In Basho Technologies, Inc. v. Georgetown Basho Investors, LLC, C.A. No. 11802-VCL (Del. Ch. July 6, 2018), the Delaware Court of Chancery reaffirmed the principle that a stockholder with actual control of a corporation violates its fiduciary duties by advancing its own interests to the detriment of the corporation. Applying the entire fairness standard in its decision following trial, the court held that Georgetown Basho Investors, LLC (“Georgetown”), the controlling stockholder of Basho Technologies, Inc. (“Basho”), owed and breached fiduciary duties to Basho as a stockholder with actual-but not majority-control. The court ultimately awarded plaintiffs Earl Gallaher (“Gallaher”) and various investment funds under his control (the “Plaintiff(s)”) damages in the aggregate amount of $20,268,878.
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 MHS Capital LLC v. Goggin, the Delaware Court of Chancery granted a motion to dismiss a breach of fiduciary duty claim against the manager of a Delaware limited liability company because all of the manager’s conduct that could have formed the basis of such claim was covered by the duties of the manager delineated in the limited liability company agreement. The Court also analyzed and dismissed claims for, among other things, fraud, breach of the implied contractual covenant of good faith and fair dealing, unjust enrichment, and misappropriation of trade secrets.
In Carr v. New Enterprise Associates, Inc., C.A. No. 20170381-AGB (Del. Ch. Mar. 26, 2018), the Delaware Court of Chancery, in denying in part and granting in part a motion to dismiss, reaffirmed the principle that a controlling stockholder, when acting outside its capacity as a stockholder, cannot use the corporation to advance the controlling stockholder’s self-interest at the expense of minority stockholders. In the context of defendants’ motion to dismiss, the court found that it was reasonably conceivable that the controlling stockholder of American Cardiac Therapeutics, Inc. (“ACT”) and its conflicted board of directors had breached their duty of loyalty to ACT’s minority stockholders by approving a sale of a warrant to a third party that included an option to acquire ACT, allegedly at an unfairly low price, in order to incentivize the third party to also acquire and invest in the controlling stockholder’s other portfolio companies.
In Cumming v. Edens, et al., C.A. No. 13007-VCS (Del. Ch. Feb. 20, 2018), the Court of Chancery denied a motion to dismiss a derivative suit for breach of fiduciary duties brought by a stockholder of New Senior Investment Group, Inc. (“New Senior”) against New Senior’s board of directors (the “Board”) and related parties in connection with New Senior’s $640 million acquisition of Holiday Acquisition Holdings LLC (“Holiday”). The Court made clear that compliance with Section 144 does not necessarily provide a safe harbor against claims for breach of fiduciary duty and invoke business judgment review of an interested transaction. Because the complaint alleged with specificity “that the Board acted out of self-interest or with allegiance to interest other than the stockholders,” the court applied the entire fairness standard of review and concluded that the transaction was not fair to New Senior stockholders. Read More
In Williams v. Ji, C.A. No. 12729-VCMR (Del. Ch. June 28, 2017), the Delaware Court of Chancery denied Defendants’ motion to dismiss, holding that the option and warrant grants and voting agreements in question were subject to entire fairness and that the Defendant directors had not carried their burden at that stage. The Defendants also moved to stay in favor of an earlier filed case in the Court, but the motion was denied as moot because the earlier filed case had settled.
By Eric Feldman and Michael Bill
On a motion for summary judgment in Marino v. Patriot Rail, the Delaware Court of Chancery confirmed, under Section 145 of the Delaware General Corporation Law (the “DGCL), that the advancement rights of officers and directors of a Delaware corporation, acting in their capacity as such, (i) continue after they leave office with respect to actions taken while in office, (ii) cannot be amended or eliminated retroactively unless the source of such rights provides otherwise, and (iii) do not apply to actions taken after an officer or director leaves office.
The case involves an underlying action that took place in a California court between Patriot Rail Company LLC (the “Company”) and Sierra Railroad Company (“Sierra”) which ended in favor of Sierra. Sierra moved to amend the judgment to add, among others, Gary Marino, the former Chairman, President and CEO of the Company, as a judgment debtor (the “Post-Judgment Motion”). The Company existed as a Delaware corporation until May 1, 2013, when it converted to a Delaware limited liability company. Prior to the time of such conversion, on June 18, 2012, the Company, which was partially owned indirectly by Marino, had been sold to a third party and Marino resigned from all of his positions with the Company. Marino asked the Company to advance the fees and expenses that he would incur to oppose Sierra’s Post-Judgment Motion, but the Company denied the request. Marino subsequently commenced this action seeking the advancements of attorneys’ fees and expenses; the Company answered, and the parties cross-moved for summary judgment. As the Company was a Delaware corporation during the time that Marino was an officer and director of it, and the conversion did not affect the obligations or liabilities of the Company arising prior to its conversion, the organizational documents of the Company during the time in which it was a Delaware corporation and the DGCL were relevant to the advancement issues.
The Company’s certificate of incorporation stated: “This Corporation shall indemnify and shall advance expenses on behalf of its officers and directors to the fullest extent permitted by law in existence either now or hereafter.” Marino and the Company disagreed as to whether this language continued to cover Marino after he ceased being an officer or director of the Company against claims arising during his service. Marino contended, and the Court agreed, that Marino remained covered for claims challenging the propriety of his actions taken while he was serving as an officer and director of the Company. The Court looked at Section 145 of the DGCL—Delaware’s indemnification and advancement statute—because the Company’s certificate of incorporation contemplated advancement “to the fullest extent permitted by law.” The Court paid particular attention to (i) Section 145(e), which authorizes advancements, (ii) Section 145(j), which addresses the extent to which a covered person’s indemnification and advancement rights continue after the person leaves their position, and (iii) Section 145(f), which restricts a corporation’s ability to alter the rights after a person has served in reliance upon them.
After looking at the statutory history of Section 145 and prior precedent, the Court determined that Section 145 allows a corporation to grant mandatory advancement rights to directors and officers that provide coverage conditioned solely on an undertaking (Section 145(e)). The granted rights continue to provide coverage for actions taken by individuals during their service, even after the individuals have ceased to serve, unless the governing provision clearly states otherwise (Section 145(j)). And, unless the governing provision provides otherwise, the granted rights cannot be altered or eliminated retroactively with respect to prior actions, after a director or officer has already exposed themselves to potential suit by acting on the corporation’s behalf (Section 145(f)). The Court noted that this structure is set up to “encourage capable men [and women] to serve as corporate directors” as they will be “secure in the knowledge that expenses incurred by them in upholding their honesty and integrity as directors will be borne by the corporation they serve.”
Thus, when Marino agreed to serve in a covered capacity, Marino became “entitled to receive mandatory indemnification and advancements to the fullest extent of Delaware law” as part of the consideration offered to him by the Company and was entitled to advancement for covered claims. The Court therefore found that Marino was entitled to receive advancement in the Sierra Post-Judgment Motion for actions taken by Marino during his service and in his capacity as a director or officer of the Company.
However, certain of the claims made by Sierra in the Post-Judgment Motion related to actions taken by Marino after he ceased serving as a director and officer of the Company and taken on behalf of himself or other entities which he directly or indirectly controlled. The Court found that Marino was not entitled to advancement with respect to any such claims.
In Calesa Associates, L.P, et. al v. American Capital, Ltd., et. al, C.A. No. 10557-VCG (Del. Ch. February 29, 2016) (Glascock, V.C.), the Delaware Court of Chancery denied (with one minor exception) a 12(b)(6) motion to dismiss for failure to state a claim in a direct suit brought by stockholders of Halt Medical, Inc. (“Halt”) alleging breaches of fiduciary duties by an alleged controlling stockholder, American Capital, Ltd., a publicly traded private equity firm, and several of its affiliates (collectively, “American Capital”), and certain of Halt’s directors. The fiduciary duty claims relate to a recapitalization transaction (denominated by the Plaintiffs as a “squeeze-out merger”) that the plaintiffs claimed disproportionately benefitted American Capital and certain of Halt’s directors allegedly controlled by American Capital at the expense of Halt’s other stockholders. The Plaintiffs argued that, through a complex series of premeditated transactions and control of Halt’s Board, American Capital chocked off Halt’s capital needs and then restructured Halt pursuant to a transaction resulting in a “squeeze out” of the minority stockholders.
The Court found that the plaintiff stockholders alleged facts sufficient to support a reasonable inference that American Capital was Halt’s controlling stockholder because of its control over the Halt Board, despite its 26% equity ownership stake. In reaching the decision, the Court reaffirmed that majority equity ownership is not the sole test, and that “control” exercised by a significant minority stockholder, even when the stockholder is exercising contractual blocking rights negotiated in prior equity transactions, is enough to characterize the non-majority stockholder as a controller for purposes of determining that the “entire fairness” standard, and not the business judgment rule, governs the board’s fiduciary duties and the controller’s actions.
In In Re EZCorp Inc. Consulting Agreement Derivative Litigation, C.A. No. 9962-VCL (Del. Ch. January 25, 2016) (Laster, V.C.) the Delaware Court of Chancery granted in part and denied in part a 12(b)(6) motion to dismiss for failure to state a claim, but at its heart the ruling addressed the proper standard of review in a case alleging self-dealing by a controlling stockholder for “tunneling” cash flow and receiving non-ratable benefits from related-party services agreements. After a detailed and extensive analysis, the court held that the entire fairness standard of review, and not the business judgment standard of review, applied to non-merger business transactions where controlling stockholders can exact non-ratable benefits from the company, regardless of the type of transaction or method of extraction.
In this memorandum opinion, the Delaware Court of Chancery found Sandra Manno (“Manno”), the manager of CanCan Development, LLC, a Delaware limited liability company (the “Company”), liable for breaching her fiduciary duty of loyalty to the Company by engaging in numerous self-interested transactions.
A manager of a Delaware limited liability company owes traditional fiduciary duties of care and loyalty unless the organizational documents of the limited liability company modify such duties. The Court, citing Feeley v. NHAOCG, LLC, 62 A.3d 649 (Del. Ch. 2012), implied that the organizational documents of the Company did not modify the traditional fiduciary duties.
In Calma v. Templeton, C.A. No. 9579-CB (Del. Ch. April 30, 2015) (Bouchard, C.), the Delaware Chancery Court held that Citrix System, Inc’s (“Citrix”) payment of compensation to non-employee directors under a shareholder-approved compensation plan must be reviewed under the entire fairness standard because the shareholders’ omnibus approval of a plan covering several different types of beneficiaries did not constitute ratification of the amount of compensation to be paid to non-employee directors.
In 2005, Citrix shareholders approved an equity compensation plan (the “Plan”) for beneficiaries such as directors, officers, employees, consultants, and advisors. The plan did not specify the amount of compensation that non-employee directors could receive, instead only providing a limit of 1 million restricted stock units (“RSUs”) for any beneficiary’s annual compensation. Based on the company’s share price at the time the suit was filed, 1 million RSUs would be worth over $55 million.
Chancery Court grants motion to dismiss against former limited partners seeking damages for a freeze-out merger they claimed was a self-dealing transaction by the general partner and its affiliates. The Court granted the motion to dismiss for lack of subject matter jurisdiction with regard to the general partner defendants based on a standard arbitration clause that referenced AAA Rules. The Court also granted the motion to dismiss for failure to state a claim with regard to the affiliated limited partner defendants because majority ownership of the merged entities, without more, did not create a fiduciary duty to the plaintiffs.
On February 10, 2015, Vice Chancellor Parsons issued a memorandum opinion in Lewis v. AimCo Properties, L.P., 2015 WL 557995, (Del. Ch. Feb. 10, 2015) granting Motions to Dismiss for each group of defendants in the case. The case was brought by several former holders of limited partnership units (“Plaintiffs”) in four Delaware limited partnerships (the “Partnerships”). Each of the Partnerships was managed by corporate entity general partners (“GP Defendants”) that were each indirectly owned by Apartment Investment and Management Company (“AimCo”). AimCo also indirectly held a majority of the limited partnership units of each Partnership through various affiliates (together with various officers, the “LP Defendants”).