NB Alternatives Advisers LLC v. VAT Master Corp. ( 2021 )

COURT OF CHANCERY
OF THE
SAM GLASSCOCK III
VICE CHANCELLOR
STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE
34 THE CIRCLE
GEORGETOWN, DELAWARE 19947
May 5, 2021
Catherine G. Dearlove, Esquire John W. Shaw, Esquire
Kevin M. Gallagher, Esquire Karen E. Keller, Esquire
Matthew W. Murphy, Esquire David M. Fry, Esquire
Richards, Layton & Finger, P.A. Nathan R. Hoeschen, Esquire
One Rodney Square Shaw Keller LLP
920 North King Street 1105 North Market Street, 12th Floor
Wilmington, Delaware 19801 Wilmington, Delaware 19801
RE: NB Alternatives Advisers LLC, et. al., v. VAT Master Corp, et. al.,
C.A. No. 2020-0930-SG
Dear Counsel:
On April 22, 2021, I issued a Letter Opinion (the “Letter Opinion”) granting
in part the Plaintiffs’ request to enjoin the Defendants’ maintenance of a Wisconsin
action in violation of an exclusive choice of forum provision.1 In the Letter Opinion,
I requested further information from counsel to determine whether, in light of that
decision, the dispute over one count (Count IV) of the Wisconsin complaint
remained at issue. I have in hand the Defendants’ letter of May 3, 2021, stating that
the issue remains.2
1
Ltr. Op., Dkt. No. 62.
2
See generally Ltr. from Nathan R. Hoeschen, Dkt. No. 63.
1
The Defendants’ letter (the “May 3 Letter”) contains other representations and
contentions that I address here. First, the Defendants state that I got the law entirely
wrong in the Letter Opinion. Fair enough. The Defendants also state that “the Court
can and should reconsider its prior conclusions.” 3 To the extent that the Defendants
intend the May 3 Letter to serve as a motion for reargument under Rule 59(f), it is
untimely and improper in form. I will not consider it further, and the Plaintiffs need
not reply under Rule 59(f). Moreover, the record is closed, the matter has been
submitted, and the Plaintiffs should not respond to the Defendants’ arguments in the
May 3 Letter.
Next, the Defendants request that, “to the extent [the Court] intends to
maintain [its erroneous conclusions as expressed in the Letter Opinion, it] direct
entry of a final appealable judgment as soon as possible.”4 It is my intention to
maintain my conclusions; that is the function of a judicial opinion, at least as I
understand it. The Defendants further note that the “Defendants do not believe the
Letter Opinion constitutes a final appealable judgment. To the extent the Court
believes otherwise, Defendants request express confirmation to that effect.”5 Our
Supreme Court has repeatedly affirmed that “[a] final judgment is generally defined
as one that determines the merits of the controversy or defines the rights of the parties
3
Id. 5 (footnote omitted).
4
Id.
5
Id. 5, n.8.
2
and leaves nothing for future determination or consideration. In short, a final
judgment is one that determines all the claims as to all the parties.”6 The Letter
Opinion itself concludes that “[b]efore resolving [the remaining] matters, it seems
to me prudent that, in light of [the rulings in the Letter Opinion],” counsel report to
me by May 3, 2021 what “issues remain to be decided.”7 The Defendants are correct
in their “belief” that a judicial opinion that thus reserves decision does not constitute
a “final appealable judgment.” Moreover, the May 3 Letter does not constitute a
proper request for certification of an interlocutory appeal.8
As to the Defendants’ demand for a final decision “as soon as possible,” this
is an expedited matter. Evidence was presented and the issues fully submitted at the
Final Merits Hearing on April 7, 2021, and I issued the Letter Opinion on April 22,
2021. It is because the resolution of the issue regarding Count IV appeared
potentially moot that I asked for clarification that I hoped would terminate the
litigation. The Defendants, I note, took the entire time allotted, eleven days, to
respond. In any event, I will address the remaining issues in due course, consistent
with the expedited nature of this litigation and the other obligations of the Court.
6
Braddock v. Zimmerman, 906 A.2d 776, 780 (Del. 2006) (quoting Tyson Foods, Inc. v. Aetos
Corp., 809 A.2d 575, 579 (Del. 2002)) (footnotes and internal quotation marks omitted).
7
Ltr. Op. 7, Dkt. No. 62.
8
See generally Supr. Ct. R. 42.
3
To the extent the foregoing requires an order to take effect, it is SO
ORDERED.
Sincerely,
/s/ Sam Glasscock III
Sam Glasscock III
cc: All counsel of record (by File & ServeXpress)
4