The definition earnings before interest, taxes, depreciation and amortization (“EBITDA”) and adjusted EBITDA have always been important and highly negotiated pieces of credit agreements and M&A transactions. However, with the unprecedented economic impact of the COVID-19 pandemic, these financial measurements take on even greater importance as borrowers seek to maintain financial covenants in their credit

The Delaware Chancery Court in The Anschutz Corporation et. al. v. Brown Robin Capital, LLC[1] ruled against dismissing several of Buyer’s claims in a dispute involving the $106 million acquisition of OnRamp Access, LLC (“Target”) by LightEdge Holdings, LLC (“Buyer”).  Among other claims, Buyer alleged fraud, fraudulent inducement and breach of contract by the

In Skye Mineral Investors LLC v. DXS Capital (U.S.) Limited, et al., the Delaware Court of Chancery (the “Court”) denied defendants’ motion to dismiss, finding that plaintiffs had sufficiently pled a breach by the members holding a minority equity interest (the “Minority Members”) in Skye Mineral Partners, LLC (“SMP”) and the manager who the

Under Delaware law, indirect controllers of a Delaware limited liability company (“LLC”) can owe limited fiduciary duties to the LLC and its members if they exert control over the LLC’s assets, unless those duties are clearly and unambiguously waived by the LLC’s operating agreement.  Accordingly, where management of a Delaware LLC is vested in an

In June 2019, David Dunwoody (“Dunwoody”) left his position as President of EnVen Energy Corporation (“EnVen”) amidst a scandal centering around his alleged involvement in a kickback scheme.  Dunwoody sued EnVen, the oil exploration company that he co-founded in 2014, in Texas state court to demand that EnVen honor the benefits package that Dunwoody was

On June 1, the Delaware Chancery Court (the “Court”) in Morrison v. Berry  allowed an aiding and abetting breach of fiduciary claim to proceed against financial advisor J.P. Morgan Securities, LLC (“JPMorgan”) for its role in the 2016 merger/takeover of grocery store chain The Fresh Market, Inc. (“Fresh Market”) by a group of Apollo entities