A recent Chancery decision deserves a place in the toolbox of corporate litigators for its nuanced approach that highlights the difference in criteria between a Motion to Expedite Proceedings and the similar but materially different standard applied to a Motion for a TRO. In the matter styled The New York City Employees’ Retirement System v. Byrne, C.A. No. 2025-0126-KSJM (Del. Ch. March 7, 2025), the Court of Chancery addressed a pre-closing challenge to the $8 billion merger between Paramount Global and Skydance Media LLC.

Plaintiffs claim that the merger will deliver hundreds of millions of dollars in non-ratable benefits to Paramount’s controlling shareholder, Shari Redstone, who approved the merger by written consent. The merger agreement did not include a fiduciary-out, and a special committee declined to consider an all-cash offer valued at more than $5 billion above the merger price.

Procedurally, the TRO Motion was filed two weeks after the Motion to Expedite, seeking a mandatory injunction in advance of the closing to enjoin the merger from closing pending resolution of the plaintiffs’ claims. At a hearing on March 3, the court required an amended complaint to add parties to be filed by the end of the day. The newly names defendants were given until the end of the following day to file their opposition to the motions.

Due largely to the need for FCC approval, and “no insight into the timing of regulatory approval”, the date of closing appears uncertain.

Legal Analysis

To obtain expedition, a party must “articulate a sufficiently colorable claim and show a sufficient possibility of a threatened irreparable injury” absent expedited proceedings”. Slip op. at 5.

Without determining the merits of the case or even the legal sufficiency of the pleadings at this stage, the court “need only ask whether a party has asserted ‘essentially a non-frivolous cause of action.'” Id. at 6.

Despite factual defenses that might prevail, the plaintiffs met the low bar for expedition on their breach of fiduciary duty as well as aiding and abetting claims. The plaintiffs also demonstrated irreparable harm absent expedition.

Citing a case that involved a post-trial decision within a month of filing the complaint, the court observed that even if a decision was needed by a potential closing date of April 7, it would be a “break-neck pace but doable”. Id. at 7 and n. 27.

The TRO Motion was denied primarily because the court found that the harm was not “proximate enough to warrant a TRO”. Id. at 7. To obtain a TRO, a party must demonstrate: (i) the existence of a colorable claim; (ii) the irreparable harm that will be suffered if relief is not granted; and (iii) a balance of hardships favoring the moving party”. Id. Nonetheless, the court directed the defendants to give plaintiffs “advance notice–optimally no fewer than five business days–of the closing date once it is set”, so that the plaintiffs can renew their Motion for TRO if events warrant.

The court ended its decision by ordering the parties to confer and submit a proposed case schedule.