Recent Publication:
Barry Klayman and Mark Felger, writing in the Delaware Business Court Insider, discuss a recent decision by the Delaware Supreme Court directing the Court of Chancery to substitute a Chapter 7 trustee for the nominal defendant and realign it as plaintiff in a shareholder action that had been dismissed for failure to make a demand on the company’s board of directors, where the case was pending on appeal when the bankruptcy case was filed.
Barry concentrates his practice in the areas of civil and commercial litigation, fiduciary and corporate governance, and insurance litigation. He represents clients in many industries, including financial and professional services, software manufacturers, publishers, retailers, real estate developers and real estate brokers, and manufacturers.
Barry has extensive trial experience in both Pennsylvania and Delaware, and has handled numerous jury trial cases, including a case that was reputed at the time to have been the longest civil jury trial in Philadelphia Court of Common Pleas history.
Barry’s corporate governance practice involves representing corporations, directors, officers, stockholders, and other stakeholders in Delaware’s Court of Chancery and other courts. He also advises clients on implementing policies and mechanisms to ensure compliance with best practices.
Barry has experience handling complex civil litigation matters in federal and state court. He has represented numerous companies and individuals in commercial and contract disputes. He has also represented employers and manufacturers in cases dealing with personal injury claims due to exposures to asbestos, benzene, lead and other heavy metals, PCB, solvents, and other hazardous substances. He has also litigated several cases in the Delaware Valley that deal with civil rights issues, including the rights of persons with physical and mental disabilities.
Barry has appeared in bankruptcy court representing debtors, trustees, and creditors in adversary actions, particularly in prosecuting and defending preference actions and D&O liability claims.
Barry is a frequent lecturer on civil litigation topics and legal ethics for the National Business Institute. He also writes a monthly feature for the Delaware Business Court Insider, an online publication.
Barry serves on the board of directors of the Jack M. Barrack Hebrew Academy (formerly Akiba Hebrew Academy) in Radnor, Pa. He was president of the school from 2000 to 2003. He formerly served as a member of the Jewish Federation of Greater Philadelphia’s Committee on Policy, Strategy and Funding and chaired the Committee on National and Overseas Services. Until May 2009, he served on the board of directors of BBYO, Inc., and its predecessor, the B'nai B'rith International Youth Commission. He was chairman and a member of the board of directors of the Philadelphia Region B'nai B'rith Youth Organization.
Barry earned his undergraduate degree, magna cum laude, from Columbia University and his law degree, cum laude, from Harvard Law School. He was Congress Editor of the Harvard Law School Journal on Legislation.
News
September 04, 2014
Barry Klayman, a member of Cozen O'Connor's Commercial Litigation Department, secured a significant victory before the Delaware Court of Chancery on behalf of firm client QC Communications, Inc. The court found that a former officer and employee of WJKS Kiss 101.7, a Wilmington radio station owned by QC Communications, had enriched himself by breaching his fiduciary duty of loyalty, and held the defendant liable to repay the money he had diverted from the radio station.
January 18, 2012
Barry Klayman and Mark Felger were quoted in the Delaware Business Court Insider article entitled ''Delaware Bankruptcy Court Expounds on Meaning and Significance of Stern'' regarding Judge Christopher S. Sontchi's views on the significance of the Supreme Court's decision in Stern v. Marshall.
August 10, 2011
Barry Klayman and Mark Felger featured in Delaware Business Court Insider
Publications
January 13, 2022
Barry Klayman and Mark Felger, writing in the Delaware Business Court Insider, discuss a recent decision by the Delaware Supreme Court directing the Court of Chancery to substitute a Chapter 7 trustee for the nominal defendant and realign it as plaintiff in a shareholder action that had been dismissed for failure to make a demand on the company’s board of directors, where the case was pending on appeal when the bankruptcy case was filed.
December 09, 2021
Barry Klayman & Mark Felger, writing in the Delaware Business Court Insider, discuss a recent decision by Vice Chancellor Glasscock of the Delaware Court of Chancery reviewing the evolution of the vested rights doctrine in Delaware and synthesizing from prior case law a simplified test for its application.
November 03, 2021
Barry Klayman and Mark Felger, writing in the Delaware Business Court Insider, discuss a recent decision by Judge Paul R. Wallace of the Delaware Superior Court holding that the Delaware courts are the proper forum for resolving issues raised by a subpoena issued pursuant to foreign letters rogatory, including the propriety and scope of the subpoena and whether the expenses of complying should be shifted from the non-party target to the requesting party.
October 07, 2021
Barry Klayman and Mark Felger, writing in the Delaware Business Court Insider, review a recent decision by Vice Chancellor Slights of the Court of Chancery dismissing a claim that defendants violated their Caremark duties because plaintiff failed to adequately plead demand futility.
September 02, 2021
Barry Klayman & Mark Felger, writing in the Delaware Business Court Insider, review a recent decision by Vice Chancellor Slights of the Court of Chancery of Delaware holding that section 3104(d)(4) of the Delaware Long Arm Statute provides standalone authority for alternative means for service of process, and approving international service of a summons and complaint by email and posting at the defendants’ residences.
July 01, 2021
Barry Klayman and Mark Felger, writing in the Delaware Business Court Insider, review a recent decision from Chief Judge Sontchi of the Bankruptcy Court for the District of Delaware holding that the law of the jurisdiction in which a trust is organized governs whether it is a “business trust” that can be an eligible debtor under the Bankruptcy Code.
June 03, 2021
Barry Klayman and Mark Felger, writing in the Delaware Business Court Insider, review a recent decision from the Supreme Court of Delaware affirming that the Bankruptcy Code does not preempt the Delaware Limited Liability Company Act to the extent that it divests members of an LLC who file for bankruptcy of the right to participate in the management of the company, but not their economic interest.
May 05, 2021
Barry Klayman and Mark Felger, writing in the Delaware Business Court Insider, review a recent decision from the Bankruptcy Court for the District of Delaware discussing what is a consumer deposit for purposes of priority treatment under section 507(a)(7) of the Bankruptcy Code and holding that prepayments to a flight service company for future airplane flights were deposits within the meaning of the statute.
March 31, 2021
Barry Klayman & Mark Felger, writing in the Delaware Business Court Insider, discuss a recent decision from the Superior Court of Delaware holding that partial motions to dismiss toll the period for answering the entire complaint under Delaware’s Note Action Statute moving for partial dismissal before answering is not a procedural error necessitating a default or other repercussions.
March 03, 2021
Barry Klayman and Mark Felger, writing in the Delaware Business Court Insider, discuss a recent decision from the Court of Chancery of Delaware that discusses the doctrine of unclean hands and explains how it serves as the guardian of equity and a vehicle for protection of the reputation of the court itself.
February 03, 2021
Barry Klayman and Mark Felger, writing in the Delaware Business Court Insider, discuss a recent decision from the Delaware Superior Court that serves as a primer on the affiliate privilege doctrine.
January 14, 2021
Barry Klayman & Mark Felger, writing in the Delaware Business Court Insider, discuss a recent decision from the Court of Chancery in Delaware that serves as a primer on increasingly common defenses to stockholder books and records inspection demands and a cautionary tale for defendants in Section 220 proceedings who opt to pursue overly aggressive defense strategies that seek to place obstacles to the use of Section 220 as a quick and easy pre-filing discovery tool.
December 09, 2020
Barry Klayman and Mark Felger, writing in the Delaware Business Court Insider, discuss a recent decision by the Court of Chancery in Delaware holding that first-party claims are covered by a standard indemnity provision in a limited liability company agreement absent an express intent to the contrary, rejecting application of the presumption in a line of cases involving bilateral commercial contracts against fee-shifting with respect to claims between the contracting parties absent a clear statement allowing it.
November 04, 2020
Barry Klayman and Mark Felger, writing in the Delaware Business Court Insider, discuss a recent decision by the Court of Chancery in Delaware holding that a waiver of partition rights by co-tenants of real property was unenforceable because it was unlimited in duration.
October 07, 2020
Barry Klayman and Mark Felger writing in the Delaware Business Court Insider, discuss a recent decision by the Superior Court of Delaware holding that an anti-assignment clause prohibiting an assignment “by operation of law” without the other party’s consent applied to a subsequent merger in which the contracting party was not the surviving entity.
September 02, 2020
Barry Klayman and Mark Felger contributed an article to the Delaware Business Court Insider.
August 05, 2020
Barry Klayman and Mark Felger, writing in the Delaware Business Court Insider, discuss a recent decision by the Delaware Court of Chancery holding that, unlike the rule in merger cases, the privilege for communications regarding an asset purchase agreement and associated negotiations does not pass to the purchaser by default operation of law, but remains with the seller unless the buyer contracts for something different.
July 01, 2020
Barry Klayman & Mark Felger, writing in the Delaware Business Court Insider, discuss a recent decision by the Delaware Court of Chancery interpreting the state’s borrowing statute, which provides that a suit to enforce a cause of action arising outside of Delaware cannot be brought in a Delaware court after the expiration of the applicable Delaware statute of limitations or the statute of limitations of the state or country where the cause of action arose, whichever is shorter.
June 10, 2020
Barry Klayman and Mark Felger published an article in the Delaware Business Court Insider.
May 06, 2020
Barry Klayman and Mark Felger authored an article in the Delaware Business Court Insider discussing a recent decision of the Delaware Supreme Court holding that for tort claims, such as legal malpractice actions, the wrongful act occurs at the time of injury.
April 01, 2020
Barry Klayman and Mark Felger discuss a recent decision of the U.S. Bankruptcy Court for the District of Delaware refusing to grant a motion to stay the bankruptcy proceedings pending an appeal to the district court.
March 04, 2020
Barry Klayman and Mark Felger authored an article in the Delaware Business Court Insider, discussing a recent decision of the Delaware Court of Chancery reaffirming the fiduciary exception to the attorney-client privilege in the face of a challenge based on an amendment to the Decedents’ Estates and Fiduciary Relations law.
February 05, 2020
Barry Klayman and Mark Felger authored an article in the Delaware Business Court Insider explaining a recent decision in the Delaware Superior Court, which held that the Court of Chancery was the appropriate forum for enforcement of a charging order where the validity of conveyances between a limited liability company and its members was at issue.
January 15, 2020
Barry Klayman and Mark Felger authored an article in the Delaware Business Court Insider discussing a recent decision in the Court of Chancery of Delaware granting a corporation’s motion to modify an earlier advancement order where the corporation subsequently amended its claims against a former officer and director in order to eliminate the grounds for advancement.
December 11, 2019
Barry Klayman and Mark Felger authored an article in the Delaware Business Court Insider, discussing a recent decision in the Court of Chancery of Delaware concerning the applicability of the attorney-client privilege to emails between a party and his attorneys.
November 06, 2019
Barry Klayman and Mark Felger authored an article in the Delaware Business Court Insider, discussing a recent decision of the Court of Chancery of Delaware holding that the defense of in pari delicto is not limited either to actions in equity or at law, and may be asserted as a defense by the Receiver of an insurance company to a legal claim brought in a statutory liquidation proceeding pending in the Court of Chancery.
October 09, 2019
Barry Klayman and Mark Felger authored an article in the Delaware Business Court Insider, discussing a recent decision of the Court of Chancery of Delaware holding that the Delaware General Corporation Law does not prohibit sophisticated owners of a corporation from including provisions in a merger agreement that bind them to a future sale of the resulting entity and the waiver in advance of their statutory appraisal rights.
September 04, 2019
Barry Klayman and Mark Felger authored an article in the Delaware Business Court Insider discussing a recent decision in the Delaware Superior Court, holding that a liability limitation in an agreement is ambiguous where its application would result in an absurd result.
August 07, 2019
Barry Klayman and Mark Felger discuss a recent decision of the Delaware Bankruptcy Court holding that a liquidating trustee succeeds to the privileges held by the debtor’s former audit committee.
July 03, 2019
Barry Klayman and Mark Felger discuss a recent case from the Delaware Court of Chancery upholding the use by the seller of a business of contractual provisions in a merger agreement to protect pre-merger, privileged communications between the seller and its counsel in negotiating the merger and prevent their use by the buyer in subsequent litigation with the seller.
June 05, 2019
Barry Klayman and Mark Felger discuss a recent case from the Delaware Bankruptcy Court holding that the payments by debtors of discretionary bonuses, not tied to previously enunciated metrics and while the debtors were insolvent, were not per se fraudulent conveyances under the Bankruptcy Code in an article in the Delaware Business Court Insider.
May 08, 2019
Barry Klayman and Mark Felger discuss a recent case from the Delaware Superior Court holding that the Delaware Limited Liability Company Act does not confer jurisdiction on the Court of Chancery over all contracts involving LLCs.
April 03, 2019
Barry Klayman and Mark Felger discuss a recent case from the Delaware Court of Chancery explaining the requirements for serving process on a dissolved limited liability company, in order for the plaintiff creditors to recover funds allegedly owed them by the defunct company.
March 13, 2019
Barry Klayman and Mark Felger authored an article in the Delaware Business Court Insider, discussing a recent case from the Delaware Court of Chancery explaining the contours of the “line of business” test for purposes of the corporate opportunities doctrine.
February 20, 2019
Barry Klayman and Mark Felger authored an article in the Delaware Business Court Insider discussing a recent final report submitted by a Master in Chancery in Delaware, finding that an equitable mortgage was enforceable despite defects in the execution of the mortgage.
January 17, 2019
Barry Klayman and Mark Felger co-authored an article in the Delaware Business Court Insider discussing a recent decision by the Delaware Court of Chancery regarding a mutual general release.
December 19, 2018
Barry Klayman and Mark Felger co-authored an article in the Delaware Business Court Insider discussing a recent decision by the Delaware Court of Chancery refusing to grant a TRO in a business dispute.
November 07, 2018
Barry Klayman and Mark Felger co-authored an article in the Delaware Business Court Insider discussing a pair of decisions from the Delaware Bankruptcy Court that address whether persons providing services to debtors relating to the disposition and monetization of real estate, intellectual property, and other estate assets are “professionals.”
October 10, 2018
Barry Klayman and Mark Felger co-authored an article in the Delaware Business Court Insider discussing a pair of decisions from the Court of Chancery and the Delaware Supreme Court.
September 05, 2018
Barry Klayman and Mark Felger co-authored an article in the Delaware Business Court Insider discussing a recent case from the Delaware Bankruptcy Court holding that an anti-assignment clause in a promissory note was enforceable under Delaware law.
August 06, 2018
Barry Klayman and Mark Felger co-authored an article in the Delaware Business Court Insider, discussing a recent case from the Delaware Court of Chancery holding that materials developed during the pretrial discovery process and not filed with the court are not part of the public record.
June 27, 2018
Barry Klayman, a member of Cozen O’Connor’s Commercial Litigation and Bankruptcy, Insolvency & Restructuring Practice Groups, and Mark Felger, co-chair of the Bankruptcy, Insolvency & Restructuring Practice Group, co-authored an article in the Delaware Business Court Insider discussing a recent case from the District of Delaware holding that a creditors committee automatically dissolved when a Chapter 11 case was converted to Chapter 7.
June 07, 2018
Barry Klayman and Mark Felger co-authored an article in the Delaware Business Court Insider, discussing a recent Delaware Court of Chancery case.
May 09, 2018
Barry Klayman, a member of Cozen O’Connor’s Commercial Litigation and Bankruptcy, Insolvency & Restructuring Practice Groups, and Mark Felger, co-chair of the Bankruptcy, Insolvency & Restructuring Practice Group, co-authored an article in the Delaware Business Court Insider, discuss a recent Delaware Bankruptcy Court case enjoining a creditor from pursuing breach of fiduciary duty claims and other claims against a debtor’s former officers and early round investors in the Court of Chancery based on provisions of the debtor’s Chapter 11 plan of liquidation.
April 04, 2018
Barry Klayman, a member of Cozen O’Connor’s Commercial Litigation and Bankruptcy, Insolvency & Restructuring Practice Groups, and Mark Felger, co-chair of the Bankruptcy, Insolvency & Restructuring Practice Group, co-authored an article in Delaware Business Court Insider on a recent Court of Chancery case dealing with the rights of a putative subrogee in the context of a claim for indemnification of defense costs.
March 07, 2018
Mark Felger, co-chair, and Barry Klayman, a member of Cozen O'Connor's Bankruptcy, Insolvency & Restructuring Practice Group, co-wrote an article in Delaware Business Court Insider about the In re Rent-A-Wreck of America, Case that was dismissed by the district of Delaware.
February 14, 2018
Barry Klayman and Mark Felger, members of Cozen O'Connor's Commercial Litigation and Bankruptcy, Insolvency & Restructuring Practice Groups, discuss a recent Delaware Court of Chancery case, Schroeder v.Buhannic in the Delaware Business Court Insider.
January 17, 2018
Barry Klayman and Mark Felger, members of Cozen O'Connor's Commercial Litigation and Bankruptcy, Insolvency & Restructuring Practice Groups, discuss a recent Delaware bankruptcy case, In re Fresh-G Restaurant Intermediate Holding, in Delaware Business Court Insider.
December 06, 2017
Barry Klayman and Mark Felger, members of Cozen O’Connor’s Bankruptcy, Insolvency & Restructuring Practice Group, discuss case B.E. Capital Management Fund
v. Fund.com in Delaware Business Court Insider.
November 08, 2017
Barry Klayman and Mark Felger, members of Cozen O’Connor’s Bankruptcy, Insolvency & Restructuring Practice Group, discuss the significant decision reached in In re Millennium Lab Holdings II, in Delaware Business Court Insider.
October 11, 2017
Barry Klayman and Mark Felger, members of Cozen O’Connor’s Bankruptcy, Insolvency, & Restructuring Practice Group, discuss, in the Delaware Business Court Insider, a recent case in which the Delaware Court of Chancery refused to preclude a defendant corporation from offering evidence at trial that contradicted or was otherwise inconsistent with the deposition testimony of its Rule 30(b)(6) witness, although the plaintiffs would be able to rely on the earlier 30(b)(6) testimony and use it for impeachment.
September 06, 2017
Barry Klayman and Mark Felger, members of Cozen O’Connor’s Bankruptcy, Insolvency & Restructuring Practice, discuss a recent case in which the Bankruptcy Court for the District of Delaware predicted that the state’s courts would recognize the existence of de facto limited liability companies, just as they recognize de facto corporations, in Delaware Business Court Insider.
August 09, 2017
Barry Klayman and Mark Felger, members of the Cozen O’Connor Bankruptcy, Insolvency & Restructuring Practice Group, discuss in the Delaware Business Court Insider a recent case in which the Bankruptcy Court for the District of Delaware held that goods delivered directly to the debtor's customers within 20 days prior to the bankruptcy petition, even though at the debtor's direction and utilizing the debtor's account with the shipper, will not qualify for administrative priority treatment under section 503(b)(9) of the Bankruptcy Code because the debtor never had physical possession of the goods.
July 05, 2017
Barry Klayman and Mark Felger, members of Cozen O'Connor's Bankruptcy, Insolvency & Restructuring Practice, discuss in the Delaware Business Court Insider a recent case in which a divided Delaware Supreme Court held that a mortgage assignee must be entitled to enforce the underlying obligation that the mortgage secures in order to foreclose.
June 07, 2017
Barry Klayman and Mark Felger discuss a case from the Delaware Superior Court dealing with the issue of an allegedly defamatory article that caused injury to a Delaware corporation hosted on a website outside of Delaware.
May 10, 2017
Mark Felger and Barry Klayman discuss a recent case from the Delaware Bankruptcy Court in The Delaware Business Court Insider.
April 05, 2017
Mark Felger and Barry Klayman discuss a recent case from the Delaware Court of Chancery in The Delaware Business Court Insider.
March 08, 2017
Mark Felger and Barry Klayman discuss a case involving the effect of a DIP financing order cap on professional fees after a Chapter 11 plan is confirmed in the Delaware Business Court Insider. .
February 08, 2017
Mark Felger and Barry Klayman discuss a case of first impression from the Court of Chancery in The Delaware Business Court Insider.