Yeransian v. Willkie Farr

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/22/2020 01:08 AM CDT
- 693 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
YERANSIAN v. WILLKIE FARR
Cite as 305 Neb. 693
Thomas Yeransian, in his capacity as the
representative of certain contingent value
rights under the Contingent Value Rights
Agreement dated October 15, 2010,
appellant, v. Willkie Farr &
Gallagher LLP, appellee.
___ N.W.2d ___
Filed May 1, 2020. No. S-19-320.
1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s
grant of a motion to dismiss on the pleadings is reviewed de novo,
accepting the allegations in the complaint as true and drawing all rea-
sonable inferences in favor of the nonmoving party.
2. Jurisdiction: Pleadings: Appeal and Error. An appellate court exam-
ines the question of whether the nonmoving party has established a
prima facie case of personal jurisdiction de novo.
3. Evidence: Appeal and Error. Generally, the control of discovery is a
matter for judicial discretion, and decisions regarding discovery will be
upheld on appeal in the absence of an abuse of discretion.
4. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
5. Jurisdiction: Words and Phrases. Personal jurisdiction is the power of
a tribunal to subject and bind a particular entity to its decisions.
6. Due Process: Jurisdiction: States. Before a court can exercise per-
sonal jurisdiction over a nonresident defendant, the court must deter-
mine, first, whether the long-arm statute is satisfied and, second,
whether minimum contacts exist between the defendant and the forum
state for personal jurisdiction over the defendant without offending
due process.
7. Constitutional Law: Jurisdiction: States. Nebraska’s long-arm stat-
ute extends Nebraska’s jurisdiction over nonresidents having any
- 694 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
YERANSIAN v. WILLKIE FARR
Cite as 305 Neb. 693
contact with or maintaining any relation to this state as far as the U.S.
Constitution permits.
8. Jurisdiction: States: Legislature: Intent. It was the intention of the
Legislature to provide for the broadest allowable jurisdiction over non-
residents under Nebraska’s long-arm statute.
9. Due Process: Jurisdiction: States. When a state construes its long-arm
statute to confer jurisdiction to the fullest extent constitutionally permit-
ted, the inquiry collapses into the single question of whether jurisdiction
comports with due process.
10. Jurisdiction: States. To constitute sufficient minimum contacts, a
defendant’s conduct and connection with the forum state must be such
that he or she should reasonably anticipate being haled into court there.
11. Jurisdiction: States: Appeal and Error. In analyzing personal jurisdic-
tion, an appellate court considers the quality and type of the defend­
ant’s activities and determines whether the nonresident defendant’s
actions create substantial connections with the forum state, resulting
in the defendant’s purposeful availment of the forum state’s benefits
and protections.
12. Jurisdiction: States. A court exercises two types of personal jurisdic-
tion depending upon the facts and circumstances of the case: general
personal jurisdiction or specific personal jurisdiction.
13. Jurisdiction. General personal jurisdiction arises where a defendant’s
affiliations with a state are so continuous and systematic as to render the
defendant essentially at home in the forum state.
14. Jurisdiction: Words and Phrases. Specific personal jurisdiction
requires that a claim arise out of or relate to the defendant’s contacts
with the forum.
15. Jurisdiction. A defendant need not be at home in the forum state to be
subject to specific personal jurisdiction, but, rather, there must be an
affiliation between the forum and the underlying controversy.
16. Jurisdiction: Words and Phrases. Specific personal jurisdiction is
confined to adjudication of issues deriving from, or connected with, the
very controversy that establishes jurisdiction.
17. Jurisdiction: Time. Specific personal jurisdiction is determined at the
time a suit is commenced, and minimum contacts must exist either at
the time the cause of action arose, at the time the suit was filed, or
within a reasonable period of time immediately prior to the filing of
the lawsuit.
18. Jurisdiction: Words and Phrases. For specific personal jurisdiction,
there must be a substantial connection between the defendant’s contacts
with the forum state and the operative facts of the litigation.
19. Jurisdiction: States: Contracts. While contractual agreements may be
relevant to consideration of minimum contacts that support jurisdiction,
- 695 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
YERANSIAN v. WILLKIE FARR
Cite as 305 Neb. 693
the existence of a contract with a party in a forum state does not, in and
of itself, provide the necessary contacts for personal jurisdiction.
20. ____: ____: ____. To determine whether a defendant’s contract supplies
the contacts necessary for personal jurisdiction in a forum state, a court
is to consider the parties’ prior negotiations and future contemplated
consequences, along with the terms of the contract and the parties’
actual course of dealing.
21. ____: ____: ____. To determine whether a defendant’s contract supplies
the contacts necessary for personal jurisdiction in a forum state, a court
looks to whether the contracting party has created continuing relation-
ships and obligations with citizens of another state.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed.
James D. Sherrets, Diana J. Vogt, and James L. Schneider, of
Sherrets, Bruno & Vogt, L.L.C., for appellant.
Steven D. Davidson, of Baird Holm, L.L.P., for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Funke, J.
Thomas Yeransian appeals the district court’s order dis-
missing his complaint against the law firm of Willkie Farr
& Gallagher LLP (Willkie). Willkie had represented Aspen
Holdings, Inc. (Aspen), in 2009 and 2010, when Aspen merged
with and was acquired by Markel Corporation (Markel).
Yeransian, as a representative of Aspen’s former shareholders,
brought suit against Willkie to obtain the Aspen attorney-client
file for the former shareholders’ dispute with Markel over pay-
ments from the merger. The district court found Willkie did not
have the requisite minimal contacts with Nebraska for the court
to have personal jurisdiction over it. Alternatively, the court
found that Yeransian failed to present a claim upon which relief
can be granted because Willkie had represented Aspen, and
not its shareholders, and that Markel, as the surviving entity,
was entitled to control of the file. Yeransian challenges both
grounds. For the reasons set forth herein, we affirm.
- 696 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
YERANSIAN v. WILLKIE FARR
Cite as 305 Neb. 693
BACKGROUND
Willkie is an international law firm with its principal place
of business in New York, New York. Willkie does not have a
Nebraska office.
In 2009 and 2010, Willkie represented Aspen, a Delaware
corporation with its principal place of doing business in
Nebraska, in Aspen’s merger with Markel, a Virginia corpo-
ration. At the time of the merger and now, some of Aspen’s
shareholders reside in Nebraska. For the purpose of this rep-
resentation, Willkie and Aspen entered into an engagement
letter whereby Willkie stated that the client would be “Aspen
Holdings, Inc.,” and explained that “[t]his engagement does not
create an attorney-client relationship with any related persons
or entities, such as parents, subsidiaries, affiliates, employees,
officers, directors, shareholders or partners.”
In July 2010, Aspen and Markel agreed to the terms of the
merger and executed an “Agreement and Plan of Merger”
(Merger Agreement). In October 2010, Aspen and Markel
also executed a “Contingent Value Rights Agreement”
(CVR Agreement). Pursuant to the Merger Agreement, the
merger transaction closed later in 2010. Under both the CVR
Agreement and the Merger Agreement, the parties elected to
have Delaware law govern.
Under the CVR Agreement, each share of Aspen’s com-
mon stock and option was converted into the right to receive,
among other compensation, certain contingent payments. This
right had an initial principle value which was to be sub-
jected to adjustment depending on factors set out by the CVR
Agreement. Markel was periodically required to provide the
holders of certain CVR rights (CVR Holders) certain informa-
tion relevant to this changing value. The CVR Agreement des-
ignated a representative to act on behalf of the CVR Holders
(Holder Representative), including granting this representa-
tive the authority to enforce any claim against Markel aris-
ing under the CVR Agreement. When Markel was required
to provide any notice under the CVR Agreement to the CVR
- 697 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
YERANSIAN v. WILLKIE FARR
Cite as 305 Neb. 693
Holders, the agreement specified that such notice be sent to the
Holder Representative “with a copy (which shall not constitute
notice)” sent to Willkie.
Yeransian alleges he is the current Holder Representative. In
September 2016, on behalf of the CVR Holders, Yeransian filed
suit against Markel in the U.S. District Court for the District
of Delaware. In the suit, Yeransian alleged that Markel violated
its obligations under the CVR Agreement and sought pay-
ment of the unpaid benefits. Yeransian claimed that there were
ambiguities in the CVR Agreement and requested Willkie’s
attorney-client file with Aspen to aid in resolution of the ambi-
guities. Upon request, however, Willkie refused to provide the
file, citing attorney-client privilege.
In July 2018, Yeransian initiated the instant action in the
district court for Douglas County, Nebraska, by filing a com-
plaint against Willkie to acquire its Aspen file. The complaint’s
claims included the following: (1) Willkie breached its contract
for representation of Aspen, (2) Willkie breached its fiduciary
duty to the CVR Holders under the CVR Agreement, and (3)
restitution should be ordered for costs associated with the
return of the file. Yeransian alleged that the Nebraska district
court is a proper venue for these claims because Aspen’s prin-
cipal place of business was in Omaha, Nebraska; Willkie repre-
sented Aspen in 2009 and 2010 during the merger and in con-
nection with the CVR Agreement; Willkie maintained regular
contact with Aspen officers and employees in Douglas County
in furtherance of this representation; and a substantial number
of the CVR Holders continue to reside in Nebraska.
Willkie filed a motion to dismiss for lack of personal juris-
diction or, in the alternative, for failure to state a claim for
which relief can be granted. Willkie claimed Markel is the
rightful possessor of this file, because Willkie represented
Aspen, not its shareholders, and Markel absorbed Aspen in
the 2010 merger. Willkie asserted Markel acquired all prop-
erty, rights, privileges, powers, and franchises of Aspen,
including Willkie’s Aspen file on the merger. Accordingly,
- 698 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
YERANSIAN v. WILLKIE FARR
Cite as 305 Neb. 693
Willkie argued Yeransian should submit its request for the file
to Markel.
The district court granted Willkie’s motion and dismissed
Yeransian’s claims. First, the court found Yeransian’s com-
plaint failed to allege Willkie had the requisite minimum con-
tacts with the State of Nebraska and that, as such, the court
did not have personal jurisdiction over Willkie. The court dis-
agreed that Willkie’s representation of Aspen could be used as
a basis for personal jurisdiction, explaining that any contacts
which may have arisen in 2009 and 2010 have long ceased
before any cause of action arose based on Willkie’s declining
to provide Yeransian the file. Additionally, the court held that
those potential contacts with the State existed between Willkie
and Aspen as a corporate entity and not Aspen’s individual
shareholders. Even if there was personal jurisdiction, the court
found Yeransian’s complaint also failed to state a claim upon
which relief could be granted because Willkie’s client was
Aspen and not Aspen’s shareholders, which meant Markel, as
the surviving entity, was the rightful owner of the file.
ASSIGNMENTS OF ERROR
Yeransian assigns, restated, that the district court erred in (1)
finding the court lacked personal jurisdiction over Willkie, (2)
denying an initial discovery request on the issue of personal
jurisdiction, (3) implying that Yeransian lacked standing, and
(4) finding Yeransian failed to state a claim upon which relief
can be granted.
STANDARD OF REVIEW
[1,2] A district court’s grant of a motion to dismiss on the
pleadings is reviewed de novo, accepting the allegations in
the complaint as true and drawing all reasonable inferences
in favor of the nonmoving party. 1 Similarly, an appellate
court examines the question of whether the nonmoving party
1
Patterson v. Metropolitan Util. Dist., 302 Neb. 442, 923 N.W.2d 717
(2019).
- 699 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
YERANSIAN v. WILLKIE FARR
Cite as 305 Neb. 693
has established a prima facie case of personal jurisdiction
de novo. 2
[3,4] Generally, the control of discovery is a matter for
judicial discretion, and decisions regarding discovery will be
upheld on appeal in the absence of an abuse of discretion. 3
An abuse of discretion occurs when a trial court’s decision is
based upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and
evidence. 4
ANALYSIS
Personal Jurisdiction
[5,6] Personal jurisdiction is the power of a tribunal to sub-
ject and bind a particular entity to its decisions. 5 Before a court
can exercise personal jurisdiction over a nonresident defendant,
the court must determine, first, whether the long-arm statute is
satisfied and, second, whether minimum contacts exist between
the defendant and the forum state for personal jurisdiction over
the defendant without offending due process. 6
[7-9] Nebraska’s long-arm statute extends Nebraska’s juris-
diction over nonresidents having any contact with or maintain-
ing any relation to this state as far as the U.S. Constitution
permits. 7 It was the intention of the Legislature to provide for
the broadest allowable jurisdiction over nonresidents under
Nebraska’s long-arm statute. 8 When, as here, a state construes
its long-arm statute to confer jurisdiction to the fullest extent
constitutionally permitted, the inquiry collapses into the single
2
Nimmer v. Giga Entertainment Media, 298 Neb. 630, 905 N.W.2d 523
(2018).
3
Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018).
4
Id.
5
Nimmer, supra note 2.
6
Id.
7
Neb. Rev. Stat. § 25-536 (Reissue 2016).
8
VKGS v. Planet Bingo, 285 Neb. 599, 828 N.W.2d 168 (2013).
- 700 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
YERANSIAN v. WILLKIE FARR
Cite as 305 Neb. 693
question of whether jurisdiction comports with due process. 9
Therefore, the issue is whether Willkie had sufficient minimum
contacts with Nebraska so that the exercise of personal juris-
diction would not offend the traditional notions of fair play and
substantial justice. 10
[10,11] To constitute sufficient minimum contacts, a defend­
ant’s conduct and connection with the forum state must be
such that he or she should reasonably anticipate being haled
into court there. 11 In analyzing personal jurisdiction, we con-
sider the quality and type of the defendant’s activities and
determine whether the nonresident defendant’s actions create
substantial connections with the forum state, resulting in the
defendant’s purposeful availment of the forum state’s benefits
and protections. 12
[12-14] A court exercises two types of personal jurisdic-
tion depending upon the facts and circumstances of the case:
general personal jurisdiction or specific personal jurisdic-
tion. 13 General personal jurisdiction arises where a defendant’s
affiliations with a state are so continuous and systematic
as to render the defendant essentially at home in the forum
state. 14 Specific personal jurisdiction, in turn, requires that a
claim arise out of or relate to the defendant’s contacts with
the forum. 15
Yeransian’s arguments are solely based upon Willkie’s pres-
ence within Nebraska during the Aspen and Markel merger. It
is undisputed that Willkie’s principal place of business is in
New York and that it does not have a Nebraska office. Further,
9
See id.
10
See Hand Cut Steaks Acquisitions v. Lone Star Steakhouse, 298 Neb. 705,
905 N.W.2d 644 (2018).
11
Id.
12
See Nimmer, supra note 2.
13
Id.
14
See Hand Cut Steaks Acquisitions, supra note 10.
15
See id.
- 701 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
YERANSIAN v. WILLKIE FARR
Cite as 305 Neb. 693
there are no allegations that Willkie has had a Nebraska pres-
ence outside of its work surrounding the merger. Accordingly,
there is an insufficient basis to establish general personal juris-
diction and the issue before us is whether the district court had
specific personal jurisdiction over Willkie.
[15-18] A defendant need not be at home in the forum state
to be subject to specific personal jurisdiction, but, rather, there
must be an affiliation between the forum and the underly-
ing controversy. 16 Specific personal jurisdiction is confined to
adjudication of issues deriving from, or connected with, the
very controversy that establishes jurisdiction. 17 This inquiry
is determined at the time a suit is commenced, and minimum
contacts must exist either at the time the cause of action arose,
at the time the suit was filed, or within a reasonable period
of time immediately prior to the filing of the lawsuit. 18 Thus,
there must be a substantial connection between the defendant’s
contacts and the operative facts of the litigation. 19
Yeransian alleges Willkie created a substantial connection
with Nebraska in the current subject matter through its work
surrounding the 2010 merger and its drafting of the CVR
Agreement. Yeransian’s argument centers on the allegation
that by drafting the CVR Agreement, Willkie entered into a
contractual relationship that envisioned continuing contacts
in Nebraska due to Aspen’s previous presence and the CVR
Holders’ continued residency in the forum state.
[19-21] However, the CVR Agreement does not supply the
contacts necessary to establish a continuing substantial con-
nection. While contractual agreements may be relevant to
consideration of minimum contacts that support jurisdiction,
the existence of a contract with a party in a forum state does
not, in and of itself, provide the necessary contacts for personal
16
Id.
17
Id.
18
See Nimmer, supra note 2.
19
Hand Cut Steaks Acquisitions, supra note 10.
- 702 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
YERANSIAN v. WILLKIE FARR
Cite as 305 Neb. 693
jurisdiction. 20 To determine whether a defendant’s contract sup-
plies the contacts necessary for personal jurisdiction in a forum
state, a court is to consider the parties’ prior negotiations and
future contemplated consequences, along with the terms of the
contract and the parties’ actual course of dealing. 21 A court
looks to whether the contracting party has created continuing
relationships and obligations with citizens of another state. 22
We begin by noting that Willkie was not a party to the CVR
Agreement. Willkie participated in the process as a represent­
ative of Aspen. Willkie has no continuing obligations under
the terms of the CVR Agreement. Any continuing relationship
from the agreement would have extended to Aspen, which
ceased to be an entity due to its merger with Markel in 2010.
Additionally, Willkie has no obligations to the CVR Holders
extending from Willkie’s agreement to represent Aspen in the
merger process. Willkie’s representation was limited to Aspen
as the corporate entity and explicitly did not extend to Aspen’s
shareholders. This representation is detailed in the engage-
ment letter, signed by an Aspen representative, stating that
Willkie’s client would be “Aspen Holdings, Inc.,” and stipu-
lating that “[t]his engagement does not create an attorney-
client relationship with any related persons or entities, such as
. . . shareholders . . . .”
Contrary to the clear language of the engagement letter,
Yeransian alleges that Willkie represented Aspen’s sharehold-
ers during the merger and has continued to represent them as
the CVR Holders. To support this claim, Yeransian points to
the provision of the CVR Agreement which directs Markel to
send any required notices to the Holder Representative “with a
20
See, RFD-TV v. WildOpenWest Finance, 288 Neb. 318, 849 N.W.2d 107
(2014); Kugler Co. v. Growth Products Ltd., 265 Neb. 505, 658 N.W.2d 40
(2003).
21
Hand Cut Steaks Acquisitions, supra note 10; Nimmer, supra note 2.
22
See Kugler Co., supra note 20. See, also, Walden v. Fiore, 571 U.S. 277,
134 S. Ct. 1115, 188 L. Ed. 2d 12 (2014).
- 703 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
YERANSIAN v. WILLKIE FARR
Cite as 305 Neb. 693
copy (which shall not constitute notice)” sent to Willkie. Citing
this provision, Luke Yeransian, a former founder and chief
executive officer of Aspen, stated in an affidavit that it was his
understanding that “Willkie Farr remained as counsel for the
[CVR] Holders following the conclusion of the merger.”
The CVR Agreement’s notice provision instructing Markel
to send a copy of notices under the agreement to Willkie
is insufficient to indicate Willkie had any sort of attorney-
client relationship with Aspen’s previous shareholders or that
its representation of Aspen would continue until the expira-
tion of the CVR Agreement. The notice provision does not
label Willkie as the CVR Holders’ representative nor does it
indicate that such copy is due to an existing or impending
attorney-client relationship with the CVR Holders. While the
notice provision directed that a copy of notices sent to the
Holder Representative also be sent to Willkie, it specified
that such copy would not constitute notice. The mere proxim-
ity of the requirement of notice to the Holder Representative
and Willkie does not, without more, establish an attorney-
client relationship to the CVR Holders or evidence an exist-
ing one.
Similarly, citing only the notice provision, Luke Yeransian
contended that the provision created an attorney-client rela-
tionship with the CVR Holders. However, no evidence was
offered that either party acted upon this alleged relationship
such as the CVR Holders’ paying Willkie any fees or retainers
for services, communications about the alleged representation
between Willkie and any CVR Holders, or correspondence
from any CVR Holder to Willkie about initiating the pending
suit against Markel. Yeransian makes no allegations outlining
Willkie’s authority to act on the CVR Holders’ behalf or the
parameters of any sort of advisory role Willkie might have had
with the CVR Holders. While Yeransian asks for discovery to
obtain Willkie’s documents concerning Willkie’s representa-
tion of Aspen, the motion did not seek to uncover evidence of
an agreement between Willkie and the CVR Holders. Instead,
- 704 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
YERANSIAN v. WILLKIE FARR
Cite as 305 Neb. 693
the discovery only sought evidence of Willkie’s exposure to
Nebraska during its representation of Aspen. Even if Yeransian
was seeking discovery to uncover evidence of the alleged repre-
sentation arrangement between Willkie and the CVR Holders, it
is unclear why the Holder Representative and the CVR Holders
would not have additional evidence beyond the notice provision
of the CVR Agreement of such an arrangement. Accordingly,
Luke Yeransian’s reading of the CVR Agreement’s notice pro-
vision is also insufficient to establish Willkie had an attorney-
client relationship with the CVR Holders.
As explained, Willkie was not a party to the CVR Agreement
or the merger. The notice provision of the CVR Agreement was
insufficient to demonstrate or create an attorney-client relation-
ship between Willkie and the CVR Holders. Willkie’s engage-
ment letter, signed by a representative of Aspen, explained
Willkie and Aspen’s attorney-client relationship and specified
that Willkie represented Aspen as a corporate entity and did
not represent Aspen’s shareholders. Willkie’s relationship with
Nebraska was through its representation of Aspen, which did
have a presence in Nebraska but which is no longer an entity.
Now, neither Willkie nor Aspen have any continuing obliga-
tions under the CVR Agreement. Instead, the CVR Agreement
requires Markel to pay the CVR Holders according to exist-
ing valuations of certain Markel activities. As the district
court correctly found, Willkie’s representation of Aspen in
the 2010 merger did not extend to the CVR Holders and is
insufficient to establish a continuing substantial connection
between Willkie and Nebraska under the operative facts of the
current litigation.
Yeransian also takes issue with the lower court’s consider-
ation of the time difference between Willkie’s representation
of Aspen during the 2010 merger and Yeransian’s seeking
the attorney-client file in 2016, asserting the court created an
“expiration date [for] specific jurisdiction analysis.” 23
23
Brief for appellant at 14.
- 705 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
YERANSIAN v. WILLKIE FARR
Cite as 305 Neb. 693
Yeransian misconstrues the court’s analysis. Instead of apply-
ing an expiration date, the court was addressing Yeransian’s
argument that the CVR Agreement created a substantial con-
nection between Willkie and Nebraska under the operative
facts of the litigation. The court correctly considered that
Willkie did not represent the shareholders. The court also cor-
rectly considered that even though Willkie represented Aspen
in the 2010 merger that produced the CVR Agreement, that
any relationship this representation may have had on the CVR
Holders’ rights under the agreement was too attenuated from
Willkie due to a lack of privity of contract and the length of
time since Willkie’s participation.
Further, despite Willkie’s having no attorney-client rela-
tionship with the CVR Holders and no continuing obligations
under the CVR Agreement, Yeransian claims Willkie has a
continuing substantial connection with Nebraska because the
CVR Holders are the current, rightful owners of Willkie’s
attorney-client file as the previous shareholders to Aspen and
they continue to reside within the state.
This argument incorrectly presumes the CVR Holders are
the current, rightful owners of the 2010 merger file. Aspen was
incorporated under the laws of Delaware, and in the merger
documents, the parties elected to have Delaware law apply.
Under Delaware “General Corporation Law,” upon consum-
mation of a merger, “all property, rights, privileges, powers,
and franchises, and all and every other interest shall be there-
after as effectually the property of the surviving or resulting
corporation.” 24 “[A]ll . . . privileges” necessarily encompasses
an attorney-client privilege and “all property” necessarily
encompasses documentation of all premerger communications
pursuant to an attorney-client privilege, including those com-
munications relating to the negotiation of the merger itself. 25
24
Del. Code tit. 8, § 259 (2020).
25
See Great Hill Equity v. SIG Growth Equity Fund, 80 A.3d 155 (Del. Ch.
2013).
- 706 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
YERANSIAN v. WILLKIE FARR
Cite as 305 Neb. 693
As such, Markel, as the surviving corporation, is the current,
rightful owner of Willkie’s attorney-client file on Aspen’s
2010 merger. Yeransian’s argument that Willkie has a continu-
ing presence in Nebraska because the CVR Holders reside
in Nebraska and are the current, rightful owners of Willkie’s
attorney-client file with Aspen is, therefore, without merit.
In consideration of all of the above, Yeransian failed to
establish a continuing substantial connection under the opera-
tive facts of the litigation to establish Willkie has sufficient
minimum contacts with Nebraska for the exercise of specific
personal jurisdiction.
Jurisdictional Discovery
Yeransian also assigns the district court erred in denying
his motion regarding jurisdictional discovery. He argues that
if discovery had been granted, he could have obtained further
evidence of Willkie’s representation of Aspen and Willkie’s
presence in Nebraska through that representation.
Yeransian does not contend that such discovery would pro-
duce evidence of an agreement for representation between
Willkie and the CVR Holders or evidence of additional con-
tinuing obligations to show Willkie had a continuing substan-
tial presence in Nebraska. Even if Yeransian did seek evidence
of an alleged arrangement where Willkie also represented the
CVR Holders, he fails to allege why the CVR Holders would
not already have such evidence. Instead, the evidence Yeransian
sought concerned only Willkie’s representation of Aspen at the
time of the merger, which representation and its presence in
Nebraska is uncontested by Willkie. Accordingly, the district
court did not abuse its discretion in denying Yeransian’s motion
to conduct discovery in order to prove these unchallenged
allegations. 26
26
See, Lombardo, supra note 3; Williams v. Gould, Inc., 232 Neb. 862, 443
N.W.2d 577 (1989).
- 707 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
YERANSIAN v. WILLKIE FARR
Cite as 305 Neb. 693
CONCLUSION
The district court did not err in denying Yeransian’s motion
for discovery and granting Willkie’s motion to dismiss
Yeransian’s complaint for lack of personal jurisdiction. Because
the district court correctly determined it lacked jurisdiction, we
need not address Yeransian’s remaining assignments.
Affirmed.
Miller-Lerman, J., not participating.