Eagle Force Holdings, LLC v. Stanley v. Campbell ( 2019 )

THE COURT OF CHANCERY OF THE STATE OF DELAWARE
EAGLE FORCE HOLDINGS, LLC, )
and EF INVESTMENTS, LLC, )
)
Plaintiffs, )
) C.A. No. 10803-VCMR
v. )
)
STANLEY V. CAMPBELL, )
)
Defendant. )
MEMORANDUM OPINION
Date Submitted: January 25, 2019
Date Decided: August 29, 2019
Frank E. Noyes, II, OFFIT KURMAN, P.A., Wilmington, Delaware; Harold M.
Walter and Angela D. Pallozzi, OFFIT KURMAN, P.A., Baltimore, Maryland;
Attorneys for Plaintiffs.
David L. Finger, FINGER & SLANINA, LLC, Wilmington, Delaware, Attorney for
Defendant.
MONTGOMERY-REEVES, Vice Chancellor.
In 2013, Richard Kay and Stanley Campbell decided to form a business
venture to market medical diagnosis and prescription technology that Campbell had
developed. The parties outlined the principal terms of the investment through two
letter agreements in November 2013 and April 2014. Under the principal terms, Kay
and Campbell would form a new limited liability company and each would be a fifty-
percent member. Campbell would contribute the stock of EagleForce Associates,
Inc. (“EagleForce Associates”), a Virginia corporation, and the membership interest
of EagleForce Health, LLC (“EagleForce Health,” together with EagleForce
Associates, “EagleForce”), a Virginia limited liability company, along with
intellectual property. Kay would contribute cash. For many months after April
2014, the parties negotiated several key terms of the transaction documents for the
new venture. In the meantime, Kay contributed cash to EagleForce Associates.
Campbell executed a promissory note for these contributions with the agreement that
Kay would cancel the note when they closed the deal on the new venture.
On August 28, 2014, Kay and Campbell signed the transaction documents,
which included an operating agreement for Eagle Force Holdings, LLC (“Eagle
Force Holdings”), a Delaware limited liability company, and a contribution
agreement. The parties dispute what occurred at the August 28 meeting. Plaintiffs
assert that the parties formed binding contracts at the August 28 meeting. Campbell
1
contends that he signed to acknowledge receipt of the latest drafts of the agreements
but not to manifest his intent to be bound by the agreements.
In this opinion, I hold that Campbell’s conduct and communications with Kay
before and during the signing of the transaction documents do not constitute an overt
manifestation of assent to be bound by the documents. Thus, the contribution
agreement and the operating agreement are not enforceable. Further, because
Campbell is not bound by the agreements’ forum selection clauses and because
Plaintiffs fail to identify any other applicable basis for personal jurisdiction, I
dismiss the remainder of the claims for lack of personal jurisdiction.
I. PROCEDURAL HISTORY
Plaintiffs filed the original complaint in this case on March 17, 2015, and the
First Amended Complaint—the operative complaint—on June 5, 2015 (the
“Complaint”). Beginning on February 6, 2017, this Court held a five-day trial in
this case. This Court issued its post-trial opinion on September 1, 2017.1
In that opinion, this Court outlined the standard for determining whether a
valid contract exists, citing Osborn ex rel. Osborn v. Kemp.2 That test requires that
“(1) the parties intended that the contract would bind them, (2) the terms of the
1
Eagle Force Hldgs., LLC v. Campbell (Trial Op.), 2017 WL 3833210 (Del. Ch.
Sept. 1, 2017).
2
Id. at *14.
2
contract are sufficiently definite, and (3) the parties exchange legal consideration.”3
“To determine whether a contract was formed, the court must examine the parties’
objective manifestation of assent, not their subjective understanding.”4 “If terms
are left open or uncertain, this tends to demonstrate that an offer and acceptance did
not occur.”5 “It is when all of the terms that the parties themselves regard as
important have been negotiated that a contract is formed.”6
In determining whether the parties possessed the requisite intent that the
transaction documents would bind them, this Court relied on Leeds v. First Allied
Connecticut Corp. and evaluated the parties’ objective manifestation of assent,
focusing on “whether agreements reached were meant to address all of the terms that
a reasonable negotiator should have understood that the other party intended to
address as important.”7 “Agreements made along the way to a completed
negotiation, even when reduced to writing, must necessarily be treated as provisional
3
Id. (quoting Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1158 (Del. 2010)).
4
Id. (Trexler v. Billingsley, 166 A.3d 101, 2017 WL 2665059, at *3 (Del. June 21,
2017) (TABLE)).
5
Id. (Ramone v. Lang, 2006 WL 905347, at *11 (Del. Ch. Apr. 3, 2006)).
6
Leeds v. First Allied Conn. Corp., 521 A.2d 1095, 1101 (Del. Ch. 1986) (citing 1
Corbin on Contracts § 29, at 87-88 (1963); Reprosystem, B.V. v. SCM Corp., 727
F.2d 257, 261 (2d Cir. 1984)).
7
Trial Op., 2017 WL 3833210, at *14 (quoting Leeds, 521 A.2d at 1102).
3
and tentative. Negotiation of complex, multi-faceted commercial transactions could
hardly proceed in any other way.”8 To conduct such an analysis, courts review “all
of the surrounding circumstances, including the course and substance of the
negotiations, prior dealings between the parties, customary practices in the trade or
business involved and the formality and completeness of the document (if there is a
document) that is asserted as culminating and concluding the negotiations.”9 “Thus,
determination of whether a binding contract was entered into . . . depend[ed] on the
materiality of the outstanding issues in the draft agreement and the circumstances of
the negotiations.”10
Using the analytical framework of Osborn and Leeds, this Court held that the
contribution agreement “[l]ack[ed] [t]erms that [w]ere [e]ssential to the [p]arties’
[b]argain,” and the parties, therefore, “did not intend to bind themselves to the
written terms” in the contribution agreement.11 This Court concluded that “the
parties intended [the contribution agreement and the operating agreement] to operate
as two halves of the same business transaction,” and thus, the agreements “rise and
8
Id. (quoting Leeds, 521 A.2d at 1102).
9
Id. (quoting Leeds, 521 A.2d at 1102).
10
Id. (quoting Greetham v. Sogima L-A Manager, LLC, 2008 WL 4767722, at *15
(Del. Ch. Nov. 3, 2008)).
11
Id. at *14, *18.
4
fall together.”12 For that reason, this Court held that the parties did not intend to bind
themselves to the written terms of the operating agreement.13 As such, neither
document was an enforceable contract.
Because the documents were not enforceable, the forum selection clauses in
the documents subjecting Campbell to this Court’s personal jurisdiction were not
binding on Campbell.14 This Court further held that Plaintiffs failed to identify any
alternative basis for personal jurisdiction over Campbell.15 Without the ability to
exercise personal jurisdiction over the defendant, this Court dismissed the remaining
claims in this matter.16
Plaintiffs appealed the decision.17 On May 24, 2018, the Supreme Court
reversed the decision and remanded with instructions and guidance.18
12
Id. at *18 (quoting E.I. DuPont de Nemours & Co. v. Shell Oil Co., 498 A.2d 1108,
1115 (Del. 1985)).
13
Id.
14
See id.
15
See id. at *19.
16
See id.
17
Notice of Appeal, Eagle Force Hldgs., LLC v. Campbell, No. 399,2017 (Del. Sept.
28, 2017).
18
Eagle Force Hldgs., LLC v. Campbell (Supr. Ct. Op.), 187 A.3d 1209 (Del. 2018).
5
First, the Supreme Court instructs that this Court make an express “finding on
the parties’ intent to be bound to each transaction document in accordance with the
framework set forth in Osborn and guidance included” in its opinion.19 In making
these findings, this Court may consider only “evidence that the parties
communicated to each other up until the time the contract was signed.”20 The
evidence that may be considered includes “the parties’ prior or contemporaneous
agreements and negotiations.”21 The Supreme Court’s guidance prohibits
consideration of post-signing evidence.22 Additionally, the Supreme Court instructs
that “a signed writing . . . generally offers the most powerful and persuasive
evidence of the parties’ intent to be bound.”23
Second, the Supreme Court instructs that the parties’ intent to be bound be
considered separately for the contribution agreement and for the operating
agreement.24
19
Id. at 1213.
20
Id. at 1229-30 (citing Black Horse Capital, LP v. Xstelos Hldgs., Inc., 2014 WL
5025926, at *12 (Del. Ch. Sept. 30, 2014)).
21
Id. at 1230 (citing Black Horse, 2014 WL 5025926, at *12).
22
See id. at 1229-30, 1235 n.180.
23
Id. at 1230 (citing Seiler v. Levitz Furniture Co. of E. Region, 367 A.2d 999, 1005
(Del. 1976); Osborn, 991 A.2d at 1158-59).
24
Id. at 1238.
6
Consistent with that guidance, on remand, this Court considers whether the
parties possessed the requisite intent to be bound by either the contribution
agreement or the operating agreement. The evidence that may be considered is
limited to the conduct of the parties during the period they negotiated the agreements
and when they signed the agreements. This Court considers only that evidence that
the parties communicated to each other up until the time the parties signed the
documents. Any post-signing evidence included below serves only to prevent
confusion for the reader. Also, because the Supreme Court’s analysis suggests that
both transaction documents address all terms material to the parties,25 this Court does
not examine the materiality of the terms of the agreements, or lack thereof.
II. FACTUAL BACKGROUND
The facts in this opinion are my findings based on the parties’ stipulations,
152 trial exhibits, including deposition transcripts, and the testimony of ten
witnesses presented at a five-day trial before this Court that began on February 6,
2017.26
25
See id. at 1231 (“Here, the Court of Chancery found that ‘the precise consideration
to be exchanged between Campbell and Eagle Force Holdings was highly material
to the parties here.’ The Contribution Agreement addresses the consideration to be
exchanged. The only dispute is whether the terms relating to that consideration are
sufficiently definite—a subject we address under the second prong of the Osborn
test.” (footnote omitted)); id. at 1239 (“The inclusion of provisions addressing these
topics is strong evidence that the LLC Agreement included all material terms.”).
26
Citations to the trial transcript are in the form “Tr. # (X)” with “X” representing the
surname of the speaker. Joint trial exhibits are cited as “JX #.” Facts drawn from
7
A. Parties and Relevant Non-Parties
1. Plaintiff EF Investments, LLC, and Richard Kay
Kay is a businessman and investor in the Washington, D.C., metropolitan
area.27 Since 2005, Kay has owned a government contracting company called
Sentrillion with other partners.28 Kay also controls Plaintiff EF Investments, LLC
(“EF Investments”), a Delaware limited liability company.29
2. Plaintiff Eagle Force Holdings
Kay created Eagle Force Holdings, a Delaware limited liability company, to
serve as the holding company for EagleForce subsidiaries.30 The Amended and
Restated Limited Liability Company Agreement of Eagle Force Holdings, LLC (the
“LLC Agreement”) contemplates that Campbell and EF Investments will each own
fifty percent of the membership interests in Eagle Force Holdings. 31 The
Contribution and Assignment Agreement (the “Contribution Agreement,” together
the Joint Pretrial Stipulation and Order are cited as “PTO ¶ #.” Unless otherwise
indicated, citations to the parties’ briefs are to their post-remand briefs. After
initially identifying individuals, I reference surnames without honorifics or regard
to formal honorifics such as “Doctor.” I intend no disrespect.
27
Tr. 310:2-4, 354:22-355:2 (Kay).
28
Tr. 18:8-23 (Offit).
29
PTO ¶¶ 3-4.
30
PTO ¶ 3; see JX 12 ¶ 2.
31
See JX 79 § 3.2.1.
8
with the LLC Agreement, the “Transaction Documents”) contemplates that
EagleForce Associates and EagleForce Health will become subsidiaries of Eagle
Force Holdings.32
3. Defendant Stanley Campbell
Campbell controls EagleForce Associates and EagleForce Health.33
EagleForce Associates is a start-up company that Campbell intended to use to market
a pharmaceutical software system called PADRE.34 PADRE aggregates medical
information about patients to assist in determining patients’ prescriptions.35 It also
monitors pharmaceutical sales for compliance with federal law.36
4. Attorneys
Donald Rogers is an attorney from the Schulman Rogers law firm who
represented Campbell through key parts of his negotiations with Kay. 37
32
JX 78 Recitals.
33
See PTO ¶ 5.
34
Tr. 775:1-17 (Campbell).
35
Tr. 765:15-766:10 (Campbell).
36
See Tr. 766:16-20 (Campbell).
37
Tr. 817:3-4, 818:1-13 (Rogers).
9
Theodore Offit is an attorney from the law firm Offit Kurman who represented
Kay in the negotiations with Campbell.38
5. Employees
Said Salah is the Vice President of Finance and CFO of EagleForce
Associates.39 From January 2016 until July 2017, he lived overseas and tapered off
his services to EagleForce Associates.40
General John W. Morgan III is a Senior Vice President of EagleForce
Associates and EagleForce Health.41
Christopher Cresswell is the head of Business Development of EagleForce
Health.42
Katrina Powers is an employee of Sentrillion.43
38
Tr. 17:4-7, 20:11-12, 20:17-22 (Offit).
39
Tr. 1086:2-8 (Salah).
40
Tr. 1086:12-14 (Salah).
41
Tr. 1166:1-10 (Morgan).
42
JX 143, at 2; see Tr. 650:6-10 (Cresswell).
43
Tr. 246:24-247:2 (Powers).
10
B. Facts
Campbell and Kay first met in 2005 or 2006 through a mutual friend when
Campbell was seeking an investor for an earlier iteration of EagleForce Associates.44
Kay did not invest in Campbell’s business then.45
In January 2013, Campbell needed capital to market his PADRE technology
through EagleForce Associates.46 Before approaching Kay again, Campbell met
Salah, who had experience with government contracting.47 In April or May 2013,
Campbell hired Salah to work with EagleForce Associates.48 Salah also loaned
money to EagleForce Associates and deferred collection of his salary to provide
EagleForce Associates with cash needed for its operations.49
1. The November 2013 Letter Agreement
Despite Salah’s investment, Campbell believed that EagleForce Associates
needed additional capitalization from investors to obtain government contracts.50
44
Tr. 768:1-18 (Campbell).
45
Tr. 768:22-23 (Campbell).
46
See Tr. 775:1-6, 926:1-3 (Campbell); Tr. 1094:1 (Salah).
47
Tr. 1087:13-17, 1093:23-24 (Salah).
48
Tr. 1094:1-4 (Salah).
49
Tr. 926:1-3 (Campbell); Tr. 1091:17-22, 1094:19-1095:1 (Salah).
50
Tr. 774:14-24 (Campbell).
11
Campbell approached Kay again in or around November 2013 to discuss Kay’s
potential investment in EagleForce Associates.51
On November 27, 2013, Campbell and Kay signed a letter agreement dated
November 15, 2013 (the “November 2013 Letter Agreement”).52 Kay’s lawyers53 at
the law firm Offit Kurman drafted an initial version of the November 2013 Letter
Agreement, but Campbell and Kay made changes to it before signing.54 The
November 2013 Letter Agreement contemplated that Campbell and Kay would
“form a new LLC entity and/or a series of industry specific LLC’s [sic] verticals in
Virginia.”55 Campbell would contribute “PADRE source code and patents,”56 and
Kay would contribute at least $1.8 million in cash with the goal of raising $7.8
million in total financing from either Kay or a mutually agreed-upon investor.57
51
Tr. 774:6-9, 775:1-3 (Campbell).
52
JX 1.
53
At the time the parties signed the November 2013 Letter Agreement, Campbell
believed that Offit Kurman represented both Kay and Campbell. Tr. 783:21-784:6,
794:23-795:9 (Campbell). Offit Kurman, in fact, represented only Kay, and
Campbell had no attorney representation. Tr. 18:8-11, 19:22-24 (Offit).
54
Tr. 131:3-8 (Offit).
55
JX 1 ¶ 2.
56
Id. ¶ 7.
57
Id. ¶ 6.
12
Under the November 2013 Letter Agreement, both Campbell and Kay would
manage the new LLC and “confer on all business and marketing related activities as
well as all capital needs.”58 All of the material terms of the November 2013 Letter
Agreement were subject to due diligence.59
2. The April 2014 Letter Agreement
After executing the November 2013 Letter Agreement, Kay and Campbell
continued to negotiate.60 On March 17, 2014, Kay filed a certificate of formation
for Eagle Force Holdings in Delaware.61 Kay did not tell Campbell he had formed
the Eagle Force Holdings entity; nor did he inform Campbell that he created a
Delaware entity, rather than a Virginia entity.62 On April 4, 2014, Kay and Campbell
signed an amendment to the November 2013 Letter Agreement (the “April 2014
Letter Agreement”), which stated “[b]y April 21 it is anticipated that a new LLC will
be formed to serve as a parent entity (‘Holdco’) for Eagle Force [sic] Associates,
Inc. and the recently formed Eagle Force Health Solutions, LLC . . . .”63
58
Id. ¶ 4.
59
Id. ¶¶ 6, 8, 10.
60
See Tr. 322:14-18 (Kay); Tr. 795:10-23 (Campbell).
61
JX 7.
62
Tr. 991:3-993:24 (Campbell).
63
JX 12 ¶ 2.
13
Kay and Campbell signed the April 4, 2014 Letter Agreement without counsel
present.64 The April 2014 Letter Agreement “amend[ed] the letter agreement that
[Campbell and Kay] executed on November 27, 2013 that was dated as of November
15, 2013.”65 The April 2014 Letter Agreement maintained that Campbell and Kay
would share management responsibilities and confer regarding marketing and
capital needs.66 It also further defined Campbell’s and Kay’s roles in the anticipated
parent company, referred to as “Holdco.”67 The April 2014 Letter Agreement stated
that
[Campbell] will have primary responsibility over all
information technology, product development, R&D, and
customer service and maintenance, in each case subject to
an annual budget approved by the Holdco board. [Kay]
will have primary responsibility over financial matters,
personnel/HR, and management of outside accounting,
legal, tax, and other advisors and consultants as well as all
other matters relating to the operation of the business of
64
Tr. 380:10-11 (Kay). At the time Kay and Campbell signed the April 2014 Letter
Agreement, Campbell believed that Offit Kurman represented both Kay and
Campbell. Tr. 783:21-784:6, 794:23-795:9 (Campbell). Campbell did not hire his
own attorney until later in April or May 2014. Tr. 796:4-11 (Campbell); Tr. 817:22-
24 (Rogers).
65
JX 12, at 1.
66
Id. ¶ 4.
67
See id. ¶ 3.
14
Holdco and its subsidiaries and will consult with
[Campbell] on all decisions affecting these functions.68
The parties referred to the more defined spheres of management responsibility in the
anticipated fifty-fifty business venture as “swim lanes.”69
Recognizing that Kay and Campbell had not yet completed negotiations nor
finalized the necessary documents reflecting their new business venture, the April
2014 Letter Agreement provided that Kay would advance $500,000 to Eagle Force
Holdings immediately upon the execution of the April 2014 Letter Agreement.70
And “[t]his $500,000 [would] be evidenced by a demand promissory note issued to
[Kay] by Eagle Force [sic] Associates, Inc. and Eagle Force Health Solutions, LLC,
jointly and severally . . . .”71 The April 2014 Letter Agreement also contemplated
that once Kay and Campbell finalized negotiations and completed the necessary
transaction documents, Kay would contribute an additional $1,800,000 to equal the
value of Campbell’s intellectual property, $2,300,000.72
68
Id.
69
Tr. 319:11-14 (Kay).
70
JX 12 ¶ 6.
71
Id.
72
See id.
15
3. Negotiation of the LLC Agreement and the Contribution
Agreement
After signing the April 2014 Letter Agreement, Kay continued due diligence
on the EagleForce Associates business.73 During this time, he provided funding to
EagleForce Associates74 and became involved in certain aspects of the day-to-day
operations of the company.75 Unfortunately, Kay’s increased involvement in
EagleForce Associates created tension and mistrust in Kay and Campbell’s
relationship, due in large part to their very different management styles and differing
expectations of, involvement in, and control over the “swim lanes” identified in the
April 2014 Letter Agreement.
As early as April 30, 2014, only two weeks after signing the April 2014 Letter
Agreement, Kay expressed disappointment in Salah’s contract-drafting skills and
advised Campbell that Bryan Ackerman, Sentrillion’s general counsel, would be
involved in all contracts into which EagleForce Associates entered.76 Campbell,
however, valued Salah’s contributions and experience and wanted Salah to have a
73
See, e.g., JX 39.
74
JX 106.
75
E.g., Tr. 192:15-193:11 (Powers).
76
JX 130, at 2.
16
greater role.77 Campbell responded to Kay, “I am no longer enjoying coming to
work. I do not think this will work. Please tell me what I owe you and how we can
move forward independently.”78 Kay responded, referring to the November 2013
and April 2014 Letter Agreements, “I hope you had a tough day and don’t really
want to get into a [sic] issue. My position is we are signed partners . . . .”79
Despite the fact that Kay and Campbell’s relationship was becoming
strained,80 they began to negotiate the LLC Agreement for Eagle Force Holdings and
the Contribution Agreement.81 In addition to Offit Kurman, Kay engaged Latham &
Watkins to advise him on investing in the EagleForce Associates business.82
Campbell believed that Offit Kurman had been representing both Kay and Campbell
together until Michael Schlesinger of Latham & Watkins advised Campbell that he
77
See id.; Tr. 797:7-16 (Campbell).
78
JX 130, at 1.
79
Id.
80
See, e.g., id.
81
See JX 14; JX 15.
82
Tr. 32:16-24 (Offit).
17
should retain his own counsel.83 In April or May 2014, Campbell retained his own
attorney, Donald Rogers with the Schulman Rogers law firm.84
On May 13, 2014, Latham & Watkins presented a draft Contribution
Agreement and a draft LLC Agreement for Eagle Force Holdings to Campbell.85
Each agreement included a forum selection clause consenting to personal
jurisdiction in the Delaware courts.86 The LLC Agreement referred to the March 17,
2014 certificate of formation for Eagle Force Holdings in Delaware.87 Campbell,
thus, learned that Kay formed Eagle Force Holdings in Delaware at least by May 13,
2014.
Kay’s involvement in the EagleForce businesses continued as Kay and
Campbell negotiated the terms of the Transaction Documents. For example, in or
about June 2014, Kay suggested that EagleForce Associates hire Melinda Walker as
a secretary and pay her $75,000 per year.88 This concerned Campbell because
83
Tr. 783:21-784:6, 794:23-795:9 (Campbell).
84
Tr. 796:4-11 (Campbell); Tr. 817:22-24 (Rogers).
85
JX 14; JX 15.
86
JX 14 § 8.9(b); JX 15 § 12.2.
87
JX 15 Recitals.
88
Tr. 436:16-22 (Kay); Tr. 735:2-4 (Variganti); Tr. 917:19-21, 918:12-18 (Campbell).
18
Walker’s salary was higher than most EagleForce Associates employees’ salaries at
the time.89
On June 30, 2014, Rogers sent a revised draft of the LLC Agreement to Offit.90
The draft included several notes indicating that certain points needed to be discussed
and resolved, such as the distribution waterfall and the structure of Campbell’s
contribution of intellectual property.91
Also on June 30, 2014, Campbell received an email from Kay that Campbell
believed contained a racial slur.92 This email caused Campbell to have reservations
about Kay’s character, and from Campbell’s perspective, his personal relationship
with Kay continued to deteriorate. Despite Campbell’s reservations, he continued
to pursue a business relationship with Kay; EagleForce Associates continued to
receive funding from Kay; and the parties continued to negotiate the Transaction
Documents.
89
Tr. 919:6-10 (Campbell).
90
JX 17.
91
E.g., JX 18 §§ 3.2.1, 5.1.2.
92
Tr. 1301:12 (Campbell); see JX 16. Kay maintains that the word was an error. Tr.
444:16-19 (Kay).
19
4. The July 7, 2014 meeting
On July 3, 2014, Offit sent Rogers an email confirming a meeting on July 7,
2014, at Rogers’s office to negotiate the Transaction Documents.93 Offit expressed
his and Kay’s concern that the negotiations were proceeding slowly, and Rogers
responded that “[f]or the benefit of everyone, let’s make Monday [July 7] the day
we agree on all terms.”94
On July 7, 2014, Kay, Campbell, and their respective counsel met at Rogers’s
office to negotiate the unsettled terms of the Contribution Agreement and the LLC
Agreement.95 Offit believed that three primary issues remained to be negotiated:96
(1) the scope of the intellectual property that Campbell would contribute and the
extent of Campbell’s representation regarding his ownership of the intellectual
property and any third-party infringement;97 (2) the mechanics for dilution of Kay’s
93
JX 24, at 1.
94
Id.
95
Tr. 61:8-23 (Offit).
96
Tr. 61:24-62:4 (Offit).
97
Tr. 62:4-18 (Offit).
20
and Campbell’s interests upon additional third-party investments;98 and (3) the
structure of the Eagle Force Holdings board of directors.99
The July 7 meeting went late into the night, and the parties resolved the three
issues that Offit understood to be outstanding.100 But a substantial new issue arose.
During that meeting, Offit discovered for the first time that Campbell had previously
filed for bankruptcy.101 This discovery led to another point of contention between
Kay and Campbell.
On July 8, 2014, Offit sent Rogers a list of changes to the Contribution
Agreement based on the July 7 discussion.102 An associate at Rogers’s firm sent a
redlined draft of the LLC Agreement to Offit and Kay on July 9, 2014, incorporating
the negotiated terms from the July 7 meeting.103
98
Tr. 62:19-63:6 (Offit); see JX 18 § 3.2.
99
Tr. 63:7-13 (Offit).
100
Tr. 63:16-66:9 (Offit). Also on July 7, Campbell signed an EagleForce Associates
note payable to Kay for the $700,000 Kay had already contributed to EagleForce
Associates. JX 34; JX 35. Kay and Campbell agreed that Kay would cancel the
note if they were able to reach agreement on the Transaction Documents. JX 25, at
2.
101
Tr. 69:16-70:20 (Offit).
102
JX 28.
103
JX 29.
21
On July 9, 2014, an email was sent from Campbell’s email address to Morgan
announcing that EagleForce Associates and EagleForce Health had taken on Kay as
their “first Partner.”104 Morgan responded, congratulating both Kay and Campbell
and copying several EagleForce employees.105 The same day, Campbell held a
meeting at EagleForce Associates’ office with all of the office staff to announce
Kay’s involvement in the business.106 Kay suggested that Campbell’s wife attend
the meeting, and Campbell arranged for his wife to participate by phone.107
Campbell also arranged for Kay’s wife to participate by phone.108 Kay did not
appreciate Campbell’s gesture and sternly told Kay, “Don’t ever do that again. My
wife is not involved in my business, and don’t ever do that again.”109
5. Tensions between Kay and EagleForce employees
As Kay and Campbell continued negotiations, Kay became more involved in
the EagleForce business and interfaced more with EagleForce employees. Through
104
JX 33. Campbell testified that he did not send this email but that Melinda Walker
sent it from his email account without his permission. Tr. 941:3-942:3 (Campbell).
Regardless, this email does not alter the weight of the evidence.
105
JX 33.
106
Tr. 1188:17-1189:8 (Morgan).
107
Tr. 937:9-10 (Campbell).
108
Tr. 937:10-12 (Campbell).
109
Tr. 937:17-22 (Campbell).
22
these interactions, the employees experienced a more aggressive, erratic, and
disrespectful Kay. And, unfortunately, Salah and Morgan observed that this
mistreatment often ran along lines of national origin.110 The recipients of a
disproportionate amount of Kay’s alleged mistreatment included Marlena Henien, a
degreed Egyptian woman who did opportunity research at EagleForce Associates;111
Jashuva Variganti, an Indian man who has an MBA degree and is an administrative
employee of EagleForce Associates assisting with expense and payroll processing;112
and Salah, an Egyptian man who has an MBA degree and is the CFO for EagleForce
Associates.113 Kay treated Henien like a servant, rather than a valued employee.114
He would throw money down on her desk and instruct her to run personal errands
and do tasks inappropriate for her role at EagleForce Associates.115
Kay yelled at Variganti, telling Variganti, “If I [Kay] ask you to do something,
you should – you should do [it].”116 In addition to this statement, Kay behaved in a
110
Tr. 1089:17-1090:3 (Salah); Tr. 1174:4-12 (Morgan).
111
Tr. 918:23-24, 932:3-10 (Campbell); Tr. 1090:18-21 (Salah).
112
Tr. 716:11-13, 717:9-14 (Variganti); Tr. 1090:9-16 (Salah).
113
Tr. 1085:17-18, 1086:2-8, 1140:19-21 (Salah).
114
E.g., Tr. 931:18-932:1 (Campbell).
115
Id.
116
Tr. 720:3-6 (Variganti).
23
threatening manner. During one encounter, Kay stood an unusually short distance
from Variganti while yelling at him.117 Variganti testified that he felt threatened
during this exchange with Kay.118 Morgan observed Kay pinning Variganti against
a cubicle partition.119
Kay treated Salah with the greatest deal of disdain. Kay condescended to
Salah,120 questioned to Salah’s face why he was at EagleForce Associates,121
questioned Salah’s experience and competence,122 and frequently yelled and cursed
at him in front of Campbell.123 Kay flatly said, “I just don’t want him around.”124
Kay confessed to Morgan that he (Kay) “can’t work with somebody like [Salah].
[H]e’s an Arab.”125
117
Tr. 720:16-21 (Variganti).
118
Tr. 720:22-721:5 (Variganti).
119
Tr. 1175:6-20 (Morgan).
120
Tr. 926:19-24 (Campbell).
121
Tr. 1088:10 (Salah).
122
See Tr. 927:21-928:6 (Campbell).
123
Tr. 926:23-24 (Campbell); Tr. 1088:16-24 (Salah).
124
Tr. 928:6-7 (Campbell).
125
Tr. 1174:10-12 (Morgan).
24
Kay’s behavior led to tensions in the office. Multiple employees voiced
concerns about Kay’s addition as a partner.126 Morgan’s concerns about Kay’s
behavior were so great that he (Morgan) told Campbell that he might quit if
Campbell did not address Kay’s behavior.127
Additionally, Kay did not limit his abuse to employees. He also became more
aggressive toward Campbell. Kay shouted and cursed at Campbell within earshot
of EagleForce employees during their disagreements.128 Employees heard Kay
yelling at Campbell even though the two men were in a closed conference room.129
Kay also began to speak negatively about Campbell to EagleForce employees.
For example, Kay met with Cresswell at a country club in Potomac, Maryland, and
told Cresswell that Campbell had a “shady past” and had previously committed
fraud.130
Campbell grew more concerned but tried to see things from Kay’s
perspective, understanding that Kay had invested money in the venture.131 Thus, he
126
E.g., Tr. 921:13-20 (Campbell); Tr. 1174:16-18 (Morgan).
127
Tr. 1180:21-1181:6 (Morgan).
128
Tr. 722:9-15 (Variganti); Tr. 1089:7-16 (Salah); Tr. 1181:14-1182:9 (Morgan).
129
Tr. 1089:7-13 (Salah).
130
Tr. 656:4-657:23 (Cresswell).
131
Tr. 802:1-3 (Campbell).
25
continued to work toward the deal.132 But Kay’s mistreatment of Campbell and
EagleForce Associates employees strained Kay and Campbell’s relationship.133
6. Continued negotiations
Despite the building tension, Kay and Campbell continued to negotiate
through July 2014.134 But on July 22, 2014, Kay sent an email to Campbell saying,
“I am hearing that you may be trying to change the deal and we now may not be
consistent understanding based on our agreemnt [sic].”135 Presumably, Kay was
referring to the November 2013 and April 2014 Letter Agreements.
Near the end of July 2014, Kay and Campbell met without their lawyers to
discuss open issues.136 On July 25, 2014, Campbell sent an email to Rogers, Offit,
and Kay informing the lawyers of what Campbell and Kay had discussed.137 In part,
Campbell wrote, “As for the Issue related to Bankruptcy—I don’t think I have much
132
Tr. 802:8-10 (Campbell).
133
See Tr. 801:20-802:1 (Campbell).
134
See, e.g., JX 31; JX 39; JX 41.
135
JX 43.
136
See JX 46.
137
Id.
26
of an issue . . . what we discussed and agreed is that we will pay any amount owed.
I will change that to the point that we will pay any amount under $10,000.”138
On August 5, 2014, Campbell, Kay, Rogers, and Offit met to attempt to agree
on outstanding issues.139 Campbell testified that Kay and Offit would not drop the
bankruptcy issue140 because they were concerned about Campbell’s title to his
intellectual property.141 To indicate that Campbell was not willing to reopen his
bankruptcy, he walked out of the meeting.142 He testified, “[I] made it clear I wasn’t
doing that. And the only way I could make it any clearer was to leave.”143
On or around August 6, 2014, both Kay and Campbell signed a handwritten
sheet of paper that stated, “Campbell has rights to approve new investment.”144 Offit
sent an email to Rogers to clarify what Kay meant in agreeing to the handwritten
note.145 He wrote, “[Campbell] told [Kay] he needed to be involved in all capital
138
Id.
139
Tr. 80:19-22, 81:22-82:4 (Offit).
140
Tr. 807:22-808:8 (Campbell).
141
Tr. 821:5-11 (Rogers).
142
See Tr. 808:9-24 (Campbell).
143
Tr. 808:20-22 (Campbell).
144
JX 54, at 4.
145
Id. at 1.
27
raise decisions. [Kay] is obviously in agreement on [Campbell’s] need to be
involved in capital raise matters, but [Campbell] cannot have a blocking right or veto
right. The 3 person board needs to approve capital raise matters.”146
On or before August 14, 2014, Kay and Campbell met and discussed thirteen
open issues.147 Kay handwrote148 their agreed-upon conclusions on a sheet of paper
that he scanned and sent to Campbell.149 The list of thirteen points addressed topics
Kay and Campbell had been negotiating, such as new equity capital and Campbell’s
compensation.150 The list also addressed operational issues such as “[Campbell] &
[Kay] will talk daily on big issues” and “[Kay] & [Campbell] agree we will push
Chris Cresswell to close first 3 deals ASAP.”151
On August 19, 2014, Rogers, Campbell’s attorney, sent revised versions of
the Transaction Documents.152 The August 19 versions that Rogers circulated
146
Id.
147
Tr. 346:2-18 (Kay).
148
Tr. 345:16-22 (Kay).
149
JX 56.
150
Id. at 2.
151
Id.
152
JX 57.
28
backtracked on some of Campbell’s concessions in the thirteen-point list.153
Rogers’s August 19 draft, however, incorporated some of Kay’s requests.154
On August 22, 2014, Campbell sent an email to Kay, Rogers, and Offit stating
that on the bankruptcy issue, he and Kay were each willing to commit up to $5,000
to retain Campbell’s personal bankruptcy lawyer and resolve the issue of his title to
the intellectual property.155 If that did not resolve the issue, Campbell agreed that
out of the $500,000 distribution he would take at closing, he would “retain up to
$250,000 in an attorney escrow of [his] choice for a period not to exceed 6
months.”156 Campbell was willing to set aside funds to pay any creditor claims, but
he did not want to reopen a bankruptcy proceeding.157
On August 20, 2014, Campbell sent an email to Kay asking Kay to “refrain
from any further disbursements to EagleForce until we have [an] executed
agreement and established closing procedures.”158 In that same email, Campbell
informed Kay that Campbell had been “seek[ing] other funding to meet the
153
See, e.g., JX 59 § 4.1.8(a).
154
See, e.g., JX 60 § 3.2(c).
155
JX 66.
156
Id.
157
Tr. 809:3-4, 810:5-10, 810:18 (Campbell).
158
JX 65, at 1.
29
commitments of the company.”159 Kay refused to stop funding.160 When Kay
refused to stop funding, Campbell responded by refusing to cash his own
paychecks.161
On August 27, Offit sent another round of revisions to the LLC Agreement
and the Contribution Agreement to Rogers, Kay, and Campbell with a cover email
stating, “Please confirm your acceptance of the terms of these agreements. Please
commence preparation of schedules needed for closing.”162 The date on the front of
and in the first paragraph of the draft Contribution Agreement remained blank in the
August 27 version.163 The missing date on the Contribution Agreement created an
additional gap in the agreement because the closing date depended on the date of the
agreement.164
159
Id.
160
See JX 106.
161
Tr. 948:21-949:16 (Campbell).
162
JX 68.
163
JX 71, at 1-2.
164
Id. § 3.1 (“[T]he closing of the Transactions (the ‘Closing’) shall be held at the
office of the Company, commencing at 10:00 a.m. local time on the date hereof (the
‘Closing Date’) or at such other time and place as the Parties may agree upon in
writing.”).
30
The version of the Contribution Agreement that Offit sent with his August 27
email stated “OK [Offit Kurman] DRAFT 8-26-14” on the first page.165 Although
the last draft LLC Agreement had no such notation, the LLC Agreement was an
exhibit to the Contribution Agreement.166 Rogers was out of town when Offit sent
the August 27 draft Transaction Documents,167 and Offit received Rogers’s
automatic out-of-office reply.168
Campbell testified that once or twice through these weeks of negotiating the
Transaction Documents, “Kay . . . [brought] a draft document to [Campbell] and
ask[ed] [him] to sign it.”169 Although Campbell did not produce any of these signed
drafts as evidence of this course of conduct,170 Salah corroborates his testimony,
noting that it is “not the normal practice to sign drafts. But Mr. Kay wanted these
drafts to be signed as being received.”171 Campbell claims he is unable to produce
165
Id. at 1.
166
See JX 31 (without draft notation on cover page); JX 53 (same); JX 59 (same); JX
71 Ex. B; JX 73 (without draft notation on cover page).
167
Tr. 828:15-17 (Rogers).
168
JX 74.
169
Tr. 915:12-22 (Campbell).
170
Tr. 1277:2-8 (Campbell).
171
Tr. 1105:10-23 (Salah).
31
any signed drafts because they were stolen from his office, together with other
documents.172
Throughout this entire period of negotiations, EagleForce Associates, still in
its start-up phase, had limited sources of revenue173 and relied on multiple funding
sources to meet its financial obligations. Much of that funding came from Kay;
between January 2014 and August 28, 2014, Kay contributed $841,213.174 Others,
including Salah and Kay’s wife, invested in the EagleForce businesses or loaned
them money.175 Campbell also sought a loan from an investment banking
company.176
7. The events of August 28, 2014
On August 28, 2014, Kay and Campbell met without their lawyers. Kay and
Powers testified that Kay came to EagleForce Associates’ offices with Powers to
sign the Transaction Documents.177 Campbell testified that he was unaware of Kay’s
172
See Tr. 727:21-729:5 (Variganti); Tr. 923:8-924:21 (Campbell).
173
Tr. 323:19-24 (Kay).
174
See JX 106.
175
Tr. 775:6-11, 926:1-3, 952:23-953:9 (Campbell).
176
Tr. 953:12-17 (Campbell).
177
Tr. 287:8-19 (Powers); Tr. 329:7-11 (Kay).
32
purpose for the meeting.178 Campbell was busy when they arrived but met with them
briefly.179 Because Campbell had to finish meeting with EagleForce developers, Kay
and Powers left to go to a restaurant five minutes away.180
While Kay and Powers were at the restaurant, Kay and Campbell sent several
emails to each other.181 In the first email thread, Cresswell sent a non-disclosure
agreement to Kay and Bryan Ackerman, Sentrillion’s general counsel, copying
Campbell.182 Campbell replied, asking Cresswell not to “forward this information
outside of the company until I have had a chance to review.”183 Kay responded,
“What are you talking about outside the company? We just talk [sic] 3 minutes ago.
I will handle my swim lane.”184 About ten minutes later, apparently without waiting
for an answer from Campbell, Kay sent a second reply: “1). Bryan [Ackerman] is
inside not outside 2). For the record I will handle all [NDA] contacts.”185 In
178
Tr. 973:10-974:5 (Campbell).
179
Tr. 329:18-330:3 (Kay).
180
Tr. 330:4-7 (Kay).
181
See Tr. 330:20-23 (Kay); JX 75; JX 76.
182
JX 75, at 2.
183
Id. at 1.
184
Id.
185
Id. at 3.
33
reference to earlier emails regarding the NDA, Campbell wrote to Kay, “As you can
see I am not on the mail routing and this is a bit troubling. Only you can make these
folks know that we are equal partners.”186 Kay replied, “Everyone knows we are
equal . . . . Please clarify w[ith] chris [sic] and Bryan that [NDA] are in [business]
lane and rick [sic] will handle. and [sic] send me the signed document if you want
to go forward.”187
Around the same time, Cresswell sent an email strategizing about how to
“win” the Special Olympics as a client.188 Kay replied to only Campbell, stating
“Sorry cant [sic] do anything until the agreement documents you have are signed.
Did you sign . . . .”189 Kay sent his final email shortly before returning to Campbell’s
office.190 In that email, which was not a reply to Campbell’s email, but instead a
follow up from his previous email, he wrote, “So what. This is getting really petty.
. . . Have you send [sic] the signed doc?”191
186
JX 76, at 3.
187
Id.
188
Id. at 2.
189
Id.
190
Compare id., with Tr. 237:9-12 (Powers).
191
JX 76, at 5.
34
At around 7:15 p.m., Kay and Powers returned to the EagleForce Associates
offices.192 Kay, Powers, and Campbell met for only a few minutes, and both Kay
and Campbell signed the versions of the LLC Agreement and the Contribution
Agreement that Offit had sent by email on August 27, 2014, without reading the
documents.193 Campbell testified that before the signing, Kay told him that Rogers
and Offit “were done” with the agreements.194 Campbell testified that he tried to call
Rogers but was unable to reach him.195 He testified that Kay tried to call Offit but
was also not able to reach him.196 Kay, in contrast, testified that he did not call Offit
or make any representations about Campbell’s lawyer.197
192
Tr. 237:9-12 (Powers).
193
Tr. 294:16-295:6 (Powers); Tr. 331:18-333:7 (Kay).
194
Tr. 976:23-977:5 (Campbell).
195
Tr. 977:14-21 (Campbell).
196
Tr. 977:22-978:8 (Campbell).
197
Tr. 334:7-10, 334:15-20 (Kay). Plaintiffs argue that Kay and Campbell had a past
practice of signing legally binding agreements without counsel present, pointing to
the November 2013 and April 2014 Letter Agreements. Pls.’ Opening Br. 28. Kay
and Campbell had signed the November 2013 and April 2014 Letter Agreements
without their attorneys present, but the circumstances surrounding the signing of
those documents differs significantly. First, Campbell believed that Kay and
Campbell were represented together by the same attorney at the time he signed the
Letter Agreements, but he learned later that the law firm represented only Kay and
Campbell himself had been unrepresented. Tr. 33:15-22 (Offit); Tr. 794:23-795:9
(Campbell). Second, the Letter Agreements each served as a “roadmap to reaching
a binding agreement.” Pls.’ Opening Post-Trial Br. 20. Third, unlike the August
28 Transaction Documents, months of negotiations did not precede the Letter
Agreements. Fourth, the November 2013 and April 2014 Letter Agreements are
35
After Kay and Campbell signed the agreements, Campbell walked around his
desk and embraced Kay and Powers.198 The entire meeting lasted only two to five
minutes.199
8. Events after the August 28 signing
Kay and Campbell never completed the closing on their agreement. On
October 28, 2014, Kay, Campbell, Rogers, and Offit exchanged emails indicating
Kay’s and Campbell’s different positions.200 Kay emailed, “What else can we do
together to get this done. I understand we have signed the deal but need the
exhibits.”201 Campbell responded, stating in part, “The signatures on the drafts did
not represent the completed document which remains not completed given the two
three and four pages in length respectively, which contrasts greatly with the dozens
of pages that comprise the Transaction Documents. Fifth, Kay and Campbell
carefully reviewed the terms of the Letter Agreements together and made joint
revisions to the Letter Agreements before signing them; this process differs greatly
from the brief August 28 meeting. See Tr. 131:5-7 (Offit). Sixth and finally, by the
time they signed the August 28 Transaction Documents, Campbell and Kay’s
relationship had deteriorated, and they no longer trusted each other.
198
Kay and Powers testified that Campbell hugged each of them after signing the
Transaction Documents. Tr. 240:7-9 (Powers); Tr. 332:10-16 (Kay). Campbell
testified that instead of a hug, he gave Kay a dap handshake. Tr. 987:24-988:10
(Campbell).
199
Tr. 294:21-22 (Powers); Tr. 978:14-20 (Campbell).
200
JX 93.
201
Id. at 1.
36
or three remaining items.”202 Over the following months, Kay and Campbell’s
relationship became more contentious. Finally, on February 18, 2015, Campbell
sent an email to Offit, Rogers, Kay, and Cresswell stating as follows:
[W]e have reached an impass [sic] that we are unable to
resolve. I would respectfully request that the atty’s [sic]
get together to discuss the means and methods for us to
close this matter and allow us to move on. We have
booked the funding as a loan and will proceed with
amending the existing documentation in a means that is
reasonable for us both.203
On March 17, 2015, Eagle Force Holdings and EF Investments filed this
lawsuit to enforce the August 28 Contribution Agreement and LLC Agreement.204
III. ANALYSIS
Plaintiffs allege claims for breach of contract and breach of fiduciary duty.205
Plaintiffs seek an order requiring Campbell to specifically perform his obligations
under the Transaction Documents and granting monetary damages to Plaintiffs.206
In the alternative, Plaintiffs assert claims for fraud and unjust enrichment.207
202
Id.
203
JX 103.
204
Compl. for Specific Performance, Declaratory and Injunctive Relief and Imposition
of Constructive Trust.
205
Compl. ¶¶ 63-74.
206
Compl. ¶¶ 33-38, 74.
207
Compl. ¶¶ 45-49, 76-80. Plaintiffs also assert that Campbell raises affirmative
defenses of fraudulent inducement, duress, and mutual mistake in his post-trial
37
A. Legal Standards
Plaintiffs have the burden of proving their claims by a preponderance of the
evidence.208 “Proof by a preponderance of the evidence means proof that something
is more likely than not. ‘By implication, the preponderance of the evidence standard
also means that if the evidence is in equipoise, Plaintiffs lose.’”209
To enforce either the Contribution Agreement or the LLC Agreement,
Plaintiffs must prove that the respective document is a valid contract with
Campbell.210 It is settled Delaware law that “a valid contract exists when (1) the
parties intended that the instrument would bind them, demonstrated at least in part
briefs; they, however, do not cite Campbell’s post-trial briefs. Pls.’ Opening Br. 28-
33. Plaintiffs are correct as to the defenses of duress and mistake, but a careful
review of Campbell’s post-trial briefs reveals no reference to fraudulent
inducement.
208
Revolution Retail Sys., LLC v. Sentinel Techs., Inc., 2015 WL 6611601, at *9 (Del.
Ch. Oct. 30, 2015).
209
Id. (footnote omitted) (citing Agilent Techs., Inc. v. Kirkland, 2010 WL 610725, at
*13 (Del. Ch. Feb. 18, 2010)) (quoting 2009 Caiola Family Tr. v. PWA, LLC, 2015
WL 6007596, at *12 (Del. Ch. Oct. 14, 2015)).
210
The parties raise the question of which jurisdiction’s law applies to this case, but
they do not brief the choice of law issue. The briefing relies heavily on Delaware
law, and none of the parties asserts that the law of Delaware is in conflict with the
law of any other jurisdiction whose law may apply. The Court, thus, will apply
Delaware law to all issues this opinion addresses.
38
by its inclusion of all material terms; (2) these terms are sufficiently definite; and
(3) the putative agreement is supported by legal consideration.”211
The Supreme Court held that the terms of the Transaction Documents are
sufficiently definite,212 and the parties do not dispute whether the Transaction
Documents are supported by legal consideration.213 Thus, the question presented is
whether the parties intended that the Transaction Documents would bind them.
This question looks to the parties’ intent as to the contract
as a whole, rather than analyzing whether the parties
possess the requisite intent to be bound to each particular
term. “Under Delaware law, ‘overt manifestation of
assent—not subjective intent—controls the formation of a
contract.’” As such, in applying this objective test for
determining whether the parties intended to be bound, the
court reviews the evidence that the parties communicated
to each other up until the time that the contract was
signed—i.e., their words and actions—including the
putative contract itself. And, where the putative contract
is in the form of a signed writing, that document generally
offers the most powerful and persuasive evidence of the
parties’ intent to be bound. However, Delaware courts
have also said that, in resolving this issue of fact, the court
may consider evidence of the parties’ prior or
contemporaneous agreements and negotiations in
evaluating whether the parties intended to be bound by the
agreement.214
211
Supr. Ct. Op., 187 A.3d at 1229 (citing Osborn, 991 A.2d at 1158-59).
212
Id. at 1238, 1240.
213
Id.
214
Id. at 1229-30 (footnotes omitted) (citing Black Horse, 2014 WL 5025926, at *12;
Seiler, 367 A.2d at 1005; Osborn, 991 A.2d at 1158-59; Del. Bay Surgical Servs.,
39
B. The Credibility of Kay and Campbell
The August 28 meeting plays a critical role in the question of formation. Kay
and Campbell signed the Transaction Documents at issue during this meeting.
However, no contemporaneous evidence exists, other than the Transaction
Documents themselves, that reflects what happened at that meeting. Further, Kay’s
and Campbell’s recollections of the August 28 meeting differ. As for the third
attendee of the August 28 meeting, Powers, it appears that she was not present for
or privy to all communications between Kay and Campbell.215 Further, she does not
recall the details of the conversations between Kay and Campbell during that
meeting.216 Thus, credibility assessments of Kay and Campbell tip the scales in this
case. In my role as the trier of fact, I must assess the credibility of the witnesses,
supported by the record.217 My credibility determinations are based on the testimony
and evidence submitted to make up the record.
P.C. v. Swier, 900 A.2d 646, 650 (Del. 2006)) (quoting Black Horse, 2014 WL
5025926, at *12). Although the Supreme Court has tasked me with determining the
parties’ intent to be bound, the Supreme Court appears to foreclose any analysis of
material terms, as I held in my first opinion that there were missing material terms,
which the Supreme Court reversed.
215
See Tr. 291:16-292:13 (Powers).
216
Id.
217
Gatz Props., LLC v. Auriga Capital Corp., 59 A.3d 1206, 1221 (Del. 2012) (“The
law requires the trial judge to weigh the evidence, including the credibility of live
witness testimony.”); Adams v. Jankouskas, 452 A.2d 148, 151 (Del. 1982)
40
Kay challenges Campbell’s credibility. Kay charges that Campbell’s
testimony given at deposition, multiple evidentiary hearings, and trial varies
regarding (1) the manner in which the parties had signed documents in the past to
acknowledge receipt, (2) the number of different drafts of the Transaction
Documents that existed, and (3) Campbell’s reliance on Kay’s statements regarding
the finality of the Transaction Documents.218 First, Campbell’s testimony varies
regarding the method to acknowledge receipt of various drafts of the Transaction
Documents. In his deposition testimony, he said that he generally initialed the cover
page of the draft documents to acknowledge receipt but signed the August 28
Transaction Documents also to acknowledge receipt.219 He also acknowledged that
he was not consistent in initialing documents and sometimes used “some kind of
indication” for his own tracking purposes.220 In his trial testimony, he noted that he
(“[W]here, as here, the trial court was faced with conflicting testimony, we accord
great deference to the findings of the trial judge who heard all the witnesses.”).
218
Oral Arg. Tr. 19:5-28:1 (Dec. 13, 2018); Pls.’ Opening Br. 23-24.
219
JX 148, at 427:6-428:10. Plaintiffs mischaracterize Campbell’s deposition
testimony when they state that Campbell testified that he “never signed his full name
on the signature lines of the Transaction Documents to acknowledge receipt.” Pls.’
Reply Br. 11. Campbell’s deposition testimony indicates that he used various
methods to acknowledge receipt. JX 148, at 363:13-364:14.
220
JX 148, at 363:13-364:14.
41
“signed” various documents, including the August 28 Transaction Documents.221
Regardless, any inconsistency in Campbell’s testimony pertains to the method to
acknowledge receipt, not to the purpose of initialing or signing. Additionally,
Campbell’s deposition and trial testimony is consistent regarding the nature of the
August 28 Transaction Documents.222
Second, Campbell testified at trial that he did not produce any previously
signed (or initialed) drafts,223 but he does not claim in his testimony that these drafts
are different from and in addition to one of the drafts the parties introduced as
exhibits at trial.224 Third and finally, Campbell testified that Kay stated that the
221
Tr. 915:12-916:22 (Campbell). A review of this testimony reveals that the
examiner’s questions and Campbell’s answers focused on determining the number
of endorsed drafts, not on the method of endorsement.
222
To the extent a procedure for acknowledging receipt of draft documents existed,
Kay and Campbell used that procedure only for their own discussions. Their
attorneys did not require the parties to acknowledge receipt of documents by signing
or initialing them. Tr. 862:16-19 (Rogers). Regarding this point, Plaintiffs again
mischaracterize Campbell’s testimony when they explain that “Campbell further
acknowledged that his practice of initialing a document was not something that was
required by Kay or Kay’s counsel.” Pls.’ Reply Br. 11 (citing JX 148, at 367:4-10).
The examiner asked, “[D]o you recall whether or not you were required to send that
acknowledgement to either [Kay’s counsel] or Mr. Kay or anyone else?” JX 148,
at 367:4-7 (emphasis added). The examiner failed to ask whether Kay’s counsel or
Kay required Campbell to initial documents, the point for which Plaintiffs cite
Campbell’s deposition testimony.
223
Tr. 1276:22-1277:22 (Campbell).
224
See Tr. 915:12-916:22, 1274:23-1277:22 (Campbell). Plaintiffs claim that
Campbell “was unable to produce any of these seven or more signed versions, which
he now claimed were in addition to the eight versions listed in the Joint
Stipulations.” Pls.’ Reply Br. 11-12 (citing Tr. 1276:22-1277:22 (Campbell)). This
42
attorneys had resolved all outstanding issues.225 But Campbell did not say that he
relied on this statement to sign the agreements,226 as Kay asserts.227 To the contrary,
Campbell testified that he attempted to confirm the finality of the documents and
when he could not, he signed to acknowledge receipt.228
I had multiple opportunities to observe Campbell and assess his credibility;
he testified before me on three days of the five-day trial and at four evidentiary
hearings. His testimony as it relates to his intent to be bound by the Transaction
Documents is credible. He consistently testified that (1) he wanted confirmation
from one of the attorneys that the documents were final, (2) when he could not get
claim mischaracterizes Campbell’s testimony: “My testimony is that I think I
signed both of those documents on that time. On a previous time, I think I signed
three documents or four documents which were redlined. On a previous time, I
signed one document. And I think the one -- the time that I signed the one document
was the first one. The time that I signed three was the second one; and the time that
I signed two was the August one.” Tr. 1276:13-21 (Campbell). This testimony
from Campbell does not include any claim that any signed versions are in addition
to the eight versions listed in the Joint Stipulations.
225
Tr. 976:2-4 (Campbell).
226
Tr. 976:2-16 (Campbell).
227
Pls.’ Reply Br. 10. Again, Plaintiffs mischaracterize Campbell’s testimony and, in
this instance, his arguments. Plaintiffs challenge Campbell’s credibility, stating that
he “claims he signed the documents intending to be bound, but he did so in reliance
on Kay’s representation that the lawyers had signed off on the documents.” Pls.’
Reply Br. 10 (citing Tr. 976:2-4 (Campbell)). Campbell does not testify to this in
the cited testimony, and Plaintiffs provide no other source for this claim. See Tr.
976:2-977:24.
228
Tr. 1291:5-11 (Campbell).
43
this confirmation, Kay asked Campbell to sign to acknowledge receipt, and (3) the
nature of the Transaction Documents suggested they were draft documents and it
was okay to sign to acknowledge receipt. Documentary evidence suggesting the
Transaction Documents appear on their face incomplete supports Campbell’s
testimony.
Further, Kay faces his own challenges regarding the veracity of his
representations concerning the August 28 Transaction Documents. In particular, he
manipulated the signed Contribution Agreement to convince others that the
Transaction Documents were final. Cresswell testified that Kay showed him and
Morgan the signed Contribution Agreement to make the point that Campbell and
Kay had finalized their agreement.229 But Cresswell also noted that the cover page
of the document was torn.230 Contemporaneous documentary evidence corroborates
this testimony. An exhibit from Cresswell’s deposition clearly shows the top-right
corner missing from the first page where “OK DRAFT 8-26-14” had appeared, and
text from the top-left corner of the second page is also missing.231
229
Tr. 661:14-662:2 (Cresswell).
230
Tr. 662:3-663:3 (Cresswell). Kay does not rebut or challenge Cresswell’s
testimony.
231
JX 114, at 1-2.
44
After listening to Campbell’s testimony on multiple days, I find Campbell to
be credible concerning the events of August 28 and place more weight on
Campbell’s testimony when it conflicts with Kay’s and there is an absence of
contemporaneous evidence.
C. The Contribution Agreement
The parties present competing renditions of both the events leading up to the
August 28 signing and the meeting where they signed the Transaction Documents.
I summarize Plaintiffs’ and Campbell’s different stories for the reader.
1. Plaintiffs’ story (as narrated by Kay)
Plaintiffs’ strongest evidence of an intent to be bound is the signatures on the
Transaction Documents. To bolster the evidence of the signatures, Plaintiffs also
point to the relevant context leading up to the signing on August 28, 2014. From
April 2014, when Campbell and Kay signed the April 2014 Letter Agreement,
through August 28, 2014, Kay and Campbell continued the negotiation process.232
Also during that time, Kay continued funding the business activities of EagleForce
Associates.233
232
See JX 14; JX 15; JX 19; JX 23; JX 31; JX 41; JX 52; JX 53; JX 58; JX 59.
233
JX 106.
45
On July 7, 2014, Kay and Campbell met together with their attorneys. 234
During this extended meeting, they completed negotiations on three major issues.235
Although another substantial issue arose during that meeting,236 Kay and Campbell,
with the assistance of their respective counsel, had worked through a majority of the
open issues.237 Two days later, an email was sent from Campbell’s email address to
Morgan announcing that EagleForce Associates and EagleForce Health had taken
on Kay as their “first Partner.”238 Morgan responded, congratulating both Kay and
Campbell and copying several EagleForce employees.239 The same day, Campbell
held a meeting at EagleForce Associates’ office with all of the office staff to
introduce Kay as a partner.240
As part of the negotiating process, on or about August 14, Campbell and Kay
met together and hashed out some of the remaining issues.241 They summarized their
234
Tr. 61:8-23 (Offit).
235
Tr. 63:16-66:9 (Offit).
236
Tr. 69:16-70:20 (Offit).
237
Tr. 63:22-66:9 (Offit).
238
JX 33.
239
Id.
240
Tr. 1188:17-1189:8 (Morgan).
241
Tr. 346:2-18 (Kay); JX 56.
46
discussion in a handwritten list containing thirteen points they had reached
agreement on.242 Their attorneys used this list to continue revising the Transaction
Documents.243 On August 25, Rogers said in his email to Kay, Offit, and Campbell
that he believed they would be able to finalize the Contribution Agreement “within
the next few days.”244 Offit’s email on August 27 reflected a similar feeling when
he instructed the parties to “commence preparation of schedules needed for
closing.”245
On August 28, 2014, Kay and Powers went to the EagleForce Associates
offices for the purpose of executing the Transaction Documents.246 Because
Campbell could not meet with them immediately, they waited at a nearby
restaurant.247 While they were at the restaurant, Campbell emailed Kay and
referenced their business venture: “Only you can make these folks know we are
equal partners.”248
242
Tr. 345:16-346:1 (Kay).
243
See JX 58; JX 59.
244
JX 67, at 1.
245
JX 68.
246
Tr. 287:8-19 (Powers); Tr. 329:7-11 (Kay).
247
Tr. 330:4-7 (Kay).
248
JX 76, at 3.
47
Kay’s emails to Campbell made clear that Kay would take no action and
contribute no funds until Campbell signed the Transaction Documents, literally
stating, “[I] cant [sic] do anything until the agreement documents you have are
signed.”249 At that time, EagleForce Associates was struggling financially. Still in
its start-up phase, Associates had limited sources of revenue.250 Rent for the
EagleForce Associates offices was overdue for July and August, and September rent
would soon be due.251 Plaintiffs suggest that Campbell signed the Transaction
Documents to secure Kay’s continued funding of the EagleForce businesses.252
Plaintiffs also state that Campbell failed to say or do anything that conveyed he
lacked the intent to be bound by the signed Transaction Documents.253 For example,
Campbell failed to indicate orally or in writing that he signed the documents only to
acknowledge receipt.254 According to Plaintiffs, Kay and Campbell saw signing the
documents as a next step in the partnership. The mood between them was happy. 255
249
Id. at 2.
250
Tr. 323:19-24 (Kay).
251
Tr. 244:14-21 (Powers).
252
Pls.’ Reply Br. 9.
253
Pls.’ Opening Br. 22-23.
254
Tr. 238:11-14 (Powers); Tr. 334:21-335:1 (Kay).
255
Tr. 240:12-16 (Powers); Tr. 332:7-16 (Kay); Tr. 1296:9-1297:8 (Campbell).
48
2. Campbell’s story
Although Campbell and Kay had been working toward finalizing the
Contribution Agreement, several stumbling blocks to this process developed:
(1) Kay and Campbell’s relationship deteriorated, (2) employees complained about
Kay, (3) each felt the other was reneging on the previous agreement, and
(4) Campbell gave Kay multiple signs before August 28 that he (Campbell) wanted
out of their agreement.
First, as Kay’s involvement in EagleForce Associates business operations
deepened, the relationship between Kay and Campbell deteriorated. Campbell was
uncomfortable with some of Kay’s business decisions. For example, in or about
June 2014, Kay suggested that EagleForce Associates hire Melinda Walker as a
secretary and pay her $75,000 per year,256 a salary that concerned Campbell because
it was higher than most EagleForce Associates employees’ salaries.257 Additionally,
Kay sometimes acted aggressively toward Campbell and shouted and cursed at
Campbell.258 On June 30, 2014, Kay sent Campbell an email that included a word
that Campbell interpreted as a racial slur.259 On Campbell’s part, he, at times,
256
Tr. 436:16-22 (Kay); Tr. 917:19-21, 918:12-18 (Campbell).
257
Tr. 919:6-10 (Campbell).
258
Tr. 722:9-15 (Variganti); Tr. 1089:7-16 (Salah); Tr. 1181:14-1182:9 (Morgan).
259
Tr. 1301:12 (Campbell); see JX 16.
49
avoided meeting Kay.260 This conduct, on the part of both Kay and Campbell,
evidences the deterioration of their relationship and a growing mistrust between
them.
Second, Kay mistreated multiple EagleForce employees, and some employees
complained about Kay’s behavior. Kay directed his aggressive or demeaning
behavior toward Variganti, Salah, and Henien. Kay yelled at Variganti and pinned
him against a cubicle wall.261 Kay condescended to multiple EagleForce Associates
employees, sometimes treating them like errand runners, rather than valued
employees in a business.262 Campbell, Salah, and Morgan observed that this
mistreatment often ran along lines of national origin.263 Kay told Morgan that he
(Kay) “can’t work with somebody like [Salah]. [H]e’s an Arab.”264 Kay’s behavior
toward employees like Variganti, Salah, and Henien reflected this bias, and this
behavior led to tensions in the office. Multiple employees voiced their concerns
260
See Tr. 1171:20-24 (Morgan).
261
Tr. 720:3-6, 720:16-721:5 (Variganti); Tr. 1175:6-14 (Morgan).
262
E.g., Tr. 931:18-932:1 (Campbell).
263
Tr. 927:15-932:16 (Campbell); Tr. 1089:17-1090:3 (Salah); Tr. 1174:4-12
(Morgan).
264
Tr. 1174:10-12 (Morgan).
50
about Kay’s addition as a partner.265 In a company as diverse as EagleForce
Associates, a suggestion of racism would create problems at staff and management
levels that Campbell could not ignore. In fact, Morgan’s concerns about Kay’s
behavior were so great that he (Morgan) told Campbell that he might quit if
Campbell did not address Kay’s behavior.266 Losing employees and their talent,
especially in the start-up phase, would reduce EagleForce Associates’ chances of
success.
Third, Kay and Campbell both began to suspect that the other was not
adhering to their original agreement. Campbell observed that Kay “kept moving the
goalposts” in their agreement267 and Kay reduced his original financial commitment
to EagleForce.268 Campbell testified that Kay unilaterally set up Eagle Force
Holdings as a Delaware LLC without informing Campbell that he (Kay) was
changing or ignoring a term of the November 2013 Letter Agreement.269 Campbell
also testified that Kay would threaten to turn off funding unless Campbell conceded
something new, such as the structure of the board or Kay’s control over another area
265
E.g., Tr. 921:13-20 (Campbell); Tr. 1174:16-18 (Morgan).
266
Tr. 1180:21-1181:6 (Morgan).
267
Tr. 994:24-995:1 (Campbell).
268
Tr. 995:2-9 (Campbell).
269
Tr. 991:3-992:21 (Campbell).
51
of business operations.270 Kay, on the other hand, stated explicitly in an email dated
July 22, 2014, to Campbell that Campbell “may be trying to change the deal.”271
Kay felt the need to include other people, either attorneys or EagleForce employees
like Cresswell and Morgan, in his meetings with Campbell.272
Fourth and finally, the mistrust and disagreements between Kay and Campbell
reached a crescendo, causing Campbell to attempt to back out of the agreement. On
August 20, 2014, only eight days before the parties would sign the Transaction
Documents, Campbell sent an email to Kay asking Kay to “refrain from any further
disbursements to EagleForce until we have [an] executed agreement and established
closing procedures.”273 When Kay refused to stop funding, Campbell responded by
refusing to cash his own paychecks.274 Campbell’s purpose for refusing his checks
was twofold.275 First, he wanted to make the point to Kay that they needed to resolve
issues in their negotiations before continuing their business relationship.276 Second,
270
Tr. 995:2-20 (Campbell).
271
JX 43.
272
Tr. 663:18-664:5 (Cresswell).
273
JX 65, at 1.
274
Tr. 948:21-949:16 (Campbell).
275
Tr. 950:6-8 (Campbell).
276
Tr. 950:11-18 (Campbell).
52
anticipating that EagleForce Associates would have to make payroll without any
contribution from Kay, Campbell wanted to lower company expenses where he
could.277 Campbell had experienced difficulty making payroll and meeting the
company’s other financial obligations in the past. Campbell informed Kay that he
(Campbell) was seeking other sources of funding and investment to replace Kay’s
contributions.278 But even without additional funding, Campbell was prepared to
continue the EagleForce Associates business. At several points in the company’s
history, Campbell obtained financial support from other sources, including Salah,
Campbell’s wife, and loans from financial institutions.279 Campbell knew what it
took to run the businesses with limited sources of revenue, and he was preparing to
do it again.
Even during the evening of August 28, 2014, leading up to the signing, Kay
and Campbell’s conduct evidences their growing animosity for each other. At first,
Campbell was not available to meet with Kay and Powers, and he asked Kay and
Powers to wait in a conference room.280 He asked them to wait while he completed
277
Tr. 950:9-11 (Campbell).
278
See JX 65, at 1.
279
Tr. 775:6-11, 926:1-3, 952:23-953:9, 953:12-17 (Campbell).
280
Tr. 234:11-15 (Powers).
53
a different meeting with developers.281 Kay and Powers decided to wait at a nearby
restaurant.282 While they were waiting, Kay’s tone in his emails to Campbell grew
more aggressive. In just over an hour, Kay sent six emails to Campbell. 283 Two of
those emails replied to the same email from Campbell.284 Shortly before Kay and
Powers returned to Campbell’s office, Kay emailed Campbell, “So what. This is
getting really petty. . . . Have you send [sic] the signed doc?”285
After Campbell had completed his meeting with developers, Kay and Powers
returned to Campbell’s office to sign the documents.286 Before signing the
Contribution Agreement, Campbell attempted to confirm Kay’s assertion that the
attorneys were done with the documents.287 Campbell tried, unsuccessfully, to reach
his attorney.288 Campbell testified that, in the absence of his own attorney’s
confirmation, he asked Kay to confirm with Kay’s attorney that the attorneys had
281
Id.
282
Tr. 330:4-7 (Kay).
283
See JX 75; JX 76.
284
See JX 76, at 3, 5.
285
Id. at 5.
286
Tr. 237:3-12 (Powers).
287
Tr. 976:23-978:8 (Campbell).
288
Tr. 977:14-21 (Campbell).
54
finalized the Transaction Documents.289 Kay testified that he does not recall
Campbell asking him to try calling his attorney.290 In either case, Kay did not call
his attorney.291 Still without confirmation from either his or Kay’s attorney,
Campbell did not take the time to read the Transaction Documents before he signed
them.292 Then, during a meeting that lasted only two to five minutes,293 Campbell
signed the Transaction Documents.294 Campbell testified that he signed the
Transaction Documents at Kay’s request to acknowledge receipt of the draft
documents.295
Documentary evidence also suggests that the Contribution Agreement was not
a final agreement. The most recent email from Offit makes it clear that Kay and
Campbell still needed to approve the agreements and prepare the schedules to the
Contribution Agreement.296 Further, as Campbell testified, the state of the
289
Tr. 977:22-978:8 (Campbell).
290
Tr. 334:4-6 (Kay).
291
Tr. 334:7-10 (Kay).
292
Compare Tr. 976:15-16 (Campbell), with Tr. 239:10-14 (Powers).
293
Tr. 294:21-22 (Powers); Tr. 978:14-20 (Campbell).
294
Tr. 239:15-17 (Powers).
295
Tr. 976:17-22 (Campbell).
296
JX 68.
55
documents themselves do not suggest finality. Specifically, the first page of the
Contribution Agreement is marked “DRAFT.”297 The Contribution Agreement also
contained “many odd omissions involving important subjects.”298 “The Draft
Contribution Agreement was unclear as to key issues, like the capitalization of the
key operating subsidiaries, because key text that the agreement’s terms called for,
such as critical schedules, were absent.”299
3. The reconciliation of the stories
Plaintiffs have the burden of establishing by a preponderance of the evidence
that Campbell is bound by the Contribution Agreement.300 “Proof by a
preponderance of the evidence means proof that something is more likely than not.
‘By implication, the preponderance of the evidence standard also means that if the
evidence is in equipoise, Plaintiffs lose.’”301
The Supreme Court discusses the evidence that the parties intended to be
bound by the Contribution Agreement, noting that both parties’ signatures provide
297
JX 78, at 1; Tr. 977:11-12, 987:13-23 (Campbell).
298
Supr. Ct. Op., 187 A.3d at 1244 (Strine, C.J., dissenting).
299
Id.
300
Revolution Retail, 2015 WL 6611601, at *9.
301
Id. (footnote omitted) (citing Agilent Techs., 2010 WL 610725, at *13) (quoting
2009 Caiola Family Tr., 2015 WL 6007596, at *12).
56
“strong evidence that the parties intended to be bound by [the Contribution
Agreement].”302
“[W]here the putative contract is in the form of a signed writing, that
document generally offers the most powerful and persuasive evidence of the parties’
intent to be bound.”303
[P]rofessor Williston has stated that a signature “naturally
indicates assent, at least in the absence of an invalidating
cause such as fraud, duress, mutual mistake, or
unconscionability. . . .” In Osborn itself, the signatures of
both parties and the notarization of the written agreement
provided enough evidence to show that the parties
intended to be bound by it. Here, both parties signed the
Contribution Agreement. That is strong evidence that the
parties intended to be bound by it.304
“However, Delaware courts have also said that, in resolving this issue of fact, the
court may consider evidence of the parties’ prior or contemporaneous agreements
302
Supr. Ct. Op., 187 A.3d at 1231. The Supreme Court also highlights Campbell and
Kay’s embrace “after signing” as suggestive of the parties’ reconciliation and the
consummation of a deal. Id.
303
Id. at 1230 (citing Seiler, 367 A.2d at 1005; Osborn, 991 A.2d at 1158-59).
304
Id. at 1231 (omission in original) (footnotes omitted) (citing 2 Richard A. Lord &
Samuel Williston, Williston on Contracts § 6:44 (4th ed.); Osborn, 991 A.2d at
1158-59).
57
and negotiations in evaluating whether the parties intended to be bound by the
agreement.”305
I recognize the strength of the evidence of a signature on an agreement.
Signatures are often dispositive evidence of an intent to be bound. And in most
instances, that evidence should carry the day. But in this highly unusual case, the
signatures alone are not sufficient.306 Here, the circumstances surrounding the
execution of the Transaction Documents indicate that the signatures are not
presumptive and certainly not conclusive. The record evidence reveals that
Campbell’s conduct and communications do not constitute an overt manifestation of
his assent to be bound by the Contribution Agreement. First, trial testimony from
Campbell and Salah evidence a practice of endorsing draft documents to
acknowledge receipt, and this testimony weakens the presumption of an intent to be
bound.307 Campbell also credibly testified that, consistent with this practice, Kay
305
Id. at 1230 (footnote omitted) (citing Del. Bay Surgical Servs., 900 A.2d at 650;
Black Horse, 2014 WL 5025926, at *12).
306
17A Am. Jur. 2d Contracts § 173, Westlaw (database updated Aug. 2019) (“The
fact that a party has signed a contract creates a strong presumption that the party has
assented to the terms of the agreement.”); Carey’s Home Constr., LLC v. Estate of
Myers, 2014 WL 1724835, *4 n.12 (Del. Super. Apr. 16, 2014) (citing 17A Am.
Jur. 2d Contracts § 174 (2004), which correlates to § 173 in the 2016 update); Am.
Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 584 (3d Cir. 2009) (Under
Pennsylvania law, “[s]ignatures are not dispositive evidence of contractual intent.”).
307
Tr. 1104:6-1105:15 (Salah); Tr. 1276:13-21 (Campbell). In their Reply Brief,
Plaintiffs claim that Salah did not answer the question asked by Campbell’s counsel,
“whether Kay told him that he (Kay) had ‘asked Campbell to sign those drafts and
58
requested Campbell’s signature to acknowledge receipt during the August 28
meeting.308
Second, the conduct and communications between Kay and Campbell before
and during the signing appear inconsistent with what one would expect from two
business partners finalizing a significant business deal. Leading up to the
endorsement of the Transaction Documents, tensions rose between Kay and
Campbell, disagreements increased (both in quantity and severity), and distrust
between Kay and Campbell grew. Kay and Campbell both believed at times that the
other was not honoring the original agreement or was trying to change the
agreement. Campbell accused Kay of excluding Campbell from business decisions
he should be included in309 and bringing in outsiders without Campbell’s approval.310
that Mr. Campbell did sign those drafts?’” Pls.’ Reply Br. 12 (citing Tr. 1105:3-9
(Salah)). Plaintiffs cherry-picked this testimony and ignore the surrounding
testimony. See Tr. 1104:6-1105:15 (Salah); see, e.g., Tr. 1104:6-10 (Salah) (“Q.
Now, before the end of August 2014, did Mr. Kay ever tell you that he brought any
of these earlier drafts of the transaction documents to Mr. Campbell and asked Mr.
Campbell to sign them? A. Yes.”).
308
Tr. 976:17-22 (Campbell).
309
See, e.g., Tr. 992:17:23 (Campbell).
310
JX 75, at 3.
59
To address these problems, Campbell required more and more safeguards to ensure
that he was not losing control of the businesses.311
At the same time, Kay felt that Campbell’s requests for safeguards were
encroachments on Kay’s “swim lane.”312 He accused Campbell of trying to change
their deal.313 Kay’s assessment is understandable, especially when Campbell
indicated that he sought other funding and wanted to delay the closing.314
Kay’s and Campbell’s problems with one another, however, were not the only
issue. Campbell testified to disturbing instances of abuse, frequently directed at
people of other national origins. Other non-party witnesses, both those who were
the targets of abuse and those who personally saw their colleagues endure this abuse,
corroborated this testimony. Salah testified credibly that Kay condescended to him,
questioned Salah’s purpose at EagleForce Associates, and was abrasive and vulgar
toward Salah.315 Variganti testified credibly that his interactions with Kay left him
feeling threatened by Kay.316 Morgan testified credibly that he witnessed Kay’s
311
E.g., JX 56, at 2 (evidencing that Campbell’s veto on new investors was an issue).
312
JX 75, at 1.
313
JX 43.
314
See JX 65, at 1.
315
Tr. 1088:10-24 (Salah).
316
Tr. 720:3-721:5 (Variganti).
60
abuse of others and heard first-hand from Kay that he is biased against “Arabs.”317
These non-party witnesses stood to gain nothing from lying to this Court regarding
this matter, and their very consistent testimony was highly credible. These
employees reported these and other issues at the time, pressuring Campbell to
reconsider a partnership with Kay.
Further, the tone of the August 28, 2014 meeting is inconsistent with Kay’s
story. When Kay and Powers arrived at the EagleForce Associates offices for the
purpose of signing the Transaction Documents, Campbell did not greet them warmly
or with an excitement associated with completing the deal. Instead, Campbell asked
them to wait while he first met with his developers, even though the meeting with
Kay would take only a few minutes.318 He let Kay, the person who was about to
become a fifty-percent partner in Campbell’s business, sit and wait in a conference
room.319 After sitting in a conference room for well over an hour, Kay and Powers
chose to continue to wait at a nearby restaurant.320
317
Tr. 1174:10-12, 1175:6-14 (Morgan).
318
Tr. 329:18-330:1 (Kay).
319
Tr. 234:11-15 (Powers).
320
Tr. 235:3-10 (Powers).
61
While they were waiting, Kay and Campbell exchanged emails.321 These
emails express anger, frustration, and disappointment from both Kay and Campbell.
Kay was frustrated that Campbell was not respecting his swim lane.322 Campbell
expressed dissatisfaction that Kay excluded him from business activities and brought
in outsiders without first informing Campbell.323
Finally, Kay and Powers returned to Campbell’s office after 7:00 p.m., about
two hours after they originally arrived.324 Instead of an enthusiastic meeting to sign
the Transaction Documents and move forward with the deal, Campbell dampened
the mood with a request to confirm whether the lawyers had completed the
documents.325 This request seems reasonable in light of the draft notation on the first
page of the Contribution Agreement.326
Neither Rogers nor Offit confirmed that the Transaction Documents were
final.327 The subject of the Contribution Agreement included the exchange of fifty
321
See JX 75; JX 76.
322
See JX 75, at 1.
323
See id. at 3; JX 76, at 5.
324
Tr. 237:9-12 (Powers).
325
Tr. 977:14-978:8 (Campbell).
326
JX 71, at 1.
327
Tr. 334:7-10, 334:15-20 (Kay); Tr. 977:14-978:8 (Campbell).
62
percent of Campbell’s business for millions of dollars.328 For an exchange of this
significance between parties who did not trust each other, a reasonable person would
expect Campbell to wait to speak with his attorney or to read the documents more
thoroughly before signing. While the law does not require that Campbell do either
of these things, under the unusual facts of this case, both acts are indicators of
Campbell’s intent to be bound (or a lack thereof). Nonetheless, Kay and Campbell
quickly signed the Transaction Documents, embraced, and left the meeting.329
It is unclear to me why Campbell signed the Transaction Documents rather
than initialing them or waiting to sign them. Maybe it is because the face of the
Contribution Agreement did not reflect a final agreement.330 The Contribution
Agreement contained “many odd omissions involving important subjects.”331 Dates
were missing, schedules were still completely blank,332 and key issues were
328
See JX 79 § 3.2.1.
329
Tr. 240:7-9 (Powers); Tr. 331:18-333:7 (Kay); Tr. 978:23-979:2 (Campbell).
330
See Tr. 987:13-23 (Campbell) (“Q. When you saw the word ‘Draft’ on the document
that you signed on the 28th, did that mean anything to you? A. Yes. That it was a
draft. Q. Did you understand draft to mean a final agreement? A. Absolutely not.
I understood it to be a draft. And then once we got to a final agreement, it would
somehow be enumerated with ‘Final’ . . . .”).
331
Supr. Ct. Op., 187 A.3d at 1244 (Strine, C.J., dissenting).
332
JX 78, at 1-2; id. Scheds. 3.5, 4.1, 4.2(a).
63
unclear.333 The Contribution Agreement, with its omissions, does not reflect a
document a reasonable person expects to be a final version. Regardless, this meeting
and the events leading up to it do not suggest to me that Campbell intended to be
bound by the Contribution Agreement.
Kay highlights that Campbell had no other source of funding for the
EagleForce businesses when Kay stopped contributing cash.334 Kay’s emails just
before the meeting indicated that Kay was unwilling to help in any way until
Campbell signed the Transaction Documents.335 Kay suggests that Campbell finally
capitulated to Kay to avoid financial difficulties and signed the Transaction
Documents. The evidence, however, does not support this conclusion. First,
Campbell had operated EagleForce Associates for years before Kay’s involvement
with limited sources of revenue.336 He had been able to fund the company with loans
or investment from others, such as Campbell’s wife and Salah, during that time. 337
Second, Campbell had asked Kay to stop contributing funds days before signing,
333
Id. § 3.2(c); Supr. Ct. Op., 187 A.3d at 1244 (Strine, C.J., dissenting).
334
See Pls.’ Reply Br. 9.
335
JX 76, at 3.
336
See Tr. 775:10-11 (Campbell).
337
Tr. 775:6-11, 926:1-3, 952:23-953:9 (Campbell).
64
and Campbell had started looking for other funding.338 Third, Kay had contributed
tens of thousands of dollars, against Campbell’s clear instructions, as recently as
August 21, 2014, only a week before signing the Transaction Documents. 339 It is
unclear to me that Kay turning the screws between August 22 and August 28 really
changed the EagleForce businesses’ financial circumstances to such a degree that
Campbell capitulated and signed the Transaction Documents that he believed were
incomplete.
At best, Plaintiffs’ counter-narrative presents evidence equal to that presented
by Campbell. This balance is insufficient to prevail. Plaintiffs must prove that a
contract exists by a preponderance of the evidence. Even including their strongest
evidence, the signatures on the Transaction Documents, the evidence is at best in
equipoise. And the evidence certainly does not meet the clear and convincing
standard necessary for the relief Plaintiffs seek, specific performance.
D. The LLC Agreement
To be an enforceable contract, the LLC Agreement must also meet the three
elements of the Osborn test. Just as with the Contribution Agreement, I need address
only whether the parties intended that the LLC Agreement would bind them.340
338
JX 65, at 1.
339
JX 106.
340
See Supr. Ct. Op., 187 A.3d at 1240.
65
In signing the November 2013 and April 2014 Letter Agreements, Kay and
Campbell demonstrated their intent to create a limited liability company together.
The LLC Agreement “amended and restated a preexisting agreement that stood on
its own in the past and could do so in the future.”341 The August 27 version of the
LLC Agreement was much more complete than the Contribution Agreement.342 The
parties have not argued that the LLC Agreement is missing material terms. 343
Nonetheless, Kay and Campbell’s negotiations and conduct leading up to the
signing and at the signing also apply to the LLC Agreement. Kay and Campbell
negotiated the LLC Agreement in tandem with the Contribution Agreement. Indeed,
the LLC Agreement is an exhibit to the Contribution Agreement.344 Rogers and Offit
sent drafts of the LLC Agreement with drafts of the Contribution Agreement.345
Campbell and Kay signed the LLC Agreement at the same meeting where they
signed the Contribution Agreement.
Because the facts surrounding the negotiation and signing of the LLC
Agreement are largely identical to those of the Contribution Agreement, the
341
Id. at 1239.
342
Compare JX 78, with JX 79.
343
Supr. Ct. Op., 187 A.3d at 1240.
344
JX 78 Ex. B.
345
E.g., JX 57.
66
conclusion I draw from Kay and Campbell’s negotiations and conduct for the
Contribution Agreement applies equally to the LLC Agreement. Nothing about the
events leading up to or during the August 28 meeting suggests an intent to be bound
by one document and not the other. Therefore, I conclude that Campbell did not
intend to be bound by the LLC Agreement.
E. Section 18-109 of the Delaware Limited Liability Company Act
The Supreme Court did not reach the question of whether Campbell is subject
to jurisdiction by virtue of 6 Del. C. § 18-109(a).346 Plaintiffs argued post-trial that
this Court has personal jurisdiction over Campbell because (1) Campbell signed the
April 2014 Letter Agreement that named him as a “member, President and
Chairman” of the LLC and, thus, impliedly consented to personal jurisdiction under
§ 18-109(a)347 and (2) Campbell actively participated in the management of a
Delaware LLC, which also creates implied consent under § 18-109(a).348 I held in
the September 2017 Memorandum Opinion that because the April 2014 Letter
Agreement concerns a Virginia LLC, Campbell did not consent to personal
346
Supr. Ct. Op., 187 A.3d at 1227 n.127.
347
Pls.’ Answering Post-Trial Br. 44-45.
348
Id. at 45.
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jurisdiction in Delaware by signing that agreement.349 Additionally, I held that
Campbell did not participate in the management of a Delaware LLC.350
Now, Plaintiffs argue only that § 18-109(a) applies to Campbell because
(1) he was aware by at least May 13, 2014, that Eagle Force Holdings was a
Delaware LLC by virtue of the LLC Agreement’s reference to the March 17, 2014
certificate of formation for Eagle Force Holdings and (2) Campbell consented to this
Court’s jurisdiction when he did not object to his appointment as a manager of an
existing Delaware LLC.351 Plaintiffs assert that § 18-109(a) applies regardless of the
enforceability of the Transaction Documents.352
Campbell responds that the language of §§ 18-109(a) and 18-101(10)353
requires Plaintiffs to show that Campbell materially participated in the management
349
Trial Op., 2017 WL 3833210, at *19.
350
Id. The Supreme Court did not reverse or otherwise disturb this holding.
351
Pls.’ Opening Br. 54-55. Plaintiffs waive their earlier argument regarding
Campbell’s participation in management of a Delaware LLC because they do not
raise the issue in their post-remand briefs. Emerald P’rs v. Berlin, 726 A.2d 1215,
1224 (Del. 1999) (citing Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993)) (“Issues
not briefed are deemed waived.”).
352
Pls.’ Opening Br. 53.
353
The parties’ briefs refer to 6 Del. C. § 18-101(10) for the definition of “Manager.”
Effective August 1, 2019, § 18-101(12) defines “Manager.” Del. S.B. 91, 150th
Gen. Assem., 82 Del. Laws ch. 48 § 1 (2019). The amended definition, however,
does not apply retroactively. This opinion, therefore, refers to subsection 10 and
applies § 18-101(10) as it existed prior to the 2019 amendment. Hubbard v.
Hibbard Brown & Co., 633 A.2d 345, 354 (Del. 1993) (“Delaware courts have
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of the Delaware LLC or that “a limited liability company agreement or similar
instrument under which the limited liability company is formed” names Campbell
as a manager.354 Campbell notes that the Supreme Court did not disturb the finding
that Campbell did not materially participate in the management of a Delaware LLC,
and he argues that there is no valid limited liability company agreement or similar
instrument naming Campbell as a manager of a Delaware LLC.355 Thus, according
to Campbell, § 18-109(a) does not apply here.
Section 18-109 provides for the service of process on managers of Delaware
limited liability companies. The relevant portion of § 18-109(a) states,
A manager . . . of a limited liability company may be
served with process in the manner prescribed in this
section in all civil actions or proceedings brought in the
State of Delaware involving or relating to the business of
the limited liability company or a violation by the
manager . . . of a duty to the limited liability company or
any member of the limited liability company . . . . [T]he
term “manager” refers (i) to a person who is a manager as
defined in § 18-101(10) of this title and (ii) to a person,
whether or not a member of a limited liability company,
who, although not a manager as defined in § 18-101(10)
of this title, participates materially in the management of
the limited liability company . . . .
recognized the general principle that statutes will not be retroactively applied unless
there is a clear legislative intent to do so.”).
354
Def.’s Answering Br. 46 (citing 6 Del. C. § 18-101(10)).
355
Id. at 46-47.
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Section 18-101(10) provides the definition for “Manager”: “a person who is named
as a manager of a limited liability company in, or designated as a manager of a
limited liability company pursuant to, a limited liability company agreement or
similar instrument under which the limited liability company is formed.”
Plaintiffs’ arguments regarding the application of § 18-109(a) do not persuade
me to alter my September 2017 ruling because the first document indicating Eagle
Force Holdings is a Delaware LLC is the unenforceable LLC Agreement. Plaintiffs
argue post-remand that Campbell became a member and manager of Eagle Force
Holdings by executing the April 2014 Letter Agreement and, thus, impliedly
consented to personal jurisdiction in Delaware under § 18-109(a).356 The April 2014
Letter Agreement did not inform Campbell that Kay had secretly created a Delaware
limited liability company; nor did it mention anywhere the creation of a Delaware
limited liability company.357 To the contrary, it amended the November 2013 Letter
Agreement, which mentioned a Virginia limited liability company. 358 When
Campbell signed the April 2014 Letter Agreement, he was unaware that Kay had
secretly created a Delaware LLC. The April 2014 Letter Agreement, thus, does not
serve as implied consent to jurisdiction in Delaware.
356
Pls.’ Opening Br. 54-55.
357
See JX 12.
358
Id. at 1; JX 1 ¶ 2.
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Plaintiffs also argue that Campbell’s failure to object to the provisions in the
draft LLC Agreement after he learned of them warrants his implied ratification of
those provisions.359 This argument fails. “Agreements made along the way to a
completed negotiation, even when reduced to writing, must necessarily be treated as
provisional and tentative.”360 The parties here had not completed their negotiation,
and therefore, the provisions of the LLC Agreement “must . . . be treated as
provisional and tentative.” A close reading of the April 2014 Letter Agreement
supports this conclusion: “Until the [LLC Agreement] referred to herein is executed
by the parties, [the April 2014 Letter Agreement] shall govern their conduct of
business and the transactions and matters set out herein.”361 Without an enforceable
LLC Agreement, the April 2014 Letter Agreement remains the operative agreement,
and as I explain above, this letter agreement does not create Campbell’s implied
consent for this Court’s personal jurisdiction. Thus, § 18-109(a) is not a source for
this Court’s personal jurisdiction over Campbell.
IV. CONCLUSION
For the foregoing reasons, the Transaction Documents are not binding on
Campbell. Plaintiffs, therefore, are not entitled to specific performance or damages
359
Pls.’ Reply Br. 29.
360
Leeds, 521 A.2d at 1102.
361
JX 12 ¶ 18.
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under the Transaction Documents, and Campbell is not subject to this Court’s
personal jurisdiction pursuant to the forum selection clauses in the Transaction
Documents. Additionally, § 18-109 is inapplicable as a basis for personal
jurisdiction. Plaintiffs identify no other basis for personal jurisdiction. Thus, I
dismiss the remaining claims in this action. Defendant’s motion to conform the
pleadings to the evidence is denied as moot.
IT IS SO ORDERED.
72