Delaware Court of Chancery Issues Amendments to Modernize its Rules
On September 25, 2023, the Delaware Court of Chancery took a significant step forward in its pursuit to update and modernize its rules. The court issued its first set of amendments, which aim to streamline and align its practices with the changes made to the Federal Rules of Civil Procedure. These amendments include both stylistic changes and substantive changes based on current Court of Chancery practices.
One of the notable updates is found in Rule 7, which focuses on the filing of briefs. Under the amended rule, only specific types of briefs may be filed without court approval. These include opening, answering, and reply briefs for motions under Rules 12, 23, 23.1, 41(b), 56, or 65; briefs related to the approval of settlements or applications for attorney’s fees and expenses for actions under Rules 23, 23.1, or 23.2; and pre-trial and post-trial briefs. Additionally, each brief must now follow a specific structure, including a cover page, a table of contents, a table of authorities, an introduction, a statement of facts, an argument divided into sections, and a conclusion stating the relief sought. Notably, briefs can no longer contain numbered paragraphs. Moreover, the amended rule imposes word limits on briefs, with opening or answering briefs limited to 14,000 words and reply briefs limited to 8,000 words.
Rule 10 focuses on the formatting of court submissions, such as briefs, motions, and letters. The amendment clarifies that all filings must use specific typefaces, such as Times New Roman 14-point typeface with 13-point typeface in footnotes, Century 12-point typeface with 11-point typeface in footnotes, or Century Schoolbook 12-point typeface with 11-point typeface in footnotes. The text in filings must be double-spaced, while the line spacing of headings, footnotes, and block quotations may be single-spaced.
Rule 17 has been updated to allow for the appointment of a limited guardian who can bring or defend a lawsuit on behalf of a person without capacity. The rule also establishes a presumption that a parent of a minor is qualified to act as a guardian ad litem unless there is a conflict of interest. The amendment also sets forth specific requirements for a motion for the appointment of a guardian ad litem.
In Rule 23, several substantive changes have been made to class action procedures. The requirement that a class must be certified “as soon as practicable” has been removed. Moreover, conditional certification orders are no longer provided for, aligning the rule with federal rules. Additionally, Rule 23(d) introduces new rules regarding the practice of class counsel, emphasizing the need for adequate and fair representation of the class. This includes the requirement for the court to appoint class counsel when certifying a class and a seven-prong analysis for resolving disputes over the appointment of class counsel. Rule 23(f) revises dismissal and settlement procedures in class-action cases, mandating the filing of an affidavit and a proposed form of order explaining the terms of any dismissal. Counsel must also provide certain information to the class, including the time of the hearing to approve the settlement. Rule 23(g) updates the rules related to attorney’s fees in class-action suits, requiring an affidavit documenting the fees and expenses of any counsel sharing in the award.
Rule 23.1, which deals with derivative actions, has undergone changes as well. The term “compromise” has been replaced with “settlement,” and the rule now applies to all entities with a separate legal existence, as well as derivative plaintiffs. Similarly, Rule 23.2 provides a simplified, quasi-class action vehicle for suits involving unincorporated associations. This change does not impact the ability for association members to sue or be sued as individuals.
These amendments represent the Court of Chancery’s commitment to staying abreast of evolving legal landscapes and maintaining efficiency and consistency in its operations. These updates bring Delaware’s rules in line with federal standards and provide clarity for practitioners appearing before the court. As the court continues its multi-year project, we can expect further modernization efforts to enhance the overall functioning of the Delaware Court of Chancery.