The Insular World of the Delaware Judiciary

For anyone focused on Delaware corporate law, the names of the Chancellors at the trial level and the Supreme Court Justices at the appellate level are likely well known. They headline conferences and publish law review articles in top journals. Their opinions are regularly mentioned in the financial press. 

Yet the universe of those knowledgeable about the personalities on the Delaware bench is actually quite small. The lawyers who practice there, the politicians in Delaware who approve them, the occasional blog or periodical that follows them, the academics who follow the decisions all amount to a modest number of people. 

This was apparent from a recent decision by the 9th Circuit. In Rosebloom v. Pyott, No. 12-55516, 8:10-cv-01352-DOC-MLG (9th Cir. Sept. 2, 2014), the panel examined a lower court dismissal of a derivative suit. The court reversed, relying on Delaware state law. In the opinion, the court relied extensively on reasoning provided by one of the Vice Chancellors, Travis Laster. Only the panel was not so familiar with the Vice Chancellor that it was able to correctly identify the jurist. Sometimes he was Vice Chancellor Laster:   


  • In June 2012, in a detailed opinion, Vice Chancellor Laster held in the Delaware case that the plaintiffs had shown demand futility. In his lengthy and thorough analysis of how Delaware law applies to the issue of demand futility, Vice Chancellor Laster expressly criticized and rejected the district court's reasoning. Id. at 357-58. On appeal, however, the Delaware Supreme Court reversed Vice Chancellor Laster solely on the ground that the Delaware plaintiffs were collaterally estopped from pursuing their claims in the Court of Chancery due to the earlier-filed dismissal of the complaint in this case. (citation omitted)

More often, however, he was Vice Chancellor Lasker:

  • Turning to the particularized factual allegations before us, we agree with Vice Chancellor Lasker of the Delaware Court of Chancery, who considered a near-identical complaint, that demand is excused. 
  • We also note that we find persuasive Delaware Vice Chancellor Lasker's explanation in the virtually identical Allergan case in Delaware
  • Applied here, that standard requires reversal. As Vice Chancellor Lasker persuasively explained in his opinion in the Delaware case:
  • Vice Chancellor Lasker's analysis complements the analysis of conscious inaction set forth supra. 
  • [14] Although as we have noted, Vice Chancellor Lasker's decision was vacated by the Delaware Supreme Court on the ground of collateral estoppel, decisions vacated for reasons unrelated to the merits may be considered for the persuasive of their reasoning. 
  • [16]  . . . In these and other ways, the district court abused its discretion. As Vice Chancellor Lasker noted while explaining his disagreement with the district court:
  • [17] Again, we find persuasive Vice Chancellor Lasker's careful analysis of how the district court erred in applying Delaware law: 

This is the type of error that is every law clerk's nightmare. Mistakes can easily creep into personal names or headings for sections of the opinion. Presumably this will be corrected in the final version that appeals in the federal reporter.  

At the same time, however, it demonstrates that, in the federal bench, the Chancellors in Delaware are just one more state court, where the names of the judges are not so well known and, as a result, mistakes like this can occur.  

J Robert Brown Jr.