DealLawyers.com Blog

Yesterday, the Delaware Supreme Court issued its decision in Wagner v. BRP Group (Del. Sup.; 5/26). As John previously shared, the facts and challenges involved in the case were strikingly similar to those of Moelis, as was Vice Chancellor Laster’s decision at the Chancery Court level. As the Supreme Court points out, its Moelis decision dismissing the claims on procedural grounds was released after briefing on appeal concluded in this case, at which point the Court requested supplemental briefing on the impact of Moelis. 

While the plaintiff conceded that her facial challenges to the stockholders’ agreement were barred after Moelis, she claimed that she had as-applied challenges that should continue. The Delaware Supreme Court disagreed, pointing out that the complaint doesn’t allege that any of the challenged consent rights were ever exercised, and reversed the Chancery Court’s decision for the reasons cited in Moelis (that the challenged provisions are voidable, not void, and subject to equitable defenses, including a laches defense that plaintiff unreasonably delayed asserting her claim).

– Meredith Ervine