In Steinberg on behalf of Hortonworks, Inc. v. Bearden, C.A. No. 2017-0286-AGB (Del. Ch. May 30, 2018), the Delaware Court of Chancery granted the defendants’ motion to dismiss the stockholder plaintiff’s derivative claims for breach of fiduciary duties under Court of Chancery Rule 23.1, because the plaintiff failed to make a pre-suit demand or demonstrate that doing so would be futile. The Court found that the plaintiff failed to plead particularized facts sufficient to raise reasonable doubt that a majority of the directors on the Hortonworks, Inc. board could have exercised their independent and disinterested business judgment in responding to a pre-suit demand. Read More
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 In re Martha Stewart Living Omnimedia, Inc. Stockholder Litigation, Consolidated C.A. No. 11202-VC (Ch. Ct August 18, 2017) former stockholders of Martha Stewart Living Omnimedia, Inc. (“MSLO”) brought a consolidated class action suit against Martha Stewart (“Stewart”), the former controlling stockholder of MSLO, for breach of fiduciary duty and against Sequential Brands Group, Inc. (“Sequential”), the acquirer of MSLO by merger, for aiding and abetting that breach claiming that Stewart leveraged her position as a controller to obtain disparate consideration for herself as compared to the minority stockholders of MSLO in the acquisition of MSLO. Plaintiffs moved to dismiss, with the Court finding that the complaint failed to state a claim for breach of fiduciary duty against Stewart, and on that basis need not reach the question of whether the complaint adequately pleads the elements of aiding and abetting such a breach, and granted the plaintiffs’ motion to dismiss the complaint.
In Chester Cty. Emp. Ret. Fund v. New Residential Inv. Corp., C.A. No. 11058-VCMR (Del. Ch. Oct. 6, 2017), the Delaware Court of Chancery granted the defendants’ motion to dismiss the stockholder plaintiff’s direct and derivative claims for breach of fiduciary duties under the Court of Chancery Rules 23.1 and 12(b)(6), because the plaintiff failed to make a pre-suit demand or demonstrate that doing so would be futile. The Court found that although the facts alleged gave rise to a derivative claim, the plaintiff failed to make a pre-suit demand or plead particularized facts sufficient to raise a reasonable doubt that a majority of the directors on the New Residential Corp. (“New Residential”) board could have exercised their independent and disinterested business judgment in responding to a demand.
By Scott E. Waxman and Uri S. Segelman
In In re Cyan, Inc. Stockholders Litigation, C.A. No. 11027-CB (May 11, 2017), the Delaware Court of Chancery dismissed Cyan, Inc. stockholders’ complaint alleging breach of duty by Cyan’s board in merging with Ciena Corp., holding that the plaintiffs had failed to plead sufficient facts to support a reasonable inference that a majority of Cyan’s board was interested in the transaction or acted in bad faith so as to sustain a non-exculpated claim for breach of fiduciary duty. In so doing, the court further denied plaintiffs’ claim for equitable relief of quasi-appraisal, holding that since such relief is typically awarded to redress disclosure deficiencies that are the product of a fiduciary breach, and given that plaintiffs failed to identify any material misrepresentation or omission from Cyan, or to allege any other viable claim for a fiduciary breach, there was no basis to impose a quasi-appraisal remedy.
By: Shoshannah Katz and Alexa Ekman
In In re Investors Bancorp, Inc. Stockholder Litigation, C.A. No. 12327-VCS (Del. Ch. Apr. 5, 2017), the Delaware Court of Chancery granted a motion to dismiss derivative claims for breach of fiduciary duty and unjust enrichment, asserting that directors of Investors Bancorp, Inc. (“Company”) granted themselves equity compensation that was “excessive and unfair to the corporation”. Vice Chancellor Joseph R. Slights ruled against the plaintiffs due to the fact that the stockholder approved equity compensation plan included director-specific limits on equity compensation that the grants were within, and that the stockholder vote to adopt the equity compensation plan was fully informed and the stockholder approval constituted “ratification of the awards”
The Company’s Board of Directors (“Board of Directors”) adopted the Company’s 2015 Equity Incentive Plan on March 24, 2015 (the “EIP”), to provide additional incentives for the Company’s officers, employees and directors to promote the Company’s growth and performance and further align their interests with those of the Company’s stockholders. The EIP authorized 30,881,296 shares of the Company’s common stock for issuance under the EIP for restricted stock awards and stock options for the Company’s officers, employees, and non-employee directors. The EIP also set separate limits on the number of shares (i) the Company could issue as stock options or as restricted stock awards, restricted stock units or performance shares, (ii) that could be awarded to any one employee pursuant to a restricted stock or restricted unit grant or the exercise of stock options, and (iii) that could be issued or delivered to all non-employee directors, in the aggregate, pursuant to the exercise of stock options or grants of restricted stock or restricted stock units at no more than 30% of all shares available for awards to be granted in any calendar year). A proxy statement was filed on April 30, 2015 soliciting stockholder votes to adopt the EIP. The proxy statement disclosed “[t]he number, types and terms of awards to be made pursuant to the EIP are subject to the discretion of the Compensation Committee and will not be determined until subsequent stockholder approval.” The EIP was put to a stockholder vote on June 9, 2015, and received approval from 96.25% of the shares voted at the meeting (representing 79.1% of the total shares outstanding).
Shortly after the stockholders adopted the EIP, the Compensation Committee held several meetings in June of 2015 that resulted in the Compensation Committee’s approval of awards of restricted stock and stock options to all twelve members of the Board of Directors (which, at the time, included two employee directors). In addition to the Compensation Committee’s recommendation, the Board of Directors also received input from various experts as to awards other similar companies had distributed to its directors and officers over the past twenty years, including a presentation by outside counsel. The Board of Directors then awarded stock options and restricted stock for each of the twelve members of the Board of Directors, with an aggregate grant date fair value of approximately $51.5 million. The Company’s Chief Executive Officer was awarded a grant valued at more than $16 million, while the Company’s Chief Operations Officer was awarded a grant valued at more than $13 million.
The plaintiffs, stockholders of the Company at all relevant times, filed their suit shortly after the awards were announced on April 14, 2016, alleging that the directors had breached their fiduciary duties by awarding themselves grossly excessive compensation. The defendants filed a Court of Chancery Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted under Court of Chancery Rule 23.1, for failing to make a pre-suit demand with respect to the grants of equity compensation to the executive directors. The key issue was whether stockholder approval of the EIP would be deemed ratification of the awards made under the EIP. If so, then the awards to all directors would be subject to the business judgment standard of review and would be reviewed for waste.
Plaintiffs pled the only circumstance in which a stockholder vote could prospectively ratify a board’s decision to approve equity awards to directors is when the plan is “completely self-executing” in that it provides a fixed amount of compensation or specifically imposes meaningful limits on the directors’ ability to compensate themselves. The court denied this claim and explained that the key issue was “whether the stockholder approval of the plan will be deemed ratification of the awards under the plan.” The Court concluded that “approval of plans with ‘specific limits’…will be deemed as ratification of awards that are consistent with those limits,” and “this plan included director-specific limits that differed from the limits that applied to awards to other beneficiaries under the plan.”
Plaintiffs also alleged that the disclosures related to the vote were insufficient, yet the Court held that the plaintiffs either pointed to omissions that are not material as a matter of law or have selectively referred to portions of the proxy without providing full context. The plan (with director-specific limits) was approved by a fully informed stockholder vote and as the plaintiffs did plead a claim for waste, the Court held the plaintiffs failed to adequately plead a claim of breach of fiduciary duty against Defendants relating to subsequent awards issued under the plan. Plaintiff’s claim for unjust enrichment was dismissed by the Court for being “duplicative of the breach of fiduciary duty claim” and also deficient.
In In re Paramount Gold and Silver Corp. Stockholders Litigation, Consol. C.A. No. 10499-CB (Del. Ch. Apr. 13, 2017), the Delaware Chancery Court dismissed a stockholder derivative suit asserting a claim for breach of fiduciary duty against the directors (“Defendants”) of Paramount Gold and Silver Corporation (“Paramount” or the “Company”) in connection with Paramount’s merger with Coeur Mining, Inc. (“Coeur”). The Court dismissed the claim finding that a side royalty agreement entered into by Paramount and Coeur did not constitute a deal protection device and because the Court found that Plaintiffs had failed to identify any material deficiencies in Paramount’s registration statement.
In In re Merge Healthcare Inc. Stockholders Litigation, No. 11388-VCG (Del. Ch. Ct. January 30, 2017), the Delaware Court of Chancery granted the defendant directors’ motion to dismiss brought against the plaintiff stockholders, holding that the cleansing effect of an uncoerced and fully informed vote of a majority of disinterested shares shields company directors from liability for alleged fiduciary violations as to an improper merger price and process. The Court found that the business judgment rule applied on review as opposed to the entire fairness standard.
In Huff Energy Fund v. Gershen, C.A. No. 11116-VCS, the Delaware Court of Chancery dismissed a stockholder’s challenge to the board of director’s decision to dissolve the company following an asset sale. The Court ruled that the enhanced scrutiny standards of Revlon and Unocal do not supplant the business judgment rule in the context of a company’s decision to dissolve.
In In re Chelsea Therapeutics International Ltd. Stockholders Litigation, Consol. C.A. No. 9640-VCG (Del. Ch. May 20, 2016), the Delaware Chancery Court held that Plaintiffs, who alleged bad faith on the part of corporate directors based on a failure to adequately take into account speculative financial projections in evaluating the adequateness of an acquisition offer, had failed to state a claim on which relief could be granted.