Kurt M. Heyman, a founding partner of Heyman Enerio Gattuso & Hirzel LLP, focuses his practice on corporate governance, partnership and limited liability company disputes in the Delaware Court of Chancery. Kurt clerked for the Court of Chancery in 1991-1992. His practice involves representing both public and private companies and their directors in stockholder class actions and derivative suits involving mergers and acquisitions and other transactions that implicate directors’ fiduciary duties. Kurt also represents special committees and audit committees of public companies in their negotiations of mergers and other transactions and investigations of alleged corporate wrongdoing. In addition to litigating in Delaware courts, Kurt has been called upon to litigate matters of Delaware law in numerous other jurisdictions, including New York, California, Virginia and Nebraska.
Kurt has also developed a niche practice in the area of “Business Divorce” - the legal separation of the owners of privately-held businesses - and has been involved in some of the leading cases in this area, both as counsel and as a receiver or trustee in cases where the court has ordered dissolution of the business entity. Kurt is Co-Chair of the newly-formed Business Divorce Subcommittee of the ABA Business Law Section, manager of the LinkedIn group Business Divorce and Private Company Disputes, and co-editor of a new treatise titled Litigating the Business Divorce.
Kurt also has significant experience in litigating claims of trade secret misappropriation, deceptive trade practices, unfair competition and consumer fraud, as counsel to both plaintiffs and defendants. He was appointed as an Acting Deputy Attorney General in a case involving allegations of mortgage fraud by then - Delaware Attorney General Joseph R. Biden, III.
Kurt has been recognized as a leader in the field of Chancery litigation by Chambers USA: America’s Leading Lawyers for Business in 2005-2016:
- “The driving force behind many notable cases,” Kurt Heyman rallies support from clients who thoroughly endorse his “smart, knowledgeable and enthusiastic approach.” “An engaging attorney who is familiar with the workings of the Chancery Court,” he is praised by clients for “his attention to detail” and “timely, smart and accurate responses.”
- “A terrific lawyer and a wonderful guy,” Kurt Heyman… wins praise for “knowing best how to present his client’s case in litigation.”
- “Proactive and always available,” Kurt Heyman is valued for his litigation and transactional experience. In particular, sources appreciate his capacity to “hold the hand” of clients in order to guide them through the technical complexities.
- Described as “highly ethical, fastidious and smart,” Kurt Heyman is favored by clients who admire his “knowledge of the system and great familiarity with the judges.”
- Kurt Heyman is praised for his “constructively aggressive style” as well as his ability to oversee operations and provide strategic guidance.
- Kurt Heyman is a “real go-to person for advice,” according to sources. His knowledge of local practice and his ability to think of the big picture when dealing with a case are also well appreciated by clients.
- Kurt Heyman is considered to be a strong choice for corporate governance and limited liability company disputes in Delaware. Market sources praise him as “an outstanding lawyer” who is “excellent at what he does.”
Kurt is also AV Rated by Martindale-Hubbell, is listed in Best Lawyers in America in the field of Corporate Law, and has been repeatedly named as a “Delaware Super Lawyer” in the field of Business Litigation. In 2012, he was named as the Top Lawyer in Corporate Litigation by the Delaware Today Readers’ Survey. In 2015, he was named as one of the Top Ten Lawyers in Delaware by Super Lawyers. In 2016 he was named as the Top Lawyer in Corporate Law by Delaware Today, in addition to being named as a Top Lawyer in Civil Litigation.
Kurt is a member of the Corporation Law Council of the Delaware State Bar Association, the body that recommends changes to the Delaware General Corporation Law.
- Partner Investments, L.P. v. Theranos, Inc., 2017 WL 1346537 (Del. Ch.): Kurt was lead Delaware counsel for the team representing plaintiffs in this high-profile action to enjoin an exchange offer that would have undermined plaintiffs’ related fraud action seeking return of their investment in this healthcare technology company. The Court entered a temporary restraining order against the exchange offer. Both cases subsequently settled.
- In re: SMS de Mexico, LLC, C.A. No. 2017-0096-JRS (Del. Ch. Mar. 22, 2017) (Transcript): Kurt successfully opposed a motion to expedite proceedings on behalf of the respondent in this summary dissolution action on the basis of a related case pending in Texas.
- Baker v. Sadiq, 2016 WL 4375250 (Del. Ch.): Representing the plaintiff stockholders in this private company derivative suit as lead counsel, Kurt negotiated a resolution of the claims, which the Court valued at $3.25 million and termed “a superior outcome.” The Court approved the settlement and awarded the firm $650,000 in fees.
- Dunlap v. Phillips, 2015 WL 4459478 (Del. Super.): In this high-profile case involving allegations of assault against a former elected official, Kurt successfully defended a summary judgment motion on the issue of liability, and further persuaded the Court that defendant had properly invoked his Fifth Amendment rights in this civil case. Plaintiff subsequently agreed to dismiss the case with prejudice, with no admission of liability or payment by defendant. 2016 WL 5440353.
- Schmelzer v. TeraMedica, Inc., 2015 WL 4555308 (Del. Ch.): As lead counsel for the company in this merger case, Kurt negotiated a settlement and convinced the Court to reduce plaintiff’s counsel’s fee request from $2.64 million to $600,000.
- In re Cornerstone Therapeutics Inc. S’holder Litig., 115 A.3d 1173 (Del. 2015): Kurt was part of the defense team that brought this successful interlocutory appeal of the Court of Chancery’s ruling declining to address the merits of the directors’ motions to dismiss in an action challenging a merger between a company and its controlling stockholder. The Supreme Court clarified existing precedent and held that, in an action for damages against corporate fiduciaries, where the plaintiff challenges an interested transaction that is presumptively subject to entire fairness review, the plaintiff must plead a non-exculpated claim against the disinterested, independent directors to survive a motion to dismiss by those directors.
- In re Carlisle Etcetera LLC, 114 A.3d 592 (Del. Ch. 2015): Kurt successfully persuaded the Court to dissolve Carlisle Etcetera LLC, a joint venture between Royal Spirit Group of Hong Kong and Tom James Company. This was the first Delaware case to recognize a claim for “equitable dissolution” of LLCs. Summary judgment was granted in Kurt’s client’s favor at 2015 WL 2066764.
- Zutrau v. Jansing, 2014 WL 3772859 (Del. Ch.), aff’d by order, 123 A.3d 938 (Del. 2015) (TABLE), cert. denied, No. 15-811 (U.S. Feb. 29, 2016): Kurt was lead counsel for defendant in this case presenting a smorgasbord of business divorce issues. Kurt’s client prevailed on most claims after trial. Among other things, the court upheld the reverse stock split that cashed out plaintiff’s interest and refused to dissolve the company. The Delaware Supreme Court subsequently affirmed the Court of Chancery’s rulings.
- In re Star Scientific, Inc. Deriv. Litig., 2014 WL 819135 (E.D. Va.): As lead counsel for the company, Kurt argued the winning motion to stay this stockholder derivative action in favor of a related securities class action and subsequently negotiated a settlement. Kurt also convinced the Court to reduce plaintiffs’ counsel’s fee request from approximately $1 million to approximately $500,000. 2016 WL 4820637.
- R&R Capital LLC v. Merritt, 2013 WL 1008593 (Del. Ch.), aff’d, 69 A.3d 371 (Del. 2013) (Table): Kurt served as the court-appointed independent receiver for ten LLCs in this highly contentious and precedent-setting business divorce case. All of Kurt’s decisions as receiver ultimately upheld by the court.
- Dweck v. Nasser, 2012 WL 161590 (Del. Ch.): Kurt was lead counsel for defendants/counterclaim plaintiffs in this nearly seven-year business divorce dispute between former business partners. The trial took place over five days, and the record included 930 exhibits, deposition testimony from twenty-three fact witnesses and live testimony from six fact witnesses and three expert witnesses. The Court held largely in favor of Kurt’s client, finding that his former business partner breached her fiduciary duties by establishing competing companies that usurped corporate opportunities and converted company resources, resulting in millions of dollars in damages.
- McElroy v. Schornstein, 2012 WL 2428343 (Del. Ch.): Kurt obtained a rare dismissal of this summary dissolution proceeding on behalf of the respondent in favor of a first filed action pending in New Jersey.
- KFC Nat’l Council & Adver. Coop., Inc. v. KFC Corp., 2011 WL 350415 (Del. Ch.): Kurt served as lead Delaware counsel representing the interests of the U.S. Kentucky Fried Chicken franchisees in this dispute against the franchisor over control of the national advertising program. The Court of Chancery awarded judgment in the franchisees’ favor after trial.
- In re Texas Eastern Overseas, Inc., 2009 WL 4270799 (Del. Ch.), aff’d, 998 A.2d 852 (Del. 2010): Kurt successfully obtained the appointment of a receiver over a dissolved Delaware corporation for purposes of giving it standing to be sued in environmental litigation in California so that the corporation’s insurance policies could be pursued in connection with the environmental litigation. The potentially liable insurance companies opposed the appointment of a receiver. Kurt also successfully argued against the insurance companies’ appeal of the Court of Chancery’s decision appointing the receiver to the Delaware Supreme Court.
- In re Affiliated Computer Services, Inc. Shareholders Litig., 2009 WL 296078 (Del. Ch.): Kurt argued the successful motion to dismiss this stockholder derivative suit alleging breaches of fiduciary duty by the board of directors in connection with a failed going-private transaction. The Court of Chancery dismissed the suit on the grounds that demand was not excused on the board that was in place at the time the suit was originally filed.
- Langdon v. Google Inc., 474 F. Supp. 2d 622 (D. Del. 2007): Kurt served as lead Delaware counsel for defendant in this action alleging violation of constitutional rights, breach of contract, fraud and deceptive business practices as a result of defendant’s refusal to run certain ads submitted by plaintiff. After the District Court dismissed most of plaintiff’s claims in a written opinion, plaintiff voluntarily dismissed the remainder of the claims.
- Beck v. Atlantic Coast PLC, 868 A.2d 840 (Del. Ch. 2005): Kurt persuaded the Court of Chancery to dismiss this consumer fraud class action directed at allegedly deceptive internet pop-up ads, based on the bad faith litigation tactics of plaintiff and his counsel. The Court further awarded Kurt’s client a portion of its legal fees.
- Salovaara v. SSP Advisors, L.P., 2003 WL 23190391 (Del. Ch.), aff’d, 854 A.2d 1159 (Del. 2004): Kurt served as lead Delaware counsel in this epic business divorce/partnership indemnification dispute between former business partners, ultimately obtaining a $6 million judgment in his client’s favor. Kurt also successfully argued against the opposing side’s appeal from the Court of Chancery’s judgment to the Delaware Supreme Court.
- State of Delaware v. Preferred Florist Network, Inc., 791 A.2d 8 (Del. Ch. 2000): Kurt represented the defendant in this civil enforcement action alleging consumer fraud and deceptive trade practices. Kurt successfully obtained dismissal of certain claims against his client, persuading the Court of Chancery to strike down a portion of Delaware’s Consumer Fraud Act as being unconstitutional under the Commerce Clause of the United States Constitution. The case was ultimately resolved for a small fraction of the fines and penalties sought by the State.
- University of Michigan (A.B., with high distinction, 1988), Phi Beta Kappa
- University of Chicago Law School (J.D., 1991)
- Adjunct Professor, Fordham University School of Law, Spring 2015
- Adjunct Professor, Widener University School of Law, 2013-2014
- Adjunct Professor, J. Reuben Clark Law School, Brigham Young University, Fall 2012
- Member, Board of Trustees, Delaware Museum of Natural History, 2011-2016
- Board Member, University of Michigan Club of Delaware, 2012-2017
- Law Clerk to The Honorable Jack B. Jacobs, Delaware Court of Chancery, 1991-1992
- Morris, Nichols, Arsht & Tunnell, Associate, 1992-1995
- Wolf Block Schorr and Solis-Cohen, Associate, 1996
- The Bayard Firm, Associate, 1996-1998; Director, 1999-2005; Executive Committee, 2000-2005
- Corporation Law Council, Delaware State Bar Association (past Secretary)
- ABA Business Law Section, Business and Corporate Litigation Committee:
- Business Divorce Subcommittee (Co-Chair)
- Corporate Counseling and Litigation Subcommittee (past Chair)
- Editorial Board, Delaware Law Review
- Richard S. Rodney Inn of Court (past Group Co-Leader)
- Co-Editor, Litigating the Business Divorce (BNA Bloomberg 2016).
- Co-Author, Annual Developments: Do Recent Delaware Decisions Spell the Death of Stockholder Litigation?, PowerPoint® presentation at the ABA Business Law Spring Meeting, April 6, 2017.
- Co-Author, Ethical Issues in Handling Business Divorces, PowerPoint® presentation at the 22nd Annual Rubenstein-Walsh Seminar on Ethics and Professionalism, Delaware State Bar Association, February 10, 2017.
- Co-Author, Business Divorce 101, PowerPoint® presentation to the Delaware State Bar Association, January 19, 2017.
- Author, Business Divorce: New Practice Area or Plain Old Commercial Litigation?, Business Law Today (October 2016).
- Co-Author, Annual Trends in Business Divorce: “No-Fault” Business Divorce or “Till Death Do Us Part”?, PowerPoint® presentation at the ABA Business Law Spring Meeting, April 7, 2016.
- Co-Author, Business Divorce: 50 Ways to Leave Your Lover, err…Business Partner, PowerPoint® presentation at the ABA Business Law Section Annual Meeting, April 18, 2015.
- Author, Business Divorce in LLCs, slide presentation for NBI Live Teleconference, March 31, 2015.
- Author, Zutrau v. Jansing: A Business Divorce Smorgasbord With Something for Everyone, slide presentation for “Hot Topics in Business Divorce” Webinar for Thomson Reuters/West Legal Ed Center, October 10, 2014.
- Co-Author, Fiduciary Duties and the Implied Covenant of Good Faith and Fair Dealing in Limited Liability Companies: Delaware v. New York, PowerPoint® presentation at the New York State Bar Association Meeting, January 29, 2014.
- Co-Author, Legal Outsourcing, presentation at the ABA Business Law Section Fall Meeting, November 16, 2012.
- Co-Author, Recent Developments in Class Action Administration and Settlements: Have They Gone Crazy in Delaware?, PowerPoint® presentation at the ABA Business Law Section Spring Meeting, April 14, 2011.
- Author, Fiduciary Duties of Corporate Officers, PowerPoint® presentation at the ABA Annual Meeting, August 1, 2009.
- Co-Author, Protecting the Privilege in Litigation Involving Former D&Os: Keeping It in the Family, PowerPoint® presentation at the ABA Annual Meeting, August 11, 2008.
- Co-Author, Chapter on Corporate Law in Annual Review of Developments in Business and Corporate Litigation (American Bar Association 2008, 2009, 2010, 2011).
- Author, The Other Side of Enron: Delaware Court Decisions Expand Auditor Liability, Professional Liability Litigation @lert, Vol. 2, No. 1 (Winter 2004).
- Co-Author, Recent Developments in Corporate Law: Recent Supreme Court Reversals and the Role of Equity in Corporate Jurisprudence, 6 Del. L. Rev. 451 (2003).
- Author, The Fiduciary Duty of Good Faith: The Final Frontier, originally presented at the Annual Fall Meeting of the ABA Section of Business Law, Business and Corporation Litigation Committee, December 5, 2003, and appearing in several publications.
- Author, A Moot Point? Court of Chancery Rethinking Procedure for Approving Class and Derivative Action Settlements, Delaware Law Weekly (July 23, 2003).
- Co-Author, Cybergenics: A Corporate Solution to a Bankruptcy Problem, www.DelawareLawWeekly.com (Nov. 27, 2002).
- Co-Author, The Disappearing Distinction Between Derivative and Direct Actions, 4 Del. L. Rev. 155 (2001). This article has been cited with favor by the Delaware Court of Chancery.
- Author, Expedited Proceedings in the Delaware Court of Chancery II: An Update, appeared as a two-part series in the November 30 and December 7, 1999 issues of The Delaware Law Weekly.
- Author, Expedited Proceedings in the Delaware Court of Chancery: Things of the Past? 23 Del. J. Corp. L. 145 (1998).