The Ravenswood Investment Company, L.P. v. The Estate of Bassett S. Winmill ( 2018 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
THE RAVENSWOOD INVESTMENT :
COMPANY, L.P., individually, :
derivatively and on behalf of a class of :
similarly situated persons, :
:
Plaintiff, :
:
v. : C.A. No. 3730-VCS and
: C.A. No. 7048-VCS
THE ESTATE OF BASSETT S. :
WINMILL, THOMAS B. WINMILL, :
and MARK C. WINMILL, :
:
Defendants, :
:
and :
:
WINMILL & CO., INCORPORATED, :
:
Nominal Defendant. :
MEMORANDUM OPINION
Date Submitted: December 13, 2017
Date Decided: March 21, 2018
Date Revised: March 22, 2018
R. Bruce McNew, Esquire and Scott B. Czerwonka, Esquire of Wilks, Lukoff &
Bracegirdle, LLC, Wilmington, Delaware, Attorneys for Plaintiff.
David A. Jenkins, Esquire and Kelly A. Green, Esquire of Smith, Katzenstein &
Jenkins LLP, Wilmington, Delaware, Attorneys for Defendants.
SLIGHTS, Vice Chancellor
The Ravenswood Investment Company, L.P., a stockholder of nominal
defendant, Winmill & Co., Incorporated (“Winmill & Co.” or the “Company”), has
brought derivative claims on behalf of the Company against the Company’s board
of directors, comprising Bassett Winmill and his two sons, Thomas and Mark
Winmill, alleging they breached their fiduciary duties in two respects. First, they
granted overly generous stock options to themselves (as Company officers). Second,
they caused the Company both to forgo audits of the Company’s financials and to
stop disseminating information to the Company’s stockholders in retaliation for
Plaintiff’s assertion of its inspection rights pursuant to 8 Del. C. § 220. The claims
have been tried and the parties’ arguments fully briefed.
One of the pillars of our law with regard to public companies is that they must
be run for the benefit of their stockholders. That goal, at times, can be difficult to
square with the managers’ desire to compensate the company’s executives
generously for their hard work and commitment to the business. To be sure, it is
right and proper to incentivize executives to stay with a company and to work hard
for its success. But how much incentive compensation is proper? In many
companies, this question can be decided by board members who have no personal
interest in the matter and aim to fulfill their fiduciary duties to make informed
decisions in the company’s best interest. In these instances, the independent
directors’ disinterested decision generally is entitled to deference under the business
1
judgment rule. But, as is often the case in small, family-run businesses, those
making the compensation decisions and those receiving the compensation are one
and the same. That dynamic can be problematic. It is made even more so when the
self-interested decisions are made without proper documentation (in the form of
board minutes or otherwise) and without objective evidence supporting them.
Unfortunately, that is how the events giving rise to this litigation unfolded.
The Company’s board decided it needed to incentivize its officers and pay
compensation closer to that of their investment management industry peers.
Accordingly, the board decided to grant stock options to certain officers. In doing
so, however, the board members granted stock options to themselves, as each board
member also served in an executive capacity and each was granted stock options in
that capacity. When deciding the terms of the option awards, the board chose not to
hire a compensation consultant, used a comparable companies analysis that was
neither well-documented nor well-substantiated, agreed that a portion of the
consideration for the options could be paid over time as evidenced by promissory
notes, and then forgave those notes long before they were paid in full.
The contemporaneous evidence of the board’s “process” with respect to the
stock option grants is, in a word, thin. Consequently, the Court was left to view the
process through a retrospective lens ground in the after-the-fact testimony of the
conflicted fiduciaries who made the decisions. As conflicted fiduciaries, Defendants
2
were obliged to prove that the stock options they granted themselves were entirely
fair; that is, their burden was to prove that the grant was the product of a fair process
that yielded a fair result. They failed to carry that burden. Consequently, I find that
Defendants breached their fiduciary duty of loyalty with respect to the option grants.
But there is another important lesson to be learned from this case. While this
court endeavors always to remedy breaches of fiduciary duty, especially breaches of
the duty of loyalty, and has broad discretion in fashioning such remedies, it cannot
create what does not exist in the evidentiary record, and cannot reach beyond that
record when it finds the evidence lacking. Equity is not a license to make stuff up.
After a decade of litigation, Plaintiff has failed to develop any evidence
supporting cancellation, rescission, rescissory damages or some other form of
damages as possible remedies for the proven breaches of fiduciary duty. The
overwhelming evidence reveals that there is no basis for cancellation. Rescission,
likewise, does not work because the Company lacks sufficient funds to repay
Defendants what they have already paid for the options—a necessary step if
rescission is to perform its function of returning all parties to the status quo before
the wrongful conduct occurred. For this same reason, rescissory damages are not
viable either. And Plaintiff has failed to present any evidence upon which the Court
could fashion a damages award in some other form. Specific performance of the
promissory notes that were forgiven might be an option, but Plaintiff has not sought
3
specific performance in any of its several pleadings nor has it even attempted to
demonstrate that the remedy is appropriate. Indeed, if anything, Plaintiff put
Defendants on notice that it was seeking the opposite of specific performance,
namely rescission or cancellation. Consequently, all that can be awarded is a
declaration that Defendants breached their fiduciary duties and an assessment of
nominal damages against each Defendant in the spirit of equity.
As for Plaintiff’s claims relating to the Company’s record keeping and
dissemination practices, those claims fail for lack of proof and because, as presented,
they reflect an improper attempt to repackage claims already dismissed by the Court.
This is the Court’s post-trial opinion.
I. BACKGROUND
The Court held a two-day trial during which it received 99 trial exhibits and
heard live testimony from five witnesses. The Court heard post-trial argument on
December 13, 2017. All facts are drawn from the stipulated facts, admitted
allegations in the pleadings, evidence admitted at trial and those matters of which
the Court may take judicial notice. 1 The following facts were proven by a
preponderance of the evidence unless otherwise indicated.
1
Citations to the Joint Pre-Trial Stipulation and Order are referenced “PTO ¶”; to the joint
trial exhibits “JX #”; to the trial transcript “Tr. #” and to the post-trial oral argument
transcript “OA Tr. #.”
4
A. The Parties
Nominal Defendant, Winmill & Co., is a Delaware holding company that
“conducts an investment management operation” through its affiliates (in which it
has ownership interests of varying degrees).2 Winmill & Co.’s affiliates manage the
assets of several registered investment companies and mutual funds and receive fees
in return for those services.3 At the time of the transactions in question, Winmill &
Co.’s stock was traded “in the over-the-counter market formerly known as Pink
Sheets.” 4 As of 2005, it had approximately $142 million in assets under
management.5
2
Tr. 20:18–23 (Thomas Winmill Testimony). Prior to 1999, the Company’s name was
Bull & Bear Group, Inc. Tr. 251:2–252:7; 254:17–24 (Mark Winmill Testimony). In 1999,
the Company sold its discount brokerage subsidiary, Bull & Bear Securities, to the Royal
Bank of Canada and changed its name to “Winmill & Company Inc.” Tr. 251:23–252:8
(Mark Winmill Testimony).
3
Tr. 126:8–20; 20:18–23 (Thomas Winmill Testimony). Winmill & Co. has varying
ownership interests in the affiliated companies. JX 19 (Winmill & Co. 2005 Annual
Report), at 1 (explaining the Company owns 25% of Brexil Corp. and 24% of Tuxis Corp.).
The Company’s financial health depends on “how well [management] [is] selecting the
underlying portfolio securities, how well [it is] marketing [its] track record, and how well
[it is] executing on the underlying operating requirements of a mutual fund business.”
Tr. 126:15–20 (Thomas Winmill Testimony).
4
Tr. 23:4–5 (Thomas Winmill Testimony).
5
JX 19 (Winmill & Co. 2005 Annual Report).
5
Plaintiff, The Ravenswood Investment Company, L.P. is, and at all relevant
times was, a holder of Winmill & Co.’s Class A non-voting common stock. 6
It brings these claims derivatively on behalf of the Company.
Defendants are the Estate of Bassett Winmill (the “Estate”), Thomas Winmill
and Mark Winmill. 7 Bassett, Thomas and Mark comprised the entirety of the
Company’s board of directors (the “Board”) at all times relevant to the proceedings.8
The Estate was substituted as a party for Bassett in May 2015 following
Bassett’s passing.9 Bassett was the founder of Winmill & Co.’s predecessor and
served as the Company’s Chairman.10 Prior to his passing, he owned shares of the
Company’s Class A non-voting common stock and all of its 20,000 shares of Class B
voting common stock (the only voting stock).11 Bassett’s Class B stock was placed
6
PTO ¶ 1.
7
PTO ¶ 3. I use first names (from time to time) for clarity; I intend no disrespect.
8
PTO ¶ 3.
9
PTO ¶ 4; D.I. 132 (C.A. No. 3730-VCS). Bassett died on May 15, 2012. D.I. 132
(C.A. No. 3730-VCS).
10
PTO ¶ 4.
11
PTO ¶¶ 7–8.
6
into the Winmill Family Trust (the “Trust”) upon his passing.12 Defendants, Thomas
and Mark Winmill (Bassett’s sons), serve as the trustees for the Trust.13
Defendant, Thomas Winmill, served (and still serves) as the Company’s
President and CEO.14 He has been the general counsel of Winmill & Co. and a
member of the Board since the mid-1990s.15 Thomas was also employed by several
Winmill & Co. affiliates during the relevant time period.16
Defendant, Mark Winmill, served (and still serves) as the Company’s
Executive Vice President.17 Mark worked at the Company and served on its Board
from 1987 to 1999; he returned to the Company in 2004.18 Like his brother, he also
12
PTO ¶¶ 3, 7.
13
PTO ¶¶ 3, 7.
14
Tr. 18:3–6, 16–20.
15
Tr. 18:10–19:3.
16
Tr. 223:18–24 (Thomas Winmill Testimony). Specifically, Thomas was employed by
Brexil Corp. and Tuxis Corp. Id.
17
PTO ¶¶ 4–6.
18
Tr. 254:17–255:1 (Mark Winmill Testimony). Mark left the Company in 1999 as part
of the Company’s discount brokerage sale. Tr. 250:21–251:22 (Mark Winmill Testimony).
He rejoined the Company in 2004 when his three-year contract with the Royal Bank of
Canada ended. Id.
7
worked for Winmill & Co. affiliates at all relevant times.19 Both Thomas and Mark
own Class A common stock.20
B. Compensation of the Company’s Officers
Since the early 1990s, Winmill & Co.’s Board has determined the proper
compensation of its officers on an annual basis by reviewing the compensation
structure of companies the Board identifies as the Company’s peers.21 To receive
relevant information for this process, the Board would cause the Company to acquire
small equity stakes in peer companies. Thereafter, the Board would review those
companies’ public filings and stockholder disclosures so that it could evaluate the
compensation paid to their executives.22
The Board considers as comparable those companies “that [are] competing
with [Winmill & Co.] in the investment management business.”23 The evidence
revealed, and Defendants acknowledge, that the “comparable companies” routinely
identified by the Board are considerably larger than Winmill & Co. when measured
by any relevant metric; e.g., outstanding shares, market capitalization, assets under
19
Tr. 252:23–254:3 (Mark Winmill Testimony).
20
PTO ¶ 8.
21
Tr. 89:23–90:6 (Thomas Winmill Testimony).
22
Tr. 89:2–19 (Thomas Winmill Testimony); 262:14–19 (Mark Winmill Testimony).
23
Tr. 93:6–10 (Thomas Winmill Testimony).
8
management, revenues, profitability, etc. Nevertheless, in the Board’s view,
Winmill & Co. was “competing [with these companies] for the same people and [for
the same] edge,” making the identified peers proper subjects for comparison.24
1. Thomas, Mark and Bassett’s Salaries
As best I can discern from the often-contradictory trial evidence, the three
Defendants received the following compensation from Winmill & Co. during the
relevant timeframe:
Thomas Mark Bassett
Year
(President and CEO) (Executive VP) (Chairman)
$12,250 $5,833.33 $27,666.67
2005
(for the year)25 (for the year)26 (for the year)27
$8,333.33 $1,666
2006 ???
(per month)28 (per month)29
24
Tr. 94:1–17 (Thomas Winmill Testimony).
25
JX 59 (Compensation Chart), at WIN-0547.
26
JX 59 (Compensation Chart), at WIN-0547.
27
JX 59 (Compensation Chart), at WIN-0547.
28
JX 18 (Nov. 10, 2005 Written Consent). I note that JX 59 (Compensation Chart) appears
to indicate that Thomas actually received an annual salary of $12,583.33 in 2006. This is
one of several instances where the Company’s records are not clear, contradictory and
generally not helpful.
29
JX 10 (May 23, 2005 Written Consent); JX 31 (Dec. 3, 2007 Written Consent). Here
again, pursuant to JX 59 (Compensation Chart), Mark may have actually received an
annual salary of $9,950.15 in 2006.
9
$10,000
2007 ??? ???
(per month)30
$25,000 $1,666 $15,000
2008
(per month) 31 (per month)32 (per month) 33
$6,500
2009 ??? ???
(per month)34
$15,000
2010 ??? ???
(per month)35
As President and CEO, Thomas’ duties at Winmill & Co. include oversight of
operating areas such as legal and compliance, portfolio management, administrative
and personnel.36 “[I]n terms of an allocation of [his] total time spent,” Thomas does
not consider his position at Winmill & Co. a full-time position and, in the relevant
years, he derived the majority of his income from Company affiliates.37
30
JX 22 (Nov. 29, 2006 Written Consent), at WIN-0381.
31
JX 31 (Dec. 3, 2007 Written Consent), at WIN-0391.
32
JX 10 (May 23, 2005 Written Consent); JX 31 (Dec. 3, 2007 Written Consent). Mark
testified that he received an annual salary of $20,000 in 2008. Tr. 275:9–12 (Mark Winmill
Testimony).
33
JX 31 (Dec. 3, 2007 Written Consent), at WIN-0391.
34
Tr. 275:9–276:21 (Mark Winmill Testimony).
35
Tr. 275:9–276:21 (Mark Winmill Testimony).
36
Tr. 19:11–17 (Thomas Winmill Testimony).
37
Tr. 223:18–24; Tr. 224:24–225:3 (Thomas Winmill Testimony). See JX 59
(Compensation Chart).
10
Mark’s responsibilities as the Company’s Executive Vice President include
general oversight of investment and operating companies, serving as chief
investment strategist of certain funds partially owned and advised by the Company
through its affiliates, and conducting financial operations, principally of one of the
Company’s wholly-owned operating entities.38 Like his brother, Mark also received
a majority of his salary from the Company’s affiliates during the years leading up to
the stock option grants at issue here.39
Finally, Bassett served as the Company’s Chairman. The parties did not
address his responsibilities in that capacity in any detail and I have found no job
description or similar evidence in the trial record.
2. The 2005 Performance Equity Plan
Winmill & Co. had adopted a stock option plan in 1995 that was to expire in
December 2005.40 With the expiration of the prior plan approaching, in May 2005,
the Board (and the Company’s sole voting stockholder, Bassett) adopted the 2005
38
JX 46 (Winmill & Co. 2011 Annual Report), at WFIN-0071; Tr. 276:22–227:8 (Mark
Winmill Testimony).
39
Tr. 277:17–278:3 (Mark Winmill Testimony). See JX 59 (Compensation Chart);
Tr. 277:9–278:3 (Mark Winmill Testimony) (“About how much of your time were you
devoting to Winmill & Company from the years 2008 to 2010? A. It was approximately
25 percent. It’s fluctuated since then. It’s probably less than that from time to time. Q. So,
presumably, in the year that you got paid just over $6,000 from Winmill & Company, you
were getting compensated by other entities? A. Yes.”).
40
Tr. 24:17–25:10 (Thomas Winmill Testimony).
11
Performance Equity Plan (the “PEP”) by written consent.41 The PEP was meant to
allow the Company to reward its employees (especially those employees most
directly responsible for the Company’s success) “for past services by way of current
compensation and also to provide an incentive for future exertions on behalf of the
corporation.”42
The PEP authorized “granting of a maximum of 500,000 options” 43 on
Winmill & Co.’s then approximately 1.5 million outstanding shares of Class A
common stock (“Stock”). 44 This 500,000 figure was chosen to ensure that an
adequate number of shares would be available for future grants of incentive stock
options in compliance with Internal Revenue Service (“IRS”) rules.45
The price of the options granted under the PEP was to be “determined by the
[Board] at the time of the grant and [][was] not [to] be less than 110% of the Fair
41
PTO ¶ 9.
42
Tr. 97:6–13 (Thomas Winmill Testimony). The Board also saw the PEP as a way to
“align the interest of employees with shareholders[’],” thus benefiting the shareholders.
Tr. 257:11–19 (Mark Winmill Testimony).
43
PTO ¶ 9.
44
PTO ¶ 11.
45
Tr. 85:5–86:2 (Thomas Winmill Testimony); 260:2–13 (Mark Winmill Testimony).
Pursuant to federal tax law, only $100,000 in face value (the number of options multiplied
by the exercise price) of incentive stock options may vest per year. See 26 U.S.C.
§ 422(d)(1).
12
Market Value on the date of grant.”46 Nevertheless, in its 2005 Annual Report, the
Company stated that stock options would be granted at “fair value,” rather than at
“fair market value.”47 This disclosure to stockholders was never corrected. The
Board determined that plan beneficiaries could pay for the Stock “in cash to the
extent of par value of the Common Stock acquired and by delivery of a promissory
note in a form satisfactory to the [Board].”48
C. The Disputed Option Grants
Immediately following the adoption of the PEP, on May 23, 2005, the Board
authorized option awards to Bassett, Thomas and Mark pursuant to the PEP after
comparing their compensation with the compensation paid to executives at Board-
46
JX 79 (PEP) § 5.2(a). Pursuant to the PEP, the Fair Market Value for shares “traded in
the over-the-counter market” was “the last sale price of the Common Stock on such date,
as reported by the Pink Sheets LLC . . . or if no sale was reported on that date, then on the
last preceding date on which such sale took place.” Id. § 1.2(k) (Fair Market Value
definition). Pursuant to federal tax law, incentive options must be priced at no less than
fair market value. 26 U.S.C. § 422(b)(4). When a recipient owns 10% or more of a
company’s total combined voting power of all classes of stock, the stock option must be
priced at a minimum of 110% of the fair market value. Id. § 422(c)(5). Plaintiff continues
to argue that the PEP in fact required an option price of “fair value.” See Pl.’s Post-Trial
Opening Br. 14–16. For reasons explained below, I find that the PEP required pricing at
“fair market value” despite the faulty disclosure to stockholders.
47
JX 19 (Winmill & Co. 2005 Annual Report), at 14. See also JX 29 (Winmill & Co. 2006
Annual Report), at 10 (still disclosing the stock options to be priced at “fair value”).
48
JX 79 (PEP) § 5.2(d). The PEP provides that “the Committee” will set the price, but
recognizes that “the Committee” means the Board if no committee is designated.
Id. § 1.2(d) (Committee definition).
13
designated “peer” companies. 49 The Board resolution authorizing the awards
reveals that Bassett, Thomas and Mark each received options to purchase 100,000
shares of Stock at $2.948 per share.50 At the time of the grant (May 23), the Stock
traded at $2.68 per share. 51 The options were to expire in five years if not
exercised. 52 The Board set the vesting schedule in accordance with IRS rules
limiting incentive stock options to a value of $100,000 a year (for each recipient).53
Since the Board estimated that the 100,000 options granted to each Defendant had
49
PTO ¶¶ 9, 12. For example, the Board considered the compensation of officers of BKF
Capital Group, Inc. (“BKF”). In the eyes of the Board, BKF was a comparable company
although the Board acknowledged that BKF had “significantly larger assets under
management and . . . their revenues were larger.” Tr. 130:03–131:18 (Thomas Winmill
Testimony). Based on the fact that BKF officers with similar titles earned significantly
higher salaries (around $4.8 million per year), the Board found it appropriate to bring the
Company’s officer salaries “closer towards the industry averages.” Tr. 129:5–21; 130:22–
131:12 (Thomas Winmill Testimony).
50
PTO ¶ 12; JX 15 (May 23, 2005 Written Consent). Thomas O’Malley, the Company’s
CFO, received 5,000 stock options as part of his recruitment in June 2005. Tr. 282:11–16
(Mark Winmill Testimony).
51
JX 58 (Stock Price Chart May 23–June 30, 2005). Plaintiff argues that the price
contained in the agreements could not have represented the stock option price as of the
close of business because the e-mail with the attached documents was sent to the Board at
2:39 p.m. prior to close of the stock market. Pl.’s Post-Trial Opening Br. 13 (citing JX 9
(E-Mail Chain)). It is reasonable to believe, however, that the Company’s stock price
would not change within a matter of a few hours given that the stock was thinly traded. In
fact, the stock continued to trade at that price until May 26, 2005. JX 58 (Stock Price Chart
May 23–June 30, 2005).
52
PTO ¶ 12; JX 15 (May 23, 2005 Written Consent).
53
Tr. 97:19–98:12 (Thomas Winmill Testimony); 261:15–262:6 (Mark Winmill
Testimony).
14
an approximate value of $200,000 to $300,000 (per recipient), it set a three-year
vesting schedule, with one third of the options vesting in each of those years.54
D. The Exercise of the Options
On December 12, 2006, Bassett and Thomas exercised their respective options
to purchase 66,666 shares of Stock each.55 Mark followed suit on January 5, 2007.56
Each Defendant paid $1,532.39 in cash and gave a $195,000 promissory note (the
“Notes”) to the Company for the remainder of the exercise price.57 The interest rate
for each promissory note was fixed at the federal rate set by the IRS. 58 After
54
JX 15 (May 23, 2005 Written Consent), at W-0005; Tr. 97:23–98:17 (Thomas Winmill
Testimony). The first 33,333 options vested at the time of the grant. JX 15 (May 23, 2005
Written Consent), at W-0005.
55
PTO ¶ 14.
56
PTO ¶ 15. At the time of the exercise, the second vesting period had begun and, thus,
each Defendant could exercise up to 66,666 options. JX 15 (May 23, 2005 Written
Consent), at W-0005.
57
PTO ¶ 16; JX 12 (Stock Option Agreement Bassett Winmill) § 8.3; JX 13 (Stock Option
Agreement Mark Winmill) § 8.3; JX 14 (Stock Option Agreement Thomas Winmill) § 8.3;
Tr. 263:22–264:5 (Mark Winmill Testimony). The Board resolved, by written consent,
that all three Notes were satisfactory. JX 82 (Dec. 12, 2006 Written Consent); JX 83
(Jan. 5, 2007 Written Consent). The December 12, 2006 written consent submitted as
evidence was not signed by Mark Winmill. JX 82 (Dec. 12, 2006 Written Consent). In my
view, however, the lack of a signature is not evidence that the Board did not actually accept
the Notes as adequate to reflect the amounts due from Bassett, Thomas and Mark. Mark
testified credibly that he recognized the written consent and related documents and that he
approved them. This testimony is sufficient to authenticate the document and to satisfy me
that Mark approved the matters set forth in the consent in his capacity as director.
Tr. 268:21–269:7 (Mark Winmill Testimony). See D.R.E 901.
58
Tr. 245:5–246:6 (Thomas Winmill Testimony); 268:13–16 (Mark Winmill Testimony).
The interest rate for Thomas and Bassett’s Notes was 4.75% and the interest rate for Mark’s
15
Defendants executed the Notes, they paid interest on those Notes, mainly through
payroll deductions.59 None of the remaining options were exercised prior to their
expiration.60
E. The Forgiveness of the Notes
In February 2008, less than three months after approving a Company-wide
employee bonus of four weeks’ salary,61 the Board resolved to forgive the Notes as
Note was 4.58%. JX 24; JX 26; JX 28. The difference in interest rates corresponds with
the difference in IRS interest rates for the specific dates on which the Notes were given.
Tr. 301:18–24 (Thomas O’Malley Testimony).
59
JX 93 (Interest Due on Promissory Notes); Tr. 271:10–19 (Mark Winmill Testimony).
Plaintiff continues to argue that JX 93 only shows the interest that is due to the Company
and does not show the interest paid. Pl.’s Post-Trial Reply Br. 4. That is not correct. As
explained by the Company’s CFO, Thomas O’Malley, and as demonstrated by the actual
document, the document tracks both: the interest due and, with the designation “p/r
deduction,” the interest paid by Defendants via payroll deduction. See JX 93 (Interest Due
on Promissory Notes); Tr. 303:3–16; 340:3–5 (Thomas O’Malley Testimony). The
O’Malley testimony to which Plaintiff refers in support of its argument that the document
only represents accrued amounts actually addressed aspects of the Company’s general
ledger. Pl.’s Post-Trial Reply Br. 4; Tr. 315:14–20 (Thomas O’Malley Testimony).
O’Malley testified convincingly that the Company documented the received interest
payments monthly on the chart designated as JX 93. Tr. 314:9–317:1 (Thomas O’Malley
Testimony).
60
Tr. 103:8–23 (Thomas Winmill Testimony); Tr. 267:1–9 (Mark Winmill Testimony).
Defendants maintain that the remaining options were not exercised for tax reasons.
Tr. 103:8–104:18 (Thomas Winmill Testimony); 267:5–9 (Mark Winmill Testimony).
Plaintiff asserts that Defendants did not exercise the remaining options because of this
litigation. Pl.’s Pre-Trial Br. 14. In my view, the reason(s) are immaterial.
61
JX 31 (Dec. 3, 2007 Written Consent), at WIN-0388. Thomas characterized the
Company-wide bonus as a “profit share.” Tr. 201:21–24 (Thomas Winmill Testimony).
16
a special bonus for the Company’s exceptionally good performance in 2007.62 Once
again, the Board based its determination to reward management on an ad hoc
comparable companies analysis.63 Ultimately, the Company recognized and booked
the forgiveness of the Notes in 2008 rather than in 2007 so that the beneficiaries
could “avoid the immediate requirement to come up with cash to pay for the tax on
the forgiveness income.”64
62
Tr. 129:5–10; 242:13–23 (Thomas Winmill Testimony); JX 32 (Feb. 29, 2008 Written
Consent). Plaintiff takes issue with Defendants’ characterization of 2007 as an exceptional
year, pointing to the Company’s 2007 and 2008 financial results showing that Winmill &
Co. “earned a before tax income of $274,013.” Pl.’s Post-Trial Opening Br. 21 (citing
JX 35 (Winmill & Co. Inc. 2007 and 2008 Audit Report), at WFIN-0005). Defendants
argue that 2007 was deemed financially successful because the Company’s revenues went
from approximately $1.4 million in 2005 to approximately $3.3 million in 2007. Defs.’
Post-Trial Answering Br. 47. According to Defendants, the marked increase in revenue
must be attributed to the efforts of management because the “primary driver” was “assets
under management” which, in turn, depended upon “how well [management is] selecting
the underlying portfolio securities, how well [it is] marketing [its] track record, and how
well [it is] executing on the underlying operating requirements of a mutual fund business.”
Tr. 126:5–20 (Thomas Winmill Testimony). After reviewing the evidence, I agree with
Defendants that 2007 was a successful year for the Company. I also agree with Plaintiff,
however, that there is no evidence in the record to support the contention that the improved
performance was attributable to any specific contribution by any of the Defendants. See
JX 29 (Winmill & Co. 2006 Annual Report), at 5; JX 35 (Winmill & Co. Inc. 2007 and
2008 Audit Report), at WFIN-0005; Tr. 123:18–128:6 (Thomas Winmill Testimony).
63
Tr. 129:11–21; 132:6–133:4 (Thomas explaining that he saw his position comparable to
that of the Senior Portfolio Manager of BKF who earned around $4.8 million in 2006).
Again, no compensation consultant was hired in connection with the Note forgiveness and
the same process of reviewing “peer” information informed the Board’s decision. Tr.
242:5–243:12 (Thomas Winmill Testimony).
64
Tr. 135:20–24 (Thomas Winmill Testimony).
17
In April 2008, the Board rescinded the forgiveness of the Notes when it
realized that the Company would immediately have to “mak[e] withholding tax
deductions from payroll” for each beneficiary.65 Soon after, the Board resolved to
forgive the entirety of Thomas’ Note (who had sufficient funds to “shoulder the
additional withholding”), and to forgive Mark’s Note in three tranches over three
years (to ease the tax burden on Mark).66 By the time the Board resolved to forgive
the Notes, Thomas had paid approximately $12,000 in interest and Mark
approximately $20,000.67
Upon his request, the Board decided not to forgive Bassett’s Note after it
rescinded the initial forgiveness.68 In December 2011, Bassett was unable to pay the
Note when due.69 Accordingly, the Board accepted a new note from Bassett that
65
Tr. 135:24–136:24 (Thomas Winmill Testimony).
66
Tr. 136:6–137:23 (Thomas Winmill Testimony); JX 84 (Apr. 24, 2008 Written Consent).
Mark’s Note was forgiven in three increments: $50,000 in 2008, $50,000 in 2009 and the
remaining $95,000 in 2010. JX 84 (Apr. 24, 2008 Written Consent); JX 85 (Feb. 23, 2009
Written Consent); JX 86 (Jan. 12, 2010 Written Consent). Plaintiff argues that the final
forgiveness (in 2010) was not valid because the written consent was not properly signed.
Defs.’ Post-Trial Opening Br. 24. I addressed that argument during trial, Tr. 4:16–5:16;
14:11–15:3, and, in any event, since I find in favor of Plaintiff on this claim, I see no need
to consider Plaintiff’s evidentiary objection further.
67
Tr. 304:12–305:17 (Thomas O’Malley Testimony). See also JX 93 (Interest Due on
Promissory Notes).
68
Tr. 140:22–141:6 (Thomas Winmill Testimony).
69
Tr. 142:4–16 (Thomas Winmill Testimony); 325:3–15 (Thomas O’Malley Testimony).
18
extended the maturity by an additional five years.70 The Estate paid off this note
following Bassett’s death.71 By that time, Bassett had already paid around $31,000
in interest. The total interest paid by Bassett (and the Estate) was $49,000.72
F. Plaintiff’s Expert
At trial, Plaintiff presented expert testimony from Audrey Croley
(“Croley”). 73 In her prior work, Croley was employed by or collaborated with
companies to develop incentive compensation plans. In her report and trial
testimony, Croley addressed the reasonableness of the number of shares authorized
under the PEP and the number of shares granted to the plan’s beneficiaries in May
2005. 74 With respect to the number of shares authorized, she looked at the
70
Tr. 141:11–142:16 (Thomas Winmill Testimony); JX 39 (Bassett Winmill’s 2011
Promissory Note). This new note had an interest rate of 1.27%. JX 39 (Bassett Winmill’s
2011 Promissory Note).
71
Tr. 140:22–141:6; 142:17–146:11 (Thomas Winmill Testimony); 306:14–307:16
(Thomas O’Malley Testimony); JX 87 (Morgan Stanley Account Statement); JX 88 (Letter
from Thomas Winmill ordering wire transfer on behalf of the Estate); JX 93 (Interest Due
on Promissory Notes).
72
Tr. 306:14–307:16 (Thomas O’Malley Testimony). See also JX 93 (Interest Due on
Promissory Notes).
73
Tr. 352:13–353:9 (Croley Testimony).
74
JX 55 (Expert Report of Audrey K. Croley (“Croley Report”)), at 4. Defendants argue
that Croley stated in her deposition testimony that she would opine only on the shares
authorized. The confusion over shares authorized versus shares granted was a theme
throughout the deposition and at trial. After reviewing Croley’s report and deposition, I am
satisfied that Defendants were on notice that she would testify at trial regarding the
19
Company’s business cycle and compared the number of shares authorized under the
PEP to the number of shares authorized in the plans of the Company’s peers. She
explained that a company’s business cycle is relevant because, in her experience,
start-up companies will “set-aside” a higher percentage of shares for incentive plans
than companies that have passed beyond their growth period. 75
According to Croley, Winmill & Co. was long past its growth period given
that it was established several decades ago.76 Since start-up volatility was not an
impediment to attracting and keeping talent, Croley concluded that Winmill & Co.’s
33% “set aside” was excessive and unreasonable. 77 In her deposition testimony,
Croley opined that 10-15% would have been an appropriate “set-aside” for a
company in Winmill & Co.’s position.78 She based this opinion on her experience,
propriety of both the shares authorized and the shares granted. See id.; JX 5 (Croley
Deposition) at 27:9–15; 28:19–29:3; 52:11–53:19.
75
Croley Report 7, 10; JX 5 (Croley Deposition) at 43:12–44:7.
76
Croley Report 10. Croley stated in her report that the Company was formed in 1971 but
then corrected that testimony at trial to confirm that the Company was actually formed in
1974. Tr. 381:23–24 (Croley Testimony). In arriving at her business cycle conclusion,
Croley did not consider whether the Company had changed its business throughout its
existence or any information relating to its financial condition that might suggest the
Company had not reached a “steady state.” Tr. 381:4–383:19 (Croley Testimony).
77
Croley Report 10. According to Croley, the fact that Winmill & Co. had moved past its
growth period was demonstrated by its competitive base salaries. Id.
78
JX 5 (Croley Deposition) at 48:14–22.
20
what “the thinking” is typically at conferences she attends and what she has picked
up from “discussions with people.”79
For her peer analysis, Croley used a list of 28 companies developed by the
Board in 2003.80 Although she found “the makeup of the [Board’s identified] peer
companies . . . [to be] inappropriate,” she did not independently attempt to determine
an appropriate peer group.81 She explained that while the Board’s chosen companies
were comparable in mission and operations, they were not truly comparable because
the “size of the vast majority of the organizations [was] significantly larger than
Winmill [& Co.].”82 She determined that a four-company subset of the identified
companies would provide a more appropriate compensation benchmark.83 In that
subset, she included companies with assets under management of less than
$2 billion.84 She found no indication among the companies in her chosen subset that
79
JX 5 (Croley Deposition) at 50:17–52:4. Croley was unable to identify those people.
She did not consult any publications or literature. Id. at 50:17–51:10.
80
Croley Report 7; Tr. 355:12–20 (Croley Testimony).
81
JX 5 (Croley Deposition) at 44:13–15; 69:5–18.
82
Croley Report 7.
83
Croley Report 8.
84
Croley was unaware what type of assets Winmill & Co. managed. Nevertheless, she
concluded that assets under management generally was the most important metric by which
to measure comparability since it was the first metric identified by most investment
management companies in their public filings. JX 5 (Croley Deposition) at 47:23–48:8;
62:20–63:11; 64:9–66:12. Croley chose the $2 billion benchmark because it was the
21
any “had a stock option plan that set aside as high an equity percentage as Winmill
[& Co.].”85
As of her report and deposition, Croley had not calculated the percentage of
shares set aside for option plans within the companies comprising her chosen
subset.86 By the time of trial, however, she had determined that, among her four
company subset, two companies had set aside and granted a greater percentage of
stock options than Winmill & Co., thus placing “Winmill & Co[.] in the middle . . .
[with] two above and two below.”87
Turning to the grant of stock options, Croley’s opinion was less clear. This
partially stemmed from her tendency to use the terms “set-aside,” “authorized” and
biggest jump in assets under management among the purported peers and “looked like it
could be an appropriate break.” Id. at 68:13–19.
85
Croley Report 9. Croley also took issue with the fact that the PEP did not link option
grants to performance. JX 5 (Croley Deposition) at 86:12–24.
86
JX 5 (Croley Deposition) at 79:18–80:18.
87
Tr. 402:3–15 (Croley Testimony) (“Q. . . . As of the deposition, you hadn’t looked at
the percentage of stock authorized by any of the companies that had less than $2 billion
assets under management; correct? A. That’s correct. Q. When did you do the work you
have just described? A. Between last week and yesterday. Q. Why did you do that work?
A. Because during the deposition that was one of the questions that you asked me. I mean,
I assumed that was appropriate. I could be incorrect.”); Tr. 411:13–22 (Croley Testimony)
(“A. The other ones that I looked at that was within that less-than-two-billion, they were
less than these two. Q. But we have at least two that were greater than Winmill &
Company? A. We have two. We have two of each. Q. Which would put Winmill &
Company in the middle; right, two above and two below? A. Yeah. You could look at it
that way, yes.”).
22
“granted” interchangeably.88 Moreover, it appeared that the focus of her opinion
shifted from options “authorized” in her report and deposition to options “granted”
at trial.89
With regard to the option grant, Croley first identified Thomas, Mark and
Bassett’s salaries90 and then compared them and the share option grants to the plans
approved by the Company’s peers.91 Finding Defendants’ salaries competitive, she
concluded that the option grants were unreasonable and excessive.92 She opined that
the “300,000 options [granted pursuant to the PEP] would be fine” had they been
spread across all of the key employees of the Company.93 Confining the grants to
only Bassett, Thomas and Mark, however, could not be justified.94
88
See, e.g., Tr. 385:12–387:19 (Croley Testimony); JX 5 (Croley Deposition) at 91:5–13.
89
See, e.g., Tr. 360:15–364:3 (Croley Testimony); JX 5 (Croley Deposition) at 91:5–13.
90
Croley determined that for 2005, in addition to the stock options, Bassett received
$338,333 in base pay and $26,026 in bonuses, Thomas received $400,000 in base pay and
$30,769 in bonuses and Mark received $20,000 in base pay and $1,538 in bonuses. Croley
Report 6. These calculations included salaries received from Winmill & Co. affiliates.
See JX 59 (Compensation Chart).
91
Tr. 354:18–355:20; 359:16–360:8 (Croley Testimony).
92
Croley Report 10. Croley also criticized the Board for not employing an independent
compensation committee to determine proper compensation. Id.
93
Tr. 364:5–13 (Croley Testimony). Croley did not know how many employees or key
employees Winmill & Co. had in 2005. Tr. 393:12–394:16 (Croley Testimony).
94
Tr. 364:5–13; 369:20–371:15 (Croley Testimony).
23
G. Winmill & Co.’s Financial Reporting
Prior to 2004, the Company was listed on the NASDAQ Stock Exchange and,
thus, was obligated to prepare audited financial statements and send regular financial
information to its stockholders.95 In the fall of 2012, the Company ceased preparing
audited financial statements. 96 According to Thomas, his father had wished to
continue the auditing process after 2004 even though audited financials were no
longer required.97 When Bassett passed in 2012, Thomas and Mark, for cost reasons,
decided not to engage in further audits after completing the 2011 audit that was
already in progress.98 The Company stopped distributing its financial information
to stockholders in February 2010.99 Here again, the decision was driven by costs, a
desire for more efficient allocation of resources and a determination that there was
no business purpose to be served by regular dissemination of unaudited financials to
stockholders when measured against the risk of litigation.100
95
Tr. 155:12–22 (Thomas Winmill Testimony). The Company delisted from NASDAQ in
August 2004. JX 8 (letter to stockholders).
96
Tr. 155:23–156:5; 225:10–16 (Thomas Winmill Testimony); PTO ¶ 21.
97
Tr. 156:6–15 (Thomas Winmill Testimony).
98
Tr. 156:16–157:13 (Thomas Winmill Testimony).
99
PTO ¶ 21.
100
Tr. 154:10–155:11 (Thomas Winmill Testimony); JX 4 (Mark Winmill Deposition) at
45:10–46:10; 48:7–20. O’Malley explained that the Company paid approximately $20,000
for the audit in 2011 even though the Company did not have reporting responsibilities to
regulators or creditors that would require or justify audited financial statements.
24
H. Procedural History
This litigation has a long, complex history. I reluctantly recite this history at
some length in order to explain how Plaintiff’s wide-ranging complaints were
funneled down to only two discrete claims for trial. Plaintiff’s claims were first
stated in two separate actions: (1) a fiduciary duty action filed on April 30, 2008 (the
“2008 Action”), and (2) a Section 220 action, including a fiduciary duty claim, filed
on November 17, 2011 (the “Section 220 Action”). The 2008 Action and the
fiduciary duty component of the Section 220 Action were consolidated for purposes
of discovery and motion practice and were tried sequentially.101
Plaintiff’s complaint in the 2008 Action set forth two counts (one derivative
and one direct), both of which alleged that Defendants breached their fiduciary
duties by adopting a stock buyback plan, adopting the PEP, issuing the stock options
(the “Issuance Claim”), and voting the Company’s stock in favor of a transaction
involving the sale of Winmill & Co.’s affilitate’s interest in a third entity (the “Brexil
Tr. 312:24–313:17 (Thomas O’Malley Testimony). Plaintiff quotes testimony of both
Thomas and Mark as acknowledging that the decision to discontinue the audit process was
made in hopes of avoiding litigation. The testimony cited, however, concerned the decision
not to send financial disclosures to stockholders for fear of litigation based on claims of
inadequate or misleading disclosures. See, e.g., JX 2 (Thomas Winmill Deposition)
at 63:12–66:6; JX 4 (Mark Winmill Deposition) at 48:7–51:21.
101
See JX 52 (Ravenswood Inv. Co., L.P. v. Winmill & Co., Inc., C.A. No. 3730-VCS (Del.
Ch. May 12, 2016) (TRANSCRIPT)), at 116 (consolidating the cases for discovery); see
also Defs.’ Opening Br. in Supp. of their Mot. for Summ. J. 1 (“These two cases were
consolidated for discovery and tried sequentially”).
25
Claim”).102 On July 9, 2010, Defendants filed a motion to dismiss all claims, except
the Issuance Claim.103 The Court granted the motion in part, denying it only with
regard to the Brexil Claim.104 Thus, after resolution of the motion to dismiss, only
the Issuance Claim and the Brexil Claim remained in the 2008 Action.105 Plaintiff
thereafter filed a motion for partial summary judgment (pertaining to the Issuance
Claim only), in which it argued that the stock options were invalid because the PEP
was not adopted in compliance with Delaware law.106 That motion was denied.107
Plaintiff’s complaint in the Section 220 Action set forth two counts. 108
Count I, against the Company, asked the Court to order the Company to produce
certain documents. Count II, against the Company and Defendants, alleged that
102
Ravenswood Inv. Co., L.P. v. Winmill & Co., Inc., 2011 WL 2176478, at *1 (Del. Ch.
May 31, 2011) (hereinafter Ravenswood I).
103
D.I. 24 (C.A. No. 3730-VCS).
104
Ravenswood I, 2011 WL 2176478, at *1, *7.
105
Plaintiff brought motions to alter or amend the May 31 Order, which the Court denied
on November 30, 2011. Ravenswood I, 2011 WL 2176478, at *4.
106
D.I. 74 (C.A. No. 3730-VCS). The motion challenged the written consent adopting the
PEP and granting the stock options as well as the PEP itself based on technical deficiencies,
arguing that those deficiencies caused the PEP to be invalid from inception. Id.107
Ravenswood Inv. Co., L.P. v. Winmill, 2013 WL 6228805, at *3 (Del. Ch. Nov. 27,
2013) (hereinafter Ravenswood II).
108
This was the second books and records action brought by Plaintiff. The first was
commenced in 2008. Ravenswood Inv. Co., L.P. v. Winmill & Co. Inc., C.A. No. 3724-
VCN. Plaintiff voluntarily dismissed that action on November 16, 2011. D.I. 10 (C.A.
No. 3724-VCN).
26
Defendants breached their fiduciary duties in connection with their “refusal to have
[the Company] provide [its] shareholders reasonable and regular financial
information,” and asked the Court to order the Company to (1) provide all
shareholders with its financial statements for the prior two years and (2) continue to
provide “prompt regular disclosure [to shareholders] of financial information about
the Company.”109 Defendants filed a motion to dismiss Count II, arguing that a
breach of fiduciary duty claim is not properly presented in a Section 220 action and
that the claim fails in any event because Delaware does not impose free-standing
reporting or disclosure obligations on a corporation’s board of directors.110 The
Court heard the motion on October 11, 2012 and determined to (1) separate the
fiduciary duty claim from the Section 220 claim and (2) defer resolution of the
fiduciary duty claim until after resolution of the Section 220 claim. 111 The
109
Verified Compl. Under 8 Del. C. § 220 and for Breach of Fiduciary Duty 6–7;
PTO ¶¶ 19–20. Plaintiff sent its inspection demand to the Company on September 11,
2011. PTO ¶ 19.
110
D.I. 28 (C.A. No. 7048-VCS). Defendants had filed a prior motion to dismiss in
response to which Plaintiff amended its complaint. D.I. 12 (C.A. No. 7048-VCS); D.I. 20
(C.A. No. 7048-VCS).
111
D.I. 58 (C.A. No. 7048-VCS); Ravenswood II, 2013 WL 396178, at *1–2.
27
Section 220 claim was resolved on May 30, 2014, with an order requiring the
Company to produce certain records to Plaintiff.112
Thereafter, on December 15, 2015, the Court heard oral argument on
Defendants’ motion to dismiss the fiduciary duty claim.113 In the Court’s bench
ruling on that motion, the Court explained that “the failure to provide financial
reporting, by itself, does not state a claim.”114 The Court also found, however, that
a fiduciary duty breach might occur where a board “decides not to prepare financial
reporting, . . . which it has provided in the past, . . . because of a troublesome
shareholder’s use of its Section 220 rights.”115 Thus, “the fiduciary duty claims
asserted by [Plaintiff] [did] not survive in as broad a fashion as they ha[d] been
brought, but an aspect [did] survive. That involves the timing or potential motivation
112
Ravenswood Inv. Co., L.P. v. Winmill & Co. Inc., 2014 WL 2445776 (Del. Ch. May 30,
2014).
113
D.I. 120 (C.A. No. 7048-VCS). Plaintiff presented its motion to amend at the same time
Defendants presented their motion to dismiss. Id.114
JX 51 (Ravenswood Inv. Co., L.P. v. Winmill & Co. Inc., C.A. No. 7048-VCN (Del. Ch.
Feb. 25, 2016) (TRANSCRIPT) (hereinafter Ravenswood III)), at 7.
115
Id. at 9. The Court explained that the fiduciary duty claim could not be dismissed
because “[t]he directors are family members and controlling shareholders [and there] are
allegations of decisions by those directors to benefit themselves at the expense of the
minority shareholders. The argument is whether the decision not to prepare the financial
reports, or the audited reports, was an effort to save money for the company. And that
might well be justified under the business judgment rule. But that can also be contrasted
with the decision not to prepare such records in an effort to keep the shareholders in the
dark.” Id.28
for stopping the preparation of [] audited financial reports and perhaps other
financial information” (the “Financial Reporting Claim”).116
On February 2, 2016, Plaintiff filed a motion to amend its complaint in the
2008 Action. 117 The Court partially granted that motion 118 and, as noted,
consolidated the 2008 Action and the Financial Reporting Claim from the
Section 220 Action for purposes of discovery and motion practice.119
On February 3, 2017, Defendants filed a motion for summary judgment
challenging the remaining claims—the Issuance Claim, the Brexil Claim and the
Financial Reporting Claim.120 The Court granted that motion with respect to the
116
Id. at 10.
117
Plaintiff had filed a prior motion to amend on June 13, 2012, which was never briefed
or argued. See D.I. 51 (C.A. No. 3730-VCS); Pl.’s Opening Br. in Supp. of its Mot. for
Leave to Supplement and Amend 2, D.I. 138 (C.A. No. 3730-VCS).
118
JX 52 (Ravenswood Inv. Co., L.P.v. Estate of Bassett N. Winmill, C.A. No. 3730-VCS
(Del. Ch. May 12, 2016) (TRANSCRIPT)), at 111–114. The Court refused to allow the
addition of previously resolved claims and the addition of a claim questioning date
discrepancies of certain written consents. Id. The Court also heard (and denied) Plaintiff’s
motion to compel and Defendants’ motion to quash. Id. at 115. Plaintiff thereafter filed a
motion to amend that judgment or for reargument. D.I. 178 (C.A. No. 3730-VCS). The
Court denied that motion. JX 52 (Ravenswood, C.A. No. 3730-VCS (Del. Ch. May 12,
2016) (TRANSCRIPT)).
119
JX 52 (Ravenswood, C.A. No. 3730-VCS (Del. Ch. May 12, 2016) (TRANSCRIPT)),
at 116. Plaintiff filed its Amended Verified Class and Derivative Complaint (the
“Complaint”) in the 2008 Action on August 4, 2016 and Defendants answered on
August 25, 2016. D.I. 198 (C.A. No. 3730-VCS); D.I. 204 (C.A. No. 3730-VCS).
120
D.I. 212 (C.A. No. 3730-VCS; C.A. No. 7048-VCS).
29
Brexil Claim, but denied it with respect to the Issuance Claim and the Financial
Reporting Claim.121 The parties tried these latter two claims in mid-May.122
II. ANALYSIS
As explained, following the Court’s various rulings in the two actions, two
claims remained for trial: (1) whether Defendants breached their fiduciary duties by
authorizing and granting stock options to themselves (the Issuance Claim)123; and
(2) whether the Board’s decision to cease preparing audited financial statements and
distributing financial information to stockholders was an improper decision in
retaliation against Plaintiff for its Section 220 Action (the Financial Reporting
Claim). I address each claim in turn.
A. The Issuance Claim
Plaintiff maintains that entire fairness review applies to the Issuance Claim
because Defendants’ grant of stock options to themselves is a clear instance of self-
dealing. Applying that standard, Plaintiff contends that Defendants have failed to
121
JX 57 (Ravenswood Inv. Co., L.P. v. Winmill, C.A. No. 3730-VCS, C.A. No. 7048-VCS
(Del. Ch. Apr. 27, 2017) (TRANSCRIPT) (“Summary Judgment Bench Ruling”)).
122
Id.123
The parties are in agreement that the 2008 Action raises claims that are derivative, such
that the direct claim(s) in Count I of the 2008 Action can be dismissed. See Defs.’ Post-
Trial Answering Br. 1 n.1; Pl.’s Post-Trial Opening Br. 60 (“Defendants are liable to
Winmill & Co. . . .”). Thus, the defined term “Issuance Claim” refers only to the derivative
claim (Count II of the 2008 Action).
30
prove that the process of authorizing and granting the options was entirely fair
because (1) they have not proven the actual terms, much less the proper adoption or
implementation, of the PEP; (2) the number of options authorized under the PEP was
not fair; and (3) the number of options granted was not fair. Plaintiff further argues
that the price paid for the options was not fair because the price selection was
improper and Defendants paid for the options, in part, with notes they later
inexplicably determined, as a Board, should be forgiven.
Defendants counter that the business judgment rule should apply to the
Issuance Claim because Plaintiff “has not put forth sufficient evidence to subject this
to entire fairness.”124 Even if entire fairness does apply, however, Defendants assert
that the number of options authorized is irrelevant, that Defendants’ process was fair
and that the number of options granted, according even to Plaintiff’s expert, was fair
when compared to grants under similar plans adopted by the Company’s peers. The
grants were at a fair price, according to Defendants, because they were set at 110%
of the fair market value in accordance with IRS rules, Defendants had no reason to
believe the Notes would be forgiven at the time the grants were made and, in any
event, the forgiveness of the Notes was fair when considered in the context of
Defendants’ overall compensation package.
124
OA Tr. 48:21–49:3. See Defs.’ Post-Trial Answering Br. 26–28.
31
I agree with Plaintiff that entire fairness review applies and that Defendants
have failed to meet their burden under that standard of review. Accordingly, I find
that Defendants breached their fiduciary duty of loyalty to the Company. How to
remedy that breach, however, presents a more perplexing question.
1. Entire Fairness Is the Standard of Review
“Directors who stand on both sides of a transaction have the burden of
establishing its entire fairness.” 125
Here, there is no question that, in
2005, Winmill & Co.’s directors were Bassett, Thomas and Mark Winmill and that
they also were the three officers receiving option grants under the PEP. Under these
circumstances, the business judgment presumption must give way to entire fairness
review.126
Entire fairness requires a showing that the directors acted with “utmost good
faith and the most scrupulous inherent fairness of the bargain.”127 To demonstrate
125
Valeant Pharm. Int’l v. Jerney, 921 A.2d 732, 746 (Del. Ch. 2007). Defendants
correctly argue that, in order to trigger entire fairness review, Plaintiff was obliged to offer
evidence at trial to rebut the business judgment rule presumption. Defs.’ Post-Trial
Answering Br. 26–27. See Solomon v. Armstrong, 747 A.2d 1089, 1111–12 (Del. Ch.
1999). By proving that Defendants stood on both sides of the transaction at issue, Plaintiff
met its threshold burden. Valeant, 921 A.2d at 745.
126
See Calma ex rel. Citrix Sys., Inc. v. Templeton, 114 A.3d 563, 578 (Del. Ch. 2015).
127
Valeant, 921 A.2d at 746.
32
entire fairness, Defendants were required to prove both fair dealing and fair price.128
The fair dealing analysis concentrates on “when the transaction was timed, how it
was initiated, structured, negotiated, disclosed to the directors and how approvals of
the directors and the shareholders were obtained.”129 In the fair price analysis, the
court looks at the economic and financial considerations of the transaction to
determine if it was substantively fair.130 I will take up the elements of entire fairness
in turn, but first must address Plaintiff’s argument that Defendants have failed to
present competent evidence to prove the terms of the PEP.
a. The Terms of the PEP were Adequately Proven
Plaintiff contends that Defendants have been unable adequately to
demonstrate the PEP’s terms and that this evidentiary gap somehow precludes a
finding that Defendants have met their burden of proof on the Issuance Claim.131
128
Id. See also In re Sunbelt Beverage Corp. S’holder Litig., 2010 WL 26539, at *5 (Del.
Ch. Feb. 15, 2010) (explaining that defendants “bear the burden of demonstrating” entire
fairness because they “did not use any of the procedural devices that could temper the
application of the entire fairness standard”).
129
Valeant, 921 A.2d at 746 (quoting Weinberger v. UOP, Inc., 457 A.2d 701, 710 (Del.
1983)).
130
Id.131
Pl.’s Post-Trial Opening Br. 36, 43. I confess that Plaintiff’s dogged pressing of this
argument is perplexing to me. Specifically, it is not clear what Plaintiff would have me do
with respect to its breach of fiduciary duty claim in the event I determine that the terms of
the PEP have not been established in the evidence. With no terms to review, it is not clear
how Plaintiff would have me determine that the PEP was not properly conceived or
33
I disagreed at trial and disagree now. 132 The PEP offered as an exhibit at trial
demonstrates its terms and the consents approving the PEP demonstrate that the
Board, in fact, approved the plan.
b. Fair Process
The PEP authorized the issuance of 500,000 stock options. While it is, at best,
unclear whether Plaintiff ever fairly raised a complaint regarding the number of
shares authorized in the PEP, 133 at this point, with the authorizing provisions of the
implemented. I need not ponder this dilemma further, however, as I find the terms of the
PEP to be as Defendants presented them.
132
Plaintiff’s argument that Defendants have failed adequately to demonstrate the terms of
the PEP boils down to an authenticity objection. On this point, the Court engaged in a
rather lengthy exchange with Plaintiff’s counsel during trial at the end of which I found the
proffered foundation sufficient to authenticate both the PEP and the consents approving
the PEP. Tr. 83:6–84:9. I do not find anything in the post-trial arguments or the evidentiary
record that raises a legitimate question regarding the authenticity or credibility of the
documents and thus refer back to my ruling at trial with respect to this issue. Id.133
See, e.g., Compl. ¶¶ 65–74 (Counts I and II challenging “the issuance of stock options
and the exercise thereof”); Pl.’s Answering Br. in Opp’n to the Individual Defs.’ Mot. for
Summ. J. 25 (“The Amended Complaint therefore properly pleads a claim regarding both
the number of options and the price paid for the options.”); Pl.’s Pre-Trial Br. 35 (“Even
assuming that Defendants could satisfy their threshold evidentiary burden, however, they
still cannot satisfy their primary burden that the amount of options granted was entirely
fair.”); Defs.’ Pre-Trial Opening Br. 25 n.17, 26 (explaining that the number of options
authorized is irrelevant and that the court should concentrate on the options exercised);
Pl.’s Answering Br. in Opp’n to the Individual Defs.’ Mot. for Summ. J. 25 (referencing
the shares authorized only to support their unfair grant argument); Compl. ¶¶ 65–74
(Counts I and II) (alleging breaches of fiduciary duty “in connection with the issuance of
stock options and the exercise thereof” not mentioning the number of shares authorized);
OA Tr. 29:3–4 (Plaintiff’s counsel explaining that it appears Defendants chose to authorize
500,000 options under the PEP in order to accommodate their already-made decision to
grant themselves 300,000 options).
34
PEP long expired, it is no longer relevant how many shares were authorized.134 The
focus now must be on the options granted when the incentive stock option provisions
of the PEP were in force.
As mentioned, the same day the Company adopted the PEP (and authorized
the 500,000 stock options), the Board granted Defendants 100,000 stock options
each. Thomas testified that the option grants were awarded to “reward for past
services by way of current compensation and also to provide an incentive for future
exertions on behalf of the corporation,” 135 and that the number of options was
determined in accordance with the Company’s usual compensation practices.136
There are several indications that the Board’s process in deciding to grant
options and then determining the terms of those grants was not fair. At the outset,
I note that the term “process” does not really fit here; the evidence reveals that there
really was no process. There are no Board minutes or any other contemporaneous
records reflecting specifically why the Board decided that a grant of options was
appropriate or how the Board determined the number of options to be granted. There
134
JX 79 (PEP) § 12.2 (stating that incentive options can only be granted pursuant to the
PEP for ten years from May 23, 2005).
135
Tr. 97:3–13 (Thomas Winmill Testimony). The Board chose to award stock options
instead of compensation increases to preserve the Company’s cash resources. Tr. 26:15–
27:20 (Thomas Winmill Testimony).
136
Tr. 98:2–17 (Thomas Winmill Testimony).
35
is no indication that the Board sought out the advice of outside legal, financial or
compensation consultants.137 Nor is there evidence that the Board consulted any
literature or other authoritative sources with regard to incentive compensation.
Indeed, Defendants were hard-pressed to recall any of the specifics of their
deliberative process more than ten years ago and, instead, were forced to rely upon
their likely compliance with usual practices with respect to compensation issues.138
Beyond the troubling lack of any contemporaneous evidence of process, the
sole analytical tool on which Defendants “usually” relied (and, therefore,
presumably relied in this instance) is severely flawed. Defendants testified that the
Board used its customary comparable companies analysis when it determined to
authorize and grant the stock options (and when it decided to forgive the Notes in
2008).139 With respect to that analysis, Defendants were unable to produce the 2005
137
Tr. 176:14–18 (Thomas Winmill Testimony).
138
See, e.g., Tr. 29:14–20; 39:4–14 (Thomas explaining his customary practice with regard
to handling his consents, acknowledging that he could not testify from memory); Tr. 89:2–
90:20 (Thomas explaining the general compensation practices of the Board); Tr. 186:19–
187:20 (Thomas explaining that he could not recollect the 2005 comparable companies);
188:18–189:1 (Thomas stating he “think[s] there might have been one or two” comparable
companies in 2005 that had at least as many shares authorized, explaining that “BKF might
be one”); 223:18–24 (Thomas unable to remember which companies he received salaries
from in 2005); 286:6–14 (Mark unable to remember if he ever received certain documents,
assuming he must have received them at some point since he signed them).
139
To characterize the Board’s process as a “comparable companies” analysis is, at best,
charitable. As noted, the Board caused the Company to buy stock in companies it deemed,
on an ad hoc basis, to be peer companies. The Board members then reviewed those
companies’ public filings and stockholder disclosures to learn what they could about the
36
comparable companies list they used and could not otherwise confirm the companies
they considered in 2005 with any certainty.140 The only list they were able to offer
(a 2003 list) compiled a group of companies that did not resemble Winmill & Co.
beyond the fact that they also engaged in investment management activities.141 Yet
Defendants presented no evidence (contemporaneous or otherwise) that they fully
appreciated, much less accounted for, this significant disconnect when making
decisions regarding the implementation of the PEP.142
companies’ compensation practices. Tr. 89:2–90:20 (Thomas Winmill Testimony).
Defendants presented no evidence to support the notion that this is a proper framework by
which to conduct a reliable comparable companies analysis and I very much doubt that an
expert in such analyses would endorse this approach.
140
See, e.g., Tr. 281:10–17 (Mark Winmill Testimony). The only list produced was one
from 2003. JX 6 (2003 Comparable Companies List); Tr. 185:22–188:3. Thus, it is
impossible to determine from the record whether the companies considered in 2005 were,
in fact, comparable.
141
Tr. 93:22–94:17; 220:12–221:15 (Thomas Winmill Testimony); 355:1–12 (Croley
Testimony).
142
See, e.g., Tr. 93:22–94:17 (Thomas explaining that the companies “vary in size
considerably” from Winmill & Co. but that “in the big picture” they all compete for the
same employees and, thus, that the Company had to “pay competitive salaries”). Thomas
did testify that the Board “had to take [the size difference] into account in trying to
determine cash compensation . . . and equity compensation,” but offered no explanation of
exactly how the Board took that information into account. Tr. 220:12–221:15 (Thomas
Winmill Testimony). He also explained that he did not ask for the same compensation as
his “equivalent” at a “peer” company ($4.8 million) because “[t]he [C]ompany doesn’t
have 4.8 million.” Tr. 133:11–14 (Thomas Winmill Testimony). This again indicates that
the comparable companies approach undertaken by the Board was misguided.
37
While it may be true, as Defendants maintain, that companies of comparable
size did not exist, that would be all the more reason to enlist independent, expert
guidance in determining proper compensation, or at least to consult appropriate
industry materials when making compensation decisions, particularly given the
conflicted status of the decision makers.143 The fact that each Defendant received
the exact same number of options despite differences in job responsibilities and
income (without explanation) further supports a conclusion of an unfair process.144
Moreover, the reason offered by Defendants for their choice of peer
companies is simply not credible. Specifically, I cannot believe that the Board
actually viewed the selected peer companies as comparable because they were
“competing for the same people.”145 Given that the designated peer companies were
143
See, e.g., Valeant, 921 A.2d at 747–48 (“The committee did not examine afresh the
question of whether any bonus arrangement was appropriate and, if so, how much and what
form of bonus to award.”). Defendants explained that they did not find it necessary to hire
a compensation consultant. According to Defendants, the cost was not justified and the
Board had made compensation determinations as part of its regular course of business for
years. Tr. 240:18–243:12 (Thomas Winmill Testimony). Regardless of the Board’s past
practices, avoiding the cost of a consultant is not a proper justification for a process that is
unfair to the Company and its stockholders and that may result in excessive compensation.
144
The February 28, 2008 written consent does state that the Board considered the “total
compensation packages, and employee responsibilities and performance, relative to
employees with comparable responsibilities at similar companies.” No evidence was
presented to enlighten the Court as to exactly what the Board considered as justification
for the awards apart from the vague reference to “performance . . . in 2007.” JX 32
(Feb. 28, 2008 Written Consent); Tr. 203:4–204:20 (Thomas Winmill Testimony).
145
Tr. 94:9–17 (Thomas Winmill Testimony); 276:22–277:16 (Mark Winmill Testimony).
38
so much larger in size than Winmill & Co. (when measured by any relevant metric),
the Board could not reasonably have believed that it was competing (or could have
competed) with these companies to recruit the same people to fill senior management
positions.146 It also is not credible that any of the Defendants actually considered
leaving their family company because they were not receiving adequate
compensation.147 As of 2005, all Defendants had been with the Company for years
146
Defendants’ counsel acknowledged as much, explaining that it “is not a perfect analogy
but it’s the best you can do.” OA Tr. 67:7–8.
147
Defendants’ compensation from the Company was not per se excessive. Nevertheless,
there is evidence in the record indicating that Defendants did receive significant fees from
Winmill & Co.’s affiliates while working for the Company. See JX 59 (Compensation
Chart); Tr. 278:10–279:7 (Mark Winmill Testimony). Their compensation by Company
affiliates was a point of much contention at post-trial oral argument, during which Plaintiff
urged the Court to conclude that Defendants were overcompensated, taking into account
compensation they received from Winmill & Co. affiliates. OA Tr. 6:11–7:2; 11:22–15:8.
Defendants were quick to respond that Plaintiff did not bring an “excessive compensation
case” and that Plaintiff’s post-trial arguments amounted to unfair sandbagging. OA Tr.
72:11–75:9. I agree that Plaintiff did not plead or present an “excessive compensation
case” and I do not entertain that claim here. See Compl. ¶¶ 21, 65–79 (none of the
allegations suggest that Defendants, in the aggregate, received compensation that was
excessive); Pl.’s Answering Br. in Opp’n to the Individual Defs.’ Mot. for Summ. J. 1 (only
reference to compensation refers to Defendants having the burden of proof on the Issuance
Claim because “the challenged options involve self-interested compensations decisions”);
see also Ravenswood I, 2011 WL 2176478, at *3 n.31 (“Ravenswood has not advanced
this claim either in its brief or at oral argument, and the Complaint alleges no facts
suggesting that the Company, as contrasted with Midas or Bexil, paid compensation to the
Defendants. To the extent that Ravenswood maintains a claim that the Defendants received
improper compensation from the Company, that claim is dismissed under Court of
Chancery Rule 12(b)(6) for failure to state a claim.”). While I have not considered an
excessive compensation claim, given Defendants’ proffered explanation for the option
awards, I do find that evidence of the Defendants’ compensation from Winmill & Co.
affiliates is relevant to whether they would actually leave the Company to compete in the
market and, if they were to leave, what the market for their services would be.
39
and were personally invested in the Company’s success. 148 Bassett, in fact,
established the Company in the 1970s, attached his family name to the business in
the late 1990s, and brought on his sons, Thomas and Mark, to work for the Company
very early in their professional careers.149 And each of Bassett, Thomas and Mark
received significant compensation from the Company’s affiliates, making their
departure even less likely.150
Even if the Board that made these executive compensation decisions had been
disinterested, the lack of process would be problematic. But this Board was not
disinterested; each of its members was a beneficiary (indeed they were the only
beneficiaries) of the option grants in May 2005. The need to employ conflict
neutralizing measures was omnipresent here and yet the Board did nothing
meaningful to ensure that the decisions it made were fair to Winmill & Co.
148
Tr. 277:9–17 (Mark Winmill Testimony) (“Q. Why were you willing to work for
Winmill for that level of cash compensation? A. Well, I was perfectly aware that Winmill,
or any company, couldn’t possibly retain the services of someone with my education, work
experience, et cetera, but I was very interested in Winmill & Company’s success. It was a
part-time part of my employment and I was very interested in the stock.”).
In this regard, I did not find Thomas’ testimony, that he considered leaving the
149
Company “[f]rom time to time,” particularly convincing. Tr. 161:16–162:4 (Thomas
Winmill Testimony).
150
See, e.g., JX 59 (Compensation Chart); Tr. 223:18–24 (Thomas testifying to receiving
compensation from Brexil Co. and Tuxis Co. in 2005); Tr. 278:10–279:14 (Mark
explaining that he spends 75% of his time working for affiliate Tuxis Co. for which he was
compensated).
40
In a final attempt to justify the option grants, Defendants point to Plaintiff’s
expert, Croley, and characterize her testimony as proof that the option grants were
fair.151 According to Defendants, Croley conceded that two companies within her
chosen peer subset authorized and granted more shares under their plans than
Winmill & Co. authorized and granted under the PEP.152 Setting aside the fact that
I did not find Croley’s testimony to be helpful on any issue, I note that Croley did
not offer any specific opinions regarding the processes by which the Board made
decisions with respect to the PEP. Rather, her opinions focused on the outcomes of
those decision-making “processes,” such as they were.153 Simply stated, Croley’s
testimony was no more helpful to Defendants than it was to Plaintiff.
151
Defs.’ Post-Trial Answering Br. 37–39, 41–43. Defendants otherwise vigorously attack
Croley’s testimony and credentials. See id. at 37 (“Prior to her involvement in this case,
she had never determined an appropriate peer group for an asset management company,
and she had no experience in that industry. [] Indeed, when she drafted her report and at
her deposition, Ms. Croley did not understand what type of assets Winmill & Co. was
managing. [] She does not consider herself an expert on what companies are correct peers
of Winmill & Co., nor whether the companies on Winmill & Co.’s ‘list’ were proper
peers.”); id. at 42 (“Croley also acknowledged that a purpose of a stock option plan is to
reward key employees of a business. [] She did not know, however, how many ‘key
employees’ Winmill & Co. had in 2005. [] Indeed Croley did not know the number of total
employees in 2005, but was ‘thinking it was like a hundred or something.’ []; in reality, it
was approximately 12.”). As the absence of any reference to Croley’s opinions in my
analysis of fair process suggests, I did not find her testimony particularly useful. The lack
of precision, foundation and consistency undermined the credibility of her opinions at
every stage of the litigation in which she was involved (from report, to deposition, to trial).
152
Id. at 39, 42.
153
See, e.g., Croley Report 10 (addressing option grants but making no reference to
process); JX 5 (Croley Deposition) at 91:5–13 (stating she would not opine on the shares
granted); Tr. 360:19–364:13 (Croley addressing option grants but making no reference to
41
The Board’s decisions to grant options, to fix the number of options granted,
and to fix the terms of those options were arbitrary and not justified as providing any
commensurate benefit to the Company or its stockholders. Consequently,
Defendants failed to prove fair process.154 Given this finding, I arguably could end
the analysis here.155 For the sake of completeness, however, I address Defendants’
arguments and evidence regarding the fairness of the price below.
c. Fair Price
Plaintiff argues that the price set for the options was unfair and that the price
paid (according to Plaintiff: nothing) was also unfair. Defendants counter that the
price paid for the options was fair because (1) the Court has already determined that
process); Tr. 369:13–371:23 (Croley acknowledging that her report was not clear regarding
her opinion with respect to option grants); Tr. 386:3–387:1 (Croley addressing option
grants but making no reference to process); Tr. 411:2–22 (same).
153
Tr. 386:3–387:1 (Croley Testimony).
154
Valeant, 921 A.2d at 748 (“It simply cannot be said that an independent board advised
by independent experts would have employed a similar process in negotiating or approving
bonuses of this kind.”).
155
See Oliver v. Boston Univ., 2006 WL 1064169, at *25 (Del. Ch. Apr. 14, 2006) (finding
a breach of duty upon concluding that defendant did not prove fair process despite the
court’s finding that the price was fair); Weinberger v. UOP, Inc., 1984 WL 478433, at *6
(Del. Ch. Apr. 24, 1984) (“Since the test of entire fairness is comprised of two elements,
fair dealing and fair price, the defendants have already flunked the test since they have not
passed the fair dealing requirement.”). Cf. Valeant, 921 A.2d at 748 (noting that fair price
might render transaction entirely fair notwithstanding unfair process, but observing that
proving as much would be “exceptionally difficult”) (citing Oliver, 2006 WL 1064169, at
*25).
42
the price set by the Board in devising the PEP was fair; (2) the price paid was based
on the compensation Defendants received in comparison to market compensation;
and (3) Defendants took seriously their obligations under the Notes and paid interest
thereon until the Board determined that the Notes should be forgiven (a decision
justified by the Company’s exceptional performance in 2007).
I agree with Defendants that the Court previously determined the price set for
the options in the PEP was fair.156 I see no basis to revisit that finding. But that is
not the end of the fair price inquiry. The Court still must assess the fairness of what
Defendants actually paid for their stock options. That is where Defendants’ case
falls short.
Defendants each were granted options valued at approximately $300,000. Yet
they each paid less than $2,000 in cash (the par value) to exercise those options and
then, in lieu of cash, made a promise to pay the substantial balance owed with interest
as reflected in the Notes.157 As discussed above, the Board forgave those Notes long
156
JX 57 (Summary Judgment Bench Ruling), at 9–10.
157
Plaintiff takes issue with the interest rates set for the Notes stating that they “bore the
absolute minimum interest required to avoid having the IRS impute income.” Pl.’s Post-
Trial Opening Br. 51. Had the options otherwise been properly granted as incentive
compensation, that interest rate selection would not be problematic.
43
before the principal balance was even touched. 158 Under these circumstances, the
fair price analysis must turn on the fairness of Defendants’ collective decision (as a
Board) to forgive the Notes as purported compensation for the Company’s success
in 2007.159
Defendants testified that their compensation was consistently below the
industry average and that, in light of the Company’s strong performance in 2007
(because of their hard work), they determined it was appropriate to forgive the Notes.
They purportedly made this determination after once again employing their ad hoc
comparable companies analysis. Aside from pointing to the positive revenue results
of 2007 (which Plaintiff vigorously challenges), however, Defendants have failed to
show why such significant compensation was justified, especially considering the
Company-wide bonus that was awarded to each of the Defendants (along with the
Company’s other employees) less than three months prior. Here again, there was no
attempt to document the specific efforts or initiatives undertaken by Defendants in
2007 that would justify the forgiveness of their substantial debt to the Company, no
documented attempt to compare 2007 to past years as a means to justify the
158
While Bassett ultimately chose not to have his Note forgiven, the Board had already
forgiven the Note and would have done so again had Bassett so desired. Tr. 274:24–275:8
(Mark Winmill Testimony).
159
Bassett is not considered for this part of the fair price analysis since his estate paid the
entirety of his Note. Since all three Defendants were found to have facilitated an unfair
process, however, this exclusion does not alter the finding of Bassett’s liability.
44
extraordinary level of additional compensation paid only to Defendants and, of
course, no expert analysis of the propriety of the Board’s self-interested decision or
its impact on the Company. In light of the very limited time Defendants spent
working on behalf of Winmill & Co. during the relevant years, the compensation
Defendants received from other Company affiliates and the lack of objective
evidence supporting Defendants’ claim of inadequate compensation, I cannot find
that Defendants carried their burden of proving that the amount they paid for their
stock options was fair.160
Finally, I am satisfied that the Board’s failure to implement a fair process
when granting the option awards and when deciding to forgive the Notes ultimately
160
See Valeant, 921 A.2d at 748–49 (“The court’s finding that ICN’s management and
board used an unfair process to authorize the bonuses does not end the court’s inquiry
because it is possible that the pricing terms were so fair as to render the transaction entirely
fair. Nevertheless, where the pricing terms of a transaction that is the product of an unfair
process cannot be justified by reference to reliable markets or by comparison to substantial
and dependable precedent transactions, the burden of persuading the court of the fairness
of the terms will be exceptionally difficult. Relatedly, where an entire fairness review is
required in such a case of pricing terms that, if negotiated and approved at arm’s-length,
would involve a broad exercise of discretion or judgment by the directors, common sense
suggests that proof of fair price will generally require a showing that the terms of the
transaction fit comfortably within the narrow range of that discretion, not at its outer
boundaries.”). On the fair price question, Defendants renew their argument that this case
was never about compensation (or at least not compensation received from Winmill & Co.
affiliates). See, e.g., OA Tr. 68:5–70:10; 86:12–87:24. To analyze the fairness of the price
paid for the options, however, I must assess Defendants’ work for the Company, the work
they performed elsewhere and the compensation they received from all sources.
45
“infect[ed] the fairness of the price.”161 In addition to the process infirmities already
discussed, it cannot be ignored that the Board remained focused on the personal
interests of the individual beneficiaries of the option grants (themselves) throughout
its decision making with respect to the PEP. Recall, for example, that the Board
initially forgave the Notes in February 2008 but then rescinded that decision when
the debtors determined they were not prepared to deal with the tax consequences of
loan forgiveness. Once the tax issues were addressed, the Board caused Thomas and
Mark’s Notes to be forgiven again but honored Bassett’s request to keep his Note in
place. When Bassett could not pay upon the Note’s maturity, the Board extended
the maturity of his payment obligation without consideration. These decisions might
make perfect sense if this “family business” was, actually, a “family business” where
the members of the Winmill family were the only stakeholders. But there were other
stakeholders here, namely the public stockholders. Defendants owed those
stockholders fiduciary duties of care and loyalty; they could not make decisions just
because those decisions suited their needs or interests. By acting only out of self-
161
Bomarko, Inc. v. Int’l Telecharge, Inc., 794 A.2d 1161, 1183 (Del. Ch. 1999) (“[T]he
unfairness of the process also infects the fairness of the price.”); Reis v. Hazelett Strip-
Casting Corp., 28 A.3d 442, 467 (Del. Ch. 2011) (“[P]rocess can infect price.”).
46
interest, Defendants have diminished any confidence that the price they actually paid
for their stock options was fair.162
162
See, e.g., Bomarko, 794 A.2d at 1183 (quoting Kahn v. Tremont Corp., 694 A.2d 422,
432 (Del. 1997)) (explaining that process and price can be “so intertwined” that even a
finding that the price “might have been fair does not save the result”).
47
2. The Remedy
Having found that Defendants breached their duty of loyalty, I turn next to the
difficult question of what relief is appropriate to remedy the breach.163 With regard
to the Issuance Claim, Plaintiff requested in the Complaint that the Court award
damages “in an amount to be determined at trial,” cancel “the options and all shares
acquired using the options” and award “such other further relief” as might be
justified.164 In the Pre-Trial Order and its pre-trial opening brief, Plaintiff requested
“[r]escission of all of the challenged Stock issued to the Individual Defendants in
2005.”165 In its post-trial opening brief, Plaintiff again requested cancellation of the
“options issued under the [] PEP,” but additionally requested that the Court not
return to Defendants the money they paid to exercise their options.166
At trial, Plaintiff failed to present any evidence in support of its prayers for
relief. When the Court expressed its concern during closing arguments that the
163
I note that Plaintiff did not try or argue a breach of the duty of care with respect to the
Issuance Claim.
164
Compl. ¶ 73. The unexercised options expired after five years. See JX 15 (May 23,
2015 Written Consent), at W-0005. As noted, due to the length of time that has passed
since the initiation of the 2008 Action, the unexercised options had expired by the time of
trial.
165
PTO 10. Plaintiff also requested rescission of “all options issued to Defendants in
connection with the PEP” in its pre-trial brief. Pl.’s Pre-Trial Br. 3.
166
Pl.’s Post-Trial Opening Br. 60.
48
evidentiary foundation for Plaintiff’s requested remedies was lacking, counsel
appealed to the Court’s sense of equity and urged the Court to employ its broad
discretion in fashioning relief to remedy a loyalty breach.167 Of course, Plaintiff is
correct in asserting that this court has “significant discretion . . . in fashioning an
appropriate remedy.”168 Indeed, “[i]n determining damages, the Court’s ‘powers are
complete to fashion any form of equitable and monetary relief as may be
appropriate.’”169 And, in cases where the court has found a breach of the duty of
loyalty, recovery is “not to be determined narrowly.” 170 To be sure, in these
167
See OA Tr. 41:17–42:5. See also Pl.’s Post-Trial Reply Br. 11 (“The suggestion that a
court of equity could not fashion an appropriate remedy if it found a breach of fiduciary
duty by self-dealing fiduciaries is one without precedent in Delaware.”). When pressed at
post-trial oral argument to point to evidence or offer guidance with respect to remedies,
Plaintiff suggested that the Court could and should convene a separate hearing to address
remedies. OA Tr. 42:1–42:5. With a decade of litigation under our collective belts, and
ample opportunity for Plaintiff to develop and present its best evidence, I decline to hold
additional evidentiary hearings in this case.
168
Bomarko, 794 A.2d at 1184.
169
Id. (quoting Weinberger, 457 A.2d at 714); Zutrau v. Jansing, 2014 WL 3772859, at
*40 (Del. Ch. July 31, 2014) (“Among the factors a Court will consider in determining an
appropriate remedy is whether there is evidence of ‘fraud, misrepresentation, self-dealing,
deliberate waste of corporate assets, or gross and palpable overreaching.’” (quoting
Weinberger, 457 A.2d at 714)).
170
Thorpe v. CERBCO, Inc., 676 A.2d 436, 445 (Del. 1996) (“Delaware law dictates that
the scope of recovery for a breach of the duty of loyalty is not to be determined narrowly.”
(quoting In re Tri-Star Pictures, Inc., Litig., 634 A.2d 319, 334 (Del. 1993)). See also
Gesoff v. IIC Indus., Inc., 902 A.2d 1130, 1154 (Del. Ch. 2006) (“[T]he Court of Chancery
has greater discretion when fashioning an award of damages in an action for a breach of
the duty of loyalty”) (internal quotation omitted); Int’l Telecharge, Inc. v. Bomarko, Inc.,
776 A.2d 437, 440 (Del. 2000) (“[T]he powers of the Court of Chancery are very broad in
49
circumstances, “potentially harsher rules come into play.”171 But the Court still must
have some basis in the evidence upon which to grant relief. 172 After carefully
reviewing the record, I am satisfied that there is no legal or evidentiary basis to grant
a remedy to the Company beyond nominal damages.
a. There is No Evidentiary Basis for Granting Compensatory
Damages
As a general matter, I agree with Plaintiff that compensatory damages are an
appropriate means by which to remedy a breach of the duty of loyalty. 173 Plaintiff,
however, presented absolutely no evidence upon which the Court could justify an
award of compensatory damages to the Company. 174 Thus, any award of
fashioning equitable and monetary relief under the entire fairness standard as may be
appropriate, including rescissory damages.”).
171
Bomarko, 794 A.2d at 1184.
172
See Arnold v. Soc’y for Sav. Bancorp, Inc., 678 A.2d 533, 541 (Del. 1996) (“While it is
often thought to be axiomatic that a wrong must have a correlative remedy, this is not
always the case.”); PharmAthene, Inc. v. SIGA Tech., Inc., 2011 WL 6392906, at *3 (Del.
Ch. Dec. 16, 2011) (“[T]his Court enjoys remedial flexibility to depart from strict
application of the ordinary forms of relief where circumstances require. Nevertheless,
courts of equity should attempt to balance that flexibility by a measure of concomitant
restraint to minimize uncertainty.”); In re Fuqua Indus., Inc., 2005 WL 1138744, at *7
(Del. Ch. May 6, 2005) (even a court of equity should award damages only when they are
“susceptible of proof and appropriate to all the issues of fairness”).
173
See OptimisCorp v. Waite, 2015 WL 5147038, at *82 (Del. Ch. Aug. 26, 2015); Triton
Const. Co., Inc. v. E. Shore Elec. Servs., Inc., 2009 WL 1387115, at *28 (Del. Ch. May 18,
2009).
174
In its post-trial opening brief, Plaintiff requested “expenses related to the 2005 PEP.”
See Pl.’s Post-Trial Opening Br. 60. That remedy was not requested in the Complaint and,
in any event, no evidence was presented with respect to that request at trial. As Plaintiff’s
50
compensatory damages would be the product of rank speculation and, as a matter of
law, improper.175
b. Neither Cancellation nor Equitable Rescission nor Rescissory
Damages are Warranted
With respect to Plaintiff’s request for cancellation of the shares, Defendants
argue that (1) Plaintiff provided no basis for cancellation without the return of both
Plaintiff and Defendants to the status quo176; and (2) the Pre-Trial Order should
govern and Plaintiff requested rescission in the Pre-Trial Order, not cancellation.177
To the extent the Court considers rescission, Defendants point out that this remedy
would harm rather than help the Company since the Company cannot afford to repay
Defendants the amounts they paid for their options.178 Once again, Plaintiff offered
little by way of guidance in response to this argument.179
counsel acknowledged during closing arguments, “this court has always fashioned
remedies based on the evidence presented at trial and the [c]ourt’s
conclusions.” OA Tr. 102:13–15. Without evidence presented at trial, I cannot award
Plaintiff’s requested compensatory damages.
175
OptimisCorp, 2015 WL 5147038, at *82 (holding that the court cannot award
speculative damages); Ivize of Milwaukee, LLC v. Compex Litig. Supp., LLC, 2009
WL 1111179, at *11 (Del. Ch. Apr. 27, 2009) (same); Am. Gen. Corp. v. Cont’l Airlines
Corp., 622 A.2d 1, 12 (Del. Ch. 1992) (same); Twardowski v. Jester, 163 A.2d 242, 224
(Del. Ch. 1960) (same).
176
OA Tr. 98:22–99:8; Defs.’ Post-Trial Answering Br. 57.
177
PTO 10.
178
Defs.’ Post-Trial Answering Br. 57–59.
179
OA Tr. 102:10–15.
51
Based on the record presented, I agree with Defendants that (1) Plaintiff has
not presented a basis for cancellation without a mutual return to the status quo;
(2) equitable rescission would not be in the Company’s best interest under the unique
circumstances presented here180; and (3) Plaintiff has failed to present evidence upon
which I could fashion an award of rescissory damages.181 I explain each of these
findings below.
To start, it is important to understand what the terms “cancellation” and
“rescission” mean under Delaware law. Rescission can be sought at law or in
180
I acknowledge that the remedy question, with regard to rescission, presents a rather
unique issue due to the derivative nature of this action. Generally, plaintiffs do not request
relief that will not provide a benefit to them. In derivative actions, however, the plaintiff
ostensibly seeks a remedy for the company but may not have the same ability or incentives
to ensure that what he is asking for will actually provide a net benefit to the real party in
interest. This dynamic apparently is at work here. The Court’s focus, nevertheless, must
remain on fashioning a remedy that is supported in law, in the evidence and in the practical
realities confronting the Company. See Great Hill Equity P’rs IV, L.P. v. SIG Growth
Equity Fund I, LLLP, 2014 WL 6703980, at *29 n.274 (Del. Ch. Nov. 26, 2014)
(“Rescission is a remedy available only where facts indicate equity so requires.” (quoting
ENI Hldgs., LLC v. KBR Gp. Hldgs., LLC, 2013 WL 6186326, at *24 (Del. Ch. Nov. 27,
2013)); Sunbelt, 2010 WL 26539, at *14 (“[R]escission is an equitable remedy that a court
of equity will only grant, as an exercise of discretion, when that remedy is clearly
warranted.”); Keenan v. Eshleman, 2 A.2d 904, 912 (Del. 1938) (explaining that the proper
remedy in a derivative action must be determined by preserving “the fiction of corporate
entity” and that the action must be “considered as though the corporation itself were suing
the defendants”); 12A C.J.S. Cancellation of Inst. § 11 (2018) (“Where the cancellation of
an instrument is sought but it appears that such decree would in no way help the party
seeking it, the court will not perform the vain act of decreeing the cancellation.”).
181
See Oliver, 2006 WL 1064169, at *25.
52
equity.182 By ordering rescission, whether at law or in equity, the court endeavors
to unwind the transaction and thereby restore both parties to the status quo.183 While
rescission at law refers to the “judicial declaration that a contract is invalid and a
judicial award of money or property,”184 equitable rescission offers a platform to
provide additional equitable relief, such as cancellation of a valid instrument—the
formal annulment or setting aside of an instrument or obligation.185 In this form,
182
Schlosser & Dennis, LLC v. Traders Alley, LLC, 2017 WL 2894845, at *9 (Del. Super.
July 6, 2017); E.I. du Pont de Nemours & Co. v. HEM Research, Inc., 1989 WL 122053,
at *3 (Del. Ch. Oct. 13, 1989); 12A C.J.S. Cancellation of Instr. § 2 (2018).
183
Hegart v. Am. Commonwealths Power Corp., 163 A. 616, 619 (Del. Ch. 1932) (“[I]t is
fundamental that if the choice be made of rescission, there must be a restoration of the
status quo ante, not only of the complainant but as well of the defendant. It is therefore
necessary that the rescinding party should offer or tender such a restoration to the other,
and that the court should be able to effectuate it by decree.”). Craft v. Bariglio, 1984 WL
8207, at *12 (Del. Ch. Nov. 1, 1984) (“It is settled law that if a plaintiff chooses the remedy
of rescission, there must be a restoration of the status quo ante, not only of the plaintiff but
of the defendant as well, and if under the facts of the particular case ‘a just and equitable
restoration of the substantial status quo ante’ cannot be accomplished, rescission will be
denied.”).
184
E.I. du Pont, 1989 WL 122053, at *3.
185
Id. (“This additional aspect, the “equitable” ingredient in rescission, is necessitated, for
example, in circumstances in which if an instrument, document, obligation, or other matter
were not cancelled, plaintiff would be exposed to liability to third parties not appearing in
the action. If plaintiff is fraudulently induced to execute a note in favor of defendant, the
only remedy that is adequate for plaintiff is cancellation of the note to ensure that defendant
does not transfer the note to a bona fide purchaser, who could then recover from plaintiff
under the note.”). See also MBKS Co. Ltd. v. Reddy, 924 A.2d 965, 976 (Del. Ch. 2007)
(finding cancellation of stock appropriate and ordering the return of “all monies paid by
[the stockholder] for th[e] shares”).
53
equitable rescission is often referred to as cancellation,186 although it is generally
accompanied by further relief (such as restitution)187 in order to achieve a complete
restoration to the status quo ante.188
In its Complaint and post-trial briefing, Plaintiff clearly requested cancellation
of the shares.189 It has not presented, however, a basis in law or the trial evidence
to warrant cancellation of the shares without a corresponding requirement that the
186
E.I. du Pont, 1989 WL 122053, at *3; Donald J. Wolfe & Michael A. Pittenger,
Corporate and Commercial Practice in the Delaware Court of Chancery § 12.04[a], at 12-
58 (2017) (“[R]escission refers to the avoidance of a transaction or the cancellation of the
deal.”)
187
Restitution is “the return of that which one or both parties gained through an avoided
transaction to prevent unjust enrichment.” Wolfe & Pittenger, supra, § 12.04[a], at 12-58.
188
Wolfe & Pittenger, supra, § 12.04[a], at 12-58 (“As a remedy, rescission seeks to
‘unmake’ an agreement; it ‘calls the deal off’ and seeks to return the parties to the status
quo ante. Rescission is, therefore, less a remedy and more a matter of conceptual apparatus
that leads to the remedy; because the contract is being unmade, the exchange of
consideration has to be reversed, and if it is not possible to restore such consideration in
kind, the plaintiff may be entitled to the monetary equivalent of what he gave up in
damages.”); E.I. du Pont, 1989 WL 122053, at *3; 12A C.J.S. Cancellation of Inst. § 2
(2018) (“Generally, cancellation or rescission of a written instrument are one and the same
remedy . . . The terms ‘cancellation’ and ‘rescission’ are frequently regarded as being
interchangeable or synonymous. . . . If there is a distinction between cancellation and
rescission, it is only that ‘rescission’ is the general undoing of the original agreement while
‘cancellation’ is a more formal annulment or rendering of an instrument ineffective as a
legal obligation. Thus, while rescission and cancellation usually go together, still, insofar
as the physical cancellation of a written instrument is concerned, they are not
inseparable. Although a decree for rescission alone might amount to a judicial annulment
of the contract, whether oral or written, in its strictest sense, cancellation can ordinarily
apply only to written instruments.”).
189
Compl. ¶ 47; Pl.’s Post-Trial Opening Br. 2–3, 60.
54
Company return to Defendants the funds they expended to exercise their options.
Generally, cancellation without restitution is only warranted where there has been a
total failure of consideration (including as a result of fraud). 190 The court has,
however, denied cancellation without restitution even in cases of fraud and
misrepresentation where there has been some exchange of consideration.191 Here,
Defendants’ exercise of the stock options is supported by some consideration (the
payment of par value and some interest) and Plaintiff has not alleged, much less
proven, any fraudulent conduct on Defendants’ part. Because I have determined that
there is no support for “pure” cancellation, I need not—and do not—address
Defendants’ argument that Plaintiff waived any right to cancellation by not
requesting it in the Pre-Trial Order.
That leaves the question of whether Plaintiff is entitled to cancellation of the
shares accompanied by a return of the funds to Defendants—an award of true
190
See, e.g., Diamond State Brewery v. De La Rigaudiere, 17 A.2d 313, 318 (Del. Ch.
1941) (finding cancellation proper where the facts indicated gross overvaluation and
fraudulent concealment of a total failure of consideration). Blair v. F. H. Smith Co., 156
A. 207, 213 (Del. Ch. 1931) (granting cancellation without restitution after finding that
“not a particle of consideration was given”); Gillette v. Oberholtzer, 264 P. 229, 230 (Idaho
1928) (referring to “the general requirement that a grantor procuring the cancellation of an
instrument, even for duress or fraud, must place the grantee in statu[s] quo, a rule so
elementary as to require no citation of authority”); Rogers v. Hale, 218 N.W. 264, 266
(Iowa 1928) (finding that even where fraud was proven, rescission had to accompany
cancellation).
191
Cf. Craft, 1984 WL 8207, at *11–12 (denying equitable rescission of fraudulently
procured transaction where the transaction was supported by consideration).
55
equitable rescission. There is no question that equitable rescission is generally an
effective remedy for a breach of the duty of loyalty. 192 Even so, “a court of equity
will only grant rescission, as an exercise of discretion, when that remedy is clearly
warranted.”193 The remedy is not warranted here for the simple reason that the Court
cannot “restore the parties substantially to the position which they occupied before”
the option grants were made.194
As discussed, the restoration of the status quo would require the cancellation
of the stock as well as the Company’s return to Defendants of the funds they paid to
exercise the stock options. While Defendants’ stock is voidable and could, therefore,
be cancelled,195 the Company’s return of the funds Defendants paid for their options
192
Schlosser, 2017 WL 2894845, at *10; In re Orchard Enters., Inc. S’holder Litig.,
88 A.3d 1, 38 (Del. Ch. 2014) (“The remedy is available for an adjudicated breach of the
duty of loyalty, such as cases involving self-dealing or where a fiduciary puts personal
interests ahead of the interests of its beneficiary.”).
193
Sunbelt, 2010 WL 26539, at *14. See also Zutrau, 2014 WL 3772859, at *40 (declining
to grant rescission because it was not shown that the self-interested transaction was
completed with “conscious intent to deprive [] of the fair value of [] shares, or deny []
access to benefits of pending corporate opportunities”); Diamond State Brewery, 17 A.2d
at 318 (When stock is not void but “merely voidable, then that form of relief is to be
adopted which would seem to be most in accord with all the equities of the case. I find
nothing in the position of respondents which would justify allowing them to retain the []
stock.”) (internal quotation omitted).
194
Craft, 1984 WL 8207, at *12. See also id. (“[I]f under the facts of the particular case a
just and equitable restoration of the substantial status quo ante cannot be accomplished,
rescission will be denied.”).
195
Here, the stock is voidable rather than void because “[t]here is nothing in the record []
suggesting that the action of the Board of Directors [], in [granting] the stock option[s],
was actually fraudulent or of such illegality as to be absolutely void. The interested
56
would significantly reduce (if not completely eliminate) the Company’s available
cash resources.196 Under these circumstances, because rescission would afford no
benefit to the Company, the Court cannot conclude that the remedy is “warranted.”197
For the same reasons rescission is not warranted, rescissory damages, “the
monetary equivalent of rescission,”198 are also inappropriate. To start, Plaintiff did
not request rescissory damages.199 Regardless, that remedy is only available in cases
where rescission is warranted but not feasible. 200 Here, because rescission is not
warranted, rescissory damages also are not warranted.
character of the directors who voted for the [grant, however,] makes their action voidable.”
Kerbs v. Ca. E. Airways, 90 A.2d 652, 655 (Del. 1952). Voidable stock is subject to
cancellation as a matter of equity. See STAAR, 588 A.2d at 1137 (citing Diamond State
Brewery, 17 A.2d at 318).
196
Defendants presented credible testimony that equitable rescission would not be in the
best interest of the Company. Tr. 146:15–150:7 (Thomas Winmill Testimony). The
Company would have to return the par value, interest and (for Bassett) the Note principal
paid in full. In exchange, the Company would be receiving stock worth substantially less
now than it was in 2006 or 2007. Tr. 23:7–11 (Thomas Winmill Testimony). Thus,
rescission would result in a windfall for Defendants rather than a benefit to the Company.
197
Sunbelt, 2010 WL 26539, at *14.
198
Orchard, 88 A.3d at 38 (internal citation omitted).
199
Compl. ¶¶ 69, 74; PTO 10.
200
Gotham P’rs, L.P. v. Hallwood Realty P’rs, L.P., 855 A.2d 1059, 1072 (Del. Ch. 2003)
(“Because rescission was practicable, I—as the Supreme Court found—denied that remedy
as unwarranted. Because rescission was found to be unwarranted, an award of rescissory
damages was also unwarranted. The reason that is so is simple. Rescissory damages are
designed to be the economic equivalent of rescission in a circumstance in which rescission
is warranted, but not practicable. A solid body of case law so holds.”); Catamaran Acq.
Corp. v. Spherion Corp., 2001 WL 755387, at *4 (Del. Super. Ct. May 31, 2001)
(“Rescissory damages may be appropriate when the equitable remedy of rescission is
57
Assuming, arguendo, that rescission were warranted (but somehow not
feasible), rescissory damages would still not be an available remedy because there
is no adequate basis on which to calculate them.
In a case where a disloyal fiduciary wrongfully deprives its
beneficiary of property, the rescissory damages measure seeks (i) to
restore the plaintiff-beneficiary to the position it could have been in
had the plaintiff or a faithful fiduciary exercised control over the
property in the interim and (ii) to force the defendant to disgorge
profits that the defendant may have achieved through the wrongful
retention of the plaintiff’s property. In a case involving corporate
stock, rescissory damages can be measured at the time of judgment,
the time of resale, or at an intervening point when the stock had a
higher value and remained in control of the disloyal fiduciary.201
When awarding rescissory damages, “[t]he law does not require certainty in
the award” but allows, instead, “[r]easonable estimates that lack mathematical
certainty . . . so long as the court has a basis to make a responsible estimate of
damages.”202 But even rescissory damages “may only be considered if they are
susceptible of proof and appropriate to all the issues of fairness.”203
impractical” but otherwise warranted.”) (internal quotation omitted); Cinerama, Inc. v.
Technicolor, Inc., 663 A.2d 1134, 1144 (Del. Ch. 1994) (holding that rescissory damages
are “applied when equitable rescission of a transaction would be appropriate, but is not
feasible.”); Weinberger, 1984 WL 478433, at *5 (same).
201
Orchard, 88 A.3d at 38–39 (internal citation omitted).
202
Reis, 28 A.3d at 466.
203
In re Fuqua, 2005 WL 1138744, at *7 (internal quotation omitted). See also
Weinberger v. UOP, Inc., 1985 WL 11546, at *2–3 (Del. Ch. Jan. 30, 1985) (finding
rescissory damages “inappropriate as a remedy because of the speculative nature of the
offered proof”).
58
The problem here is that Plaintiff again has provided no evidentiary basis for
even a “responsible estimate” of rescissory damages.204 The trial evidence suggests
that the current value of Winmill & Co. stock (approximately $1 per share) is
eclipsed by the sum(s) Defendants have already paid to the Company (in the form
of par value and interest payments). A grant of rescissory damages based on this
share value, given the need to award appropriate offsets to Defendants for amounts
paid for their options, would cause a net loss for the Company.
There is evidence in the record that the trading price of the Stock at the time
the stock options were granted was $2.68 per share.205 That marker might provide a
basis upon which to formulate a principled rescissory damages award (e.g., by
awarding the difference between the “the highest intervening [per share] value” of
the Stock since the time of the wrong and the current value of the Stock) if the Court
could conclude that the Company “could have disposed of [the stock] at the higher
intervening price.”206 But there is no evidence in the record that would support the
204
In re MAXXAM, Inc., 659 A.2d 760, 775–76 (Del. Ch. 1995) (explaining that calculating
rescissory damages requires evidence of the present value of the assets (as of the time of
judgment) and that the evidence presented was insufficient to determine that value);
Weinberger, 1985 WL 11546, at *7 (“I find rescissory damages to be inappropriate as a
remedy because of the speculative nature of the offered proof.”).
205
JX 58 (Stock Price Chart May 23–June 30, 2005).
206
Reis, 28 A.3d at 467–68 (“[R]escissory damages . . . [may] reflect . . . the highest
intervening value [of wrongfully taken corporate stock] between the time of the wrong and
59
conclusion that the Company “could have disposed of” 199,998 shares of Stock at
$2.68 per share at any time between May 23, 2005 and now. Consequently, any
award of rescissory damages based on that marker would be unduly speculative and,
thus, inappropriate.207
That leaves the Court to its own imagination as to what remedy to award. One
could imagine a scenario where Bassett’s estate (having paid the entirety of Bassett’s
Note principal) keeps its stock and rescission is ordered as to Thomas and Mark
only. This scenario might eliminate the “net loss” problem in that the value of the
shares would exceed the amount due back to Thomas and Mark. But there are still
too many unknowns with regard to a rescission remedy that targets only the Winmill
brothers. Are the Company’s current cash resources sufficient to pay Thomas and
Mark their expended funds? Even if the Company has sufficient funds, would it
benefit the Company to receive back shares that are worth significantly less now
the time of judgment if the beneficiary or a faithful fiduciary could have disposed of
wrongfully taken [stock] at the higher intervening price.”) (citations omitted).
207
See Gaffin v. Teledyne, Inc., 1990 WL 195914, at *16–17 (Del. Ch. Dec. 4, 1990)
(declining to award rescissory damages when plaintiff’s expert testimony and plaintiff’s
remaining evidence were “speculative and not persuasive”), aff’d in part, rev’d in part on
other grounds, 611 A.2d 467 (Del. 1992); Weinberger, 1985 WL 11546, at *7 (“I find
rescissory damages to be inappropriate as a remedy because of the speculative nature of
the offered proof.”). That same exhibit also shows values of up to $2.85 per share on
several dates in June 2005. JX 58 (Stock Price Chart May 23–June 30, 2005). Those
values fail as markers for the same reason as the price on the day of grant.
60
than when the share options were granted? Again, Plaintiff has not presented
evidence or argument in support of this approach and I have no basis to know
whether the approach offers any remedy at all to the Company.208
In attempting to fill the gap left by Plaintiff’s failure to plead, prove or argue
for appropriate remedies, the Court has also considered the possibility of ordering
specific performance of the promissory notes given by Thomas and Mark that were
forgiven by the Board.209 Plaintiff did not ask for specific performance in any of its
pleadings. Nevertheless, as a general matter, a prayer within a complaint for “such
other further relief as justified,” such as the one included in the Complaint, could
encompass, in an appropriate case, an award of specific performance. 210 But this is
not that case. Not only did Plaintiff not seek specific performance in any of its
complaints, it did not do so in the Pre-Trial Order, in its Pre-Trial Brief, at trial, in
208
Weinberger, 1985 WL 11546, at *2 (declining a form of damages based on its
speculative nature).
209
Specific performance as to Bassett is unnecessary since he (and his estate) paid the Note
principal.
210
Compl. 33. See, e.g. Int’l Union of Elevator Constructors, AFL-CIO v. Reg’l Elevator
Co., 847 F. Supp. 2d 691, 701 (D. Del. 2012) (“Because Plaintiffs’ Complaint did request
that the Court grant other such relief deemed just and proper, Plaintiffs’ claim for specific
performance is appropriately raised.”) (internal quotation omitted); Sheet Metal Workers’
Int’l Ass’n Local 19 v. Herre Bros., Inc., 201 F.3d 231, 248–49 (3d Cir. 1999) (“In its
amended complaint, the Union requested money damages representing lost wages and
fringe benefits, a declaratory judgment, and such other relief as the Court deems just and
reasonable . . . As a result, we believe that the request for relief in the amended complaint
is broad enough to encompass a request for specific performance, especially in light of the
actual request made in a post-trial brief.”) (internal quotation omitted).
61
its Post-Trial Briefs or during Post-Trial argument.211 Indeed, Plaintiff sought the
opposite of specific performance; it sought rescission or cancellation of the option
grants (without any assessment, apparently, of whether that remedy would actually
benefit the Company).212
“The essence of due process is the requirement that a person in jeopardy of
serious loss be given notice of the case against him and opportunity to meet it.” 213
Plaintiff’s basic failure meaningfully to address the remedy question at any stage of
these proceedings has created a vacuum that the Court cannot fill, even in the spirit
of equity, without offending fundamental notions of due process. This case has been
pending for almost ten years. Both sides have had more than ample opportunity to
formulate their positions, develop supporting evidence and make their case at trial.
Under these circumstances, it is not appropriate to re-open the trial record to allow
Plaintiff to do what it should have done in the first place.
211
Cf. Sheet Metal Workers, 201 F.3d at 248–29 (court found specific performance
available when complaint included reference to “such other relief as the Court deems just
and reasonable” and Plaintiff requested the relief after trial thereby affording defendant the
opportunity to respond); Int’l Union of Elevator Constructors, 847 F.Supp. 2d at 701
(same).
212
Compl. ¶ 74 (requesting cancellation); PTO 10 (requesting rescission); Pl.’s Pre-Trial
Br. 43 (requesting rescission); Pl.’s Post-Trial Opening Br. 60 (requesting cancellation).
213
Mathews v. Eldridge, 424 U.S. 319, 348–49 (1976). See also Watson v. Div. of Family
Servs., 813 A.2d 1101, 1107 (Del. 2002) (“[T]his Court’s construction of the Delaware
Constitution’s mandate for due process . . . has been consistent with the flexible standards
of due process enunciated by the United States Supreme Court in Mathews v. Eldridge.”).
62
c. An Award of Nominal Damages is Appropriate
Since I have found a breach of the duty of loyalty but am unable to award any
other form of relief, I find that Plaintiff is entitled to nominal damages.214
Nominal damages are not given as an equivalent for the wrong, but
rather merely in recognition of a[n] [] injury and by way of declaring
the rights of the plaintiff. Nominal damages are usually assessed in a
trivial amount, selected simply for the purpose of declaring an
infraction of the Plaintiff’s rights and the commission of a wrong.215
In recognition that these Defendants acted disloyally to the Company, I grant
nominal damages in the amount of $1.216
B. The Financial Reporting Claim
As previously noted, Plaintiff’s Financial Reporting Claim derived from a
combined Section 220 and breach of fiduciary duty action.217 By the time of trial,
214
Ivize, 2009 WL 1111179, at *12; Oliver, 2006 WL 1064169, at *25 (“Therefore,
although the BU Defendants did breach their duty of loyalty and were unable to
demonstrate the entire fairness of the Series B and C transactions, for purposes of assessing
the fiduciaries’ treatment of these claims in the context of negotiating the Accord
Agreement, the Court does not find it appropriate to assign anything but nominal damages
to these breaches.”).
215
Oliver, 2006 WL 1064169, at *34 (quoting Penn Mart Supermarkets, Inc. v. New Castle
Shopping LLC, 2005 WL 3502054, at *15 (Del. Ch. Dec. 15, 2005)).
216
Ivize, 2009 WL 1111179, at *12 (“[T]he court holds that Ivize is entitled to nominal
damages in the amount of one dollar.”); Oliver, 2006 WL 1064169, at *34–35 (“[F]or the
purpose of declaring an infraction of the Plaintiffs’ rights and the commission of a wrong,
the Court awards the Plaintiffs, and the prevailing class they represent, one dollar in
nominal damages.”) (internal citation omitted).
217
By way of reminder, the Section 220 claim and the Financial Reporting Claim were
severed early on in that case. JX 51 (Ravenswood III), at 3–4.
63
the Section 220 claim had been decided and prior rulings of the Court had
significantly narrowed the breach of fiduciary duty claim.218 The only aspect of the
initial claim that survived Defendants’ motion practice was whether Defendants
stopped “the preparation of [the] audited financial reports and perhaps other
financial information” because of “a troublesome shareholder’s use of its
Section 220 rights.”219
In post-trial briefing and during closing arguments, Plaintiff attempted to
revive claims based on a general obligation to disclose information to
stockholders.220 Those claims no longer are part of the Financial Reporting Claim,
assuming they ever were viable.221 With regard to the claim that was tried, the
gravamen of Plaintiff’s argument is that Defendants’ decision to stop the Company’s
preparation of financial statements, in the form prepared for years, constitutes a
breach of their fiduciary duty of loyalty because Defendants made that decision in
218
Id. at 10.
219
Id. See also JX 57 (Summary Judgment Bench Ruling), at 21.
220
See, e.g., Pl.’s Post-Trial Reply Br. 12–13 (explaining that stockholders have no way of
receiving financial information and that footnotes to financial statements are important for
stockholder understanding of Company financials); OA Tr. 37:7–38:22 (arguing that the
Defendants have not run the Company for the benefit of the stockholders and that it could
have provided financials and corresponding footnotes without an audit).
221
JX 51 (Ravenswood III), at 10. See also JX 57 (Summary Judgment Bench Ruling),
at 21.
64
order to punish Plaintiff for exercising its inspection rights under 8 Del. C. § 220.
Defendants argue that Plaintiff failed to present any evidence to support its claim of
vindictive motive or to counter their explanation that the Company chose not to
continue preparing financial statements because of cost, time commitment, lack of
necessity and risks of meritless litigation.
Our law presumes that the directors of Delaware corporations make business
decisions on an informed basis and in the honest belief their decision is in the
corporation’s best interest.222 To overcome this presumption, as Plaintiff seeks to
do here, Plaintiff bears the burden of proving that the Defendant directors “appeared
on both sides of the transaction or derived a personal benefit from a transaction in
the sense of self-dealing.”223 No such proof exists in the trial record with respect to
the Financial Reporting Claim.224
The evidence at trial showed that the Company’s last financial audit was
completed in October 2012.225 Around that same time, the parties were involved in
motion practice in Plaintiff’s Section 220 Action. Plaintiff argues it was that
222
Cede & Co. v. Technicolor, Inc., 634 A.2d 345, 360–61 (Del. 1993); Zoren v. Genesis
Energy, L.P., 836 A.2d 521, 528 (Del. Ch. 2003).
223
Zoren, 836 A.2d at 528; Cede, 634 A.2d at 361.
224
See Cede, 634 A.2d at 361.
225
JX 46 (Winmill & Co. 2011 Annual Report), at WFIN-0066.
65
litigation that prompted Defendants’ decision to stop the Company’s preparation of
financial statements. As support, Plaintiff points to evidence that the Court heard
oral argument on Plaintiff’s motion to compel and for sanctions in the Section 220
Action the day after the last audit report was issued.226 It then points to testimony
of Thomas and Mark indicating that one reason for their decision to stop the
Company’s preparation of financial statements was the anticipation of further
litigation.227
Plaintiff’s circumstantial evidence of temporal connection is insufficient to
reveal the kind of improper motive or self-interested decision making that would
justify a finding that the business judgment presumption does not apply here. First,
the 2012 hearing to which Plaintiff refers concerned, inter alia, a motion to compel
the attendance of one of the Defendants at a deposition as a Company witness.228
226
Tr. 239:2–13 (Thomas Winmill Testimony). See JX 46 (Winmill & Co. 2011 Annual
Report); D.I. 59 (C.A. No. 7048-VCS); see also Ravenswood II, 2013 WL 396178.
Plaintiff also argued, in its pre-trial briefing, that the parties were involved in ongoing
disputes over confidentiality agreements in the Section 220 Action. Pl.’s Pre-Trial Br. 44.
Plaintiff did not mention this argument in its post-trial briefing. See Pl.’s Post-Trial
Opening Br. 54–59; Pl.’s Post-Trial Reply Br. 12–14.
227
JX 4 (Mark Winmill Deposition) at 45:10–46:11; 48:24–51:21. Mark testified that the
Delaware litigation was not the cause but that it was, instead, the “general feeling about
the avoidance of expensive litigation.” Tr. 50:3–13. (Thomas Winmill Testimony)
228
Ravenswood II, 2013 WL 396178, at *1.
66
That motion was resolved, in January 2013, in Defendants’ favor, when the Court
held that Defendants could pick their Company witness.229
Second, the testimony upon which Plaintiff relies likewise does not reveal any
desire to punish Plaintiff for its Section 220 Action. Both Thomas and Mark testified
that the decision to discontinue the Company’s preparation of audited financial
statements was made to save the Company time and money and reduce the risk of
disclosure-related litigation (which is also costly and time consuming) without any
commensurate benefit to the Company. They also credibly explained that the timing
corresponded with the passing of their father who had insisted on continuing the
practice of preparing audited financials and disseminating them to stockholders after
2004 (when the Company deregistered and delisted from NASDAQ). I am satisfied
that Defendants decided to discontinue auditing and disseminating financial
information based on valid business considerations rather than to punish Plaintiff for
its Section 220 Action.230 Having failed to rebut the business judgment presumption,
Plaintiff’s Financial Reporting Claim fails.
Id. at *2 (“at least for purposes of initial discovery, the corporate officer selected by
229
Winmill should suffice”).
230
There is no evidence that the Board failed to provide information to stockholders when
seeking stockholder approval of Board decisions or that the Board was presented with other
circumstances where it was legally obligated to provide information to stockholders (under
the Delaware General Corporation Law or otherwise) but refused to do so.
67
III. CONCLUSION
For the foregoing reasons, judgment will be entered for Plaintiff on the
Issuance Claim (Count II of the 2008 Action) and nominal damages in the amount
of one dollar per Defendant are awarded to the Company. Judgment will be entered
for Defendants on the Financial Reporting Claim (the only remaining claim from the
Section 220 Action).
I acknowledge that Plaintiff has requested attorneys’ fees and expenses.231
That request has not yet been addressed by the parties and will, therefore, be taken
up separately. The parties shall confer and submit a proposed schedule for prompt
presentation of the request for fees. The Court will enter its final order and judgment
following resolution of the attorneys’ fee issue.
231
Compl. 33 (Prayer for Relief).
68