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Ams. Mining Corp. v. Theriault - 51 A.3d 1213 (Del. 2012)

Rule:

The rules of the Delaware Supreme Court specifically require an appellant to set forth the issues raised on appeal and to fairly present an argument in support of those issues in his or her opening brief. If an appellant fails to comply with these requirements on a particular issue, the appellant has abandoned that issue on appeal.

Facts:

Appellants, Americas Mining Corporation (AMC) and nominal defendant, Southern Copper Corporation, have filed a motion for reargument. The issue raised on reargument is the narrow question of whether the relevant "benefit achieved" for calculating attorneys' fees in a derivative case, against a majority stockholder and other defendants, is properly defined as the entire judgment paid to the corporation, or, in this case, 19% of the entire judgment paid to the corporation, because the majority stockholder defendant owns 81% of the corporation that will receive the judgment.

Issue:

Was the issue raised in the limited motion for reargument meritorious?

Answer:

No

Conclusion:

The Supreme Court of Delaware held the motion was procedurally barred because the issue raised on reargument was not fully and fairly presented in the corporations' opening briefs, as required by Del. Sup. Ct. R. 14(b)(vi)(A)(3), since one corporation's brief did not mention it at all and the other corporation's brief only mentioned it in a footnote, so the issue was waived. The motion was substantively without merit, as a matter of Delaware law, because the "look through" approach to awarding attorneys' fees in a derivative action, which did not include a defendant majority shareholder's interest in the corporation when determining the "benefit achieved" for the corporation, had been properly rejected.

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