpter represented Merion in this action.

The Court-appointed joint provisional liquidators (the “JPLs”) of LDK Solar CO., Ltd. (“LDK Solar”) retained Bill Bowden as an expert as to matters of United States law in connection with its insolvency proceeding (the “Cayman Proceeding”) in the Grand Court of the Cayman Islands (the “Grand Court”) (FSD No. 97 of 2014 – AJJ). Mr. Bowden submitted an affidavit (the “Bowden Affidavit”) to the Grand Court, which provided independent expert evidence on Chapter 15 of the Bankruptcy Code and an assessment of the likelihood that the Delaware Bankruptcy Court would recognize the Cayman Proceeding and the proposed schemes of arrangement (the “Cayman Scheme”) in respect of LDK Solar and its wholly owned subsidiary under section 86 of the Cayman Islands Companies Law (2013 Revision), including the releases set forth therein.

On October 21, 2014, LDK Solar filed a Chapter 15 petition in the Delaware Bankruptcy Court (Case No. 14-12387). Consistent with the conclusion set forth in the Bowden Affidavit, The Honorable Peter Walsh entered orders recognizing the JPLs as foreign representatives of LDK Solar within the meaning of section 101(24) of the Bankruptcy Code, recognizing the Cayman Proceeding as a foreign main proceeding pursuant to section 1517 of the Bankruptcy Code and recognizing and granting comity to the Cayman Scheme pursuant to section 1521 of the Bankruptcy Code.  The Delaware Bankruptcy Court also confirmed a Chapter 11 plan that allowed for a global restructuring involving LDK-affiliates in the United States and Hong Kong.

The Ashby & Geddes team that worked on this matter includes Bill Bowden, Rick Palacio, Amanda Herrmann and Stacy Newman.

Ashby & Geddes is proud to announce that it has once again been named to U.S. News – Best Lawyers® “Best Law Firms” 2015 Edition in six practice areas.  Notably, Ashby & Geddes has improved its ranking to Tier 1 in two practice areas since last year’s rankings.  Tier 1 now includes four practice areas: “Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law,” “Commercial Litigation,” “Corporate Law,” and “Litigation – Securities.” Tier 2 includes two practice areas, “Litigation – Mergers & Acquisitions” and “Litigation – Patent.”  The firm’s rankings can be found here.

Firms included in the U.S. News – Best Lawyers® “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise. The 2015 rankings are based on the highest number of participating firms and highest number of client ballots on record. To be eligible for a ranking, a firm must have a lawyer listed in The Best Lawyers in America, which recognizes the top 4 percent of practicing attorneys in the US. Over 17,000 attorneys provided almost 600,000 law firm assessments, and almost 7,500 clients provided more than 40,000 evaluations.  Ranked firms, presented in tiers, are listed on a national and/or metropolitan scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism and their integrity. Awards were given in 74 national practice areas and 120 metropolitan practice areas. The 2015 “Best Law Firms” rankings can be seen in their entirety here.

Ashby & Geddes is proud to announce that three of its attorneys were selected by their peers for inclusion once again in The Best Lawyers in America^© 2015 in their respective fields of practice:  Steven J. Balick (Litigation – Patent), Stephen E. Jenkins (Commercial Litigation and Corporate Law), and William P. Bowden (Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law).

Since it was first published in 1983, Best Lawyers^® has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which almost 50,000 leading attorneys cast nearly five million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

Plaintiffs, holders of preferred stock that are owed approximately $38.5 million, brought suit against Spanish Broadcasting System, Inc. for the company’s failure to repurchase plaintiffs’ preferred stock as required by the governing certificate of designation.  Plaintiffs assert that Spanish Broadcasting breached its obligations under the certificate by failing to take all actions required or permitted under the DGCL—such as selling assets, issuing additional equity, or taking on new debt—to generate legally available funds that could be used to repurchase the outstanding preferred stock.  Spanish Broadcasting moved to dismiss for lack of standing and failure to state a claim.  The Court of Chancery denied that motion, finding instead that plaintiffs: (i) have standing under 6 Del. C. § 8-302(a), which provides that the purchaser of a security acquires all rights in such security; and (ii) sufficiently alleged that the company failed to take actions required or permitted by Delaware law that would have given it “legally available funds” necessary to repurchase the outstanding preferred stock.  The Court’s decision can be found here.

Stephen E. Jenkins, Catherine A. Gaul, and Peter H. Kyle represent the plaintiffs in this action.

Ashby & Geddes is pleased to announce that Acquisition International M&A Awards has selected the firm as the 2014 Bankruptcy and Insolvency Firm of the Year – Delaware.

Since 2010, Acquisition International Magazine’s annual awards have been celebrating excellence, innovation and performance across the business, legal, financial and investment communities.

Acquisition International’s M&A Awards celebrate the achievements and outstanding work of all those involved in seeing a deal through to completion. The awards recognize investors, advisers, financiers and service providers pin-pointed for their expertise in their specialized field and are most crucially, nominated by their clients and their peers.  The awards are given solely on merit and are given to commend those most deserving for exceptional service over the last 12 months.

To view a copy of Acquisition International M&A Awards listings, click here.

Ashby & Geddes is proud to announce that three of its attorneys were recently selected by their peers for inclusion in The Best Lawyers in America^©2014 (Copyright 2013 by Woodward/White, Inc., of Aiken, SC) in their respective fields of practice:  Steven J. Balick (Litigation – Patent), Stephen E. Jenkins (Commercial Litigation and Corporate Law), and William P. Bowden (Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law).

Since it was first published in 1983, Best Lawyers^® has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which almost 50,000 leading attorneys cast nearly five million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

Ashby & Geddes is pleased to announce that 4 of the firm’s attorneys have been included in the 2014 Delaware Super Lawyers list, including 2 attorneys listed as Rising Stars.  The Ashby & Geddes attorneys named are:

• Lawrence C. Ashby – Business Litigation
• Stephen E. Jenkins – Business Litigation
• Amanda Winfree Herrmann – Bankruptcy: Business (Rising Star)
• Gregory A. Taylor – Bankruptcy: Business (Rising Star)

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information aboutSuper Lawyers, visit SuperLawyers.com.

The Rising Star list is developed using the same research techniques as Super Lawyers.  However, the candidate must be either 40 years old or younger or in practice for 10 years or less.  Only 2.5 percent of attorneys within a state are recognized as Rising Stars.

The 2014 edition of Chambers USA: America’s Leading Lawyers for Businesshas recognized four Ashby & Geddes attorneys as “Leading Individuals” in their respective areas of practice: Steven J. Balick (Intellectual Property), William P. Bowden (Bankruptcy/Restructuring), John G. Day (Intellectual Property), and Stephen E. Jenkins (Chancery).  In addition, the firm was ranked for excellence in three of its practice areas: Bankruptcy/Restructuring, Chancery, and Intellectual Property.

Ashby & Geddes’ Bankruptcy/Restructuring practice is “[c]ommended for its debtor and creditor expertise,” while head of the group, Bill Bowden, is praised for his “intrinsic knowledge of how to deal effectively with a situation.”

The firm’s Chancery practice shows an “[i]mpressive breadth and depth of expertise in corporate litigation,” according to Chambers, and the group’s “responsiveness is outstanding.”

Chambers describes Ashby & Geddes as a “[r]espected litigation boutique” for its Intellectual Property practice, with its lawyers being “routinely used as Delaware counsel in high-profile disputes.”  Steve Balick is described as a “phenomenal attorney,” and John Day is noted as going “above and beyond to get the job done and protect his clients’ interests.”

Chambers and Partners assesses business lawyers across the country using independent researchers to conduct in-depth interviews with clients and lawyers.  Individual lawyers and firm practice areas are ranked on the basis of legal knowledge, experience, ability, effectiveness, and client-service.  For more information about Chambers and Partners, click here.

• ATP Tour, Inc. v. Deutscher Tennis Bund (German Tennis Federation), No. 534, 2013 (Del. May 8, 2014).pdf

Ashby & Geddes has been named to U.S. News – Best Lawyers “Best Law Firms” 2014 Edition in six practice areas including two in Tier 1, Commercial Litigation and Corporate Law, and four in Tier 2, Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law, Litigation – Mergers & Acquisitions, Litigation – Patent, and Litigation – Securities. The rankings can be found here.

The Bankruptcy and Insolvency practice of Ashby & Geddes, P.A. is proud to announce the creation and launch of the Delaware Bankruptcy Insider, a premier blog designed to bring readers a comprehensive summary of the latest Delaware corporate bankruptcy news and rulings.  The blog can be found here.

Ashby & Geddes’ Bankruptcy and Insolvency Practice – Ashby’s bankruptcy and insolvency lawyers have been on the forefront of many of the country’s largest and most complex reorganization cases since 1991.  Its lawyers take great pride in, and are highly praised for, their responsiveness, substantive knowledge of bankruptcy law, and familiarity with Delaware’s Bankruptcy Court and local practice.  The group regularly represents debtors, creditors’ committees, and equity committees as well as key creditor constituencies and parties in interest, such as secured lenders, bondholders, trade creditors, landlords and lessors, preference and fraudulent transfer defendants, examiners, acquirers of distressed assets, foreign representatives, and liquidation trusts and trustees.

Ashby & Geddes, along with co-counsel Rogers & Hardin LLP, obtained a key victory reinforcing the advancement rights of individuals serving as officials of Delaware alternative entities.  Karl Fillip, a former CEO and Manager of Centerstone Linen Services, LLC (“Centerstone”), brought an action in the Delaware Court of Chancery seeking advancement of expenses he incurred in connection with counterclaims and defenses Centerstone asserted against Mr. Fillip in an underlying lawsuit brought in Georgia.  The Court held that the relevant provision in Centerstone’s operating agreement granted Mr. Fillip a mandatory right to advancement of attorneys’ fees and expenses incurred by reason of his positions in the company, even though the provision did not contain the word “advancement” or a variant thereof.  The Court’s decision can be found here.

In the same action, Ashby & Geddes and Rogers & Hardin LLP also obtained two favorable decisions from a Master in Chancery.  Notwithstanding Centerstone’s serial amendments to its counterclaims in the Georgia action, the Master found that certain of the counterclaims were brought by reason of Mr. Fillip’s status as CEO.  Accordingly, in two final reports, the Master upheld Mr. Fillip’s right to advancement of fees and expenses that were incurred in resisting those claims.  The Master also concluded that Centerstone’s operating agreement mandated advancement of fees and expenses Mr. Fillip incurred in resisting affirmative defenses of Centerstone that were asserted by reason of Mr. Fillip’s status as CEO.  The Master’s reports can be found here and here.

Ashby & Geddes attorneys from the Corporate Litigation and Counseling practice group, Stephen E. Jenkins and Marie M. Degnan, along with Phillip S. McKinney from Rogers & Hardin LLP, represented Karl Fillip in this action.

Ashby & Geddes is proud to serve as co-counsel with Cooley LLP to Immunology Partners Inc. (formerly, Cylex Inc.), a life sciences company that entered its chapter 11 proceeding in December 2012 following a liquidity crisis stemming from a government investigation triggered by a False Claims Act qui tam complaint.  On January 23, 2013, the United States Bankruptcy Court for the District of Delaware approved a sale of substantially all of the debtor’s assets to Viracor-IBT Laboratories for more than $8.425 million over the approved stalking horse bid.  On September 24, 2013, the Court confirmed the debtor’s small business liquidating plan, which became effective the following day.  The Ashby & Geddes team representing the debtor as Delaware counsel consists of Bill Bowden, Karen Skomorucha Owens, and Stacy Newman.

On July 25, 2013, the United States Bankruptcy Court for the District of Delaware confirmed Handy Hardware Wholesale, Inc.’s Modified Second Amended Plan of Reorganization, which was supported by each of the company’s primary secured lenders as well as both the Official Committee of Unsecured Creditors and Official Committee of Equity Security Holders.  The Plan is premised upon the sale of substantially all the assets of Handy Hardware to an affiliate of Littlejohn Management Holdings, LLC for approximately $30 million in total consideration.  On August 5, 2013, the sale to Littlejohn closed and the Plan became effective.

A team of Ashby & Geddes’ bankruptcy attorneys, including Bill Bowden, Greg Taylor, Amanda Herrmann, Ben Keenan and Stacy Newman, served as lead bankruptcy counsel to Handy Hardware.

On December 13, 2012, the United States Bankruptcy Court for the District of Delaware confirmed the chapter 11 plan of reorganization of JER/Jameson Mezz Borrower I LLC and its affiliated entities.  The Jameson entities, owners and operators of 103 hotels located throughout the southern United States, entered bankruptcy following their inability to service their mezzanine debt obligations.  Following confirmation of their plan of reorganization, the entities were able to emerge from their proceedings following the successful hotel rebranding and franchising, selection of a new property management agent, and negotiation of forbearance with their senior lender.

The Ashby & Geddes team representing JER/Jameson Mezz Borrower I LLC and its affiliated entities as lead bankruptcy counsel consisted of Bill Bowden, Ricardo Palacio, Karen Skomorucha, and Leigh-Anne Raport.

Steve Jenkins (Chancery), Steve Balick and John Day (Intellectual Property) and Bill Bowden (Bankruptcy/Restructuring) were identified as Leading Individuals in their areas of practice in the 2012 edition of Chambers USA: America’s Leading Lawyers for Business.

On February 24, 2012, the United States Bankruptcy Court for the District of Delaware confirmed the Seventh Amended Plan of Reorganization of Washington Mutual, Inc. (the “Seventh Amended Plan”).  A copy of the Bankruptcy Court’s confirmation order can be found here and the Bankruptcy Court’s ruling confirming the Seventh Amended Plan can be found here.

Previously, by order dated September 13, 2011, the Bankruptcy Court sustained the objections of the Official Committee of Equity Security Holders (the “Equity Committee”) on key issues including the value of the reorganized debtor and the proper rate of postpetition interest to be applied to creditors’ claims.  In addition, the Bankruptcy Court granted the Equity Committee standing to pursue a complaint seeking equitable disallowance of claims held by certain creditors who participated in the formation of the proposed plan.

The Seventh Amended Plan incorporates a settlement of the Equity Committee’s objections to confirmation as well as the claims for equitable disallowance.  The settlement provides, among other things, that current WMI equity holders will receive 95% of the equity in the reorganized debtor; senior creditor classes will contribute $75 million of cash to the reorganized debtor; and certain senior creditors will provide the reorganized debtor with $125 million in financing on terms favorable to the reorganized debtor.  In addition, the reorganized debtor will have the benefit of a net operating loss of over $5 billion.  Current WMI equity holders also received the right to appoint (i) a majority of the members of the reorganized debtor’s board of directors, (ii) several members to the Trust Advisory Board, which will oversee the liquidation of the Debtors’ remaining assets, and (iii) a majority of the members to the Litigation Subcommittee, which will oversee the prosecution of litigation claims.

A team of Ashby & Geddes’ bankruptcy attorneys, including Bill Bowden, Greg Taylor, Ben Keenan and Stacy Newman, serve as bankruptcy counsel to the Equity Committee.

On December 12, 2011, after almost three years in bankruptcy, Broadstripe, LLC and certain affiliates obtained confirmation of their chapter 11 plan.  The plan allows the regional cable company to sell substantially all of its assets and resolves the numerous contested matters that contributed to the Company’s extended tenure in chapter 11.

A team of Ashby & Geddes attorneys including Don Beskrone and Amanda Winfree served as Delaware counsel to the Debtors.

On November 2, 2011, Don A. Beskrone, Esq., the Court-appointed examiner in the chapter 11 proceeding of Anderson News, LLC, and Ashby & Geddes, P.A., Mr. Beskrone’s legal advisors, were discharged by the United States Bankruptcy Court for the District of Delaware following the completion of Mr. Beskrone’s investigation and submission of the Report of Don A. Beskrone, Esq., Examiner (the “Report”).

On May 4, 2010, the Court approved the Office of the United States Trustee’s appointment of Mr. Beskrone as Examiner and tasked him and his professionals with examining the merits of any and all claims and causes of action held by the estate of Anderson News, LLC against its insiders and affiliates.  Broad in scope, the examination included potential claims and causes of action under sections 510, 544, 547, 548, 549, and 550, as well as the potential for the recharacterization of secured claims asserted by insiders of Anderson News, LLC.  Likewise, potential claims and causes of action arising under state law, including, but not limited to, those premised on fraudulent transfer theories (actual and constructive) and breaches of fiduciary duties, were investigated.  Critical to, and underlying, the conclusions reached by Mr. Beskrone was an insolvency analysis of Anderson News, LLC performed at several points in time.

Mr. Beskrone’s Report, totaling 611 pages, was filed under seal on May 12, 2011.  The Court later allowed a fully unredacted version to be filed, a copy of which may be found here.  As set forth more fully in the Report, Mr. Beskrone and his advisors identified at least $76 million of transfers and transactions subject to potential challenge as preferential or constructively fraudulent under state and federal law.  No claims or causes of action for breaches of fiduciary duties were identified, nor was the need for recharacterization.

Mr. Beskrone’s legal investigatory team from Ashby & Geddes was comprised of Ricardo Palacio, Richard L. Renck, Catherine A. Gaul, Andrew D. Cordo, Benjamin Wilson Keenan, Karen B. Skomorucha, and F. Troupe Mickler IV.  In addition to Ashby & Geddes, Mr. Beskrone was advised by a team from FTI Consulting, Inc., led by Christopher R. LeWand.

On September 13, 2011, the United States Bankruptcy Court for the District of Delaware denied confirmation of the amended proposed plan of reorganization of Washington Mutual, Inc.  The Bankruptcy Court sustained the objections of the Official Committee of Equity Security Holders (the “Equity Committee”) on key issues including the value of the reorganized debtor and the proper rate of postpetition interest to be applied to creditors’ claims.  In addition, the Bankruptcy Court granted the Equity Committee standing to pursue a complaint seeking equitable disallowance of claims held by certain institutions who participated in the formation of the proposed plan.  A copy of the Bankruptcy Court’s opinion can be found here.

A team of Ashby & Geddes’ bankruptcy attorneys, including Bill Bowden, Greg Taylor, Ben Keenan and Stacy Newman, serve as Delaware bankruptcy counsel to the Equity Committee.

On December, 20, 2010, the Court of Chancery ruled in favor of Decker Energy-Cadillac, Inc., the former owner of a 38-megawatt biomass-fueled power plant in Cadillac, Michigan, in a contract dispute with the purchaser of its interest in the plant.  Decker initiated the action in September 2009, seeking a judicial resolution, specific performance and damages as a result of a breach of the purchase agreement entered into with the defendants, pursuant to which Decker was entitled to a portion of certain variable energy payments received by the plant from Consumers Energy Company, the local utility.

During argument on the parties’ cross-motions for summary judgment, the court ruled from the bench, awarding Decker past amounts due under the contract, plus interest, and granting Decker an entitlement to a stream of future payments in accordance with the terms of the purchase agreement.  Decker was also awarded its attorneys’ fees and expenses incurred in pursuing the action.

A team of Ashby & Geddes attorneys from the Commercial Litigation and Counseling practice group, including Philip Trainer, Jr. and Toni-Ann Platia, represented Decker in this action.

On November 23, 2010, A&G in conjunction with lead counsel Ropes & Gray successfully defended 5i Sciences, Inc., a medical devices company that is developing a proprietary device for the treatment of sleep apnea, against an improper demand made by a director pursuant to Section 220 of the Delaware General Corporation Law to obtain a significant portion of 5i Sciences books and records.  The director is the board designee of a noteholder that had recently made an offer to purchase the company.  After a one day trial, the Delaware Court of Chancery ruled from the bench that the director was not seeking the books and records for his use as a director, but rather for the benefit of the noteholder and thus he had an improper purpose for his demand.  The case, Gunther v. 5i Sciences, Inc., stands as one of the few instances in which the Court of Chancery has refused to compel a company to produce books and records to a director.

A team of Ashby & Geddes attorneys from the Corporate Litigation and Counseling practice group, including Stephen E. Jenkins and Catherine A. Gaul, represented the defendant corporation in conjunction with a team led by Thad Davis, Eva Ciko Carman and Sarah Zenewicz of the San Francisco and New York offices of Ropes & Gray.  The transcript of the bench ruling by Chancellor William B. Chandler III can be accessed here.

Ashby & Geddes has won one of the largest medical malpractice verdicts in Delaware history.  On November 18, 2010, a unanimous jury in the Delaware Superior Court returned a $15 million verdict in favor of Ashby & Geddes’ client, who sustained a permanent injury to her spinal accessory nerve after a biopsy procedure.  Ashby & Geddes has now moved for an additional award of $6.5 million in prejudgment interest, which is now pending before the Superior Court.  Randall E. Robbins, who leads Ashby & Geddes’ Medical Negligence, Automobile Accident, and Product Liability groups was the sole trial lawyer on the case.  The seven-day trial featured state-of-the-art technology in both demonstrative evidence and closing arguments.  Other Ashby & Geddes litigators are assisting Randall in dealing with the defendants’ post-trial motions.

Ashby & Geddes, along with lead counsel SNR Denton, successfully defended various directors and certain direct and indirect stockholders of WestPoint International, Inc. (“International”) against allegations of breach of fiduciary duty, aiding and abetting, breach of contract and unjust enrichment in connection with events arising out of the acquisition by International of the assets of WestPoint Stevens, Inc. in a sale pursuant to Section 363(m) of the Bankruptcy Code.  Plaintiffs had been competing bidders in the sale.

Plaintiffs’ latest Complaint raised numerous allegations against the defendants.  Ashby & Geddes & SNR Denton moved to dismiss the Complaint as failing to state a cause of action.  Chancellor Chandler of the Delaware Court of Chancery held in defendants’ favor and dismissed the Complaint in a November 3, 2010 bench ruling.

A team of Ashby & Geddes attorneys from the Corporate Litigation and Counseling practice group, including Stephen E. Jenkins and Richard D. Heins, represented the director/stockholder defendants working closely with a team led by Peter Wolfson and including Richard Zuckerman (the primary drafter of the brief) and Jo Christine Reed of the New York office of SNR Denton.  International was represented by Cozen O’Connor.  The case is captioned Contrarian Funds, L.L.C., et al. v. WestPoint International, Inc., et al., Del. Ch., C.A. No. 2617-CC.  The transcript of Chancellor Chandler’s bench ruling is attached hereto.

Ashby & Geddes recently represented M&G Polymers USA, LLC (“M&G”) in its successful jury trial against defendant Carestream Health, Inc. (“Carestream”).  The case was a complex breach of contract action centering on the terms of a supply agreement and on M&G’s contention that Carestream had not acted in good faith with regard to that agreement.  Following nearly three weeks of testimony, the jury returned a $15.5 million verdict in M&G’s favor.

As detailed by the Court’s 191-page opinion denying Carestream’s new trial motion and granting M&G’s motion for attorneys’ fees and expenses, it was learned in the closing days of trial that Carestream had failed to produce or assert privilege over certain key documents which bore upon the credibility of its witnesses and the defenses it had been asserting throughout the litigation.  The Court ordered those documents to be turned over immediately, finding that M&G had been prejudiced by their non-production and that Carestream had waived any claim of privilege which otherwise might have applied if timely asserted.  Carestream challenged that order and several earlier rulings, including a summary judgment decision regarding a UCC-based lost profits claim.

Following a comprehensive review of the bases for the challenged rulings, the Court’s post-trial opinion upheld the jury’s verdict and concluded that M&G was entitled to an additional award of $850,000.00 for legal fees stemming from Carestream’s litigation conduct.  The Court applied Rule 16(f), Rule 37(b)(2) and the bad faith exception to the American Rule in support of the fee award, noting that Carestream’s claimed defenses were belied by the same key documents that were not provided to M&G until the end of the trial.

Steven T. Margolin and Andrew D. Cordo, members of our Commercial Litigation and Counseling group, represented M&G throughout the litigation and were part of the trial team led by co-counsel from Hogan & Hartson LLP.  The case is captioned M&G Polymers USA, LLC v. Carestream Health, Inc.,C.A. No. 07C-11-242-PLA.  [Opinion]

In an en banc decision, the Delaware Supreme Court reversed, in pertinent part, the post-trial decision by the Court of Chancery in favor of plaintiffs-insurgents regarding competing written consent actions.

Plaintiffs-below sought to take control of the company’s seven-person board by removing three directors and electing a replacement slate.  Defendants-below, including the holder of the Company’s preferred stock, who was Ashby & Geddes’ client, challenged the validity of the consents because, on the eve of the expiration of the plaintiffs’ consent solicitation, one of the plaintiffs bought a dispositive block of shares that were restricted by an agreement with the Company prohibiting any transfer.  The Court below held, and the Supreme Court affirmed, that this was not unlawful vote buying. The Supreme Court reversed, however, on the grounds that the purchase of the restricted shares violated the anti-transfer agreement and therefore the shares could not be voted.  Accordingly, plaintiffs’ consent failed because they did not obtain a majority vote.

A question also arose below about the validity of plaintiffs’ consent because they failed to obtain an omnibus proxy from the record holder (CEDE & Co.) in connection with the votes they obtained from the banks and brokers who had proxies for the beneficial holders.  The Court below held, and the Supreme Court affirmed, that the vote of the record holder is required to act by written consent.  The Court below went on to hold that the banks and brokers were also record holders and therefore the lack of an omnibus proxy was not fatal.  While finding it unnecessary to reach this issue, the Supreme Court declared that this holding of the Court below was obiter dictum and should not be followed given that the Court below redefined stock ledger in a way that should be left to the legislature.

A team of Ashby & Geddes attorneys from the Corporate Litigation and Counseling practice group, including Stephen E. Jenkins, Catherine A. Gaul and Andrew D. Cordo, represented the defendant preferred stockholder.  They worked in close conjunction with co-counsel, Steven Talley of the Denver office of Gibson, Dunn & Crutcher, who originated the legal theory that won on appeal.  You may read a copy of the Delaware Supreme Court’s opinion, Crown EMAK Partners, LLC v. Kurz, 992 A.2d 377 (Del. 2010), here.

Ashby & Geddes serves as counsel to Nanogen, Inc. and affiliates (the “Debtors”) in their bankruptcy cases pending in the United States Bankruptcy Court for the District of Delaware.  In connection with that representation, Ashby & Geddes advised and assisted the Debtors in obtaining the Bankruptcy Court’s approval of the sale of substantially all of the Debtors’ assets as a going concern under section 363 of the Bankruptcy Code.  The Ashby & Geddes team representing the debtors consists of Bill Bowden, Ricardo Palacio, Karen Skomorucha and Stacy Newman.  The case is captioned In re: Nanogen, Inc., et al., Case No. 09-11696 (KJC).

Ashby & Geddes represents the Monitor of SkyPower in commencing a proceeding under Chapter 15 of the Bankruptcy Code on behalf of SkyPower.  The Ashby & Geddes team on this engagement consists of Gregory Taylor, Karen Skomorucha, and Leigh-Anne Raport.

Ashby & Geddes represents Nanogen, Inc. and affiliates in going concern sale of the companies’ businesses under Section 363 of the Bankruptcy Code.

Ashby & Geddes recently was appointed, pro bono, by the Delaware Supreme Court to argue the negative position against Governor Markell’s request for an opinion of the Justices on the constitutionality of the Governor’s proposed sports lottery.  The Delaware Constitution bans gambling except for State-run lotteries, which must be games predominated by chance.  At the heart of the issue then was whether the Governor’s proposed sports lottery, which included single-game betting, involved games predominated by chance.  After briefing and oral argument, the Court determined that bets involving the outcome of multiple elements or games are lotteries, but declined to opine on whether single game betting would be predominated by chance as required by the Delaware Constitution.

A team of Ashby & Geddes attorneys, including Lawrence C. Ashby, Richard D. Heins, Catherine A. Gaul and Toni-Ann Platia, worked on the matter.  You may view a copy of the Supreme Court’s opinion here.

Ashby & Geddes recently obtained a reversal in the United States Court of Appeals for the Third Circuit of an $11 million judgment entered on summary judgment by the United States District Court for the District of Delaware against The Shaw Group Inc., a premier provider of engineering, design, construction, and maintenance services to government and private-sector clients.

In 2000, Shaw purchased substantially all of the assets of Stone & Webster, Inc. and its subsidiaries through an auction sale in bankruptcy.  Saudi American Bank subsequently brought litigation against Shaw contending that it had assumed certain liabilities under the asset purchase agreement.  Both parties moved for summary judgment and in May 2005, the District Court ruled in favor of Saudi American Bank and entered judgment against Shaw.  On appeal, however, the Third Circuit agreed with Shaw and reversed the entry of summary judgment holding that the liabilities at issue were clearly excluded liabilities under the agreement.

A team of Ashby & Geddes attorneys from the firm’s Bankruptcy and Corporate Litigation practice groups, including Stephen E. Jenkins, Gregory A. Taylor and Catherine A. Gaul, has been representing Shaw in the litigation with Saudi American Bank.  You may view a copy of the Court’s opinion here.

Ashby & Geddes recently obtained a preliminary injunction in the Court of Chancery for its clients, TowerHill Wealth Management, LLC and three hedge funds it manages, prohibiting a former investor from pursuing binding arbitration of disputes over the investor’s redemption of membership interests in the hedge funds.  In an August 22, 2008 bench ruling, Vice Chancellor Leo E. Strine, Jr. held that the defendant, The Bander Family Limited Partnership, LP, had improperly commenced binding arbitration against TowerHill in contravention of the operating agreements governing the three hedge funds.  In an October 9, 2008 letter opinion, Vice Chancellor Strine denied the defendant’s application for certification of interlocutory appeal and motion for a stay pending appeal.  A team of Ashby & Geddes attorneys from the firm’s Corporate Litigation and Counseling practice group, including Stephen E. Jenkins, Richard I. G. Jones, Jr. and Lauren E. Maguire, is representing TowerHill and the hedge funds in the on-going litigation, captioned TowerHill Wealth Management, LLC. v. The Bander Family Limited Partnership, L.P., C.A. No. 3830-VCS.  You may view a transcript of the Court’s bench ruling here and a copy of the letter opinion here.

Ashby & Geddes is pleased to announce the addition of three new associates:  Stacy Newman, Caroline Hong and Peter Faben.

Larry Ashby, a senior member of the firm’s Corporate Litigation and Counseling group, has been included in the 2009 edition of Best Lawyers in America in the specialties of Bet-the-Company Litigation, Commercial Litigation, and Corporate.  According to Best Lawyers, selections are based on an exhaustive and rigorous peer-review survey comprising more than 2.5 million confidential evaluations by the top attorneys in the country.

Ashby & Geddes recently obtained a $2.8 million damage award on behalf of OCI Wyoming, L.P., a miner and producer of trona ash, against PacifiCorp, a provider of electrical power for much of the Northwest United States.  OCI claimed that a series of debilitating power outages from 2001-2003 breached a Master Electric Services Agreement between the parties, resulting in plant and mine shutdowns.  Following a two-week trial before an advisory jury in the United States District Court for the District of Wyoming and an appeal and remand by the Tenth Circuit Court of Appeals (479 F.3d 1199), the trial court entered judgment in OCI’s favor in the amount of $2.8 million.  A team of Ashby & Geddes attorneys from the Public Utility Law and Commercial Litigation and Counseling groups, including James McC. Geddes, Philip Trainer, Jr., Richard L. Renck, Benjamin W. Keenan and Andrew D. Cordo, acted as trial and appellate counsel for OCI.  This case is captioned OCI Wyoming, L.P. v. PacifiCorp, C. No. 03-CV-259-B (D. WY.)

Ashby & Geddes serves as co-counsel to CFM U.S. Corporation and CFM Majestic U.S. Holdings, Inc. (the “Debtors”)  in their bankruptcy cases pending in the United States Bankruptcy Court for the District of Delaware.  In connection with that representation, Ashby & Geddes advised and assisted the Debtors in obtaining the Bankruptcy Court’s approval of the sale of substantially all of the Debtors’ assets to Monessen Hearth Systems Company and Vermont Castings Holding Company for approximately $42.5 million.  The Ashby & Geddes team representing the debtors consists of William Bowden, Gregory Taylor, Amanda Winfree and Karen Skomorucha.  The case is captioned In re: CFM U.S. Corporation, et al., Case No. 08-10668 (KJC).

Ashby & Geddes recently acted as Delaware counsel in the successful defense of the Association of Tennis Professionals (“ATP”) Tour and its directors in an action in the United States District Court for the District of Delaware in which the Deutscher Tennis Bund and the Qatar Tennis Federation alleged antitrust violations and breaches of fiduciary duty.  Following an eleven-day jury trial, the Court dismissed the claims against the individual directors and the jury subsequently returned a verdict in ATP’s favor, finding that the plaintiffs had failed to establish a relevant market.  A team of Ashby & Geddes attorneys from the Corporate Litigation and Counseling practice group, including Philip Trainer,  Jr., Carolyn Hake, Tiffany Lydon and Toni-Ann Platia, represented the ATP and its directors in this action.  The case is captioned Deutscher Tennis Bund, et al. v. ATP Tour, Inc., et al., C.A. No. 07-178-GMS.

On May 19, 2008, A&G successfully obtained a bench ruling  from  the Delaware Court of Chancery in favor of entities  associated with Icahn Enterprises against Biogen Idec, Inc. in an action brought pursuant to Section 220 of the Delaware General Corporation Law to obtain certain of Biogen’s books and records relating to a failed effort to sell Biogen in 2007.  The Court’s bench ruling and its Order, entered on May 29, 2008, compelled Biogen to produce the sought-after books and records, which included certain reports, bid-procedure letters and minutes of some of the Company’s board of directors meetings.   The Court allowed the Icahn entities to use  these books and records  in an ongoing proxy battle with Biogen management to support their position that management had constructed a flawed sale process and had misrepresented the details of that sale process to its shareholders.  The case, High River Limited Partnership, et. al v. Biogen Idec, Inc., now stands as one of the few instances in which the Court of Chancery has compelled a company to produce books and records to a stockholder engaged in an active proxy contest against management.   A team of Ashby & Geddes attorneys from the Corporate Litigation and Counseling practice group, including Stephen E. Jenkins, Richard I. G. Jones, Jr., Andrew D. Cordo and Tiffany Guyer Lydon, represented the plaintiff investment funds.  You may read the transcript of the Court’s bench ruling here.

The Delaware Supreme Court Issues Key Opinion on Shareholder Standing to Challenge Stock Options

On May 30, 2008, the Delaware Supreme Court issued its opinion in the case of Feldman v. Cutaia, and provided further guidance on the nature of direct and derivative stockholder claims.  The decision is certain to play a key role in the continued development of Delaware corporate jurisprudence on shareholder litigation.

In Feldman, the plaintiff initially raised several derivative claims alleging that stock options issued by The Telx Group, Inc. to certain defendants (represented by Ashby & Geddes) were invalid.  Following a cash-out merger with an unrelated third-party, which extinguished his standing to maintain those derivative claims, the plaintiff amended his complaint.  The plaintiff purported to add a direct claim challenging the merger on the grounds that the company had not reconsidered the validity of the challenged options before approving a merger transaction in which the holders of the options would participate in the distribution of the merger proceeds.  The defendants moved to dismiss, and the Court of Chancery granted the motion finding, among other things, that the plaintiff lacked standing as plaintiff’s asserted claims were derivative rather than direct.  On appeal, the Supreme Court, relying on settled authority, affirmed the Court of Chancery and concluded that the plaintiff’s challenges to the merger were, in fact, derivative in nature and, therefore, had been properly dismissed by the Court of Chancery for want of standing.  In so doing, the Court further clarified the distinction between direct and derivative shareholder claims under Delaware law.

This opinion is significant for its discussion of the standard by which shareholder claims are characterized as derivative or direct.  That threshold determination is critical as it will often dictate whether a plaintiff may maintain a cause of action following a merger.  A team of Ashby & Geddes attorneys from the Corporate Litigation and Counseling practice group, including Stephen E. Jenkins, Richard L. Renck and Andrew D. Cordo, represented defendants Rory J. Cutaia, Jonathan Lawrence and J. Todd Raymond in this action.  The case is Feldman v. Cutaia, No. 466, 2007 ( Del. May 30, 2008) (read the opinion here).

Ashby & Geddes’ Directors Steve Jenkins and Bill Bowden were named as Delaware Super Lawyers for 2008 after being included in the first such ranking of Delaware Lawyers last year by the publishers of Law & Politics.  Steve is a member of the firm’s Corporate Litigation and Counseling group, and Bill heads up the firm’s Bankruptcy and Insolvency practice.  Larry Ashby, a senior member of the firm’s Corporate Litigation and Counseling group, also repeated as a Delaware Super Lawyer.

Super Lawyers, published by Key Professional Media, Inc., identifies the top 5 percent of attorneys in each state, as chosen by their peers and through the independent research of Law & Politics magazine.  Similar rankings have been published in other States.

American LaFrance, LLC, founded in 1832 and one of the oldest fire and rescue vehicle manufacturers in the U.S., obtained confirmation of its chapter 11 plan on May 23, 2008 in the U.S. Bankruptcy Court for the District of Delaware. Ashby & Geddes served as Delaware counsel to the plan’s equity sponsor, as well as the agent to the senior prepetition, postpetition and exit financing lenders. The heavily negotiated plan was confirmed in fewer than 17 weeks after the petition date, with almost 90% of creditors voting to accept the plan.

Larry Ashby, a senior member of the firm’s Corporate Litigation and Counseling group, has been listed by Lawdragon Inc. and included on its selective lawyer search and ranking website.  According to the Lawdragon website, “Lawdragon creates its guides to the best lawyers in the United States through a unique combination of online balloting and independent research”.

On January 15, 2008, the Court of Chancery issued an important decision in Portnoy v. Cryo-Cell Int’l., Inc., et al., C.A. No. 3142-VCS, in which Vice Chancellor Strine found that the “Management Slate” (including Cryo-Cell’s CEO and Cryo-Cell’s directors, all of whom were seeking election), breached their fiduciary duties by engaging in inequitable conduct in the course of a hard-fought proxy fight for control of Cryo-Cell.  Specifically, the Court found that:

1.   Cryo-Cell’s CEO, with at least the implied authority of the Cryo-Cell board, promised a dissident stockholder a second seat on the Cryo-Cell board (a seat not subject to election by the stockholders) if the dissident stockholder and his affiliates would, in the days leading up to the meeting, buy additional shares from stockholders that either had not voted or had voted for the insurgent’s slate—all without disclosing this arrangement to the Cryo-Cell stockholders.

2.    Cryo-Cell, through its CEO, engaged in impermissible vote-buying by using corporate assets to coerce a large stockholder (“LS”) to vote for the Management Slate.  Cryo-Cell was a 38% owner of LS, and the two companies were engaged in ongoing business relationships.  When LS would not commit its vote to the Management Slate in the days leading up to the meeting, Cryo-Cell’s CEO was found to have coerced that vote by threatening LS with the loss, or at least a “cooling,” of a strategic relationship, and by inducing it through the lifting of a restrictive legend on the Cryo-Cell shares owned by LS (a request LS had repeatedly made over the course of several years).

3.    Cryo-Cell’s CEO improperly prolonged the Annual Meeting by including unscheduled presentations and the ordering of a nearly three-hour lunch break solely for the purpose of allowing the 11^th-hour completion of certain aspects of the Management Slate’s campaign to entrench themselves.

As a remedy for such conduct, the Court ordered that Cryo-Cell promptly convene a special meeting, presided over by a Court-appointed special master, and hold an election for directors to the Cryo-Cell board.  Moreover, the Court ordered that the costs of holding the special meeting, including the costs of any campaign for re-election, must be borne by the members of the Management Slate.

This decision is significant for its discussion of the standards by which management’s conduct during a contest for election will be judged, and for its relatively rare finding that an incumbent slate had engaged in impermissible vote-buying.  A team of Ashby & Geddes lawyers in the firm’s Corporate Litigation and Counseling practice group (Richard D. Heins, Philip Trainer, Jr., Carolyn S. Hake, Richard L. Renck, and Tiffany G. Lydon) represented Mr. Portnoy in this litigation.  (Read opinion here.)

Richard L. Renck and Carolyn Hake named as Directors

Ashby & Geddes is pleased to announce that Carolyn Hake and Richard L. Renck have been made directors of the firm and that Karen Skomorucha and Toni-Ann Platia have become associates with the firm.

Resolving a long-running dispute about the scope of Delaware appraisal rights, the Court of Chancery ruled in favor of Ashby & Geddes’ clients when concluding that more than 8 million shares of stock held in a nominee’s name and acquired after the record date for a merger were entitled to appraisal without “tracing” the voting directions of prior beneficial owners.  In reaching that conclusion, Chancellor William B. Chandler III agreed that Delaware law imposes no “tracing” requirement on appraisal petitioners acquiring stock after the record date but before the merger.  See In re: Appraisal of Transkaryotic Therapies, Inc., Del. Ch., May 2, 2007 (read opinion here).

Effective January 1, 2007, Steve Jenkins succeeded Larry Ashby as President of the firm.  The change marks the completion of a management team transition that has been in the works for some time and now frees Larry to concentrate more fully on Ashby & Geddes’ corporate practice.

Finding that defendants’ appeal was “without merit,” the Delaware Supreme Court recently affirmed a $25 million judgment in favor of Ashby & Geddes’ clients inATR-Kim Eng Financial Corporation v. Carlos R. Araneta, et al., C.A. No. 489-VCS (Del. Ch. 2006) — marking the first time that a Delaware director has been held liable under the teachings of In re: Caremark International(Del. Ch. 1996). Our clients’ victory also included an award of attorneys’ fees and expenses against the principal defendant, who was found to have controlled the subject corporation and all aspects of the underlying litigation. (READ DECISION HERE ).