delaware law school first assignments

Widener University Delaware Law School

The information on this page was provided by the law school.

Official Guide to ABA-Approved JD Programs

Widener University Delaware Law School is unique among American law schools. Located in Wilmington, Delaware, the nation’s corporate and business capital, Delaware Law School offers flexible schedules in day and evening divisions and extensive opportunities to gain practical experience in clinics, externships, and pro bono placements in Pennsylvania, Delaware, New Jersey, and throughout the region.

The rich curriculum is taught by a faculty committed to personal attention, and all students have abundant opportunities to gain feedback on written and oral work. The full-time faculty is supplemented by a distinguished group of adjuncts, which includes federal bankruptcy judges and numerous state court judges, as well as practicing attorneys from Pennsylvania, New Jersey, and Delaware.

The school is a member of the AALS and is accredited by the ABA.

The JD Program

Delaware Law School offers a flexible Juris Doctor program, pairing in-classroom learning with out-of-classroom experiences, developing practice-ready graduates. The three-year, full-time program, as well as the four-year, part-time program with evening classes, enable students to choose the schedule that best balances their life and work commitments. The JD program requires a minimum of 90 credits of coursework, 12 of which must be experiential in nature. The Delaware Law School curriculum is designed to develop a fundamental understanding of law and the legal process while providing the practical skills necessary to be a professional and competent advocate.

A flexible program also means that students have the opportunity to pursue concentrated study through one of five signature programs gaining specialized training, conducting breakthrough research, participating in advocacy work, and shaping public policy. The Delaware Law School offers concentrated study in Delaware corporate and business law; advocacy, technology and public service; environmental rights; family health law and policy; and dignity rights.

The JD program, coupled with the support of our large alumni network, provides the foundation for our graduates to confidently pursue a wide variety of career paths, achieving success and personal fulfillment along the way.

Special Programs and Opportunities

Delaware Law School is a leader in developing a coordinated lawyering skills program, which includes clinical practice, externships, and pro bono placements.

Clinics are designed to permit students to represent actual clients before courts and administrative boards while under the supervision of the clinic director. Delaware Law School operates the fourth oldest environmental law clinic in the country, a veteran’s law clinic, a Delaware civil clinic focusing on family matters, a Pennsylvania criminal defense clinic, Innocence Delaware legal clinic providing representation to those unjustly incarcerated, and a dignity rights clinic. A large number of supervised externships permit students to work as lawyers-in-training with state and county government agencies and nonprofit organizations. An extensive judicial externship program places students with state and federal courts at both the trial and appellate levels in Washington, DC; Delaware; Maryland; New Jersey; Pennsylvania; and Virginia. A unique program allows top students to apply to clerk for justices of the Delaware Supreme Court and Court of Chancery.

The Public Interest Resource Center cultivates pro bono volunteer opportunities for students in public interest agencies and government offices throughout the region and offers counseling and guidance to students who seek careers in public interest law.

Delaware Law offers opportunities for specialized study in family health law and policy, business organizations, advocacy and technology, criminal law, environmental law, and dignity rights.

The Family Health Law & Policy Institute provides research, policy analysis, and specialty education dedicated to the reform of laws and policies relating to the intersections of families and their health, broadly construed. The institute offers extensive opportunities for experiential learning.

The Institute of Delaware Corporate and Business Law offers a concentrated course of study focused on developing a fundamental knowledge of business and corporate law. The institute also sponsors the highly respected  Delaware Journal of Corporate Law  and a speakers series featuring justices and other corporate law luminaries.

The Taishoff Advocacy, Technology, and Public Service Institute provides extensive litigation skills training and cutting-edge experience in the role of emerging technologies in litigation.

The Global Environmental Rights Institute allows students and faculty to work together to promote environmental interests locally and globally and harnesses the expertise of nationally and internationally renowned faculty members to provide students with abundant opportunities to learn, practice, and conduct research in new areas, including toxic torts, climate change, and environmental constitutionalism.

The Dignity Rights Institute is the only program at any American law school focusing on the theme of human dignity in law. It aims to set human dignity in action through public and professional experiential learning and high-impact lawyering and advocacy. 

Delaware Law School offers two joint-degree programs: JD/MBA with Widener University and JD/MPH with Thomas Jefferson University.

Student Life

Campus facilities, housing, student activities.

The attractive 34-acre campus is located in the heart of the beautiful Brandywine River Valley. The law building houses the Legal Information Center, faculty offices, clinics, technologically enhanced classrooms, and three moot courtrooms.

Delaware Law School is one of very few law schools in the country that offers residential campus housing for JD students. Single-occupancy, fully furnished residence halls provide a convenient and comfortable living option for first-year students. Internet, cable, central air and heat, a refrigerator, and a microwave are included. Bathroom facilities, as well as kitchen and laundry rooms, are shared by residents on each wing. For students seeking a healthy lifestyle choice with no alcohol consumption, a wellness wing is available. For upper-level students, one- and two-bedroom townhomes are also available. All townhomes are fully furnished, cable-ready, air conditioned, equipped with a washer and dryer, and offer both Ethernet and wireless Internet access. Campus housing provides easy access to all classrooms and physical facilities, and students enjoy all the area has to offer from cultural and recreational activities to nearby retail and dining options. An exercise room, abundant green space, 24-hour security, and ample free parking are also provided. All campus housing is offered on a nine-month lease based on the academic calendar.

Students publish the prestigious  Delaware Journal of Corporate Law  and the  Widener Law Review . Students also compete in intraschool, regional, and national interschool moot court and trial competitions. With more than 25 student organizations at Delaware Law, students can immerse themselves in the campus community through participation in an affinity group or particular legal interest society, or by attending a myriad of social and networking events.

Career Placement and Bar Passage

The Career Development Office is strongly committed to helping students obtain the positions that best suit their individual needs and ambitions. Delaware Law School’s employment statistics are evidence of its success in helping graduates find a niche in the contemporary job market. Delaware Law School alumni have become judges in Delaware, New Jersey, New York, and Pennsylvania; members of the legislature; partners in major regional law firms; hospital administrators; and legal educators.

Delaware Law School provides robust support to students in preparation for the bar exams, overseen by a dedicated, full-time Director of Bar Pass Programs. The centerpiece of these efforts is a two-semester, six-credit course focused on the substance of core areas of law commonly tested on the bar exam, while also developing the specific skills and strategies needed for effectively writing bar exam essays. A two-credit, bar exam writing intensive course was added in Spring 2022. In addition, graduates are mentored by faculty and distinguished alumni during the weeks of their bar exam preparations. Finally, the law school offers limited, free campus housing during the summer bar preparation period, enabling graduates to focus on their bar studies in a supportive environment of their peers and faculty. Through these efforts, the law school has consistently maintained an Ultimate Bar Pass rate between 80 and 90 percent.

Tuition and Aid

At Delaware Law we are committed to making legal education affordable while also recognizing the significant achievements of our applicants. Our generous scholarship program provides renewable awards that vary but can be as high as $111,000 over the course of a student’s full-time legal education. Our awards are intended to recognize and honor the many and distinctive academic, personal and professional accomplishments of our entering students. Delaware Law merit-based scholarships are awarded at the time of acceptance and are renewable for up to three years for full-time students and four years for part-time students provided the student maintains satisfactory academic performance.

The Financial Aid Office is committed to assisting students throughout the financial aid process. In addition to a generous scholarship program with awards offered at the time of admission, Delaware Law School provides the opportunity to borrow through our low-interest-rate Institutional Loan Program, to students who academically excel in their first year of law school. Delaware Law School participates in all federal financial aid programs, including Federal Work-Study and the Federal Direct Loans programs.

Admission Decisions: Beyond the Numbers

In reviewing applications to Delaware Law School, our admission committee takes a holistic approach. While there are no fixed admission criteria, committee members pay particular attention to the applicant’s LSAT score and undergraduate grade-point average. The admission committee also carefully considers an applicant’s personal statement. Graduate degrees, writing samples, extracurricular activities, and community and professional service may enhance the application. The law school encourages those with diverse backgrounds to apply.

Applications for admission must be received by May 15. Admission decisions are made on a rolling basis, and applicants are encouraged to apply early. The admission process is paperless. All applications and supporting documents must be submitted electronically via the Delaware Law School website or your LSAC.org account. All communications to applicants, including admission decisions, are provided electronically through the applicant’s online status check.

Each summer, Delaware Law School conducts the Trial Admissions Program (TAP) for a small number of carefully selected applicants who show potential for success in law school despite a relatively low score on the LSAT or a lower undergraduate grade-point average. TAP is a conditional admittance program. Participants who successfully complete the six-week program are offered admission to the fall entering class.

Admitted Applicant Profile

25-75% ugpa range at widener delaware:.

2.98 to 3.60

25-75% LSAT Score Range at Widener Delaware:

Contact Information

Delaware Law School

• Colleges & Schools

Throughout its more than 50-year history, Delaware Law School has empowered generations of judges, attorneys, and public defenders with a practice-ready legal education supported by a passionate, energized, and inclusive community.

Embark on a Legal Career in our Nation’s Corporate Capital: Wilmington, Delaware

Delaware Law School's JD, LLM, SJD, and MJ programs fuel successful law careers. Situated in the corporate capital of the world, Wilmington, DE grants access to more than half of all Fortune 500 companies and is just a short drive to the extensive legal networks of Philadelphia, Baltimore, New York City, and Washington, D.C.

At Delaware Law, our goal is to support yours—that's why we offer flexible enrollment options designed to fit busy schedules, scholarships that make it easier to afford a legal education, and one-on-one guidance along the way. 

At Delaware Law, you will be guided by faculty whose top priority is your success. We're committed to helping you achieve your goals and supporting you on your journey from law school student to legal professional. - Todd. J. Clark; Dean and Professor of Law

As you pursue your goals, you'll form connections that make you feel like you're right where you belong.

• Faculty mentors will guide you as you shape your path to a rewarding career.
• A vast alumni network will provide opportunities for professional development.
• And collaborative peers will have your back in law school and beyond.

Visit Delaware Law School's Website

Explore Delaware Law School's Programs

Juris doctor (jd) concentrations.

Business & Corporate Law Criminal Law, Advocacy & Technology Dignity Rights Law Environmental Law Family Health Law & Policy

JD Dual Degrees

JD/MBA JD/MPH

Post-JD Degrees

Master of Law (LLM) - Seated Master of Law (LLM) - Online Doctor of Juridical Science (SJD)

Master of Jurisprudence (MJ) Degrees

Corporate & Business Law MJ/MBA Dual Degree

Why Study at Delaware Law School?

Graduate Practice Ready with a Wealth of Legal Experiences

At Delaware Law, you’ll conduct breakthrough research, participate in advocacy work, and shape public policy—experiences that will help you get ahead and set you apart.

Our nationally ranked programs place students in criminal and environmental law, state and local clerkships, and rewarding externships. Students also graduate with impressive legal experience that accelerates their careers: our students have secured $17 million in disability benefits through the Veterans Law Clinic alongside attorney volunteers.

• Explore Law Clinics

Gain Access to an Extensive Network of Faculty Mentors & Alumni

Faculty members contribute to state and federal court systems, state legislatures, bar associations, and international organizations—and at Delaware Law, they’ll be your mentors, ensuring a successful start to your legal career.

As a Delaware law graduate, you’ll join a supportive, close-knit alumni community. Judges, government workers, law firm partners, and practicing attorneys shaping their field across six continents and all fifty states will be eagerly waiting to open their networks to you.

Delaware Law School Highlights

2023 best law schools.

Delaware Law School and Widener Law Commonwealth nationally ranked by the Princeton Review.

Best Law Schools for Public Service

Widener Law Commonwealth and Widener Delaware Law ranked among the nation's best in 2020.

Top Law School for State & Local Clerkships

Delaware Law ranks among top 10 law schools nationwide for state and local clerkships. 

Top Law Schools for Environmental Law

Widener Delaware Law and Widener Law Commonwealth named top schools by preLaw Magazine .

Best Bachelor's in Legal Studies

Delaware Law's bachelor's in legal studies is recognized as among the top programs nationwide.

Best Online Paralegal Certificate Program

Delaware Law's program is recognized for its specialization options.

Student Perspectives

Get in Touch

4601 Concord Pike, Wilmington, DE 19803

• 302-477-2100
• [email protected]
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• Delaware Law School Flickr

Delaware Law School Admissions

4601 Concord Pike Wilmington, DE 19803

• 302-477-2703
• Delaware Law School LinkedIn

Orientation to Delaware Law Library

• Information for Full-Time and Emeritus Delaware Law Faculty
• Information for Adjunct Delaware Law Faculty
• Information for Delaware Law JD and Graduate Students

Other Law School Assistance outside the Library

Services for adjunct faculty.

Delaware Law Adjunct Faculty Members are invited to contact the library reference desk for assistance:

• at the Reference Desk on the Main Floor of the Library. During the fall and spring semesters, the reference desk is generally staffed Mon- Thur: 9am to 8pm and Fridays from 9am to 5pm
• Full Library hours can be found here

Reference Librarians can help adjunct faculty members:

• Obtain a Westlaw or Lexis password
• Identify resources for you or your students using the Library Catalog or Publication Finder
• Place materials on Course Reserve
• Obtain a CALI faculty authorization code
• Schedule a tour of the library

This is a list of other common law school resources outside of the library.

Website Updates

• Contact the law school Web Manager, Nathan Garrison, [email protected] to get your faculty profile set up or to suggest changes to the Delaware Law School website.

Scanning and Duplicating

• Contact the Copy Center, located on the first floor of the law building, for all duplicating needs: [email protected] 

Technology Help

• Dave Vallee, [email protected] , can help with classroom technology equipment or to request special recording or technology set up for special events.
• The ITS staff can help with your law school laptop, wireless access, and Widener login or account issues as well as other technology issues. Not sure who to contact for an IT issue, fill out an ITS Help Ticket and your request will be routed to the correct people.

Exam Administration

• Contact the Registrar's offic e for help with Exam Soft, Exam administration and the assignment of classrooms.

Requesting Review Copies of Textbooks

West Academic

• Go to https://faculty.westacademic.com/  and sign or create an account using your @widener.edu email address.
• Identify the title you wish to request and on the title's page click on “VIEW DIGITAL COPY”
• For a physical copy or support contact the Law School Account Manager at 800-313-9378 or  [email protected]

Aspen Publishing

• Register for an account at:  https://aspenpublishing.com/account/register
• Sign in and navigate to the page of the title you wish to request.
• In the bottom right hand corner of the page, click "Request a Professor Review Copy."

Carolina Publishing

• Create an account or log in at  https://cap-press.com/ordering/login
• Identify the title you want and click the button at the bottom of the page that says "COMP COPY/"
• Email  [email protected] for access to a digital copy.

Thomson Reuters

• Complete the review request form here:  https://store.legal.thomsonreuters.com/law-products/law-books/law-school-books/law-professors/request-complimentary-title
• Or contact 800-328-9352 x42420 or  [email protected]
• Complete the review request form here:  https://home.heinonline.org/review-copy-requests/
• << Previous: Information for Full-Time and Emeritus Delaware Law Faculty
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• Last Updated: Jul 17, 2024 11:18 AM
• URL: https://libguides.law.widener.edu/c.php?g=1376666

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First assignments

Class assignments are listed alphabetically by course name. All will be posted as received. If you do not see the assignments you are looking for, check TWEN , CANVAS , your professor's personal homepage or return to this web page to check again later.

Antitrust Law (ANTI-300)

Professor j. kirkwood.

Read pages 3-12 and 25-37 of the casebook and Appendix B.

Business Entities (BUSN-300)

Professor kirkwood.

Read Chapter 2 of the casebook.

Civil Procedure (CIVL-100-FLEX)

Professor b. coleman.

Before Class on Saturday, August 24:

Read: Walker v. City of Birmingham ; The FRCP 2023-24 ( Table of Contents ONLY );  The Ferguson Report , pp. 1-6; and  Five First Year Survival Tips . 

Complete the  Week 1 Discussion .

Read Learning Civil Procedure (LCP) pp. xliii-xlviii.

Read the LCP Study Guide , pp. 1-3, 11-15, and 32-34.

Review the Course Policies .

Constitutional Law (CNLW-600-A)

Read pages 3-24 and App A at pp. 865-872 of Alexander, Bilionis, McAffee, and Bryant, Learning Constitutional Law: Powers, Structure, and the Fourteenth Amendment (2024).

Constitutional Law I (CNLW-200-B)

Welcome to Constitutional Law I, section B. My name is Addie Rolnick. I am visiting Seattle University for the semester, and I will be your instructor for this course. The best way to access course materials and to reach me is through Canvas. As a backup, my email address is [email protected] .

The syllabus, including reading assignments through Unit 2, is available on Canvas (use the Syllabus tab). Most readings are in your textbook. Supplemental readings are posted or linked on Canvas (use the Modules tab). Note that a few readings for next week are not yet posted; these will be available in Canvas by Friday. For Monday, your only assignments are to review the Constitution and syllabus and listen to two podcasts . An updated syllabus will be posted in a few weeks.

I look forward to meeting you all next week. Enjoy the remaining days of semi-summer.

-Professor Rolnick

• Syllabus Con Law I (Rolnick-Fall 2024)
• Murrill, Modes of Consitutional Interpretation

Contracts (CONT-100-A)

Professor kalantry.

Class 1: Tuesday, August 27, 2024: Introduction/Surrogacy Contracts (part 1)

• pp. v to xvii (Kuney & Lloyd): Introduction to Contracts
• The syllabus posted on Canvas.
• The surrogacy contract on Canvas under files [note: Skim this, I do not expect you to have this memorized. The purpose of this contract is to look back to it as we learn new concepts throughout the semester.]
• Selected portions of the Baby M trial court opinion, 217 N.J.Super. 313, (in Canvas under “Files”)
• What is a recent contract you have entered into? Did you sign it or is there other ways to enter into contracts?
• What are the key obligations of the parties in the surrogacy contract?
• What are the different provisions in the surrogacy contract?
• Why does the trial court spend so much time describing the circumstances and social class of the plaintiffs and the defendants?
• What is the connection between family law and contract law in this case?
• Who is Harold Cassidy, the lawyer eventually retained by Mary Beth Whitehead? What kinds of cases does he take?
• What are the reasons Whitehead claims that the surrogacy contract should not be enforced?
• What remedy does the court grant?

Contracts (CONT-100-B)

Read pages pp. 15 – 33 of Contracts: A Contemporary Approach (Kunz and Chomsky eds. 3 rd ed. 2018).

Corporate Law Appellate Litigation (BUSN-370-A)

Professor o’kelley, message to students re preparation for first class, to do as soon as possible:.

• Please provide me with a copy of your resume via an e-mail with or without introductory content. You may send it to me electronically at [email protected] . This is not mandatory, but, if you are willing, it will help me begin to get to know you. If you are interested, my CV is available on the school website.
• At your convenience, but only if you so desire, please share with me your pronouns and honorifics (i.e. Ms., Mx., Mr., Dr., etc.) or, if you would prefer that I use no honorific, the name by which I should call you. My pronouns are “he, him, his” and my honorific is “Professor.”
• Please review the class syllabus, available on Canvas.
• Then begin preparing for our first class, the assignment for which is available on Canvas.

Federal Courts (CIVL-305-A)

Professor feldman.

First Assignment Fall 2024

Individual Income Taxation (TAXL-300-A)

First Meeting : Monday, August 26, 10:30-11:45 am in Room 109

Assignment : For the first class, please:

Review the syllabus and course expectations;

Read Section 1(a), (b), and (c) of the Internal Revenue Code (which can be found easily on the Cornell's Legal Information Institute here or by googling "IRC 1"); and

Read pp. 1-13, 18-38, 44-46 of the casebook (i.e. Chapter 1, Sections 1, 3, and 4, along with the portion of Section 6 prior to "Note on the Constitutional Tax Provisions").

Please do not hesitate to reach out with any questions. I look forward to meeting you on Monday, August 26!

Intellectual Property (INTP-345)

See Canvas for Textbook Purchase Information and First Assignment.

Intellectual Property (INTP-300-FLEX)

Privately-owned business associations (busn-348-a).

• Please access the course Canvas page and read the Syllabus, with special attention to expectations re class participation and “tickets”.
• Please review the first assignment, below. You will need to be fully prepared for the first class, and your first “ticket” should be uploaded on the Canvas site by 12:01am on the day of class.

Assignment for Wednesday, August 28 – Introduction to the Course

• For today’s class, read the edited version of Dodge v. Ford , available on Canvas by following this link.
• For today’s ticket:
• Describe and explain in detail your understanding of Dodge v. Ford .
• Find a newspaper or magazine discussion of Tornetta v. Musk , a recent Delaware Court of Chancery opinion rescinding Elon Musk’s multi-billion-dollar Tesla pay package. Describe and explain your understanding of that opinion.

Torts (TORT-100-Flex)

Students are to read the two attachments, as well as Pages 124-132 of the casebook.

• Torts Cases and Context Vol 1 v2.0 - Chapter 1
• How To Read a Legal Opinion

Contact Admission

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Delaware ABCs (Assignments for the Benefit of Creditors): No Longer as Easy as 1-2-3

Companies forced to wind down operations and liquidate their assets often choose a liquidation process known as an ABC (Assignment for the Benefit of Creditors). An ABC is usually more streamlined, requires fewer public disclosures and less court involvement, and is significantly less expensive than other formal liquidation processes such as federal bankruptcy proceedings. 1 However, recent rulings by the Delaware Court of Chancery, a popular forum for ABCs, suggest that ABCs may no longer be as easy as 1-2-3 — at least, not in Delaware.

An ABC is a liquidation process governed by state law by which a company (referred to as the assignor or the debtor) assigns all of its assets to an assignee (typically, a professional firm specializing in ABCs) that will manage the liquidation process and distribute the assets’ proceeds to the company’s creditors in accordance with the priorities dictated by state law. The assignee serves as a neutral, independent fiduciary whose duty is to maximize value for the company’s creditors and shareholders.

Certain states, such as Delaware, have enacted comprehensive statutory schemes that require various degrees of court oversight over the ABC process, including court approval of significant transactions, such as asset sales. Other states have less-developed ABC statutes and do not require any court supervision or approvals.

Recently, because of its “growing concern” regarding the “transparency and consistency” of ABC proceedings, 2 the Delaware Court of Chancery has begun requiring robust public disclosures at the outset of an ABC proceeding regarding the company and the assignee, akin to disclosures that a company typically makes within the first few days of a federal bankruptcy case. 3 At least one Vice Chancellor on the court has announced that he will require such disclosures in all future ABC cases assigned to him. 4 The purpose of these disclosures is to ensure that the court has sufficient information to evaluate the relief requested by the assignee. This is particularly important in ABC cases, which are handled ex parte — i.e., without notice to all parties who may be affected by the relief. 5

The Court of Chancery explained that the information that should be disclosed may vary from case to case. However, in at least three recent ABC proceedings, 6 the court has entered similar orders requiring assignees to make the following disclosures in a publicly filed affidavit in the early stages of the ABC proceeding:

• Description of the affiant and the affiant’s relationship with the debtor or assignee
• Description of the assignee, its experience, its principal or parent entity, and the events leading up to its creation
• Description of the debtor, its business prior to the assignment, and its corporate and capital structure
• Description of any debt obligation secured by all or substantially all of the debtor’s assets, including the purpose of the obligation at the time it was entered and its current status
• Description of events leading up to the assignment
• Description of any efforts to sell the debtor or its assets within the year prior to the date of the assignment
• Description of how the assignee was engaged
• Description of the terms of any agreement, arrangement, or understanding concerning the debtor or its assets between or among, on the one hand the assignee or its principal and on the hand any director, officer, employee, or creditor of the assignor, or any potential acquirer of the debtor or its assets
• If the assignee contemplates the disposition of any of the assigned assets prior to the submission of the appraisals required by 10 Del. C . §7382 and the bond required by 10 Del. C . §7383, a detailed explanation for doing so
• Description, if applicable, if any of the debtor’s known creditors are directors, officers, employees, or stockholders of the debtor or are otherwise affiliated with any of the foregoing persons

In addition, the affidavit must attach the following disclosures:

• Documents evidencing the debtor’s authorization to enter into the assignment
• Documents evidencing the terms of the assignee’s engagement, including the assignee’s fee schedule
• Documents evidencing the terms of any engagement of the assignee or its parent entity with the assignor, any of its directors, officers, employees, or creditors relating to the assignor or its assets at any time within one year of the date of the assignment
• Documents evidencing any agreement, arrangement, or understanding between the assignee or its parent entity and any person relating to the assignment or the assigned assets
• Documents evidencing any agreement, arrangement, or understanding between or among any director, officer, employee, or creditor relating to the assignment
• A list of all engagements for which the parent of the assignee or any of its affiliates has served as an assignee in an assignment proceeding filed in the Court of Chancery over the past three years
• A debtor’s balance sheet as of the date of the assignment or the most recent fiscal period available
• A list of all of the debtor’s known creditors, organized by the creditors’ status as secured or unsecured creditors, each creditor’s priority to the assigned assets, and the amounts owed to each creditor

These are not the only disclosures that may be required in an ABC. Depending on the circumstances of the case and the relief requested by the assignee, the Court of Chancery may require additional affidavits and reports, which the assignee may be required to serve upon all creditors and other parties in interest.

Key Takeaways

In light of the Court of Chancery’s focus on additional disclosures, the ABC process in Delaware may no longer be as streamlined and efficient as it once was. A company considering winding down and liquidating its assets through an ABC in Delaware should be prepared at the outset to provide significantly more information about its business, financial affairs, and events leading up to the ABC. Although these additional disclosures may add time and expense to the process, an ABC—whether in Delaware or elsewhere—is still a viable and cost-effective alternative to a federal bankruptcy proceeding that should be considered by companies facing liquidation.

[ 1 ] A bankruptcy or other proceeding may, in certain circumstances, be necessary or preferable to an ABC. A company facing financial distress should consult with experienced counsel to advise on the company’s specific situation and options. [ 2 ] See In re Theonys, Inc. , C.A. No. 2023-0195-PAF, Letter (Del. Ch. May 22, 2023) (the “Theonys Letter”). [ 3 ] See In re Glob. Safety Labs, Inc. , 275 A.3d 1278, 1284 (Del. Del. Ch. 2022) (“What the Petition lacks, and what the court invariably needs, is context. The bankruptcy courts and their practitioners have developed a vehicle for providing that context through a submission known as a ‘First-Day Declaration’ or a ‘First-Day Affidavit.’ . . . This case calls out for a comparable declaration, tailored by skilled counsel to provide the information that the court needs to evaluate the Petition. . .”). The Global Safety decision examined a petition by a company seeking to dissolve under Delaware law. However, the court explained that its concerns regarding the lack of transparency in that case also applied to ABC proceedings. See id . at 1279-80 (“The Petition is a bare-bones four-page document consisting principally of conclusory averments. It is not an outlier. It is representative of petitions that the court sees regularly in cases involving defunct or dissolved entities and in proceedings involving assignments for the benefits of creditors.”). [ 4 ] See Theonys Letter. [ 5 ] See Glob. Safety , 275 A.3d at 1280 (“Many of these proceedings are handled ex parte , so the court never has the benefit of an interested party that can provide a different perspective or ask probing questions.”). [ 6 ] In re Theonys Inc . C.A. No. 2023-0195-PAF, Order (Del. Ch. May 22, 2023); In re Boston Security Token Exchange LLC , C.A. No. 2023-0494-PAF, Order (Del. Ch. May 22, 2023); In re Secure Transfusion Solutions, Inc. , C.A. No. 2023-0463-PAF, Order (Del. Ch. May 22, 2023).

This informational piece, which may be considered advertising under the ethical rules of certain jurisdictions, is provided on the understanding that it does not constitute the rendering of legal advice or other professional advice by Goodwin or its lawyers. Prior results do not guarantee a similar outcome.

Barry Z. Bazian

Kizzy Jarashow

Artem Skorostensky

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Delaware Court holds anti-assignment clause prevents enforcement of contract after merger

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On September 16, 2020, the Superior Court of Delaware issued an order with potential implications for companies contemplating acquisitions of businesses or assets.  In MTA Can. Royalty Corp. v. Compania Minera Pangea , S.A. De C.V. , No. N19C-11-228 AML CCLD, 2020 Del. Super. LEXIS 2780 (Sept. 16, 2020), Judge Abigail M. LeGrow held that, following a merger,[1] the surviving company lacked standing to enforce a contract entered into by its predecessor (the non-surviving company in the merger) because the contract’s anti-assignment clause prohibited assignment “by operation of law”. 

Companies considering acquisitions should carefully review their target’s contracts for anti-assignment clauses that prohibit assignment “by operation of law”, which Delaware courts interpret to include certain mergers.  In addition, where a target’s key contracts contain anti-assignment clauses with such language, companies should carefully consider the preferred transaction structure.  In a reverse triangular merger, the acquirer’s newly formed subsidiary is merged into the target, with the result being that the target survives and becomes the acquirer’s subsidiary.  By contrast, in a forward triangular merger, the target does not “survive” and its rights are transferred to the existing subsidiary, which may implicate anti-assignment clauses.  Reverse triangular mergers do not face the same issue because the target continues its corporate existence as a subsidiary of the acquirer.

Background of the contract and subsequent merger

In 2016, Compania Minera Pangea, S.A. de C.V. (“CMP”) purchased mineral rights in the El Gallo Mine from 1570926 Alberta Ltd. (“Alberta”).  In exchange, CMP paid Alberta $5.25m in cash at closing and agreed to pay Alberta an additional $1m in 2018 subject to certain conditions.  Of note, the agreement contained the following anti-assignment clause (the “Anti-Assignment Clause”):

Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of law or otherwise, by [Alberta] without the prior written consent of each other party, and any such assignment without such prior written consent shall be null and void. . . . [T]his Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns.

In July 2017, Alberta merged with Global Royalty Corp. (“Global”), a subsidiary of Metalla Royalty & Streaming Ltd., and Global was the surviving entity.  Following that transaction, Global changed its name to MTA Canada Royalty Corp. (“MTA”).  In November 2019, MTA brought a breach of contract claim against CMP based on CMP’s alleged failure to pay the $1m in consideration due in 2018.

Superior Court holds that anti-assignment clause extends to certain mergers

CMP argued that MTA lacked standing to enforce Alberta’s contract with CMP because, per the Anti-Assignment Clause, Alberta was required to obtain CMP’s written consent before assigning its rights to MTA.  MTA argued that the Anti-Assignment Clause was meant to prevent third-party assignments, not “successor assignments” like Alberta’s merger.   Id. at *11-12.  To make this argument, it relied on a 1993 Chancery decision, in which then-Vice Chancellor Jacobs had held that, subject to certain conditions, anti-assignment clauses do not apply to mergers unless mergers are explicitly prohibited.   Star Cellular Tel. Co. v. Baton Rouge CGSA ., 1993 Del. Ch. LEXIS 158, at *25 (July 30, 1993).  According to MTA, because the last sentence of the Anti-Assignment Clause referred to “successors”, it was clearly not intended to extend to mergers.

The Superior Court disagreed.  It explained that, as a result of the merger, Alberta had ceased to exist, so MTA could only enforce the contract if it showed that the Anti-Assignment Clause did not apply.   MTA , at *6.  It then held that the Anti-Assignment Clause clearly barred Alberta’s transfer of rights through a merger because the clause prevented assignment “by operation of law”, which Delaware case law had interpreted as referring to forward triangular mergers.   Id.  at *7-14.  In light of what it regarded as a straightforward application of the Anti-Assignment Clause, the Superior Court did not engage in the  Star Cellular analysis.  The Superior Court found that the reference to “successors” in the Anti-Assignment Clause meant only that “valid successors” had the right to enforce the contract.   Id. at *13.

Potentially at odds with Chancery precedent?

Of special relevance is the Superior Court’s treatment of existing Delaware case law on anti-assignment clauses and forward triangular mergers.  Existing precedent from the Court of Chancery held that anti-assignment clauses containing both a prohibition on assignment “by operation of law” and a reference to “successors” were ambiguous.  Under the Star Cellular test, this ambiguity was construed against the application of the anti-assignment clause. 

Specifically, MTA  appears at odds with the Chancery ruling in Tenneco Auto. Inc. v. El Paso Corp. , which also involved the impact of an anti-assignment clause following a forward triangular merger.  C.A. No. 18810-NC, 2002 Del. Ch. LEXIS 26 (Mar. 20, 2002).  The language of the anti-assignment clause in Tenneco  was similar to that in MTA :  both clauses prohibited assignment “by operation of law” while also referencing “successors”.  In Tenneco , Vice Chancellor Noble found that those conflicting references made the anti-assignment clause ambiguous, meaning that, under the Star Cellular test, the successor company could enforce the contract.   Id. at *7-10.  The MTA Court did not explain why it reached the opposite result.

Similarly, in ClubCorp, Inc. v. Pinehurst, LLC , Vice Chancellor Parsons held that, following a forward triangular merger, an anti-assignment clause with language like that in Tenneco was ambiguous because the agreement both referenced “successors” and prohibited assignment “by operation of law”.  No. 5120-VCP, 2011 Del. Ch. LEXIS 176, at *26-29 (Nov. 15, 2011).  Again, the ambiguity militated in favor of finding that the anti-assignment clauses did not apply to the merger.   MTA did not address Pinehurst.

Insights from MTA

MTA has several significant implications for practitioners.  The first is a reminder to carefully review a target’s contracts for anti-assignment clauses.  Such clauses in important contracts should be flagged and thoughtfully evaluated. 

In addition, practitioners should remain aware that Delaware courts interpret the phrase “by operation of law” in assignment clauses to refer to mergers in which the target company does not survive.  The presence of this language in anti-assignment clauses in a target’s important contracts (if those contracts are governed by Delaware law) should prompt a discussion about the appropriate transaction structure.  For example, in MTA , the Court suggested that MTA would have had standing to enforce the contract with CMP if it had been merged through a reverse triangular merger rather than a forward triangular merger.  The Superior Court cited a 2013 Chancery decision, Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH , in which Vice Chancellor Parsons found that “a reverse triangular merger does not constitute an assignment by operation of law”.  62 A.3d 62, 83 (Del. Ch. 2013). 

If dealing with similar language in anti-assignment clauses in important agreements, practitioners should consider alternative transaction structures that would allow the target to retain its corporate existence.  According to MTA , such alternatives should allow successor companies to enforce agreements without running afoul of anti-assignment clauses prohibiting “assignment by operation of law”.[2]

[1] The transaction was an amalgamation under Canadian law, which the parties and the Court agreed was the equivalent of a merger under Delaware law.  The transaction structure was equivalent to a forward triangular merger. 

[2] This may not be true in other jurisdictions.  For example, under California law, a reverse triangular merger has been found to be a transfer of rights by operation of law .  See SQL Sols. v. Oracle Corp. , 1991 U.S. Dist. LEXIS 21097, at *8-12 (N.D. Cal. Dec. 18, 1991). 

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