NB Alternatives Advisers LLC v. VAT Master Corp.

Opinion

COURT OF CHANCERY

OF THE

SAM GLASSCOCK III STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE VICE CHANCELLOR 34 THE CIRCLE GEORGETOWN, DELAWARE 19947

Date Submitted: November 29, 2023 Date Decided: December 8, 2023

Catherine G. Dearlove, Esquire Karen E. Keller, Esquire Kevin M. Gallagher, Esquire Nathan R. Hoeschen, Esquire Matthew W. Murphy, Esquire Emily S. DiBenedetto, Esquire Caroline M. McDonough, Esquire SHAW KELLER LLP RICHARDS, LAYTON & FINGER, P.A. I.M. Pei Building One Rodney Square 1105 North Market Street, 12th Floor 920 North King Street Wilmington, DE 19801 Wilmington, DE 19801

Re: NB Alternatives Advisers LLC v. VAT Master Corp., C.A. No. 2022-0159-SG

Dear Counsel:

This matter seeks fees and costs in connection with a prior action1 in which Plaintiffs, NB Alternatives Advisers LLC (as successor-in interest to Almanac Realty Investors, LLC), Almanac Realty Securities V, LP, TW-ARS Corp., Matthew Kaplan, Moreen R. McGurk (as Executor of the Estate of John McGurk), Justin Hakimian, and Randall Guenther, sought injunctive relief to enforce a Delaware forum selection clause in an operating agreement. Defendants, VAT Master Corporation and VAT Master LP, moved to dismiss or stay this action as unripe, in

1 NB Alternatives Advisers LLC v. VAT Master Corp., 2021 WL 1998475 (Del. Ch. May 19, 2021).

light of proceedings in Wisconsin involving another, arguably overlapping, agreement between the parties with a Wisconsin forum selection clause. I deferred a decision on the motion pending the parties’ assistance in evaluating the issues in Wisconsin. The Wisconsin appellate court has now entered a decision, clarifying what is at stake in the Wisconsin action. I have reviewed the Wisconsin appellate decision provided by the parties.2 I conclude that the ongoing Wisconsin litigation is not determinative of the fee-shifting issue before me. Accordingly, I find this matter is ripe for a decision. Please confer regarding the manner and timing of submitting the matter for decision, and contact my assistant to set a scheduling conference promptly.

To the extent the foregoing requires an Order to take effect, IT IS SO ORDERED.

Sincerely,

/s/ Sam Glasscock III

Vice Chancellor

2 VAT Master Corp. v. Almanac Realty Sec. V, LP, 2023 WL 5967937 (Wis. App. Sept. 14, 2023).