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Chancery Denies Claim Arising Out of Controller's Announced Intention to Oppose a Transaction Unfavorable to His Interests | Morris James LLP

Controlling shareholders of a Delaware corporation owe fiduciaries duties, but those duties do not require controllers to sacrifice contract rights or to vote altruistically. In the Court of Chancery’s recent decision in
RCS Creditor Trust v. Schorsch et al., the Court affirmed this proposition, holding that where a special committee and its review process were otherwise independent, a controlling shareholder did not breach his fiduciary duties or improperly influence the committee by sharing how he planned to vote in connection with two proposed, competing transactions.
RCS Capital Corporation (“RCS”) was a real estate investment trust servicing company in need of an equity infusion. To help resolve these liquidity problems, a potential transaction involving Apollo Global Management, LLC and AR Capital, LLC, (the “Apollo Transaction”) was presented to RCS’s Board. Because Apollo was affiliated with RCS’s controller, Nicholas Schorsch, a special committee was formed to review the transaction. During the special committee process, an alternative to the Apollo Transaction arose involving Centerbridge Capital Partners III, L.P (the “Centerbridge Proposal”). The Centerbridge Proposal included terms unfavorable to Schorsch, including the loss of his controller status through a surrender of his preferred voting shares. Schorsch informed the special committee that he did not support the Centerbridge Proposal. Ultimately, in part because Schorsch’s continued opposition made the Centerbridge Proposal infeasible, the special committee recommended pursuing the Apollo Transaction.

Delaware , United-states , Nicholas-schorsch , Apollo-global-management , Capital-corporation , Ar-capital , Because-apollo , Apollo-transaction , Centerbridge-capital-partners , Centerbridge-proposal , டெலாவேர் , ஒன்றுபட்டது-மாநிலங்களில்

New York Court Finds Securities Settlements Not Covered by D&O Policies Due to Insured Capacity and Uninsurable Loss Issues | Carlton Fields

A New York trial court
recently granted summary judgment to a group of excess D&O insurers seeking a declaration that their policies do not cover settlements and consent judgments the defendants paid in connection with underlying securities actions. The decision emphasizes the insured capacity limitation in the D&O policy definition of a “wrongful act” and also reinforces that amounts paid as disgorgement are uninsurable as a matter of New York law.
Continental Casualty Co., Argonaut Insurance Co., Freedom Specialty Insurance Co., and QBE Insurance Co. were part of a tower of D&O coverage issued to AR Capital LLC. AR Capital and other defendants — Bellevue Capital Partners, Nicholas Schorsch, Edward Weil, William Kahane, and Peter Budko — sought coverage from the insurers for their share of amounts paid to settle multiple consolidated securities class actions, a derivative litigation, and an SEC enforcement action.

New-york , United-states , Carlton , Peter-budko , William-kahane , Joelm-cohen , Edward-weil , Nicholas-schorsch , Company-it , First-department , Person-of-the-company , Continental-casualty-co