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Delaware Supreme Court Rules for ETE in Williams Dispute

Published: 03-28-2017

In a significant win for V&E client Energy Transfer Equity, L.P., on March 23, 2017, the Delaware Supreme Court affirmed the Delaware Chancery Court’s June 2016 post-trial opinion confirming the company’s right to terminate a proposed $38 billion merger with The Williams Companies due to the failure of a condition precedent.

The lawsuit was initiated by Williams in May 2016 after  Latham & Watkins LLP determined that it could not issue a written tax opinion that was a condition precedent to the parties’ obligations under the merger agreement. Williams filed suit, asserting that ETE had breached its obligations to use commercially reasonable efforts to obtain the tax opinion and that Latham’s determination was not reached in good faith. Williams sought specific performance of ETE’s merger agreement obligations and an order estopping ETE from terminating the merger. 

ETE counter-claimed, seeking declarations that it was not required to close due to the failure of the tax condition and that it had not breached the tax representation and warranty. ETE also alleged that Williams had breached various provisions of the merger agreement.

Following highly expedited discovery, the matter was tried on June 20-21, 2016. In the Court’s post-trial opinion, the Court found for ETE, concluding that the evidence and testimony at trial demonstrated that Latham had reached its determination in good faith and ETE had not breached its obligations under the merger agreement.

In affirming the Chancery Court, the Delaware Supreme Court held that “ETE did meet its burden of proving that any alleged breach of covenant did not materially contribute to the failure of the Latham condition” and that ETE was not estopped from terminating the transaction on that basis.

Other claims in the case remain pending. Michael Holmes is lead counsel for ETE. The ETE trial team included partners John Wander, Harry Reasoner, George Gerachis, Gary Huffman, David Cole, Michael Charlson, Cliff Thau, Jennifer Poppe, Craig Zieminski, Lande Spottswood and Mike Rosenwasser; counsel Andy Jackson; senior associate Olivia Howe; and associates Margaret Terwey, Meredith Jeanes and Juliana Hunter.


Lawyer Contact

+1.214.220.7814
mholmes@velaw.com

Media Contact

Jeremy Heallen Communications Manager

T +1.713.758.2079
jheallen@velaw.com