In Washington v. Preferred Communication Systems, Inc., (opinion available here), decided February 27, the Delaware Supreme Court reversed the Court of Chancery and awarded attorneys’ fees pursuant to a promissory note fee-shifting provision.
In 2006, appellants bought promissory notes issued by appellee Preferred Communication Systems, Inc. (“PCSI”). When the notes came due in 2007, PCSI was unable to pay. PCSI agreed in an offer letter to provide noteholders with stock warrants as compensation for delay until it could pay.
In 2013, after PCSI received a significant cash payment, noteholders sued PCSI in Texas. The parties ultimately settled the noteholders’ claims for outstanding principal and interest but agreed to litigate their claims for warrants in Delaware. The Court of Chancery granted summary judgment in favor of the noteholders, holding, “The contract at issue consists of the Notes as modified by the Offer Letter” and that PCSI had breached the contract by not issuing the warrants.
The successful noteholders then sought attorneys’ fees pursuant to a fee-shifting provision in the promissory notes. The provision shifted fees if “any indebtedness” evidenced by the notes was collected in a court proceeding; or if the notes were “placed in the hands of attorneys for collection after default”. The Court of Chancery denied the motion, holding that “fee-shifting rights extend only to collection efforts.”
On appeal, the noteholders argued that “indebtedness” was a broad term that included warrants as well as principal and interest; and that PCSI had defaulted by not issuing the warrants. The Supreme Court agreed with the noteholders that the plain language of the notes shifted fees, emphasizing the Court of Chancery’s summary judgment ruling that the offer letter had modified the notes (which contained the fee-shifting provision) to promise warrants. The Supreme Court also held that even if the promissory notes had been ambiguous, they would have been construed against drafter PCSI under the contra proferentem doctrine. Thus, the Court reversed and remanded to the Court of Chancery to award attorneys’ fees.
The Williford Firm LLC served as Delaware counsel for appellants-noteholders in this action.
Filed under: Attorneys' Fees, Delaware Supreme Court
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