IN THE SUPREME COURT OF THE STATE OF DELAWARE

VT Shareholder §

Representative, LLC, § No. 11, 2024

§

 Plaintiff Below, §

 Appellant, § Court Below: Court of Chancery 

§ of the State of Delaware

v. §

§ C.A. No.: 2023-0316

§

Edwards Lifesciences Corp. §

and Valtech Cardio Ltd., §

§ 

 Defendants Below, §

Appellees. § 

Submitted: July 10, 2024

Decided: July 31, 2024

Before SEITZ, Chief Justice; VALIHURA, and LEGROW, Justices.

ORDER

After consideration of the parties’ briefs and the record on appeal, it appears 

to the Court that:

(1) The appellant, VT Shareholder Representative, LLC, filed this appeal 

from a Court of Chancery decision granting the appellees’ motion to dismiss under 

Court of Chancery Rule 12(b)(1). In its complaint, VT Shareholder claimed that 

Edwards Lifesciences Corporation breached the parties’ merger agreement by 

failing to use commercially reasonable efforts to achieve certain milestones that 

would have triggered VT Shareholder’s right to earn-out payments. The Court of 
2

Chancery held that those claims were not ripe because the earn-out period had not 

expired. VT Shareholder asserts that the Court of Chancery erred in its ripeness 

determination, misinterpreted a key section of the merger agreement, and improperly 

dismissed the claims based on Edwards’s misrepresentations about its ongoing 

efforts to achieve the milestones. 

(2) We conclude that the judgment below should be affirmed on the basis 

of and for the reasons assigned by the Court of Chancery in its December 12, 2023 

Memorandum Opinion granting the motion to dismiss.

(3) On May 30, 2024, while this appeal was pending, VT Shareholder 

moved to supplement the record on appeal to include a quarterly report that Edwards 

filed with the Securities and Exchange Commission on April 29, 2024. The report

indicates that Edwards has determined that “the probability of milestone 

achievement” is “0%.”1 This Court entered an order deferring consideration of the 

motion to supplement until consideration of the merits of the appeal.

(4) We conclude that the motion to supplement should be denied. 

Although we do not have a court rule permitting a party to supplement the record on 

appeal, our decision in Getty Oil Co. v. Heim recognizes our inherent discretion to 

consider such an application.2 In Getty Oil, we explained that this Court generally 

1 Appellant’s Motion to Supplement the Record May 30, 2024 (DI 26).

2

372 A.2d 529 (Del. 1977).
3

“refuses to consider evidence which was not part of the record below,” and that “[o]n 

appeal, our function is to review the record, not to provide a forum to make it.”3 In 

Getty Oil, however, we considered newly obtained deposition testimony of an 

eyewitness to the accident because (1) exceptional circumstances existed; (2) the 

deaths at issue in the case had occurred more than six years earlier; (3) the trial was 

imminent; and (4) a ruling resolving the issue on appeal would have significant 

implications for the trial.4

(5) The new evidence that VT Shareholder offers in this case differs 

substantially from the eyewitness testimony at issue in Getty Oil. Edwards’s recent 

10-Q reflects an accounting decision regarding carrying contingent liabilities on 

interim financial statements. This information does not carry the same level of 

urgency or the same potentially dispositive effect as the new deposition testimony 

in Getty Oil.

5

 If anything, the ongoing developments indicate that the situation is 

still evolving, and the statement in the 10-Q does not move this case into the stage 

in which there is a “concrete and final,” “static” set of facts for adjudication,

6 which 

is the standard required for a ripe declaratory judgment action.

3

Id. at 534.

4

Id.

5 Getty Oil, 272 A.2d at 534.

6 VT Shareholder Representative, LLC v. Edwards Lifesciences Corp., 2023 WL 8597956, at *6–

*7 (Del. Ch. Dec. 12, 2023).
4

(6) Moreover, it is impossible to predict how this one additional fact might 

have affected the trial court’s analysis, if at all, and considering it for the first time 

on appeal would contravene our long-established practice of reviewing the record 

that the trial court considered, rather than considering new evidence that was not 

made available to the court. Further, and again unlike Getty Oil, there is little to gain 

from considering the new evidence. Nothing in the new evidence that the appellant 

urges us to consider changes the fact that if Edwards ultimately fails to achieve one 

or more of the milestones at the end of the earn-out period, VT Shareholder will be 

able to bring an action at that time to “recover the exact same damages sought in the 

present lawsuit.”7

NOW THEREFORE, IT IS ORDERED that the judgment of the Court of 

Chancery is AFFIRMED and Appellant’s Motion to Supplement the record is 

DENIED.

BY THE COURT:

/s/ Abigail M. LeGrow

Justice

7

Id. at *9.