Delaware Supreme Court Denies Interlocutory Appeal in §8106 Case

Bloomberg BNA’s Corporate Law & Accountability Report is available on the Corporate Law Resource Center. This news service keeps corporate practitioners informed of legal developments of...

By Michael Greene

March 18 — EMC Mortgage LLC and JP Morgan Chase Bank N.A. will not be allowed to immediately appeal the Delaware Chancery Court's first interpretation of a recent amendment to DGCL § 8106, which allows parties to contract around the otherwise applicable statute of limitations for certain actions based on a written contract, agreement or undertaking.

In a two-page March 17 order, the Delaware Supreme Court denied the defendants' application for an interlocutory appeal, concluding that it did not meet the requirements of Delaware Supreme Court Rule 42(b).

Retroactive Application

In the underlying case, the plaintiff filed a 10-count complaint, which included claims for breaches of loan representations.

After the chancery court dismissed all but one count of the complaint because of laches, the plaintiff moved for re-argument claiming , among other things, that the court did not consider a recent amendment to Delaware General Corporation Law §8106(c)—which allows parties to agree to extend the limitations period for certain claims.

In a Jan. 12 opinion, Vice Chancellor J. Travis Laster granted the motion for re-argument. 

Laster rejected the defendants' argument that the amendment could not be applied retroactively to claims that arose before the law was enacted.

“Delaware precedent explains that a modification of a limitations period is a procedural matter affecting remedies rather than a change in substantive law,” he opined. “Ordinary presumptions against retroactivity do not apply, and the modification applies to ongoing suits absent a showing of manifest injustice.”

To contact the reporter on this story: Michael Greene in Washington at

To contact the editor responsible for this story: Ryan Tuck at

The order is available at