Culverhouse v. Paulson & Co., Inc. ( 2016 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
HUGH F. CULVERHOUSE, §
individually and on behalf of all § No. 349, 2015
others similarly situated, §
§ Certification of Question of Law
Plaintiff-Appellant, § from the United States Court of
§ Appeals for the Eleventh Circuit
v. §
§ Docket No. 14-14526
PAULSON & CO. INC. and §
PAULSON ADVISERS, LLC, §
§
Defendants-Appellees. §
Submitted: January 13, 2016
Decided: January 26, 2016
Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and SEITZ,
Justices, constituting the Court en Banc.
Upon Certification of Question of Law from the United States Court of Appeals for the
Eleventh Circuit: CERTIFIED QUESTION ANSWERED.
Richard L. Renck, Esquire, Duane Morris LLP, Wilmington, Delaware, Of Counsel:
Robert M. Palumbos, Esquire (argued), Duane Morris LLP, Philadelphia, Pennsylvania,
Harvey W. Gurland, Jr., Esquire, Felice K. Schonfeld, Esquire, Duane Morris LLP,
Miami, Florida, Lawrence A. Kellogg, Esquire, Jason Kellogg, Esquire, Levine Kellogg
Lehman Schneider & Grossman LLP, Miami, Florida, for Plaintiff Below-Appellant,
Hugh Culverhouse.
Gregory E. Stuhlman, Esquire, Greenberg Traurig, LLP, Wilmington, Delaware, Of
Counsel: Richard A. Edlin, Esquire (argued), Greenberg Traurig, LLP, New York, New
York, for Defendants Below-Appellees, Paulson & Co. Inc. and Paulson Advisers, LLC.
SEITZ, Justice:
The United States Court of Appeals for the Eleventh Circuit has certified the
following question of law arising out of an appeal from a decision by the United States
District Court for the Southern District of Florida:
Does the diminution in the value of a limited liability company, which
serves as a feeder fund in a limited partnership, provide a basis for an
investor’s direct suit against the general partners when the company and the
partnership allocate losses to investors’ individual capital accounts and do
not issue transferrable shares and losses are shared by investors in
proportion to their investments?1
The Eleventh Circuit certified the question of law to this Court due to a perceived
tension between our decision in Tooley v. Donaldson, Lufkin & Jenrette2 and the
Delaware Court of Chancery’s earlier decision in Anglo American Security Fund, L.P. v.
S.R. Global International Fund, L.P.3 Having carefully considered the certified question
of law, we answer in the negative.
Supreme Court Rule 41
Supreme Court Rule 41 governs certification of questions of law. As we recently
observed, “Rule 41(b) contemplates that a certification will pose a specific question of
law, based on a stipulated set of facts. This approach allows us to focus on a relevant
question of Delaware law against a backdrop of established facts which are not the
subject of dispute among the parties.”4 The parties before us never agreed to a stipulated
set of facts. They have filled the vacuum in this Court by supplementing the record
transmitted by the Eleventh Circuit with documents and argument under the guise of
1
Culverhouse v. Paulson & Co., 791 F.3d 1278, 1281 (11th Cir. 2015).
2
845 A.2d 1031, 1039 (Del. 2004).
3
829 A.2d 143 (Del. Ch. 2003).
4
Espinoza v. Dimon, 124 A.3d 33, 36 (Del. 2015).
2
being “helpful” or providing “context.” We reiterate the need for a stipulated set of facts
to accompany certified questions of law to avoid confusion over disputed and undisputed
facts. From the certification opinion and the record transmitted by the Eleventh Circuit,
we are able to discern the following undisputed facts.
The Parties And Fund Structure
Paulson Advantage Plus, L.P., who we will call the “Investment Fund,” is a
Delaware limited partnership that invests in corporate securities. Paulson Advisers, LLC,
a Delaware limited liability company, and Paulson & Co., a Delaware corporation, who
we will call the Investment Fund Managers, are the general partners and managers of the
Investment Fund. One of the Investment Fund’s limited partners is HedgeForum Paulson
Advantage Plus, LLC, who we will call the “Feeder Fund.” The Feeder Fund is managed
and sponsored by Citigroup Alternative Investments, LLC. AMACAR CPO, Inc. is the
Feeder Fund’s managing member.
Along with other investors, Culverhouse is a member of the Feeder Fund, not a
limited partner in the Investment Fund. As its name implies, a feeder fund collects
investors to invest in the feeder fund, which in turn “feeds” such funds into a master fund,
where the investment managers direct the investments in the master fund portfolio. The
feeder/master fund structure, common to large or exclusive hedge funds, allows investors
who cannot or choose not to meet the direct investment minimum capital requirements of
3
the master fund to aggregate their smaller investments and gain access to the master
fund.5
The Federal Court Proceedings
Culverhouse filed a putative class action against the Investment Fund Managers in
the United States District Court for the Southern District of Florida. The first amended
complaint alleges that between 2007 and 2011, the Investment Fund invested about $800
million in the Sino-Forest Corporation, a Chinese Forestry Company. Following another
investment firm’s report claiming that Sino-Forest had overstated its timber holdings and
engaged in questionable related-party transactions, the Investment Fund sold its Sino-
Forest holdings for about a $460 million loss. On behalf of himself and others “who held
limited partnership interests in the [Investment Fund],” or “invested in one of its many
‘pass-through’ feeder hedge fund platforms,” Culverhouse alleged breach of fiduciary
duty, gross negligence, and unjust enrichment against the Investment Fund Managers
resulting from the Investment Fund’s loss from its Sino-Forest holdings.6
5
See Kuroda v. SPJS Holdings, L.L.C., 2010 WL 4880659, at *1 (Del. Ch. Nov. 30, 2010)
(describing feeder fund as the vehicle by which investors invested in the master fund); Fund
Director’s Guidebook, 52 BUS. LAW. 229, 252-53 (1996) (“An alternative to the single (or one-
tier) fund with multi-classes is the master-feeder structure in which one or more funds (‘feeder
funds’) invest all of their assets in another fund (‘master fund’).”); see also Henry Ordower,
Demystifying Hedge Funds: A Design Primer, 7 U.C. DAVIS BUS. L.J. 323, 344-45 (2007)
(discussing master-feeder fund structures).
6
App. to Answering Br. at 1 (Class Action Compl. ¶ 1). In his initial class action complaint,
Culverhouse pled that he “executed the [LPA] of [the Investment Fund] and became a limited
partner” and that he “held limited partner interests in the [Investment Fund].” He also attached
an unsigned copy of the LPA as an exhibit to the initial complaint. After the Investment Fund
Managers challenged that contention in their motion to dismiss, Culverhouse removed from the
first amended complaint the references to being a limited partner in the Investment Fund and
instead pled that he “held a limited liability company interest in [the Feeder Fund].” Id. at 61, 64
4
The Investment Fund Managers moved to dismiss the complaint for failure to state
a claim upon which relief can be granted and for lack of subject matter jurisdiction. They
argued that Culverhouse was an investor only in the Feeder Fund, and not the Investment
Fund. Culverhouse therefore did not state a claim against the Investment Fund Managers
because the Investment Fund did not owe him or the putative class any duties, fiduciary
or otherwise. They also argued that Culverhouse lacked standing because his claims in
the first amended complaint were derivative under Delaware law. The district court
decided the claims were derivative, and dismissed the complaint for lack of standing
under Federal Rule of Civil Procedure 12(b)(1). The district court did not decide whether
Culverhouse failed to state a claim under Rule 12(b)(6).
On appeal of the dismissal for lack of standing, the United States Court of Appeals
for the Eleventh Circuit determined that resolution of the appeal depended on an
unsettled issue of Delaware law. The Eleventh Circuit discussed our decision in Tooley,
which established a two-part test for determining whether a claim is direct or derivative.
The court also discussed the Delaware Court of Chancery’s decision in Anglo American,
which preceded Tooley by six months. In Anglo American, the Court of Chancery denied
a motion to dismiss filed by a hedge fund’s general partner, and found that the former
limited partners stated direct diminution of value claims stemming from the general
partner’s overdraw of his capital account.
(Class Action Compl. ¶¶ 1, 15); CD of the Record from the Eleventh Circuit at 59 (First
Amended Compl. ¶ 9).
5
The Eleventh Circuit acknowledged some of the factual similarities between the
structures of the Investment Fund and the Feeder Fund, and the hedge fund in Anglo
American. But the Eleventh Circuit noted that the rule established in Tooley made it
“hesitant to hold that Anglo American controls this appeal.”7 It further observed that the
United States District Court for the Southern District of New York has similarly
questioned “whether Anglo American remains good law after Tooley.”8 Accordingly, our
distinguished colleagues have asked this Court for guidance on the issue.
Certified Question Of Law Answered
This Court in Tooley established a two part test to answer the direct/derivative
question. Whether a claim alleged in a complaint is direct or derivative turns solely on
“(1) who suffered the alleged harm (the corporation or the suing stockholders,
individually); and (2) who would receive the benefit of any recovery or other remedy (the
corporation or the stockholders, individually)?”9 To answer the question, the reviewing
court must look to the body of the complaint and consider the nature of the wrong alleged
and the relief requested. The plaintiff must demonstrate that “the duty breached was
7
Culverhouse, 791 F.3d at 1281.
8
Id. (citing Newman v. Family Mgmt. Corp., 748 F. Supp. 2d 299, 314 n.12 (S.D.N.Y. 2010);
Saltz v. First Frontier, LP, 782 F. Supp. 2d 61, 78 n.15 (S.D.N.Y. 2010)).
9
Tooley, 845 A.2d at 1033. The Tooley direct/derivative test is “substantially the same” for
claims involving limited partnerships. Elf Atochem N. Am., Inc. v. Jaffari, 727 A.2d 286, 294
n.40 (Del. 1999) (“[T]he determination of whether a fiduciary duty lawsuit is derivative or direct
in nature is substantially the same for corporate cases as it is for limited partnership cases.”)
(quoting Litman v. Prudential-Bache Props. Inc., 611 A.2d 12, 15 (Del. Ch. 1992)); In re El
Paso Pipeline Partners, L.P., 2015 WL 7758609, at *23 (Del. Ch. Dec. 2, 2015) (“Generally
speaking, the test for distinguishing between direct and derivative claims in the limited
partnership context is substantially the same as in the corporate context.”) (citing Brinckerhoff v.
Enbridge Energy Co., 2011 WL 4599654, at *5-6 (Del. Ch. Sept. 30, 2011), aff’d, 67 A.3d 369
(Del. 2013); Anglo American, 829 A.2d at 149-50).
6
owed to the [investor] and that he or she can prevail without showing an injury to the
[entity].”10 The answer to the second part of the Tooley test “should logically follow”
from the first.11
Applying the undisputed facts to the certification request, we find that
Culverhouse fails to meet both parts of the Tooley test. To the extent not waived by the
terms of the agreements specific to each fund, the Investment Fund Managers owe
fiduciary duties to the investors who invested directly in the Investment Fund, including
the Feeder Fund.12 But Culverhouse chose not to invest directly in the Investment Fund.
Instead, Culverhouse invested in the Feeder Fund, which in turn invested in the
Investment Fund. The alleged harm flowing from the Investment Fund’s losses would
not in the first instance be suffered by Culverhouse. Culverhouse also would not in the
first instance receive the benefit of any recovery. Under the Tooley test, Culverhouse’s
claims are derivative.13
The Court of Chancery’s decision in Anglo American is distinguishable based on
its facts. In Anglo American, the limited partners did not invest through a feeder fund.
10
Tooley, 845 A.2d at 1039.
11
Id. at 1036.
12
See Gotham Partners, L.P. v. Hallwood Realty Partners, L.P., 817 A.2d 160, 170 (Del. 2002)
(“[A] general partner owes the traditional fiduciary duties of loyalty and care to the limited
partnership and its partners, but [the Delaware Limited Partnership Act] ‘expressly authorizes the
modification, or enhancement of these fiduciary duties in the written agreement governing the
limited partnership.’”) (quoting Gotham Partners, L.P. v. Hallwood Realty Partners, L.P., 2000
WL 1476663, at *10 (Del. Ch. Sept. 27, 2000)); see also Paige Capital Mgmt., LLC v. Lerner
Master Fund, LLC, 2011 WL 3505355, at *30 (Del. Ch. Aug. 8, 2011) (“[A] director, member,
or officer of a corporate entity serving as the general partner of a limited partnership . . . who
exercises control over the partnership’s property owes fiduciary duties directly to the partnership
and its limited partners.”) (dealing with fund managers).
13
Culverhouse’s claims could be viewed as double derivative in that Culverhouse seeks to assert
claims on behalf of the Investment Fund, through the Feeder Fund.
7
They had a direct relationship with the investment fund and its manager. By contrast,
Culverhouse and other Feeder Fund investors chose not to invest directly with the
Investment Fund. Their legal relationship existed only with the Feeder Fund.
The separateness of the Feeder Fund and Investment Fund is not a detail to be
disregarded simply because the Feeder Fund acts as a pass-through entity, and does not
issue transferrable shares. “Delaware courts take the corporate form and corporate
formalities very seriously . . . .”14 Each fund has its own governing agreements spelling
out the rights and obligations of the fund and its investors. To ignore these operative
agreements would upset the contractual expectations of the investors and the managers of
each fund.15 It would also unjustifiably call into question the vitality of the same type of
foundational agreements in the established feeder/master fund investment model.
Culverhouse and the class he purports to represent must look to the Feeder Fund and his
contractual or fiduciary relationship with it and its managers, not the Investment Fund
Managers, to address any dissatisfaction with investment losses by the Investment Fund.
14
Case Fin., Inc. v. Alden, 2009 WL 2581873, at *4 (Del. Ch. Aug. 21, 2009).
15
See 6 Del. C. § 17-1101(c) (“It is the policy of [the LP Act] to give maximum effect to the
principle of freedom of contract and to the enforceability of partnership agreements.”); Elf
Atochem, 727 A.2d at 290 (“The policy of freedom of contract underlies . . . the LP Act.”); 6 Del.
C. § 18-1101(b) (“It is the policy of [the LLC Act] to give the maximum effect to the principle of
freedom of contract and to the enforceability of limited liability company agreements.”); Olson
v. Halvorsen, 986 A.2d 1150, 1160 (Del. 2009) (Delaware LLC Act seeks to give maximum
effect to the principle of freedom of contract and enforceability of LLC agreements).
In the initial subscription agreement and confidential memorandum accompanying
Culverhouse’s investment in the Feeder Fund, Culverhouse clearly acknowledged or agreed he
was not an investor in the Investment Fund and could not assert claims against the Investment
Fund and its defined affiliates. See App. to Answering Br. at 39 (Initial Subscription Agreement
at 9 (Section V(A) (Indemnification and Other Matters))); CD of the Record from the Eleventh
Circuit at 542, 558-60 (Confidential Memorandum of the Feeder Fund at 16, 32-34).
8
Conclusion
We answer the certified question in the negative. The Clerk is directed to transmit
this opinion to the Eleventh Circuit.
9