Errata: AMC Preliminary Injunction Hearing

Two Things We Can Learn About How The Court Works

Ah, language. The boon and the bane of my existence. Or, you know, what Homer Simpson said about alcohol.

In case you don’t need the backstory, but just want the takeaways, here’s the tl;dr — or, what we can learn from this little errata journey!

1. When an answer deadline arrives, something should be filed. It doesn’t matter if there is a preliminary injunction motion scheduled on the calendar. The best practice is to do what the rules say, and still either file your answer or your motion to dismiss or whatnot. If you have other stuff going on (as in this case, the preliminary injunction motion hearing and related schedule in place), you just file a placeholder that says, hey — we’ll get back to briefing this if and when it’s necessary after we sort out what we’ve got going on!). When this motion to dismiss paperwork is filed, and it has no correlated briefing, it doesn’t mean anything. It’s no grand strategy. The Court isn’t going to rule on it. Nothing is going to happen. The Court doesn’t rule on motions until they are briefed. See #2 for how rulings usually work. (And see further below for all the particulars re AMC.)

2. When judges in the Court of Chancery hear motions and arguments, there are three basic ways they issue rulings: 1. they rule from the bench at the hearing (common in certain types of hearings, like motions to expedite — sometimes for tro or pi, for example, but fairly uncommon overall); 2. they rule from the bench in an oral ruling at a later-scheduled re-convened hearing (more common as the Court’s workload becomes so great that they cannot dedicate the requisite resources to issuing written opinions in every motion to dismiss or other motion, but fairly uncommon in other contexts); 3. they issue a written ruling (most common in post-trial, motions for summary judgment and other contexts, especially for precedential rulings). Generally, the Court has a 90 day guideline to issue a ruling from when the matter is “taken under advisement” (i.e., when oral argument is heard or briefing is completed (if there is no argument, or if there is post-argument briefing)), but that is a guideline, not a bright-line rule.

And here’s the backstory of why I’m sending you an email when I just sent you an email like thirty minutes ago. 😌

I published a piece with a short postscript trying to dissuade a bunch of folks who have been relentlessly streaming on YouTube about how the AMC Directors filed a surreptitious motion to dismiss in some act of great strategery that is somehow going to upend and terminate the case in advance of the PI hearing, which is … no.

Just, no.

But, of course, in my desire to make very freaking clear that Vice Chancellor Zurn is not going to rule on a motion to dismiss that will not even have been briefed at the time of the preliminary injunction hearing, I feel that I managed to insert a point of potential vagary that could allow for misinterpretation of my words. And lord knows that words around this case have been misinterpreted ad literal nauseam. So, despite the fact that I edited the Substack post, it still exists in its original form in thousands of inboxes, so I wanted to clear up what I said with a lot more words, for clarity’s sake. A dangerous game, I know. I apologize for cluttering your inbox but with great power comes great responsibility.

Here’s what’s so:

The preliminary injunction hearing is on April 27th at 1:30pm. What I said in the last post was: The Court is not going to rule on a motion to dismiss before the Preliminary Injunction hearing. Nor is she going to rule on the motion to dismiss at the Preliminary Injunction hearing because it won’t have been briefed. I promise. She’s going to rule on the Preliminary Injunction at the Preliminary Injunction hearing.

I have now edited the last sentence to more correctly reflect the truth of the matter: She’s going to rule on the Preliminary Injunction at (or after) the Preliminary Injunction hearing.

There is no saying whether she will rule at the hearing. My point was about what she would be considering, but in my fixation to correct the mistaken assumption that she would be considering some non-existent motion to dismiss due to a placeholder MTD that was filed on the answer deadline by defendants, which turned into some conspiracy theory, I phrased the above in an unfortunate manner particularly for laypersons.

There’s no burden on the Court to rule on the day of the hearing. She may or she may not. That is entirely her choice. No one is going to guide or change that except her full discretion.

Here’s how it works: She may issue a ruling from the bench at the hearing. She may not. She may issue a ruling from the bench (an oral ruling) on an unspecified day subsequent to the hearing. She may not. She may issue a written ruling after the hearing, generally within 90 days of taking the matter under advisement, but sometimes not. Usually it’s quicker with expedited matters, particularly with preliminary injunctions, but it’s not my place to guess what the Court’s burden or timeline is on that front. That’s all entirely within the Court’s discretion. My (poor) choice of words was entirely with respect to what the Court would be ruling on in the sense of what she would be hearing at the hearing, not in the sense of actually issuing a ruling on, but in reading it back, I can see how someone not familiar with the ins and outs of the Court could take it the wrong way and jump the shark to some grand conclusion, so I’m here, saying all these words to avoid having people making dumb investments on a misinterpretation of something I said.

To be very clear, there is absolutely no promise or expectation that the Court will actually issue a ruling on the preliminary injunction at the hearing. She may. She may not. That is the end of the story. But what I can tell you is that she will not be taking anything else under advisement that day, and that’s what I should have said above.

Thank you. That is all for this errata sheet. May we avoid them in the future. Namaste.