NB Alternatives Advisers LLC v. VAT Master Corp.

• Court: Court of Chancery of Delaware
• Decided: May 5, 2021
• Docket: CA No. 2020-0930-SG
• Status: Published

Opinion

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)