In re Lordstown Motors Corp. Stockholders Litigation ( 2022 )


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  •                              COURT OF CHANCERY
    OF THE
    STATE OF DELAWARE
    LORI W. WILL                                             LEONARD L. WILLIAMS JUSTICE CENTER
    VICE CHANCELLOR                                              500 N. KING STREET, SUITE 11400
    WILMINGTON, DELAWARE 19801-3734
    Date Submitted: February 28, 2022
    Date Decided: March 7, 2022
    Raymond J. DiCamillo, Esquire                  Gregory V. Varallo, Esquire
    Kevin M. Gallagher, Esquire                    Daniel E. Meyer, Esquire
    Alexander M. Krischik, Esquire                 Bernstein Litowitz Berger
    Alena V. Smith, Esquire                        & Grossmann LLP
    Richards, Layton & Finger P.A.                 500 Delaware Avenue, Suite 901
    920 North King Street                          Wilmington, Delaware 19801
    Wilmington, Delaware 19801
    RE:    In re Lordstown Motors Corp. Stockholders Litigation,
    CA. No. 2021-1066-LWW
    Dear Counsel:
    The defendants have moved to stay this putative class action pending the
    resolution of a federal securities class action. I decline to grant a stay. The McWane
    doctrine applies with less force in the context of representative litigation and is
    particularly inapt here. Although the federal action is first-filed and concerns and
    the same business combination, the parties, claims, and remedy sought are different.
    Perhaps more importantly, this case raises emerging issues of Delaware law.
    Established doctrines of fiduciary duty law are, of course, far from novel. But this
    court has had occasion to apply these principles in the context of special purpose
    C.A. No. 2021-1066-LWW
    March 7, 2022
    Page 2 of 13
    acquisition companies and stockholder redemption rights just once—in a decision
    rendered two months ago. This court’s essential role of providing guidance in
    developing areas of our law would be impaired if the court were to denude its
    jurisdiction because a federal securities action resting on similar facts was filed first.
    I.       RELEVANT BACKGROUND
    On October 23, 2020, Lordstown Motors Corp. (“Legacy LMC”) completed
    a business combination with special purpose acquisition company DiamondPeak
    Holding Corp. (“DiamondPeak,” and, after the combination, “Lordstown”).1
    Disclosures issued in connection with the transaction indicated that Lordstown
    would have a first-mover advantage in the burgeoning electric truck market and that
    Lordstown had a large and growing backlog of truck orders.2 On March 12, 2021,
    an analyst report was published that purported to identify problems faced by
    Lordstown.3 A drop in Lordstown’s stock price followed.4
    Litigation followed, to say the least.
    1
    Verified Class Action Compl. (“Compl.”) ¶¶ 6, 13 (Dkt. 1).
    2
    See id. ¶¶ 5-6.
    3
    Id. ¶¶ 102-03.
    4
    See Defs.’ Mot. to Stay Ex. A (“Securities Compl.”) ¶¶ 20-29 (Dkt. 15).
    C.A. No. 2021-1066-LWW
    March 7, 2022
    Page 3 of 13
    Starting in March 2021, multiple federal securities class actions were filed in
    the United States District Court for the Northern District of Ohio. 5 The cases were
    consolidated in June 2021 (the “Securities Action”).6 The defendants named in the
    Securities Action complaint are Lordstown, the Lordstown subsidiary that is the
    continuation of Legacy LMC, certain of Lordstown and Legacy LMC’s current and
    former officers, and Lordstown director David Hamamoto.7 The complaint asserts
    various violations of the Securities Act of 1933 and Securities Exchange Act of
    1934.8 The claims are brought on behalf of a putative class of persons and entities
    who “(a) purchased or otherwise acquired [Lordstown’s] Class A Common
    Stock . . . publicly traded warrants . . . or any publicly traded option to purchase or
    sell [Lordstown’s] Class A Common Stock, from August 3, 2020, through July 2,
    2021. . . and/or (b) held [Lordstown’s] Class A Common Stock as of September 21,
    2020.”9
    5
    Defs.’ Mot. to Stay ¶ 10.
    6
    See In re Lordstown Motors Corp. Sec. Litig., No. 4:21-cv-00616 (PAG) (N.D. Ohio).
    7
    Securities Compl. ¶¶ 51-57. Specifically, that complaint names as defendants former
    Legacy LMC (and later Lordstown) officers Caimin Flannery, Darren Post, and Rich
    Schmidt, and Lordstown officer Shane Brown. Id.; see Compl. ¶ 22.
    8
    Securities Compl. ¶¶ 451-90.
    9
    Id. ¶ 442.
    C.A. No. 2021-1066-LWW
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    Related derivative actions were also filed in the United States District Court
    for the District of Delaware,10 the Northern District of Ohio,11 and in this court.12
    The present action (the “Action”) was brought after two Lordstown
    (previously DiamondPeak) stockholders obtained documents pursuant to 8 Del. C.
    § 220.13 Their class action complaints were filed in this court on December 8 and
    December 13, 2021 and have been consolidated.14 The plaintiffs’ claims are brought
    on behalf of a putative class of “all record and beneficial holders of [DiamondPeak]
    common stock who continuously held such stock between the [transaction’s] Record
    Date of September 21, 2020 and the closing of the de-SPAC Acquisition on October
    23, 2020.”15
    The plaintiffs’ Verified Class Action Complaint (the “Complaint) advances
    one claim against Hamamoto and four other former members of the DiamondPeak
    Board16 and another claim against the “Controller Defendants”—defined as
    10
    In re Lordstown Motors Corp. S’holder Deriv. Litig., No. 21-cv-00604 (D. Del.).
    11
    Thai v. Burns, No. 4:21-cv-01267 (N.D. Ohio). That action has been stayed pending the
    resolution of the Securities Action. See Defs.’ Mot. to Stay ¶ 16.
    12
    Cormier v. Burns, C.A. No. 2021-1049-LWW (Del. Ch.).
    13
    Compl. ¶¶ 15-16.
    14
    See Dkt. 1; Amin v. Hamamoto, C.A. No. 2021-1085-LWW (Dkts. 1, 44).
    15
    Compl. ¶ 148.
    16
    Id. ¶¶ 21-26, 158-63. Those individuals are Mark Walsh, Andrew Richardson, Steven
    Hash, and Judith Hannaway.
    C.A. No. 2021-1066-LWW
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    Diamond Peak Sponsor LLC and two of the former directors.17 I previously
    described those claims as follows:
    The plaintiff[s] assert[] that the directors of DiamondPeak
    breached their fiduciary duties by failing to disclose
    certain information about [Legacy LMC’s] purchase
    orders and production timeline. The plaintiff[s] further
    allege[] that DiamondPeak’s controlling stockholders
    acted to advance their own interests by pursuing the
    transaction with Legacy LMC to the detriment of minority
    stockholders. The putative class of then-DiamondPeak
    stockholders were purportedly harmed by not exercising
    their redemption rights.18
    On January 10 and 18, 2022, the defendants filed one-page motions to dismiss
    pursuant to Court of Chancery Rules 12(b)(6) and 23.1.19 On January 19, 2022, the
    defendants filed a Motion to Stay this Action pending the resolution of the Securities
    Action.20 I heard argument on the Motion to Stay on February 28, 2022.21
    II.      LEGAL ANALYSIS
    The defendants seek to stay this Action pending the resolution of the
    Securities Action, relying on McWane Cast Iron Pipe Corp. v. McDowell Wellman
    17
    Id. ¶¶ 28, 164-71.
    18
    In re Lordstown Motors Corp. S’holders Litig., 
    2022 WL 601120
    , at *2 (Del. Ch.
    Feb. 28, 2022).
    19
    Dkts. 11, 14.
    20
    Dkt. 20.
    21
    Dkt. 43.
    C.A. No. 2021-1066-LWW
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    Engineering Corp. and its progeny.22 Under the McWane doctrine, the court’s
    discretion to grant a stay should be freely exercised where “there is a prior action
    pending elsewhere, in a court capable of doing prompt and complete justice,
    involving the same parties and the same issues.”23 “[T]hese concepts are impelled
    by considerations of comity and the necessities of an orderly and efficient
    administration of justice.”24
    The defendants contend that allowing the Action to proceed in parallel with
    the Securities Action would tax the resources of the court and the parties. They
    further assert that the plaintiffs here seek to represent a subset of the stockholder
    class represented in the Securities Action and that the breach of fiduciary duty claims
    in this Action are premised upon the same statements alleged to be misleading in the
    Securities Action.25
    In response, the plaintiffs note that the claims in this Action involve novel
    issues of Delaware law that are not implicated in the Securities Action. They further
    argue that, regardless, none of the McWane factors support staying the Action.26
    22
    
    263 A.2d 281
     (Del. 1970).
    23
    
    Id. at 283
    .
    24
    
    Id.
    25
    See Defs.’ Mot. to Stay ¶¶ 1, 21-22.
    26
    See Pls.’ Opp’n to Defs.’ Mot. to Stay (“Pls.’ Opp’n”) ¶¶ 7-10 (Dkt. 34).
    C.A. No. 2021-1066-LWW
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    A McWane analysis is an imperfect method to guide my assessment of the
    defendants’ motion.27 “[T]his court has proceeded cautiously when facing the
    question of whether to defer to a first-filed representative action and has given much
    less weight to first-filed status than is required in the non-representative action
    context.”28 In the representative litigation setting, the court’s “paramount interest”
    is to ensure that “stockholders receive ‘fair and consistent enforcement of their rights
    under the law governing the corporation.’”29
    Here, the fundamental question is whether this court’s interest in resolving
    corporate governance issues under Delaware law prevails over considerations of
    comity and practicality.    This Action concerns allegations that the defendants
    breached their fiduciary duties of loyalty and impaired the exercise of stockholders’
    redemption rights in the context of a de-SPAC transaction. Those claims raise
    “novel issues” akin to those that this court was presented with in a matter of first
    27
    Biondi v. Scrushy, 
    820 A.2d 1148
    , 1150 (Del. Ch. 2003) (explaining that “the McWane
    doctrine does not apply with full force” in representative actions).
    28
    
    Id. at 1159
    ; Donald J. Wolfe & Michael A. Pittenger, Corporate and Commercial
    Practice in the Delaware Court of Chancery § 5.01 (2021) (observing that “the Court of
    Chancery tends to afford decidedly less deference” to the McWane factors when
    considering competing stockholder representative suits).
    29
    Brandin v. Deason, 
    941 A.2d 1020
    , 1024 (Del. Ch. 2007) (quoting In re Topps Co.
    S’holders Litig., 
    924 A.2d 951
    , 953 (Del. Ch. 2007)).
    C.A. No. 2021-1066-LWW
    March 7, 2022
    Page 8 of 13
    impression earlier this year.30 The Court of Chancery has “long been chary” about
    deferring to a first-filed action pending elsewhere “when a case involves important
    questions of our law in an emerging area.”31
    None of the remaining factors appropriately considered under McWane
    outweigh that vital interest. The parties in this Action and the Securities Action
    differ significantly. Although these actions have facts in common, the issues
    presented are distinct. And the claims brought here are not a simple repackaging of
    securities claims with a Delaware law label.
    To start, the Securities Action names only one of the Action’s defendants.
    The defendants point to the overlap in defendants here and in the related derivative
    actions (though they do not seek a stay in deference to those cases) to support their
    position that this Action should not move forward.32 But—insofar as the derivative
    actions are even relevant to whether a stay in deference to the Securities Action is
    appropriate—those cases seek to recover on behalf of Lordstown while this action
    30
    See In re MultiPlan Corp. S’holders Litig., --- A.3d ---, 
    2022 WL 24060
    , at *1 (Del. Ch.
    Jan. 3, 2022) (stating that, until that decision, “Delaware courts ha[d] not previously had
    an opportunity to consider the application of our law in the SPAC context”).
    31
    In re Topps, 
    924 A.2d at 960
    ; see Brandin, 
    941 A.2d at 1024-25
     (finding that the presence
    of novel, complicated, and unsettled issues of Delaware law “strongly favor[ed]” denial of
    a motion to stay); Ryan v. Gifford, 
    918 A.2d 341
    , 349-50 (Del. Ch. 2007) (noting that
    Delaware courts have substantial interests in resolving cases “where the law is novel”).
    32
    See Defs.’ Mot. to Stay ¶¶ 28-31.
    C.A. No. 2021-1066-LWW
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    Page 9 of 13
    is brought on behalf of a putative class of former DiamondPeak stockholders. It is
    not apparent to me why this court would stand down from hearing class action claims
    in deference to derivative actions that might themselves defer to prior-filed securities
    claims.
    The putative class in the Securities Action is also not equivalent to the class
    the plaintiffs seek to represent in this Action. The class proposed in the Securities
    Action includes stockholders who “purchased” Lordstown publicly traded warrants,
    units, or options to purchase or sell Class A shares from August 3, 2020 through July
    2, 2021 “and/or . . . held” Class A shares as of September 21, 2020. 33 This Action,
    by contrast, is brought on behalf of a putative class of stockholders who
    “continuously held” Lordstown common stock “between the Record Date of
    September 21, 2020 and the closing of the de-SPAC Acquisition on October 23,
    2020.”34 Members of the stockholder class in this Action also fall within the
    Securities Action class (which is not unusual in parallel actions). But, as the
    plaintiffs point out, any recovery for the earlier investors included in the Securities
    33
    Securities Compl. ¶ 442.
    34
    Compl. ¶ 148.
    C.A. No. 2021-1066-LWW
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    Action class—who are the focus of this Action—could be affected by the breadth of
    that class period.35
    The issues in the actions coincide insofar as the disclosures in DiamondPeak’s
    proxy statement require examination. They are otherwise fundamentally different.
    The crux of the Securities Action rests on whether Lordstown’s stock price was
    “artificially inflated” by false and misleading disclosures.36           The plaintiffs’
    Complaint, by contrast, alleges that the defendants harmed the putative class
    members by impairing the informed exercise of their redemption rights to the
    defendants’ benefit.37 These are quintessential Delaware concerns—not, as the
    defendants argue, a rebranding of securities claims about material misstatements as
    fiduciary duty claims.
    That reality renders the cases relied upon by the defendants inapposite. In
    Derdiger v. Tallman, a lead plaintiff in a consolidated federal securities action was
    appointed to “pursue all available causes of action against all possible defendants
    35
    The plaintiffs also contend that the proposed Securities Action class is under-inclusive
    of the class here because it would not include investors who purchased shares before
    August 3, 2020. The Securities Action class, however, also includes investors who “held”
    Class A shares as of the September 21, 2020 record date—which is the beginning of the
    plaintiffs’ proposed class. Compare Securities Compl. ¶ 442, with Compl. ¶ 148.
    36
    E.g., Securities Compl. ¶¶ 114, 246, 432.
    37
    Compl. ¶¶ 161-63, 168-70.
    C.A. No. 2021-1066-LWW
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    under all available legal theories.”38 A class action complaint was subsequently filed
    in the Court of Chancery, “seeking redress for . . . allegedly false statements made
    in connection with [a] merger.”39 The court deferred to the federal action because
    the cases “share[d] the same core facts, legal claims, and alleged damages.”40
    In Schnell v. Porta Systems Corp., a federal securities complaint alleged “that
    the defendants engaged in a conspiracy to conceal adverse material information, to
    defraud purchasers, and to maintain an artificially high market price” for a
    company’s stock.41 A class action complaint filed in Delaware three weeks later
    likewise alleged that the defendants “breached their fiduciary duties owed to the
    shareholders in that they made material misrepresentations and failed to correct
    those material misrepresentations with subsequent disclosures” and that those
    actions “amounted to fraud.”42 In staying the Delaware action, the court explained
    that “while the claims in the two courts may be stated in different ways, they [were]
    actually the same claims.”43
    38
    
    773 A.2d 1005
    , 1010 (Del. Ch. 2000) (emphasis in original).
    39
    
    Id. at 1009
    .
    40
    
    Id. at 1016
    .
    41
    
    1994 WL 148276
    , at *4 (Del. Ch. Apr. 12, 1994).
    42
    
    Id.
    43
    
    Id.
    C.A. No. 2021-1066-LWW
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    Page 12 of 13
    In this instance, the distinction between the federal claims pleaded in the
    Securities Action and the plaintiffs’ Delaware law fiduciary duty claims is not an
    “artificial” one.44 Without considering the viability of the plaintiffs’ claims, even a
    superficial review of the Complaint makes plain that the plaintiffs are pursuing more
    than a narrow disclosure claim.45 The claims advanced “invoke[] both the duty of
    loyalty and disclosure duties implicating director loyalty.”46          They are not
    “redundant or duplicative of”47 the first-filed securities claims.48
    The gap between the claims here and those in the Securities Action widens
    when the potential remedies are considered. The defendants argue that any monetary
    damages that could be awarded in this Action would be addressed by the relief
    sought in the Securities Action. But the bases for measuring the relief (if any) would
    be entirely different. The Securities Action seeks to recover damages for losses
    allegedly caused by the decline in Lordstown’s stock price from a class period high
    44
    Derdiger, 
    773 A.2d at 1016-17
     (describing the “forceful[] rejection” of an alleged
    distinction between state and federal “misdisclosure claims” in Schnell v. Porta Systems
    Corp.).
    45
    E.g., Compl. ¶¶ 97, 123-25; see MultiPlan, 
    2022 WL 24060
    , at *8.
    46
    MultiPlan, 
    2022 WL 24060
    , at *8.
    47
    Derdiger, 
    773 A.2d at 1018
    .
    48
    It bears mentioning that the defendants have also moved to stay the Cormier action.
    Cormier, C.A. No. 2021-1049-LWW, Dkt. 13. This decision should not be viewed as
    determinative of that motion, which concerns a subsequently-filed derivative action. See
    
    id.
    C.A. No. 2021-1066-LWW
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    Page 13 of 13
    of $31.57.49 The plaintiffs’ attempted recovery in this Action, by contrast, could turn
    on the $10 redemption price (plus interest) relative to the value the class received in
    the de-SPAC transaction.50
    III.     CONCLUSION
    Delaware has a substantial interest in addressing the issues presented by this
    case. And there is limited overlap—in terms of the parties, issues, and potential
    remedies—between this Action and the Securities Action. The defendants’ Motion
    to Stay is denied.
    Sincerely yours,
    /s/ Lori W. Will
    Lori W. Will
    Vice Chancellor
    49
    See Securities Compl. ¶ 434.
    50
    See Compl. ¶ 147.