The Delaware Court of Chancery (Court of Chancery) has long been regarded as the pre-eminent business court in the nation. From Chancellor W. Watson Harrington's seminal opinion on the duty of loyalty in Loft, Inc v. Guth in 1938 to Chancellor William B. Chandler's recent treatment of stockholders' derivative litigation in In re The Walt Disney Co. Derivative Litigation, the Court of Chancery has been the primary forum for corporate governance litigation in the United States. Indeed, at times the eyes of the country have been riveted on the Court of Chancery — waiting to see whether the court would permit Time Inc.'s merger with Warner Communications, Inc. in 1989 or would block Viacom Inc.'s purchase of Paramount Communications Inc. in 1993.
Despite the national prominence of the Court of Chancery, for over 200 years practitioners in the court had no reference to consult as a practice guide. Rather, the "rules" of practice in the Court of Chancery were largely passed down by word of mouth or by resort to yellowing subject matter files filled with old memos and briefs and unreported decisions, transcripts, and orders.
Fortunately, this situation has been remedied. Court of Chancery practitioners need not roam the halls of their firms or the back corners of their libraries looking for guidance on a peculiar aspect of Court of Chancery practice. They may simply pull the recently published Corporate and Commercial Practice in the Delaware Court of Chancery: Procedures in Equity (Corporate and Commercial Practice) off the shelf. In this one-volume treatise, Donald J. Wolfe, Jr. and Michael A. Pittenger of the prominent Delaware law firm of Potter Anderson & Corroon LLP have culled through decades of judicial opinions and other sources to provide the legal community with its first practice guide geared specifically toward the Court of Chancery. With the publication of this work, Wolfe and Pittenger have filled a void which has existed in Delaware practice and have established themselves as the "Wright and Miller" of the Court of Chancery.
Wolfe and Pittenger have not attempted to discuss exhaustively substantive Delaware corporate law. Indeed, the preface of their book acknowledges that several other treatises have already covered this ground. They also have not attempted to explain the Rules of the court of Chancery, which substantially track the Federal Rules of Civil Procedure. Rather, they "have opted to concentrate [their] exploration on those aspects of litigation practice that are peculiar to this special tribunal."
Wolfe and Pittenger have certainly risen to the challenge inherent in such an undertaking. In under 900 pages, they have managed to discuss aspects of Court of Chancery practice ranging from service of process of a complaint to appeals to the Delaware Supreme Court, and all the issues in between. Specifically, in their fourteen-chapter work, Wolfe and Pittenger devote attention to the following topics: (i) an overview of the court of Chancery; (ii) the subject matter jurisdiction of the Court of Chancery; (iii) service of process and personal jurisdiction;(iv) motion practice and briefing;(v) litigation in multiple jurisdictions;(vi) depositions and discovery practice;(vii) privileges and immunities;(viii) special proceedings in the Court of Chancery; (ix) derivative and class action litigation; (x) interlocutory injunction proceedings;(xi) equitable defenses;(xii) equitable remedies; (xiii) costs and attorneys' fees; and (xiv) appeals and certification of questions of law to the Delaware Supreme Court. What is remarkable about Wolfe and Pittenger's treatise (aside from its thorough, scholarly, and practical treatment of these issues) is its selection of topics. The reaction from those who have consulted this treatise has been universal: "I'm glad someone finally wrote about that." Indeed, any Court of Chancery practitioner who reviews even the table of contents is bound to discover a topic which he or she has often wished was discussed in a comprehensive manner in a secondary source. Wolfe and Pittenger have finally granted our wishes.
For example, the question of subject matter jurisdiction in most state trial courts is an easy one because they are courts of general jurisdiction. Delaware's complete separation of law and equity gives rise to unique questions, however, regarding the court of Chancery's subject matter jurisdiction. In describing the court's equitable jurisdiction, Wolfe and Pittenger do not simply survey the case law. Rather, they start at the beginning, tracing the roots of equity in Great Britain, the foundations of equity in colonial Delaware, the adoption of Delaware's four constitutions, and the statutory and common law which have evolved over the past two centuries. After reading Wolfe and Pittenger's treatment of equitable jurisdiction, one has the sense not only of the "rules" of equitable jurisdiction but also the theory and history behind them. The historical perspective provided by Wolfe and Pittenger is essential to a complete understanding of this unique court of equity.
When it comes to personal jurisdiction, every lawyer can recite the minimum contacts standard ofInternational Shoe Co. v. Washington learned in his or her first-year civil procedure class. In the fifty years since International Shoe, however, the practical application of the minimum contacts standard has generated opinions and articles which could fill an entire wing of a library. Traditionally, when faced with issues of personal jurisdiction, Court of Chancery practitioners had to rely on treatises discussing federal law and widely scattered Delaware statutes and opinions on the subject. Wolfe and Pittenger have sorted through these extensive materials and given us an excellent starting point for any consideration of personal jurisdiction in the Court of Chancery. In less than 100 pages, Wolfe and Pittenger discuss the many statutes regarding personal jurisdiction which are found not only in the Delaware General Corporation Law, but also in the Delaware Revised Uniform Limited Partnership Act, the Delaware Limited Liability Company Act, and other titles of the Delaware Code.
Perhaps the most useful part of their chapter on personal jurisdiction, however, is their discussion of the "fringe" theories of personal jurisdiction which have developed over the years, such as the conspiracy theory, the alter-ego theory, and the agency theory, and issues which are largely confined to Delaware, such as personal jurisdiction based upon the creation, ownership, and operation of a Delaware subsidiary. As is true of their entire treatise, Wolfe and Pittenger provide a multi-level analysis of these theories of personal jurisdiction. Of course, they start with the case law, discussing not only the holdings of the cases, but also the facts upon which those holdings are based. They do not stop there, however; they also provide their interpretations of the cases and explain how the rulings fit into the prior jurisprudence. Finally, they predict how the law may develop in the future. In short, the reader views a motion picture rather than a mere snapshot.
In addition to substantive legal concepts such as jurisdiction, the treatise provides wonderful map for navigating a case through the Court of Chancery. Wolfe and Pittenger's discussion of service of process, motion practice, and briefing is the only discussion of its kind designed especially for practice in the Court of Chancery. They provide comprehensive discussions of issues that practitioners face in discovery every day but which have never been collected in one resource — issues such as where depositions may take place, whether documents used during deposition preparation a rediscoverable, and what constitutes "coaching" a witness during adeposition. Their work also contains a thorough discussion of the attorney-client privilege and the enigmatic "business strategies" privilege. Wolfe and Pittenger even provide guidance on the mundane yet important task of properly preparing a privilege log.
Finally, Wolfe and Pittenger bring together in two chapters concepts which may arise in any action brought in the Court of Chancery: equitable defenses and equitable remedies. When asked to consider and explain the differences between estoppel (equitable, promissory, or judicial), waiver, and acquiescence, Court of Chancery practitioners may now quickly consult the treatise for a concise yet insightful answer. Moreover, Wolfe and Pittenger's discussion of equitable remedies ranging from the ubiquitous injunction to the obscurequia timet, should be required reading for anyone drafting a complaint in the Court of Chancery.
Corporate and Commercial Practice is a welcome addition to the existing treatises devoted to issues of Delaware law. Indeed, every lawyer with a case in the Court of Chancery — whether a first-year associate, a non-Delaware lawyer, or a senior member of the Delaware corporate bar - should frequently consult this valuable tool. Wolfe and Pittenger have finally given us the Court of Chancery practice guide which has been missing for more than 200 years. It was well worth the wait.