Legal Memorandum: Fiduciary Claim or Commingling in DE

Issue: Is a breach of fiduciary claim or a breach of commingling valid in a scenario where it appears all the benefit is to one party in a contract and the other party has no benefit under Delaware law?

Area of Law: Business Organizations & Contracts
Keywords: Breach of fiduciary claim; Breach of commingling
Jurisdiction: Delaware
Cited Cases: None
Cited Statutes: None
Date: 03/01/2014

It is arguable that the burden-shifting Sinclair fairness analysis should apply.   See Sinclair Oil Corp. v. Levien, 280 A.2d 717, 720 (Del. 1971); In re Primedia Inc. Derivative Litig., 910 A.2d 248, 260 (Del. Ch. 2006); see generally Mary Siegel, The Erosion of the Law of Controlling Shareholders, 24 Del. J. Corp. L. 27 (1999).

The plain language, dictionary definition of “commingle” is simply “to mix an amount of money belonging to one person, business or account with that of another.”  Cambridge Online Dictionary.


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