US Ecology, Inc. v. Allstate Power Vac, Inc. ( 2018 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
)
US ECOLOGY, INC. and EQ )
INDUSTRIAL SERVICES, INC., )
)
Plaintiffs, )
)
v. ) C.A. No. 2017-0437-AGB
)
ALLSTATE POWER VAC, INC. and )
ASPV HOLDINGS, INC., )
)
Defendants. )
)
MEMORANDUM OPINION
Date Submitted: March 9, 2018
Date Decided: June 18, 2018
Stephen C. Norman and Daniyal M. Iqbal of POTTER ANDERSON & CORROON
LLP, Wilmington, Delaware; David B. Hennes, Lisa H. Bebchick, and Joseph G.
Cleeman of ROPES & GRAY LLP, New York, New York; Counsel for Plaintiffs.
Jon E. Abramczyk, D. McKinley Measley, and Alexandra M. Cumings of MORRIS,
NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware; William T. Pruit
of KIRKLAND & ELLIS LLP, Chicago, Illinois; Warren Haskel and Benjamin
Cooper of KIRKLAND & ELLIS LLP, New York, New York; Counsel for
Defendants.
BOUCHARD, C.
This case concerns a dispute over whether the seller of a business is entitled
to reimbursement for approximately $1.6 million in insurance payments relating to
that business that the seller paid or expects to pay after the transaction closed.
Before November 1, 2015, Allstate Power Vac, Inc. (“Allstate”) was a
subsidiary of EQ Industrial Services, Inc. (“EQ Industrial”), which in turn was a
subsidiary of US Ecology, Inc. US Ecology purchased umbrella insurance policies
to cover itself and its subsidiaries, including Allstate. The insurance policies
relevant here are all occurrence-based, meaning that they provide coverage for
events that occurred during the given policy period, regardless of when the eventual
claim is brought.
When Allstate was US Ecology’s indirect subsidiary, Allstate would
reimburse US Ecology for payments it made to the insurers when the underlying
claim related to Allstate’s business. By all indications, this was an informal practice;
no contractual agreement between US Ecology and Allstate has been identified
obligating Allstate to reimburse US Ecology for these insurance payments.
On November 1, 2015, ASPV Holdings, Inc. (“Holdings”) acquired all of the
issued and outstanding stock of Allstate from EQ Industrial. The purchase
agreement obligated Holdings (as the buyer) to reimburse EQ Industrial for certain
insurance payments relating to Allstate that were made after the closing. But the
purchase agreement was silent as to how to handle certain other insurance payments
that are referred to in this decision as the “Non-Covered Payments.” After the
transaction closed and Holdings and Allstate refused to reimburse US Ecology and
EQ Industrial for the Non-Covered Payments, US Ecology and EQ Industrial filed
this action seeking to recover these amounts. Defendants moved to dismiss the
complaint for failure to state a claim for relief, and plaintiffs filed a cross-motion for
partial summary judgment.
The specific entities asserting claims, and the specific entities against which
the claims are asserted, prove to be important in this action. EQ Industrial asserts
that Holdings breached the purchase agreement by not assuming Allstate’s
obligations for the Non-Covered Payments after the transaction closed. US Ecology
asserts that Allstate has been unjustly enriched by US Ecology’s payment of Non-
Covered Payments.
For the reasons explained below, I find that Holdings and Allstate are not
obligated to reimburse US Ecology and/or EQ Industrial for the Non-Covered
Payments. EQ Industrial’s contractual claims against Holdings fail because the
purchase agreement does not create any obligation for Holdings to assume
responsibility for the Non-Covered Payments. US Ecology’s unjust enrichment
claim against Allstate fails because it is barred by the release in the purchase
agreement. Accordingly, defendants’ motion to dismiss the complaint will be
granted, and plaintiffs’ cross-motion for partial summary judgment will be denied.
2
I. BACKGROUND
The facts recited herein are taken from the Verified Complaint filed on June
8, 2017 (the “Complaint”)1 and documents incorporated therein.2 Any additional
facts are either not subject to reasonable dispute or subject to judicial notice.
A. The Parties
Plaintiff US Ecology is a leading North American provider of environmental
services to commercial and governmental entities. Until November 1, 2015, US
Ecology indirectly owned all of the issued and outstanding stock of defendant
Allstate through its wholly-owned subsidiary, plaintiff EQ Industrial. EQ Industrial
provides turnkey environmental services, specializing in industrial cleaning and
maintenance, waste transportation, and environmental management services.
Allstate is an environmental services and waste management organization that
operates under the brand “ACV Enviro.” Defendant Holdings acquired all of
Allstate’s issued and outstanding stock on November 1, 2015 as a result of the stock
purchase agreement it entered into with EQ Industrial (the “Transaction”).
1
Dkt. 1.
2
See Winshall v. Viacom Int’l, Inc., 76 A.3d 808, 818 (Del. 2013) (citation omitted)
(“[P]laintiff may not reference certain documents outside the complaint and at the same
time prevent the court from considering those documents’ actual terms” in connection with
a motion to dismiss).
3
B. US Ecology’s Insurance Policies and the Non-Covered Payments
US Ecology historically purchased certain automobile/general liability and
workers’ compensation insurance policies to provide coverage for itself and its
subsidiaries, including Allstate (the “Policies”).3 The Policies are occurrence-based,
meaning that they provide coverage for events that take place during their Policy
periods regardless of when a claim ultimately is made against the insured.4 The
underlying claims at issue in this suit all relate to events that occurred while Allstate
was US Ecology’s indirect subsidiary.5
For its automobile/general liability insurance Policies, US Ecology has its
insurers directly handle the claims and then reimburses the insurers for the amounts
that the insurers paid that fall below the Policies’ deductibles or above the Policies’
limits.6 For its workers’ compensation insurance Policies, US Ecology pays out the
claims and then the insurers reimburse US Ecology for amounts that fall above the
Policies’ deductibles and below the Policies’ limits.7 I refer to the insurance
expenses borne by US Ecology, i.e., the amounts paid below the Policies’
deductibles and above the Policies’ limits, as the “Non-Covered Payments.” Before
3
Compl. ¶ 14.
4
Compl. ¶¶ 15-16.
5
Compl. ¶ 18.
6
Compl. ¶ 15.
7
Compl. ¶ 16.
4
the Transaction, Allstate reimbursed US Ecology for Non-Covered Payments when
the act or incident underlying a claim involved Allstate.8
C. The Allstate Stock Sale
On August 4, 2015, Holdings and EQ Industrial entered into a stock purchase
agreement (the “Purchase Agreement”) pursuant to which Holdings would purchase
all of the issued and outstanding capital stock of Allstate for $58 million.9 US
Ecology and Allstate are not parties to the Purchase Agreement.
Relevant to this action, Section 8.08 of the Purchase Agreement contains a
release (the “Release”), which provides, in relevant part, that:
Notwithstanding anything contained herein to the contrary, in
consideration of the execution, delivery and performance by Seller and
Buyer of this Agreement, effective as of the Closing, (i) Seller on behalf
of itself and each of its past, present and future Affiliates . . . hereby
RELEASES, WAIVES, ACQUITS AND FOREVER DISCHARGES
Buyer, the Company and each Company Subsidiary . . . from any and
all claims, demands, Proceedings, orders, losses, Liens, causes of
action, suits, obligations, Contracts, agreements (express or implied),
debts and liabilities of whatever kind or nature, whether in law or
equity, that any Seller Releasing Party ever had or may now have
against any Buyer Released Party to the extent related to the Company
or any Company Subsidiary or Seller’s ownership of the Shares or
equity interests of any Company Subsidiary, whether known or
unknown, suspected or unsuspected, that have accrued prior to the
Closing or that accrue at or after the Closing as a result of any act,
circumstance, occurrence, transaction, event or omission on or prior to
the Closing Date.10
8
Compl. ¶ 17.
9
Compl. ¶ 19.
10
Defs.’ MTD Opening Ex. A § 8.08 (Dkt. 18).
5
The Release contains the following exclusion for claims asserted under the Purchase
Agreement (the “Carve-Out”):
Notwithstanding the foregoing, nothing in this Section 8.08 shall or be
deemed to release any rights or obligations of any Seller Releasing
Party or any Buyer Releasing Party (a) pursuant to and subject to the
terms of this Agreement, including, without limitation, Section 8.07
[Employee Matters] and Article XI [Environmental Matters] hereof.11
The Transaction closed on November 1, 2015 (the “Closing”). After the
Closing, Holdings and Allstate refused to reimburse US Ecology and EQ Industrial
for the Non-Covered Payments related to Allstate’s business that US Ecology had
paid its insurers.12 Specifically, US Ecology alleges that it has reimbursed insurers
for Non-Covered Payments on more than fifty claims that US Ecology would have
passed along to Allstate pre-Closing.13 In the Complaint, US Ecology alleged that
these Non-Covered Payments totaled $781,069, and projected that they would
increase to a total of $1,533,563 by the time the last of the claims at issue is paid in
full.14
11
Id.
12
Compl. ¶ 37.
13
Compl. ¶¶ 2, 18.
14
Compl. ¶¶ 38-39. During briefing, plaintiffs asserted that, as of September 18, 2017, the
Non-Covered Payments totaled $819,072 and were projected to rise to a total of $1,573,535
by the time the underlying claims are fully resolved. Pls.’ MPSJ Opening Br. 4 n.4 (citing
Aff. of Matt Dahl ¶ 16) (Dkts. 19 & 20).
6
II. PROCEDURAL HISTORY
On June 8, 2017, plaintiffs filed the Complaint, asserting four claims. Count
I asserts that Holdings breached the Purchase Agreement by disclaiming certain
Allstate liabilities (i.e., responsibility for making the Non-Covered Payments) that
were transferred under the Purchase Agreement. Count II asserts that Holdings
breached the implied covenant of good faith and fair dealing inherent in the Purchase
Agreement. Count III seeks a declaratory judgment that Holdings and Allstate are
responsible for making the Non-Covered Payments. Count IV asserts that Allstate
has been unjustly enriched by US Ecology’s continuing payment of the Non-
Covered Payments since the Closing.
On July 3, 2017, defendants filed a motion to dismiss the Complaint in its
entirety under Court of Chancery Rule 12(b)(6) for failure to state a claim for relief.
On August 4, 2017, plaintiffs filed a motion for partial summary judgment on Counts
I, III, and IV. The court heard argument on both motions on March 9, 2018.
III. THE PARTIES’ CONTENTIONS
Defendants make a number of arguments in support of their motion to dismiss.
With respect to Count I, defendants’ lead argument is that the Release in the
Purchase Agreement bars plaintiffs’ breach of contract claim because the Non-
Covered Payments are based on events that occurred before the Closing, i.e., the
7
underlying injuries or accidents that triggered the claims at issue.15 Defendants also
argue that Holdings had no legal obligation before the Closing to reimburse EQ
Industrial for the Non-Covered Payments, and that no term of the Purchase
Agreement “separately creates such an obligation.”16
With respect to plaintiffs’ breach of the implied covenant of good faith and
fair dealing and unjust enrichment claims (Counts II and IV), defendants argue that
neither claim is actionable because the express contractual terms of the Purchase
Agreement govern the parties’ relationship and because those claims are barred by
the Release. Finally, defendants argue that the claim for a declaratory judgment
(Count III) must be dismissed because it is duplicative of plaintiffs’ other claims.
Plaintiffs make essentially the same arguments in response to defendants’
motion to dismiss as they do in support of their motion for summary judgment on
Counts I, III, and IV.17 As a threshold matter, plaintiffs contend that the Non-
Covered Payments are Allstate’s legal obligations. In support of that argument,
plaintiffs point out that certain seller disclosure schedules in the Purchase Agreement
include reserves for the Non-Covered Payments as a liability of Allstate, and that
15
Defs.’ MTD Opening Br. 10-11.
16
Defs.’ MTD Reply Br. 4-9 (Dkt. 35).
17
According to plaintiffs, they “do not seek summary judgment with respect to their cause
of action for breach of the implied covenant” because a favorable disposition of their
summary judgment motion “will provide them complete relief and, accordingly, resolution
of that cause of action is not necessary at this time.” Pls.’ MPSJ Opening Br. 1 n.1.
8
defendants took advantage of higher than expected Non-Covered Payments to drive
down the purchase price in a post-Closing working capital adjustment.
With respect to EQ Industrial’s breach of contract claim against Holdings,
plaintiffs contend that the Release does not apply because the claim for
reimbursement of the Non-Covered Payments arose post-Closing upon defendants’
refusal to accept responsibility for them. In the alternative, plaintiffs argue that even
if their claims fall within the scope of the Release, they are excluded by the Carve-
Out in the Release. Plaintiffs further contend that the unjust enrichment claim
(Count IV) is “sufficiently pled” because neither US Ecology nor Allstate is a party
to the Purchase Agreement.18 Finally, plaintiffs argue that they are “entitled to a
declaratory judgment that Defendants are responsible for payment of the Non-
Covered Payments from the time of the closing and going forward” on the theory
that they are entitled to relief on their breach of contract and unjust enrichment
claims.19
IV. ANALYSIS
For the reasons explained below, plaintiffs have failed to state a claim upon
which relief can be granted with respect to each of their claims. Accordingly,
18
Pls.’ MTD Answering Br. 28 (Dkt. 27).
19
Pls.’ MPSJ Opening Br. 23-25; Pls.’ MPSJ Reply Br. 21 (Dkt. 36).
9
defendants’ motion to dismiss the Complaint in its entirety will be granted, and
plaintiffs’ motion for partial summary judgment will be denied.
A. Legal Standards
The standards governing a motion to dismiss for failure to state a claim for
relief are well-settled:
(i) all well-pleaded factual allegations are accepted as true; (ii) even
vague allegations are “well-pleaded” if they give the opposing party
notice of the claim; (iii) the Court must draw all reasonable inferences
in favor of the non-moving party; and ([iv]) dismissal is inappropriate
unless the “plaintiff would not be entitled to recover under any
reasonably conceivable set of circumstances susceptible of proof.”20
Under Court of Chancery Rule 56(c), summary judgment “shall be rendered
forthwith if the pleadings, depositions, answers to interrogatories and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.”21
B. Count I Fails to State a Claim for Relief Because Plaintiffs Have
Not Identified Any Provision of the Purchase Agreement that
Holdings Breached
In Count I, EQ Industrial asserts that Holdings breached the Purchase
Agreement. To repeat, US Ecology and Allstate are not parties to the Purchase
20
Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002) (citations omitted).
21
Ct. Ch. R. 56(c).
10
Agreement and, as such, the contract claim in Count I is not asserted on behalf of
US Ecology or against Allstate.22
The parties’ breach of contract arguments, outlined above, focus primarily on
the effect of the Release and pay less attention to a threshold issue that is dispositive
of Count I in my opinion: the lack of any provision in the Purchase Agreement that
obligates Holdings to reimburse EQ Industrial for Non-Covered Payments.
Somewhat astonishingly, plaintiffs did not identify in their Complaint a specific
provision in the Purchase Agreement that Holdings allegedly breached. It was only
when pressed at oral argument that plaintiffs explained that their breach of contract
claim allegedly emanates from Section 1.01 of the Purchase Agreement,23 which
states as follows:
On the terms and subject to the conditions of this Agreement, Seller
will sell, transfer, assign, convey and deliver (or cause to be sold,
assigned, transferred, conveyed and delivered) to Buyer, and Buyer will
purchase from Seller, the Shares, free and clear of all Liens, for an
aggregate purchase price equal to $58,000,000.00 (the “Purchase
Price”), payable and subject to adjustment as set forth in Article II.24
22
Defs.’ MTD Opening Br. Ex. A at 1 (Preamble).
23
Tr. 58 (Mar. 8, 2018) (Dkt. 49). Plaintiffs referred in passing to Section 1.01 of the
Purchase Agreement in their opening brief in support of their motion for partial summary
judgment, but they failed to explain how Holdings had breached that provision. See Pls.’
MPSJ Opening Br. 6, 14.
24
Defs.’ MTD Opening Br. Ex. A § 1.01.
11
As defined in the Purchase Agreement, the term “Seller” refers to EQ
Industrial, the term “Buyer” refers to Holdings, and the term “Shares” refers to “all
of the issued and outstanding capital stock” of Allstate.25 It is undisputed that
Holdings acquired all of the outstanding shares of Allstate in exchange for paying
$58 million to EQ Industrial and, as a result, Allstate now operates as a wholly-
owned subsidiary of Holdings. And with respect to the first clause of Section 1.01,
plaintiffs have never identified any other specific “term” or “condition” of the
Purchase Agreement that Holdings allegedly breached. In short, plaintiffs make no
argument that Holdings breached any of the literal terms of Section 1.01 or any other
provision in the Purchase Agreement.
Instead, plaintiffs asserted in their Complaint in vague terms that “Holdings
breached its obligation to [EQ Industrial] under the [Purchase Agreement] by
disclaiming certain of [Allstate’s] liabilities—i.e., responsibility for making Non-
Covered Payments—that were transferred under the [Purchase Agreement].”26
When asked at argument to clarify the nature of the contractual breach, plaintiffs
explained in equally vague terms that it was “a combination of the contract provision
and the operation of Delaware law,” as follows: “Because that provision [Section
25
Id. at 1 (Preamble).
26
Compl. ¶ 46.
12
1.01] makes this a stock sale, by operation of Delaware law, all the assets and
liabilities [of Allstate] transfer.”27
As an initial matter, it is unclear from the record whether Allstate ever owed
a legal obligation to reimburse EQ Industrial (or US Ecology) for the Non-Covered
Payments. If Allstate owed such an obligation, presumably EQ Industrial and/or US
Ecology would have asserted a breach of contract claim directly against Allstate.
Tellingly, no such claim has been asserted. But assuming for the sake of argument
that the Non-Covered Payments constitute a liability of Allstate, plaintiffs’ argument
that Holdings breached Section 1.01 of the Purchase Agreement by failing to
reimburse EQ Industrial for an obligation of Allstate is a non sequitur.
“[O]ur corporation law is largely built on the idea that the separate legal
existence of corporate entities should be respected—even when those separate
corporate entities are under common ownership and control.”28 Plaintiffs correctly
point out that “it is a general principle of corporate law that all assets and liabilities
are transferred in the sale of a company effected by a sale of stock.”29 Thus, all of
Allstate’s pre-Closing assets and liabilities remained with Allstate post-Closing.
27
Tr. 58 (Mar. 8, 2018).
28
Allied Capital Corp. v. GC-Sun Holdings, L.P., 910 A.2d 1020, 1038 (Del. Ch. 2006)
(Strine, V.C.) (citing Stauffer v. Standard Brands, Inc., 178 A.2d 311, 316 (Del. Ch. 1962)).
29
Defs.’ MTD Answering Br. 21-22 (citing In re KB Toys Inc., 340 B.R. 726, 728 (D. Del.
2006)). See also Viking Pump, Inc. v. Century Indem. Co., 2 A.3d 76, 100 (Del. Ch. 2009)
13
Plaintiffs’ argument goes off the rails, however, when they argue that
Holdings breached the Purchase Agreement by failing to assume all of Allstate’s
liabilities that remained with Allstate after ownership of Allstate was transferred to
Holdings. In the Transaction, Holdings purchased (and thus now owns) all of
Allstate’s stock in exchange for approximately $58 million—it did exactly what it
promised to do under Section 1.01 of the Purchase Agreement. If Allstate owed a
reimbursement obligation with respect to the Non-Covered Payments, then Allstate,
not Holdings, would be the correct entity from which EQ Industrial (or US Ecology)
should seek a recovery.
The only legally coherent way for Holdings to have breached the Purchase
Agreement for not reimbursing EQ Industrial for Allstate’s purported obligations is
not “by operation of Delaware law”30 as a result of the Transaction, as plaintiffs
argue, but by the Purchase Agreement independently creating a contractual
reimbursement obligation. The parties to the Purchase Agreement are sophisticated
business entities that were represented by experienced counsel when negotiating a
sixty-one page contract to effectuate a $58 million transaction.31 They certainly
(Strine, V.C.) (citing KB Toys, 340 B.R. at 728) (“The familiar default rule in stock sales
is that a change in the ownership of a company does not affect the rights and liabilities of
the company.”).
30
Tr. 58 (Mar. 8, 2018).
31
See Defs.’ MTD Opening Br. Ex. A at 50-51 (listing outside counsel).
14
could have included an explicit provision obligating Holdings to reimburse EQ
Industrial for the Non-Covered Payments. Indeed, the parties to the Purchase
Agreement agreed to impose on Holdings certain other post-Closing insurance
reimbursement obligations concerning Allstate.32 But when it came to the Non-
Covered Payments, they chose not to do so.33
Plaintiffs cite Viking Pump, Inc. v. Century Indemnity Company34 for the
proposition that because Allstate “gets the benefit of coverage under the [] Policies
for the Underlying Claim,” Allstate also must assume “the corresponding
liabilities—the Non-Covered Payments.”35 This statement mischaracterizes the
relevant holding in Viking Pump, a decision that actually supports defendants.
In Viking Pump, the court found that a parent’s former subsidiary was entitled
to exercise insurance rights under a policy that the parent had purchased for the
32
See, e.g., Defs.’ MTD Opening Br. Ex. A at Amendment No. 1 to Stock Purchase
Agreement § 8.09(f) (obligating Holdings to reimburse EQ Industrial for the medical and
dental insurance of “Continuing Employees” of Allstate and its subsidiaries).
33
See Abry Partners V, L.P. v. F&W Acquisition LLC, 891 A.2d 1032, 1061-62 (Del. Ch.
2006) (Strine, V.C.) (“Delaware . . . respect[s] the ability of sophisticated businesses . . . to
make their own judgments about the risk they should bear . . . recognizing that such parties
are able to price factors such as limits on liability. . . . [T]he common law ought to be
especially chary about relieving sophisticated business entities of the burden of freely
negotiated contracts.”).
34
2 A.3d 76 (Del. Ch. 2009).
35
Pls.’ MTD Answering Br. 21.
15
former subsidiary while it was still a subsidiary.36 Essential to the court’s holding
was the fact that the parent explicitly assigned, and the subsidiary assumed, the
insurance rights before a sale of the subsidiary to a third party.37 Here, there was no
analogous assignment and assumption agreement between US Ecology and Allstate
regarding insurance rights and obligations under the Policies for the Non-Covered
Payments. Thus, the Viking Pump decision actually cuts against plaintiffs’ argument
because it reinforces the point that the parties here were fully capable of
contractually allocating to Holdings obligations concerning Allstate, which they did
for certain matters but not for the Non-Covered Payments.
In sum, given the Complaint’s failure to identify any provision in the Purchase
Agreement obligating Holdings to reimburse EQ Industrial for the Non-Covered
Payments, Count I fails to state a claim for breach of contract. Based on this
conclusion, it is unnecessary for the court to address the parties’ other arguments
pertaining to Count I.
C. Count II Fails to State a Claim for Breach of an Implied Covenant
In Count II, EQ Industrial asserts that Holdings breached the implied covenant
of good faith and fair dealing on the theory that “Holdings understood that, once the
36
Viking Pump, 2 A.3d at 82.
37
Id. at 97-98.
16
[Purchase Agreement] was effected, all of the liabilities of [Allstate]—including the
Non-Covered Payments under the [Policies]—would be transferred to Holdings.”38
Plaintiffs’ claim for breach of the implied covenant of good faith and fair dealing
fails because it is conclusory and impermissibly repackages plaintiffs’ breach of
contract claim.
The implied covenant is “employed to analyze unanticipated developments or
to fill gaps in [a] contract’s provisions.”39 “Existing contract terms control, however,
such that implied good faith cannot be used to circumvent the parties’ bargain, or to
create a ‘free-floating duty unattached to the underlying legal documents.’”40 Thus,
“the implied covenant only applies where a contract lacks specific language
governing an issue and the obligation the court is asked to imply advances, and does
not contradict, the purposes reflected in the express language of the contract.”41
Plaintiffs devote a single paragraph in their answering brief in defense of
Count II, asserting simply that if their “breach of contract claim is dismissed, the
alternative claim is not duplicative.”42 Plaintiffs do not contend that an obligation
38
Compl. ¶ 50.
39
Dunlap v. State Farm Fire & Cas. Co., 878 A.2d 434, 441 (Del. 2005) (citations omitted).
40
Id. (citations and alterations omitted).
41
All. Data Sys. Corp., v. Blackstone Capital Partners V L.P., 963 A.2d 746, 770 (Del. Ch.
2009) (Strine, V.C.) (citation omitted), aff’d, 976 A.2d 170 (Del. 2009).
42
Pls.’ MTD Answering Br. 27.
17
should be implied into the Purchase Agreement to address an unanticipated
development. Nor could they. As noted above, the parties to the Purchase
Agreement anticipated that there were circumstances under which Holdings would
be obligated to reimburse EQ Industrial for certain Allstate-related insurance
payments.43 They chose not to do so, however, with respect to the Non-Covered
Payments.
Plaintiffs also fail to identify, as they must, a specific gap in the Purchase
Agreement to be filled by the implied covenant.44 Their contention that the parties
to the Purchase Agreement understood that “all of the liabilities of [Allstate] . . .
would be transferred to Holdings”45 is not a “gap,” but rather an impermissible
rehashing of plaintiffs’ breach of contract claim, i.e., that Holdings failed to assume
all of Allstate’s legal liabilities in violation of Section 1.01 of the Purchase
Agreement.46 Accordingly, Count II fails to state a claim for relief.
43
See supra note 32 and accompanying text.
44
See Fortis Advisors LLC v. Dialog Semiconductor PLC, 2015 WL 401371, at *3 (Del.
Ch. Jan. 30, 2015) (“To state a claim for breach of the implied covenant, a litigant must
allege a specific obligation implied in the contract, a breach of that obligation, and resulting
damages.”) (internal quotations and citations omitted).
45
Compl. ¶ 50 (emphasis added).
46
See Dieckman v. Regency GP LP, 2018 WL 1006558, at *3 (Del. Ch. Feb. 20, 2018)
(ORDER) (“Defendants’ motion to dismiss Count II [breach of the implied covenant] is
GRANTED because it impermissibly repackages Count I, plaintiff’s breach of contract
claim.”).
18
D. The Unjust Enrichment Claim is Barred by the Release
In Count IV, US Ecology asserts a claim for unjust enrichment against
Allstate. According to the Complaint, Allstate has been unjustly enriched by US
Ecology’s post-Closing payment of the Non-Covered Payments, “which at all times
have been solely the responsibility of [Allstate].”47
“The elements of unjust enrichment are: (1) an enrichment, (2) an
impoverishment, (3) a relation between the enrichment and impoverishment, (4) the
absence of justification, and (5) the absence of a remedy provided by law.”48 “Unjust
enrichment is in essence a gap-filling remedy, which can be sought in ‘the absence
of a remedy provided by law.’”49
When the plain terms of a contract release a claim for unjust enrichment,
courts will enforce the release, and the unjust enrichment claim will be barred.50
Here, defendants argue that US Ecology’s unjust enrichment claim was released in
47
Compl. ¶ 59. Notably, the allegation that the Non-Covered Payments “at all times have
been solely the responsibility of [Allstate]” is inconsistent with the premise of Count I,
which asserts that they were the responsibility of Holdings after the Closing. Id. (emphasis
added).
48
Nemec v. Shrader, 991 A.2d 1120, 1130 (Del. 2010) (citation omitted).
49
Seibold v. Camulos Partners LP, 2012 WL 4076182, at *11 (Del. Ch. Sept. 17, 2012)
(Strine, C.) (citation omitted).
50
See Seven Invs., LLC v. AD Capital, LLC, 32 A.3d 391, 398 (Del. Ch. 2011) (“Because
Seven Investments released all claims relating to the Purported Accumulated Expenses,
Seven Investments cannot bring its claim in Count III to recover the amounts paid under a
theory of unjust enrichment.”).
19
Section 8.08 of the Purchase Agreement where “[EQ Industrial] and its ‘Affiliates’
(which includes US Ecology) unambiguously released [Allstate] (the “Company”)
and [Holdings] from claims, obligations, and liabilities, including those accruing
after the Closing resulting from a pre-Closing event.”51 I agree.
As mentioned above, the Release provides that “Seller on behalf of itself and
each of its past, present and future Affiliates” releases “Buyer [and] the Company”
from “any and all claims . . . that have accrued prior to the Closing or that accrue at
or after the Closing as a result of any act, circumstance, occurrence, transaction,
event or omission on or prior to the Closing Date.”52 The term “Affiliates” is defined
to include US Ecology,53 and the “Company” refers to Allstate.54 The Purchase
Agreement expressly includes Allstate as a third-party beneficiary for purposes of
the Release,55 and the Carve-Out in the Release for claims under the Purchase
Agreement plainly does not apply to a claim for unjust enrichment, the premise of
which is the absence of a remedy provided by law.
51
Defs.’ MTD Reply Br. 20 (citing Defs.’ MTD Opening Br. Ex. A §§ 8.08, 15.07(b)); see
also Defs’ MPSJ Answering Br. 17.
52
Defs.’ MTD Opening Br. Ex. A § 8.08.
53
Id. § 15.07(b) (defining “Affiliate” to mean “with respect to any specified person, any
other person directly or indirectly controlling . . . such specified person”).
54
Id. at 1 (Preamble).
55
See id. § 15.02 (“[T]he Buyer Released Parties shall be third party beneficiaries with
respect to Section 8.08, with the right to enforce Section 8.08.”). Allstate (the “Company”)
is a “Buyer Released Party.” Id. § 8.08.
20
Plaintiffs argue that the Release’s scope does not cover the unjust enrichment
claim because the claim accrued post-Closing as a result of defendants’ post-Closing
failure to assume responsibility for the Non-Covered Payments.56 This argument,
however, is inconsistent with the plain language of the Release.
Plaintiffs themselves allege that “[a]s of the filing of this Complaint, there are
over 50 active claims that accrued against various . . . Policies while [Allstate] was
[US Ecology’s] subsidiary and that remain to be resolved.”57 These “50 active
claims,” which admittedly accrued before the Closing, are the “legacy” claims for
which plaintiffs seek reimbursement in this action.58 But even if one treated
plaintiffs’ claims for reimbursement for the Non-Covered Payments as accruing after
the Closing, the Release still bars those claims if they accrued “as a result of any act,
circumstance, occurrence, transaction, event or omission on or prior to the Closing
Date.”59 That is the case here. The underlying insurance claims and plaintiffs’ claims
for reimbursement are inextricably linked, and are indisputably the result of
automobile accidents, worker injuries, and the like that occurred before the Closing.
56
Pls.’ MTD Answering Br. 12.
57
Compl. ¶ 18.
58
Compl. ¶ 6.
59
Defs.’ MTD Opening Br. Ex. A § 8.08.
21
Thus, the plain terms of the release bar US Ecology’s claim for unjust enrichment
against Allstate.60
Finally, apart from the legal deficiency of the unjust enrichment claim,
plaintiffs’ attempt to seize the equitable high ground in this case is open to question.
US Ecology is the owner of the Policies and implicitly acknowledges that it has the
right to cut off Allstate’s insurance coverage, thus ceasing the continued incurrence
of Non-Covered Payments.61 A reasonable inference from US Ecology’s failure to
terminate Allstate’s coverage post-Closing (particularly after defendants made clear
their intention not to reimburse plaintiffs for the Non-Covered Payments) is that US
60
As discussed above, EQ Industrial agreed to the Release on behalf of itself and its
“Affiliates,” which includes its parent, US Ecology. Relying on this language, defendants
argued in three briefs submitted in connection with the pending motions that US Ecology
is bound by the Release. See Defs.’ MTD Opening Br. 22 (“US Ecology’s claims for
reimbursement for insurance charges related to pre-Closing events clearly fall within the
scope of the [] Release [], and thus US Ecology’s unjust enrichment claim cannot stand.”);
Defs.’ MTD Reply Br. 20 (“US Ecology’s claim for reimbursement of payments made
under the [] Policies for pre-Closing events fall squarely within the scope of the [] Release
[], and US Ecology’s unjust enrichment claim must be dismissed.”); Defs.’ MPSJ
Answering Br. 17 (“US Ecology’s claim for reimbursement of payments made under the
[] Policies for pre-Closing events falls squarely within the scope of the [] Release []; thus,
US Ecology’s unjust enrichment claim must be denied.”). Plaintiffs made no argument to
the contrary even though US Ecology is not a signatory of the Purchase Agreement. Thus
plaintiffs waived any argument that US Ecology is not bound by the Release. See Emerald
Partners v. Berlin, 726 A.2d 1215, 1224 (Del. 1999) (citation omitted) (“Issues not briefed
are deemed waived.”).
61
See Pls.’ MTD Answering Br. 17 n.7 (“Defendants are welcome to concede that they are
not entitled to coverage under the [] Policies on a going-forward basis, in which case
Plaintiffs will notify the relevant insurers to cease making payments thereunder.”).
22
Ecology found it to be in its economic interest not to do so, presumably so as not to
disturb the economic structure of umbrella insurance Policies that cover itself and
its various subsidiaries.62 In any event, Count IV fails to state a claim for relief
because it is barred by the Release.
E. Plaintiffs are Not Entitled to a Declaratory Judgment that
Defendants are Responsible for the Non-Covered Payments
In Count III, plaintiffs seek “declarations as to Defendants’ obligations to pay
for the Non-Covered Payments under the [Purchase Agreement] on a historical and
going-forward basis.”63 This claim is duplicative of plaintiffs’ breach of contract
and unjust enrichment claims and thus fails for the same reasons that those claims
fail.64 Thus, Count III fails to state a claim for relief.
V. CONCLUSION
For the reasons explained above, the Complaint fails to state any claims for
relief. Accordingly, defendants’ motion to dismiss is GRANTED, and defendants’
cross-motion for partial summary judgment is DENIED. The Complaint is
dismissed with prejudice.
IT IS SO ORDERED.
62
See Tr. 36-37 (Mar. 8, 2018).
63
Pls.’ MPSJ Opening Br. 24.
64
See Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, 2014 WL
6703980, at *29 (Del. Ch. Nov. 26, 2014) (“Because the declaratory judgment count is
completely duplicative of the affirmative counts of the complaint, [it] is dismissed.”).
23