In Craig T. Bouchard v. Braidy Industries, Inc., et al., Case No. 2020-0097-KSJM (Del. Ch. Apr. 28, 2020), the Delaware Court of Chancery addressed various motions filed by both Plaintiff and Defendants, including Defendants’ motions to dismiss for lack of personal jurisdiction and failure to state a claim, Plaintiff’s motion for judgment on the pleadings regarding an individual defendant’s defense, and Plaintiff’s motion for summary judgment. Plaintiff Craig Bouchard filed suit against Defendants claiming breach of contract regarding a voting agreement to which Bouchard and each of Defendants are a party. The Court granted the motions to dismiss for lack of personal jurisdiction over Defendants. Further, the Court granted Plaintiff’s motion for judgment on the pleadings regarding the defense of unclean hands asserted by Defendant Braidy Industries, Inc. Lastly, the Court denied Plaintiff’s motion for summary judgment on his breach of contract claim, finding that the factual records needed further development.Read More
In a Memorandum Opinion, Palisades Growth Capital II, L.P. v. Alex Bäcker and Ricardo Bäcker and QLess, Inc. (Del. Ch. C.A. No. 2019-0931-JRS) the Delaware Court of Chancery found that actions taken at a board meeting were void because the defendant acted inequitably by formulating a secret plan to deceive the other board members into attending the meeting and then seized control. The Court stated that it will not sanction inequitable action by corporate fiduciaries simply because their act is legally authorized. The Court found that, while the defendants’ actions were technically authorized in the Company’s Charter and Bylaws, they took affirmative action to mislead the other board members in order to take control.Read More
By Joanna A. Diakos Kordalis and Tom Sperber
In Beck v. Greim c/o Bombay Woods Maintenance Corp., the Delaware Chancery Court issued a Master’s Report making recommendations regarding a dispute between a homeowner, who had served as a director and officer of the homeowner’s association, and the homeowner’s association and its president, concerning alleged violations of Delaware General Corporation Laws and the association’s failure to enforce deed restrictions under Del. C. § 348. Andrea Beck (“Plaintiff”), one of three directors and the treasurer of Bombay Woods Maintenance Corporation (“Bombay”), which is a homeowner’s association, alleged that the other two board members, John Greim (“Greim”) (with Bombay, “Defendants”) and Jeffrey Horvat (“Horvat”) (with the Defendants, the “Adverse Parties”), improperly removed her as a director and officer of Bombay and failed to maintain common areas adjacent to her property. Based on the evidence presented at trial, the Master recommended that the Court find that Plaintiff was properly removed as treasurer, but improperly removed as a director. The Master further recommended that the Court order that Bombay remedy the improper removal by conducting a special meeting of its members to vote on Plaintiff’s removal or holding an annual election of its board of directors, or by following the Delaware Uniform Common Interest Ownership Act procedures for removal of a board member. The Master also recommended that the Court conclude that Bombay’s deed restrictions were not violated by failing to maintain aspects of Bombay’s common areas as claimed by Plaintiff.
In 2013, Plaintiff and two other homeowners were elected to the board of directors of Bombay. The other two members immediately resigned, causing the Plaintiff to appoint Greim and Horvat to the board of directors and to the positions of president and vice president/secretary, respectively. Plaintiff was appointed treasurer. During a board meeting in early, 2014, Greim and Horvat asked Plaintiff to resign from the board of directors. When Plaintiff refused to do so, Greim and Horvat voted to remove her as a director and treasurer. Later in 2014, Greim and Horvat scheduled a members meeting to have a confirmatory vote on Plaintiff’s removal. When too few members attended to form a quorum, Greim and Horvat went door to door collecting ballots. On October 20, Greim and Horvat notified Plaintiff that the members had voted to remove her as a director.
Plaintiff filed a pro se complaint against Defendants in the fall of 2014, alleging the aforementioned claims and others relating to mismanagement of Bombay’s funds and failing to enforce proper voting measures under Bombay’s bylaws. Through several letter opinions and final reports, it was held that, without counsel, Plaintiff could only pursue claims of improper removal from her positions under Section 225 of the Delaware General Corporation Law and failure to enforce deed restrictions under another provision of the Delaware Code. While the Court would look to the bylaws for several of these claims, Plaintiff contended that the bylaws were never recorded and thus were invalid. Rather than address that issue, the Master made his recommendation by analyzing the Delaware Uniform Common Interest Ownership Act (the “DUCIOA”) and Bombay’s bylaws in the alternative. While Bombay’s formation predated the enactment of DUCIOA, some provisions apply to pre-existing communities, while others control “only if the matter at issue is not expressly addressed in the community’s governing documents.”
To support Plaintiff’s claim that Greim and Horvat improperly removed her as treasurer, Plaintiff argued that the agenda on the member notice of the board meeting in question did not include the vote to remove Plaintiff from her position. She also alleged that because they were improperly elected to the board, they had no ability to remove her. In analyzing these claims, the Court looked to Bombay’s bylaws. The DUCIOA does not address the removal of officers and none of Bombay’s other organizational documents speak to the issue. The Court pointed to the provision of the bylaws granting the board the authority to choose and appoint officers and “remove any officer that it chose or appointed, ‘with or without cause at any time by the affirmative vote of a majority of the whole Board of Directors.’” While the Court acknowledged that the bylaws require member notice of board meetings, they do not speak to whether posting a proposed agenda is required. The Court pointed out that while DUCIOA does have notice requirements for board meetings, those provisions do not apply to pre-existing communities.
In arguing that her removal from the board was invalid, Plaintiff restated her arguments for her claim of improper removal as treasurer and additionally alleged that the members did not participate in the meeting to vote on her removal. The bylaws stated that directors may be removed with or without cause by a majority vote of the members, assuming that the required 51% quorum votes in person or by proxy. The DUCIOA states that board members can be removed without a quorum only when procedures for “special meetings” are followed. These procedures include providing an opportunity for members to speak concerning the removal, a recession of the meeting, and a notification of the availability to vote within 30 days.
The Master found that the procedure used by Greim and Horvat to remove Plaintiff from the board violated both the bylaws and the DUCIOA. The quorum requirement of the bylaws was not met, therefore the members could not have properly voted on Plaintiff’s removal. While Greim and Horvat eventually got the necessary votes by going door to door and collecting ballots, the Master found that the bylaws only authorized the board to take removal actions during meetings. The Master also found that the irregularities in the voting process violated the less stringent but still particular “special meeting” procedure of the DUCIOA for a removal proceeding without a quorum. While the Master concluded that Plaintiff was improperly removed, he refused to recommend that she be reinstated after her four year absence. Instead, the Master recommended, among other things, that the Court order that Bombay conduct a special meeting of Bombay’s members to have a procedurally proper vote on Plaintiff’s removal.
The Master quickly dispatched with Plaintiff’s argument that Greim and Horvat were improperly elected to the board by pointing out that, consistent with the bylaws, Plaintiff appointed them to the board when she was the only director. The Master also found that Plaintiff had failed to present any evidence to support her claim that the Adverse Parties had failed to maintain the common areas around her property.
In CertiSign Holding, Inc. v. Sergio Kulikovsky, C.A. No. 12055-VCS, the Court found that Sergio Kulikovsky (“Kulikovsky”), a former director of CertiSign Holding, Inc. (“CertiSign”), had breached his fiduciary duty of loyalty to CertiSign by actively sabotaging corporate self-help efforts in a bid to advance his own personal objectives. The Court also denied Kulikovsky’s counterclaims for judicial validation of certain stock option grants and the assumption by CertiSign of a debt owed to Kulikovsky, and awarded Certisign damages in the amount of $390,455.20 for the “legal fees and expenses incurred by CertiSign in connection with its efforts to remedy its defective capitalization and board issues.”
In R.A. Feuer on behalf of CBS Corporation v. Sumner M. Redstone (C.A. No. 12575-CB (Del. Ch. April 19, 2018)), R. A. Feuer (“Plaintiff”), a stockholder of CBS Corporation (“CBS”) brought a derivative suit against the directors of CBS Corporation (“Board”) alleging corporate waste, bad faith, and unjust enrichment for compensation in excess of $13 million dollars paid to Sumner Redstone, the controlling stockholder, former executive chairman and chairman emeritus of CBS (“Redstone”). The payments were made under an extreme set of circumstances that resulted in the claims partially surviving a Rule 23.1 motion to dismiss for failure to make a pre-suit demand on the board and a 12(b)(6) motion to dismiss for failure to state a claim upon which relief could be granted. Read More
In Ensing v. Ensing, C.A. No. 12591-VCS (March. 6, 2017), Vice Chancellor Slights entered declaratory judgments in favor of the plaintiff, concluding that the defendant’s actions were null and void as a matter of law. A husband and wife, Dr. Hans Ensing (“Hans”) and Sara Ensing (“Sara”) own and operate a winery and boutique hotel in Italy. The businesses operate indirectly through two Delaware limited liability companies. Prior to the events leading up to this litigation, Sara was a manager and member of one of the entities and, through that entity, was manager of the other. Hans was neither a member nor manager of either entity. When Hans purported to remove Sara and appoint himself as manager of one of the two entities and then engaged in a series of transactions to divest Sara of her interests in the winery and hotel, Sara initiated this action.
In Rainbow Mountain, Inc. v. Terry Begeman, C.A. No. 10221-VCMR (Del. Ch. March 23, 2017), the Delaware Court of Chancery issued a declaratory judgment on cross-motions for summary judgment regarding whether pro se defendant, Terry Begeman, was properly removed as a director, member, and officer of plaintiff nonstock corporation Rainbow Mountain, Inc. (“Rainbow Mountain” or the “corporation”). Based on uncontroverted facts, the Court determined that Terry had been properly removed as Secretary, but retained his position as Senior Vice-President, director and member. Under the bylaws, as a “Regular Member” of Rainbow Mountain, Terry had the right to occupy the corporation’s land.
In Gorman, IV v. Salamone, Halder and Westech Capital Corp. (“Westech”), the Delaware Chancery Court, in ruling on a motion to dismiss, issued another status quo order to temporarily fix the composition of the board of Westech while the ongoing dispute over control of Westech played out.
Plaintiff John Gorman (“Gorman”) a Westech stockholder and board member brought the Section 225 action based on two developments while a prior Section 225 temporarily designating three directors and keeping the CEO was on appeal before the Delaware Supreme Court.
In Salamone, Dura, and Halder v. Gorman, IV, the Supreme Court of Delaware (the “Court”) partially affirmed and partially reversed a Chancery Court decision determining the composition of the board of directors (the “Board”) of Westech Capital Corporation (“Westech”). The dispute centered on the interpretation of a Voting Agreement entered into by Westech and the purchasers of Westech’s Series A Preferred Stock in 2011.
The Voting Agreement provisions at issue were Sections 1.2(b) and 1.2(c), each of which set forth the process for designating certain individuals to serve on the Board. Section 1.2(b) provides for one director to be designated “by the majority of the holders of the Series A Preferred Stock . . . .” Section 1.2(c) provides two individuals to be designated “by the Key Holders . . . .” The dispute revolved around the removal by John J. Gorman, IV (“Gorman”), Westech’s majority stockholder, of a current director nominated pursuant to Section 1.2(c) and the election of two new directors, one pursuant to Section 1.2(b) and another pursuant to Section 1.2(c).
In Gassis v. Corkery, Civil Action No. 8868, Bishop Macram Max Gassis challenged his removal as Chairman of the Board and as a director of the Bishop Gassis Sudan Relief Fund, Inc., a Delaware charitable nonstock corporation (the “Fund”) dedicated to helping the people of southern Sudan. The Bishop also challenged the previous removal of two directors from the Fund’s board and the elections of two directors who replaced them.
Bishop Gassis’ removal at a 2013 board meeting came after years of friction with other board members, who contended that the Bishop was difficult to work with, negatively interacted with the Fund’s beneficiaries in Sudan, spent extravagantly on travels, invested in suspicious projects, and acted as though he had a personal interest in the Fund’s assets. These board members further argued that a provision of the Fund’s bylaws providing that the Bishop “shall serve [as Chairman of the Board] until his retirement or resignation” required him to be removed from the board upon his retirement as a Catholic Bishop, which was to occur on his seventy-fifth birthday on September 21, 2013.
In his May 21, 2014 opinion in Oracle Partners, L.P. v. Biolase, Inc., C.A. No. 9438-VCN (Del. Ch. May 21, 2014), Vice Chancellor Noble addressed the issue of what was said, and the legal effect of the statements made, during a telephonic meeting (the “Meeting”) of the board of directors of Biolase, Inc. (“Biolase”) on Friday, February 28, 2014.
Prior to the Meeting, Biolase had six directors. On the Monday following the meeting, Biolase issued a press release stating that two of the directors — Alexander Arrow, M.D. (“Arrow”) and Samuel Low, D.D.S. (“Low”) — had resigned from the board and two new directors — Paul Clark (“Clark”) and Jeffrey Nugent (“Nugent”) — had been appointed in their place. In a contradictory Form 8-K filing with the Securities and Exchange Commission (“SEC”) three days later, which included the press release as an exhibit, the Company disclosed only that Clark and Nugent had been appointed to the board, which had apparently increased to eight members.
By Ashley Galston
In this opinion, Vice Chancellor Glasscock considered Defendants’ motion to dismiss on ripeness grounds in a DGCL Section 225 action. In 2013, certain stockholders of CardioVascular BioTherapeutics, Inc. (the “Company”) executed written consents purporting to remove the Defendant directors, including Daniel Montano, from the Company’s board of directors. A Status Quo Order, typical in a Section 225 action, put in place an interim board, of which Daniel Montano and the other individual Defendant directors were not members. The written consent was found to be invalid, the Plaintiff appealed, and the parties agreed to maintain the interim board pending appeal. However, before the Supreme Court heard the appeal, certain stockholders initiated a second written consent action, again, seeking to remove the Defendant directors. The Plaintiff then filed this Section 225 action seeking to confirm the second written consent. The Defendants moved to dismiss the second action for “lack of ripeness and other grounds”.
Section 225 provides that “upon application of any stockholder or director, or any officer whose title to office is contested, the Court of Chancery may hear and determine the validity of any election, appointment, removal or resignation of any director or officer of any corporation, and the right of any person to hold or continue to hold such office….” 8 Del. C. § 225(a). V.C. Glasscock noted that “the statute imposes no explicit requirement that a director must hold office before this Court may determine her right to a seat.” And, further, he held that “even under a quo warranto analysis, the action is ripe…as Montano and the other Defendants remained on the de jure board.” Therefore, V.C. Glasscock found that the action was ripe. V.C. Glasscock declined to address the question raised by the Defendants of the “procedural efficacy of a written consent purporting to remove a director who is not a member of an interim board created by a status quo order.” V.C. Glasscock invited the Defendants to make that argument, along with other procedural challenges they raised in this motion, at a future evidentiary hearing related to the effectiveness of the second written consent.