Stuart Schoenmann v. Angelique Irvin ( 2022 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
)
STUART SCHOENMANN, )
)
Plaintiff, )
)
v. ) C.A. No. 2021-0326-SG
)
ANGELIQUE IRVIN, )
)
Defendant, )
)
and )
)
CLEAR ALIGN, LLC, )
)
Nominal Defendant. )
)
MEMORANDUM OPINION
Date Submitted: February 10, 2022
Date Decided: June 2, 2022
Stacey A. Scrivani, of STEVENS & LEE, P.C., Wilmington, Delaware, Attorney for
Plaintiff Stuart Schoenmann.
Joanna J. Cline, Christopher B. Chuff, and Emily L. Wheatley, of TROUTMAN
PEPPER HAMILTON SANDERS LLP, Wilmington, Delaware, Attorneys for
Defendant Angelique Irvin and Nominal Defendant Clear Align, LLC.
GLASSCOCK, Vice Chancellor
This unusual case starts with a not-uncommon scenario. A Defendant
controller and (at times) sole manager of a limited liability company engaged in what
are alleged to be self-dealing actions and transactions, in violation of her
contractually provided duty of loyalty. Among the claims are a direct claim asserting
distributions made to the controller but not to the other members, in violation of the
company’s LLC Agreement, and a derivative claim asserting, rather opaquely, that
a number of self-payments authorized by the controller violated her duty of loyalty
to the LLC.
What is unusual here is the uncertainty caused by the fluid nature of the board
of managers. The controller—holder of the majority of the membership interests—
has the contractual authority to add or remove managers, as well as to determine the
number of managers, which she is alleged to have wielded frequently, as her own
self-interest dictated. The defendant controller raises, for instance, failure to
establish demand futility, pointing to managers she put in as replacement managers
and noticed to members on the eve of (and, inferentially, in light of) a motion to
dismiss in this action. Moreover, the distributions at issue largely took place outside
the analogous contractual statute of limitations. While the Plaintiff maintains the
doctrine of equitable tolling is applicable given the controller’s status as a fiduciary,
the defendant controller counters with the fact that the Plaintiff was himself, at
certain times, a manager of the LLC, and that as a fiduciary he must be charged with
1
knowledge of the improper distributions. Per the Defendants, the Plaintiff is in not
position, therefore, to avail himself of equitable tolling.
I consider this oddity, below. One of the Plaintiff’s causes of action invokes
the covenant of good faith and fair dealing, which I find unwarranted under the LLC
Agreement at issue. A second relies on a reading of the LLC Agreement—as to the
required number of managers—that I find unsupported by the language of that
document. Otherwise, I find at this plaintiff-friendly stage that demand is excused,
permitting consideration of the derivative breach of duty claim. Further, with respect
to the direct claim of improper distributions, I find that equitable tolling is at least
sufficiently invoked to allow that claim to go forward until creation of a record. The
Defendants’ motion to dismiss, accordingly, is denied in part and granted in part.
My reasoning follows a statement of the facts.
I. BACKGROUND
The instant lawsuit deals with both direct and derivative claims pled against a
limited liability company and its founder, Angelique Irvin. The Plaintiff, Stuart
Schoenmann, was previously on the board of managers (the “Board”) of the limited
liability company, called Clear Align (sometimes referred to as the “Company”).
Following his removal from the Board, he filed a books and records demand under
18 Delaware Code Section 305 as a member of Clear Align. The books and records
demand (the “Demand”) did not yield helpful information, in Schoenmann’s view,
2
and he believed the current Company Board was not making timely attempts to
provide him with current information. He ultimately determined to bring the instant
suit against Irvin and the Company rather than to continue his requests for books and
records.
The claims Schoenmann has advanced are pled as follows: two direct claims
against Irvin, one for breach of the implied covenant of good faith and fair dealing
in connection with the discharge of managers, and one for breach of contract relating
to distributions to be paid by the Company, which were allegedly not made pro rata
as required by the LLC Agreement; and two derivative claims pled on behalf of the
Company against Irvin, one for breach of contract for the Company’s alleged failure
to maintain three Managers on the Board at all times and one for breach of fiduciary
duty, presumably for self-dealing. Though the claims sound similar facially, they
are predicated upon separate factual bases.
The case is before me on a motion to dismiss. The Defendants ask me to
dismiss all of the claims, believing Schoenmann to have failed to plead demand
futility with respect to the two derivative claims, and that the claims against Irvin
fail under Rule 12(b)(6). The Defendants also argue that the derivative breach of
contract claim fails to state a claim.
I turn now to an exposition of the facts.
3
A. Factual Overview1
1. The Parties and Relevant Non-Parties
Plaintiff Stuart Schoenmann is a member of Clear Align and, per the
Complaint, has been since 2014.2 He was also previously a Manager of Clear Align,
originally appointed in July 2015.3
Defendant Angelique Irvin is the President and CEO of Clear Align, and has
been since the Company’s formation in 2004. 4 She is also a Manager of the
Company and its majority member.5
Nominal Defendant Clear Align is a Delaware limited liability company in
the technology sector. 6 Clear Align’s operating agreement (the “LLC Agreement”)
provides for a Board of Managers (defined above as “Board”) that manages “[t]he
business and affairs of the Company . . . except as otherwise expressly provided in
this Agreement.”7
A description of the relevant non-parties is complicated by the fact that the
Complaint alleges two different Boards of Managers. One of the Boards of
1
Unless otherwise specified, the facts in this section are drawn from the Complaint. Verified Am.
Compl., Dkt. No. 6 [hereinafter “Compl.”]. This section is reflective of the Complaint, and I
consider the facts to be true as pled in the Complaint, in accordance with the applicable standard
on a motion to dismiss. This section therefore does not constitute formal findings of fact.
2
Id. ¶ 8.
3
See id. ¶ 178.
4
Id. ¶ 9.
5
Id. ¶¶ 1, 48, 55.
6
Id. ¶ 10. I refer to Clear Align and Irvin together as “Defendants” in this Memorandum Opinion,
despite Clear Align’s status as a nominal defendant, in concert with the parties’ papers.
7
Id. at Ex. C, § 6.1(b)(i).
4
Managers described the Plaintiff believes to be the current Board 8 based on his
demand for books and records, and he originally pled demand futility with respect
to this Board. 9 That Board (referred to as the “Original Demand Board”) consists of
Irvin, Gregory Bell, Chief Operating Officer of the Company,10 and Scott Custer, a
consultant for the Company.11
Schoenmann made his original Demand on May 7, 2019.12 When documents
were not forthcoming, he filed a books and records action on July 16, 2019. 13 The
original complaint was filed on April 16, 2021, 14 but it was subsequently amended
(such later filing, the “Complaint”).15 Per the Complaint, on June 4, 2021, “within
half an hour of filing the bare bones motion to dismiss . . . Irvin emailed
Schoenmann for the first time a Member Consent purportedly signed on January 29,
2021 and purporting to remove Bell and Custer from the Board and adding Lodish
and Jed Dunbar.”16 I refer to this purported consent as the “2021 Consent”
throughout. Leonard Lodish is a Clear Align investor.17 The Complaint does not
8
Id. ¶ 213.
9
See Verified Compl. for Breach of Fiduciary Duties ¶¶ 209–45, Dkt. No. 1.
10
Compl. ¶¶ 213, 220–21.
11
Id.
12
Id. ¶¶ 11, 14.
13
See Schoenmann v. Clear Align, LLC, C.A. No. 2019-0544-SG, Verified Compl. for Inspection
of Books and Rs., Dkt. No. 1.
14
Verified Compl. for Breach of Fiduciary Duties, Dkt. No. 1.
15
See Compl.
16
Id. ¶ 214.
17
Id. ¶ 24.
5
plead additional facts about Dunbar. This second purported Board of Managers,
composed of Lodish, Dunbar, and Irvin, is referred to herein as the “Purported
Current Board.”
Other relevant non-parties include David Noteware, a prior Manager of Clear
Align originally appointed in 2009,18 and Robert Irvin, Defendant Irvin’s husband.19
Schoenmann and Noteware were removed from the Board in April 2019. 20
2. Clear Align’s Pertinent Agreements
Two main agreements are referred to throughout the Complaint: an
Employment Agreement (the “Employment Agreement”) purportedly between Irvin
and the Company, and the LLC Agreement of the Company.
The LLC Agreement outlines the composition of the Board, a provision relied
on in the derivative breach of contract cause of action against Irvin for failure to
maintain a full Board of Managers. That provision reads:
(i) The number of Managers shall be one (1) until such
time as the Members holding a majority of the Voting
Rights determine to increase such number, and such
Manager(s) shall be elected (including election following
removal, resignation or death) by the affirmative vote of
the Members holding a majority of the Voting Rights.
Unless so determined otherwise, the Manager shall be
Angelique Irvin.
18
Id. ¶ 162.
19
Id. ¶ 33.
20
Id. ¶ 181 (identifying the date of removal as April 4, 2019); id. ¶¶ 194–95 (identifying the
termination as taking place “[t]he very next day” after April 4, i.e., April 5, 2019).
6
…
(iii) The Members that are entitled to elect a Manager may
at any time remove (and replace) with or without cause
any such Manager pursuant to (c)(i) above. A Member
who removes a Manager shall promptly provide notice to
the other Members of such removal and of the replacement
for such Manager. 21
The Complaint pleads that Irvin is the sole member holding a majority of the
voting rights referenced in the LLC Agreement, purportedly effectively giving her
the ability to expand or decrease the Board at will. 22 The Plaintiff challenges this
interpretation in his direct claim against Irvin for breach of the implied covenant of
good faith and fair dealing. 23 Irvin was the sole Manager until 2009.24
The LLC Agreement also includes requirements for any distributions made
by Clear Align. 25 Distributions are to be made “to the extent available and deemed
appropriate by the Board of Managers in its sole discretion.” 26 When the Board of
Managers authorizes a distribution, those distributions “shall be made pro rata to
the Members in accordance with their Percentage Interests at such times and in such
amounts as the Board of Managers shall determine.” 27
21
Id. at Ex. C, § 6.1(c) [such Exhibit hereinafter “LLC Ag.”].
22
Id. ¶¶ 48–49.
23
Id. ¶¶ 289–93.
24
Id. ¶ 62.
25
Id. ¶ 51.
26
LLC Ag., § 4.1(a).
27
Id.
7
The LLC Agreement also states specifically that Managers and officers of the
Company owe both the members and the Company duties of loyalty and due care
per Delaware law.28
The Employment Agreement between Irvin and the Company is also
indirectly at issue. In 2006, Irvin signed a resolution authorizing the Company to
enter into an employment agreement with her while she was the sole Manager.29
The agreement is signed on behalf of the Company by her husband, despite the fact
that he did not hold a position with the Company.30
The Employment Agreement provides Irvin with an annual base salary of
$180,000, and contemplates that the salary will be reviewed yearly by the Board in
accordance with performance review policies.31 As noted above, no one else joined
the Board until 2009, so any review from 2006 until 2009 was conducted solely by
Irvin.32 The Employment Agreement also allows for reimbursement for “reasonable
expenses related to Irvin’s employment . . . commensurate with that authorized for
senior level executives.” 33
28
Id. § 6.5.
29
Compl. ¶ 55.
30
Id. ¶ 56.
31
Id. ¶¶ 59–60. The Plaintiff also points out that the Employment Agreement was necessarily the
product of self-dealing as Irvin was the only Board Manager at that time and was therefore
negotiating “with herself.” Id. ¶ 58.
32
Id. ¶¶ 62–63.
33
Id. ¶ 64 (emphasis added).
8
3. Schoenmann and Noteware Investigate Irvin’s Alleged Disloyal
Acts
In 2018, the Board consisted of Irvin, Schoenmann, and Noteware. 34 At that
time, Irvin spoke to Schoenmann and Noteware about increasing her
compensation.35 As part of a review of Irvin’s compensation, Irvin told Noteware
and Schoenmann that she had used the Company to pay her personal income taxes
for years. 36 This admission prompted Schoenmann and Noteware to look more
deeply into the financials of the Company. 37 As they conducted a deeper review,
Schoenmann and Noteware spoke with various individuals at the Company who
brought financial but also other types of concerns about Irvin to their attention. 38
Schoenmann and Noteware scheduled a meeting with Irvin to suggest an
independent investigation into the various concerns.39 Some of these concerns are
outlined below.
34
See, e.g., id. ¶ 182 (identifying mid-2018 as the time Irvin asked Schoenmann and Noteware
about increasing her compensation); id. ¶¶ 194–95 (demonstrating Schoenmann and Noteware’s
terminations from the Board in April 2019). The Company’s inconsistent recognition of Noteware
as a Manager is discussed infra.
35
Id. ¶ 182.
36
Id. ¶ 184.
37
Id. ¶ 185.
38
Id. ¶¶ 185, 188.
39
Id. ¶ 189.
9
a. Personal Benefits Reaped by Irvin
The majority of the concerns regarding personal benefits Irvin received from
the Company are financial in nature, though certain other allegations are made. 40 Of
primary importance, Irvin paid herself distributions for tax years 2013, 2014, 2015,
and 2016, years when no other members received distributions. 41 Irvin also paid
herself and other members distributions for tax years 2017 and 2018, though it is
unclear whether those distributions were paid pro rata with the other members’
distributions. 42
As mentioned above, Irvin caused the Company to pay her personal tax
returns.43 She also executed resolutions authorizing the Company to purchase a
company car for “traveling employees for sales and business development purposes”
in 2008, when she was the only Manager of the Board. 44 The Complaint alleges
Irvin in fact purchased herself two company cars.45 The Company paid for the gas,
insurance, and maintenance on both such cars, in addition to the maintenance
expenses for her husband’s personal car.46 She also failed to keep track of mileage
40
These include allegations that Irvin required employees to babysit her children and allegations
of sexual harassment of male employees by Irvin. See id. ¶¶ 118–29.
41
Id. ¶¶ 94–101.
42
Id. ¶¶ 102–07.
43
Id. ¶ 184.
44
Id. ¶ 73.
45
Id. ¶ 78.
46
Id. ¶¶ 80–81.
10
used for personal use as opposed to business use, despite the Company’s finance
department’s requests to do so.47
Per the Plaintiff, Irvin and her husband also used Company funds for a host
of personal expenses, including tolls, groceries, alcohol, clothing, toys, videos,
gardening supplies, haircuts, pharmaceuticals, cell phones, personal travel, and
meals. 48 Expense reports were not provided to the Company for these items. 49
b. Inconsistencies in Corporate Records
The Complaint also pleads a number of troubling allegations regarding Clear
Align’s corporate records and Defendant Irvin’s hand in either falsifying or
inconsistently keeping such records.
For example, and most innocently, Board records are evidently inconsistent
as to Noteware’s service as a Manager. He was elected in April 2009, 50 but minutes
from a meeting held in March 2010 (concerning a Company acquisition) reflects
Irvin as the singular Manager.51 Noteware then attended a Board meeting just nine
days later, and is reflected in the records as a Board attendee.52 Board records also
show a meeting in March 2011, held with only Irvin’s attendance as the “Sole
47
Id. ¶ 82.
48
Id. ¶ 89.
49
Id. ¶ 90.
50
Id. ¶ 162.
51
Id. ¶ 164.
52
Id. ¶ 165.
11
Manager,” and purportedly approving the very same acquisition from the March
2010 minutes.53
In January 2014, Irvin “held a meeting with herself to retroactively remove
Noteware from the Board as of” March 1, 2011. 54 Per the Complaint, Noteware
never received notice of his purported removal from the Board.55
Then, in July 2015, Irvin expanded the Board to make Schoenmann a
Manager.56 Meeting minutes from the July 22, 2015 meeting indicate that Noteware
was evidently re-elected to the Board around the same time.57
Despite Schoenmann and Noteware’s positions as Managers, Irvin held a
special Board meeting on April 1, 2019, with herself, which approved a lease in
excess of $2 million.58
The Board consisted of Irvin, Schoenmann, and Noteware until the latter two
were removed from the Board in April 2019.59
c. Irvin’s Alleged History of Forgery
Schoenmann pleads a number of historical alleged forgeries perpetrated by
Irvin. While it is not necessary to relate each of these in detail, they are informative
53
Id. ¶ 166.
54
Id. ¶ 172.
55
Id. ¶ 173.
56
Id. ¶ 178.
57
See id. ¶ 179 (“The minutes . . . indicate that the Board now consisted of Noteware (apparently
again) and Schoenmann.”).
58
Id. ¶ 181.
59
Id.
12
of what the Plaintiff suggests is a pattern of behavior by Irvin. 60 Schoenmann pleads
that Irvin allegedly submitted a forged independent contractor agreement to the
Internal Revenue Service in connection with a dispute over a former employee’s tax
status in 2017.61 The Complaint states that the former employee in question believes
his signature was forged. 62
Similarly, the Complaint alleges a Board resolution containing a forgery of
Manager Noteware’s signature.63 Noteware has submitted an affidavit in connection
with the Complaint that states the signature in question is not his. 64
Finally, the Complaint alleges that Irvin backdated Clear Align’s former
CFO’s employment agreement in connection with a different litigation.65 That
litigation, initiated by the Company, sued to prevent the former CFO from breaching
a noncompete, but attached in support only a partially executed employment
agreement.66 After partial execution was raised as a defense, Irvin produced a fully
executed copy.67 The suggestion is this employment agreement was signed and
backdated by Irvin.
60
See, e.g., id. ¶ 130.
61
See id. ¶¶ 131–43.
62
Id. ¶ 137.
63
Id. ¶¶ 157–60.
64
See id. at Ex. D.
65
Id. ¶¶ 144–53. The Complaint alleges the backdating in a heading prior to paragraph 144 but
fails to include it in a paragraph. See generally id.
66
Id. ¶¶ 147–48.
67
Id. ¶¶ 148–53.
13
4. The Demand, The Lawsuit, and the Purported Change in Board
After Noteware and Schoenmann undertook their review of Irvin’s conduct
and recommended an internal investigation be commenced, Irvin terminated both
Noteware and Schoenmann from their positions on the Board and instructed them
not to speak with Company employees.68
As the only remaining Manager on the Board, Irvin then raised her salary from
$180,000 to $250,000, and requested that the CFO make a $1,800,000 payment to
Irvin for deferred compensation. 69 The CFO refused and has since left the
Company.70
Following his removal from the Board, on May 7, 2019, Schoenmann
delivered the Demand for certain Company books and records, requesting 41
categories of documents. 71 The Company was not forthcoming in providing books
and records; the Complaint alleges “delay, document manufacturing and . . . likely
document destruction.” 72
In support of the document manufacturing, Schoenmann points to an email
sent by Irvin four days after receiving the Demand. 73 That email, sent to the
Company’s outside accounting firm, blamed the Company’s prior Chief Financial
68
Id. ¶ 195.
69
Id. ¶¶ 196, 198.
70
Id. ¶¶ 199–200.
71
Id. ¶¶ 11, 14.
72
Id. ¶ 17.
73
Id. ¶ 204.
14
Officer for “poor paperwork” and the payment of Irvin’s personal expenses without
her knowledge or approval.74 Other documents failed to include metadata.75
Schoenmann followed up by filing suit to force production of the requested
documents.76 The Company still failed to produce documents responsive to
Schoenmann’s demand.77 Clear Align apparently said “it produced all the
documents it had” in certain categories that were demonstrably lacking. 78 For
example, though Irvin had benefited from bonuses and back pay, Clear Align did not
produce any documents demonstrating Company approval of bonuses or back pay,
but responded that it had produced all the pertinent documents. 79 Similarly, the
Company did not produce any Company policies relating to performance review or
expense reimbursement in connection with the Demand, though such policies were
referenced in Irvin’s Employment Agreement.80
Schoenmann ultimately determined to stop pursuing his books and records
claims in favor of pursuing this lawsuit.81
74
Id.
75
Id. ¶¶ 206–09.
76
Id. ¶ 18.
77
Id. ¶¶ 19–21.
78
Id. ¶ 31.
79
Id.
80
See id. ¶¶ 61, 65.
81
Id. ¶ 42.
15
a. Demand Futility With Respect to the Original Demand Board
Again, the original complaint in this action was filed on April 16, 2021.82 The
Complaint asserts that the pertinent Board at the time of the original complaint’s
filing was the Original Demand Board (Irvin, Bell, and Custer), 83 but as discussed
above, on June 4, 2021, after the initiation of this action, Clear Align circulated a
consent purporting to change the Board’s composition as of January 29, 2021.84 The
Complaint was subsequently amended and addresses demand futility with respect to
both Boards. 85
The Defendants concede Irvin’s lack of impartiality in their opening brief.86
The arguments the Plaintiff makes with respect to Bell and Custer are similar. Each
is an employee or consultant of the Company and therefore receives compensation
from the Company.87 Thus, the Complaint alleges, neither can be expected to
exercise his independent business judgment “without being influenced by the
adverse personal consequences” that might result from such a decision. 88
Bell and Custer were also on the Board when Schoenmann was pursuing his
Demand. He therefore pleads that Bell and Custer have “already demonstrated” their
82
Verified Compl. for Breach of Fiduciary Duties, Dkt. No. 1.
83
See supra notes 10–11 and accompanying text.
84
Compl. ¶ 214.
85
See generally Compl.
86
See Defs.’ Opening Br. Supp. Mot. to Dismiss Verified Am. Compl. 40, Dkt. No. 11 [hereinafter
“OB”].
87
Compl. ¶ 225.
88
Id. ¶ 223.
16
inability to act independently because they did not engage in an analysis of Irvin’s
compensation, which had been promised as part of the Demand investigation. 89 No
such analysis was ever undertaken. 90 The Plaintiff also provides a second example
of Bell and Custer’s failure to act independently. Irvin, on behalf of the Board,
offered a “limited buyout” to Company members and unit holders in November
2020. 91 Following a review of his Schedule K-1 for tax year 2020 received from
the Company, the Plaintiff noticed that there was no change in his percentage
ownership following the alleged buyout; after inquiry, he discovered that the
Company did not have the financial ability to go through with any buyouts and
“ultimately did not honor any buyout offer.” 92 Schoenmann pleads this is evidence
of Bell and Custer’s inability to act independently and as required by their fiduciary
duties.93
b. Demand Futility With Respect to the Purported Current
Board
The Purported Current Board consists of Irvin, Lodish, and Dunbar.94 No
specific facts are pled with respect to Dunbar solely; the case against him is entirely
inferential. 95 The Plaintiff has pled facts that he argues demonstrate Lodish’s lack
89
Id. ¶¶ 226–28.
90
Id. ¶ 228.
91
Id. ¶ 232.
92
Id. ¶¶ 235–37.
93
Id. ¶ 238.
94
See supra note 16 and accompanying text.
95
See generally Compl.
17
of independence. For example, Lodish received from Irvin in exchange for “no
consideration” a 7.4% membership interest in the Company in 2004.96 In 2006,
Lodish received a “special bonus” consisting of 9700 units in the event the Company
was sold, again for no consideration.97
For his part, in 2019 Lodish wrote a letter (the “Lodish Letter”) that expresses
his opinion that it was appropriate for Irvin to increase her compensation and her
husband’s compensation “[i]n the absence of a Board of Directors.”98 The
Complaint characterizes the Lodish Letter as a “prior blessing of Irvin’s bad acts”
and therefore concludes that Lodish cannot independently evaluate a litigation
demand regarding those same acts. 99 Notably, despite the statement that the Lodish
Letter was made in the absence of a Board, the letter was authored on June 18, 2019,
at which time Custer and Bell were Managers.100
B. Procedural History
The procedural history here is mercifully brief. This plenary action was filed
on April 16, 2021.101 The complaint was amended, as discussed above, on July 13,
2021. 102 The Defendants moved to dismiss in July 2021, and, following briefing, I
96
Id. ¶ 272.
97
Id. ¶ 273.
98
Id. ¶¶ 210, 211, 275. The Complaint quotes this language. I assume the Lodish Letter itself
makes the error of referring to the Board as a Board of Directors (rather than Managers).
99
Id. ¶ 279.
100
Id. ¶ 211.
101
Verified Compl. for Breach of Fiduciary Duties, Dkt. No. 1.
102
Compl.
18
held oral argument on the motion to dismiss. 103 The parties submitted supplemental
briefing on the issue of equitable tolling; at the conclusion of that briefing I
considered the matter fully submitted.104
II. ANALYSIS
The motion to dismiss here is predicated in part upon failure to establish
demand futility under Rule 23.1105 and in part upon failure to state a claim under
Rule 12(b)(6). The applicable standard of review for the latter entitles the Plaintiff
to have all well-pled factual allegations accepted as true and to receive the benefit
of all reasonable inferences. 106 The motion to dismiss should only be granted if the
Plaintiff would not be entitled to recover under any reasonably conceivable set of
circumstances.107
The Plaintiff did not make a demand upon the Company, and the Complaint
pleads that demand upon the Company would have been futile.108 Rule 23.1 requires
103
See, e.g., Defs. Angelique Irvin and Clear Align, LLC’s Mot. to Dismiss Verified Am. Compl.,
Dkt. No. 8; OB; Pl.’s Answering Br. to Defs.’ Mot to Dismiss Verified Am. Compl., Dkt. No. 15
[hereinafter “AB”]; Reply Br. Supp. Defs.’ Mot. to Dismiss Verified Am. Compl., Dkt. No. 17
[hereinafter “RB”]; Tr. of 12.1.21 Oral Arg. on Defs.’ Mot. to Dismiss, Dkt. No. 20 [hereinafter
“Oral Arg.”].
104
Letter Br. to Sam Glasscock III Re: Equitable Tolling, Dkt. No. 21; Defs. Angelique Irvin and
Clear Align, LLC’s Suppl. Letter Br. to Sam Glasscock III Regarding Equitable Tolling, Dkt. No.
22; Reply Br. Re: Equitable Tolling, Dkt. No. 23.
105
The text of the rule explicitly applies to limited liability companies as “unincorporated
association[s].” See Ct. Ch. R. 23.1(a), (d).
106
Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Holdings LLC, 27 A.3d 531, 535 (Del. 2011)
(citation omitted).
107
Id.108
Compl. ¶¶ 212–16.
19
that pleading with respect to demand futility “comply with stringent requirements of
factual particularity.”109 The Plaintiff remains entitled to all reasonable factual
inferences that “logically flow” from the particularized facts alleged. 110 Demand is
futile if a majority of the directors could not exercise independent and disinterested
judgment regarding a demand.111
Following Zuckerberg, the test for demand futility is as follows, assessed on
a director-by-director basis:
(i) whether the director received a material personal
benefit from the alleged misconduct that is the subject of
the litigation demand,
(ii) whether the director would face a substantial
likelihood of liability on any of the claims that are the
subject of the litigation demand, and
(iii) whether the director lacks independence from
someone who received a material personal benefit from
the alleged misconduct that is the subject of the litigation
demand or who would face a substantial likelihood of
liability on any of the claims that are the subject of the
litigation demand.112
109
See In re INFOUSA, Inc. S’holders Litig., 953 A.2d 963, 985 (Del. Ch. 2007) (quoting
Zimmerman ex rel. Priceline.com, Inc. v. Braddock, 2002 WL 31926608, at *7 (Del. Ch. Dec. 20,
2002)).
110
Brehm v. Eisner, 746 A.2d 244, 255 (Del. 2000).
111
See United Food & Com. Workers Union v. Zuckerberg, 250 A.3d 862, 877 (Del. Ch. 2020),
aff’d, 262 A.3d 1034 (Del. 2021).
112
Id. at 890.
20
I address the direct claims first before undertaking the demand futility
analysis. Because I find that demand was futile, I then proceed to an analysis of the
derivative claims.
A. The Direct Claims Against Irvin
1. The Breach of Contract Claim for Failure to Make Pro Rata
Distributions
Count 1 of the Complaint asks me to find that Irvin has breached the LLC
Agreement by paying non-pro rata distributions to herself for a number of years.113
The Defendants have attacked this count on various grounds depending on the
subject year. One subset of years, it is argued, cannot be the subject of any viable
cause of action because the statute of limitations has run. The second subset
purportedly fails because of a failure to state a claim.
I first address the statute of limitations defense, raised in opposition to a subset
of the distribution claims for tax years predating 2017. This court of equity applies
the legal statute of limitation—for breach of contract, three years—by analogy. The
Court will dismiss such stale claims based on laches.114 The Plaintiff maintains,
however, that the statute of limitations was tolled here, in equity.
113
Compl. ¶¶ 283–88.
114
Erisman v. Zaitsev, 2021 WL 6134034, at *12 (Del. Ch. Dec. 29, 2021) (citing Levey v.
Brownstone Asset Mgmt., LP, 76 A.3d 764, 769 (Del. 2013)).
21
a. The Tax Years 2014, 2015, and 2016 Distributions and
Equitable Tolling
The LLC Agreement requires distributions, when made in the Managers’
discretion, to be paid on a pro rata basis:
Distributions . . . shall be made pro rata to the Members
in accordance with their Percentage Interests at such times
and in such amounts as the Board of Managers shall
determine and to the extent available and deemed
appropriate by the Board of Managers in its sole
discretion. 115
The Plaintiff pleads that Irvin made non-pro rata distributions—to herself—
in tax years 2013, 2014, 2015, and 2016.116
The Defendants argue that the statute of limitations has run on claims as to
distributions improperly made in tax years 2014, 2015, and 2016. 117 The analogous
statute of limitations expires after three years.118 Because the payments for each of
the applicable tax years were made in the following year, the challenged tax
payments occurred in 2015, 2016, and 2017. The statute would have thus run as to
these claims in 2018, 2019, and 2020, respectively. The distributions for tax years
2017 and 2018 are not challenged as running afoul of the statute of limitations.
115
LLC Ag., § 4.1(a).
116
See supra note 41 and accompanying text. The Plaintiff clarifies in his answering brief that he
is not seeking relief for tax year 2013, as he was not yet a member, but that this information is
provided as to tax year 2013 in support of the alleged pattern. AB 17.
117
See OB 18–20.
118
See, e.g., Bear Stearns Mortg. Funding Tr. 2006-SL1 v. EMC Mortg. LLC, 2015 WL 139731,
at *1 (Del. Ch. Jan. 12, 2015).
22
This Complaint was filed in 2021,119 so the statute of limitations defense is at
least facially valid. Where necessary, the plaintiff bears the burden to plead facts
that demonstrate the applicability of an exception to the statute of limitations. 120 The
answering briefing put forward tolling as a defense,121 and I invited supplemental
briefing on the question of equitable tolling at oral argument.122
Equitable tolling stops the statute of limitations from running in three
circumstances: (1) where the defendant has fraudulently concealed important facts;
(2) where an injury was “inherently unknowable” such that discovery of its existence
“is a practical impossibility”; and (3) where a plaintiff “reasonably relies on the
competence and good faith of a fiduciary” who is alleged to have engaged in
wrongful self-dealing. 123 The Plaintiff suggests that this third scenario is implicated
here.124
The reasoning underpinning this final circumstance is that “even an attentive
and diligent investor may rely, in complete propriety upon the good faith of
fiduciaries.” 125 Where equitable tolling applies, the statute of limitations does not
119
See supra note 101 and accompanying text.
120
HBMA Holdings, LLC v. LSF9 Stardust Holdings LLC, 2017 WL 6209594, at *4 (Del. Ch. Dec.
8, 2017).
121
AB 18.
122
Oral Arg., at 41:16–42:10.
123
AM Gen. Holdings LLC v. The Renco Grp., Inc., 2016 WL 4440476, at *13 (Del. Ch. Aug. 22,
2016) (citation omitted).
124
See Letter Br. to Sam Glasscock III Re: Equitable Tolling 2, Dkt. No. 21.
125
See, e.g., Weiss v. Swanson, 948 A.2d 433, 451 (Del. Ch. 2008).
23
begin to run until the plaintiff is “objectively aware” of the pertinent facts. 126 But,
there are exceptions to this exception to the statute of limitations: where a plaintiff
possesses “contractual information rights,” and therefore has the ability to enforce
those rights summarily in court, “the plaintiff’s challenge to demonstrate that he
made reasonable inquiry is greater.”127
The Defendants argue that Schoenmann has information rights as a Member
under Section 10.7 of the LLC Agreement 128 and that he therefore must be held to
this higher standard imposed on those who hold information rights. 129 They cite
Erisman v. Zaitsev as fatal to the Plaintiff’s argument.130 The Plaintiff does not
dispute his information rights in his reply letter brief but instead seeks to distinguish
the caselaw.131
Erisman v. Zaitsev is a recent decision of this Court that addresses the question
of equitable tolling where the plaintiffs had contractual information rights.132
Erisman finds that multiple claims are time-barred, because although the plaintiffs
could have made a timely inquiry into the various claims of wrongdoing using their
126
In re Am. Int’l Grp., Inc., 965 A.2d 763, 813 (Del. Ch. 2009) (emphasis in original) (citation
omitted).
127
Erisman, 2021 WL 6134034, at *13.
128
LLC Ag., § 10.7(a).
129
Erisman, 2021 WL 6134034, at *13.
130
Defs. Angelique Irvin and Clear Align, LLC’s Suppl. Letter Br. to Sam Glasscock III Regarding
Equitable Tolling 4, Dkt. No. 22.
131
Reply Br. Re: Equitable Tolling, Dkt. No. 23.
132
Erisman, 2021 WL 6134034.
24
contractual information rights, they failed to do so. 133 Thus, even though the
Erisman defendants were fiduciaries, the plaintiffs were on inquiry notice because,
via the information rights, “the information underlying plaintiff’s claim [wa]s
readily available.”134
The Plaintiff attempts to distinguish Erisman on the basis that the “inquiry
trigger” differs. 135 The “inquiry trigger” in Erisman—that is, what caused the
plaintiffs to seek books and records and ultimately to file a lawsuit—is not explicit
in that opinion. The Plaintiff argues that Erisman’s plaintiffs challenged a failure to
make distributions generally,136 which should have triggered their information
rights. Schoenmann, by comparison, was not on inquiry notice because he was
unaware that an improper distribution was made only by the fiduciary to herself,
until “Irvin admitted she was taking money from the Company to which she was not
entitled.”137 Only then, Schoenmann argues, he “knew or had reason to know of the
facts constituting the wrong,” and equitable tolling ceased.138
Schoenmann’s supplemental briefing, however, does not engage with the fact
that he himself was a fiduciary, not a mere investor relying upon the good faith of a
133
See id. at *14.
134
Id. (quoting In re Dean Witter P’ship Litig., 1998 WL 442456, at *8 (Del. Ch. July 17, 1998)).
135
Reply Br. Re: Equitable Tolling 2, Dkt. No. 23.
136
Id.137
Id. at 3.
138
Erisman, 2021 WL 6134034, at *14 (quoting Dean Witter, 1998 WL 442456, at *6).
25
fiduciary. 139 The Complaint pleads that Schoenmann was added to the Board in July
2015. 140 Schoenmann therefore should have had visibility into Irvin’s actions
superior to that of a mere investor or member. The Defendants, unsurprisingly, urge
this reading, arguing that because Schoenmann (1) had information rights as a
member and (2) had the “practical ability” to oversee the Company’s operations, he
was on inquiry notice and equitable tolling cannot save Count 1 from partial
dismissal. 141
This conclusion, however, is belied by the extensive pleadings suggesting that
this Board was not run as a well-functioning Board. It is not apparent to me that
Schoenmann, despite his role as Manager, actually did have the “practical ability”
to oversee the Company’s operations.142 The various single-Manager Board
meetings reflected in the Company’s minutes complicate matters. 143 It is a
reasonable inference that, under the facts pled, Irvin manipulated the operations and
composition of the Board in order to keep Schoenmann blind to her wrongdoing.
This implicates both the fiduciary and fraud prongs of the equitable tolling doctrine.
Under the plaintiff-friendly inferences that attend a motion to dismiss,
therefore, it is inappropriate to dismiss this cause of action on laches grounds. Of
139
See Weiss, 948 A.2d at 451.
140
Compl. ¶ 178.
141
See generally Defs. Angelique Irvin and Clear Align, LLC’s Suppl. Letter Br. to Sam Glasscock
III Regarding Equitable Tolling 6, Dkt. No. 22.
142
Id.143
See, e.g., supra notes 51, 53, 54 and accompanying text.
26
course, once the facts are developed, upon a motion for summary judgment or
otherwise, the equitable tolling doctrine may prove inapplicable. At this stage, its
application is reasonably conceivable.
b. The Tax Year 2017 and 2018 Distributions
For tax years 2017 and 2018, the Company paid distributions, but the
Complaint pleads that it is not clear whether those distributions were pro rata.144
The Defendants challenge this portion of Count I on the basis that it is
speculative and does not plead specific allegations of fact that support the
speculation. 145 I consider this argument seriously, but ultimately reject it. The
pleading with respect to distributions for tax years 2017 and 2018 is frankly skimpy,
reading as follows:
102. In 2018, Irvin received . . . distributions of $956,088
for tax year 2017, a year in which the Company made a
profit.
103. For the first time in Company history, in 2018,
members received distributions for the 2017 tax year.
104. It is unclear whether those distributions were made
pro rata in accordance with their Percentage Interests.
105. For 2019, no Clear Align tax return or Schedule K-1
for Irvin was produced, but other Company records show
Irvin took a member draw of $913,835.
144
See supra note 42 and accompanying text.
145
OB 20–21.
27
106. In 2019, another profitable year, members received
distributions for 2018 tax year.
107. It is unclear whether those distributions were made
pro rata in accordance with their Percentage Interests. 146
But although it is true that a wealth of facts is not pled supporting these
allegations, some of this may be due to Clear Align’s inability (or, less generously,
unwillingness) to produce documents. More importantly, the pattern of Irvin’s
behavior pled with respect to tax years 2013, 2014, 2015, and 2016 is factually
suggestive that Irvin’s behavior pertaining to tax years 2017 or 2018 was not aligned
with her contractual duties. The pattern of behavior the Plaintiff has illuminated, the
Company’s inability or unwillingness to engage wholeheartedly in document
production under a books-and-records demand, and the facts the Plaintiff has pled
regarding Irvin are enough, if only barely, to state a claim here with respect to tax
years 2017 and 2018. Under the notice pleading standard, Irvin is aware of the
allegations, they are sufficiently pled such that Irvin can defend them, and the claim
is reasonably conceivable.
Count 1 survives the motion to dismiss.
2. The Implied Covenant of Good Faith and Fair Dealing
Schoenmann has pled that Irvin breached the implied covenant of good faith
and fair dealing by removing him from the Board for beginning the internal
146
Compl. ¶¶ 102–07.
28
investigation with Noteware. 147 That removal, I note, was within her authority as
the majority member under the Company’s LLC Agreement.148
The implied covenant of good faith and fair dealing attaches to every
contract.149 Its operation requires a party to a contract to “‘refrain from arbitrary or
unreasonable conduct which has the effect of preventing the other party . . . from
receiving the fruits’ of the bargain.”150 The Delaware Supreme Court has described
the implied covenant as a “quasi-reformation” that should be applied only as a “rare
and fact-intensive exercise.”151 “[O]ne generally cannot base a claim for breach of
the implied covenant on conduct authorized by the agreement,” because it operates
to handle “developments or contractual gaps that the asserting party pleads neither
party anticipated.”152
Here, the LLC Agreement expressly provides Irvin’s ability, as the majority
member of the Company, to remove a director with or without cause:
(iii) The Members that are entitled to elect a Manager may
at any time remove (and replace) with or without cause
any such Manager pursuant to (c)(i) above. A Member
who removes a Manager shall promptly provide notice to
the other Members of such removal and of the replacement
for such Manager. 153
147
See id. ¶ 291.
148
See LLC Ag., § 6.1(c)(iii).
149
Dunlap v. State Farm Fire & Cas. Co., 878 A.2d 434, 442 (Del. 2005) (citation omitted).
150
Id. (citation omitted).
151
Id. (internal quotations omitted).
152
Nemec v. Shrader, 991 A.2d 1120, 1125–26 (Del. 2010) (citations omitted).
153
LLC Ag., at § 6.1(c).
29
There is no gap for the implied covenant to fill here, as Irvin’s conduct is
authorized by the LLC Agreement. Of course, Irvin is bound to use her authority
consistent with the contractual fiduciary standard—by acting with loyalty and
care. 154 That, to my mind, makes clear that there is no lacuna for the covenant to
address. The breach of contract claim predicated upon the application of the implied
covenant therefore fails, although Irvin’s actions may support a breach of duty claim,
via Count 4.
B. The Derivative Claims Against Irvin
I must resolve the question of demand futility before addressing the derivative
claims substantively.155 The demand futility analysis generally assesses the ability
of the Board in place as of the date of the filing of a complaint.156
The Defendants have conceded that Irvin would not be capable of impartially
assessing a demand.157 Under either Board of Managers formulation, only one more
Manager must lack independence before demand would be considered futile. All of
the Plaintiff’s allegations center on the third prong of Zuckerberg, pleading that each
154
See id. § 6.5.
155
Clear Align’s LLC Agreement sets up a Board of Managers. See supra note 7 and
accompanying text. Per our caselaw, “[i]f the drafters [of an LLC Agreement] have opted for a
manager-managed entity, created a board of directors, and adopted other corporate features, then
the parties to the agreement should expect a court to draw on analogies to corporate law.” Obeid
v. Hogan, 2016 WL 3356851, at *6 (Del. Ch. June 10, 2016). I thus assess demand futility here
in a manner analogous to that which I would employ if Clear Align were a corporation.
156
Park Emps. & Ret. Bd. Emps.’ Annuity & Benefit Fund v. Smith, 2016 WL 3223395, at *9 (Del.
Ch. May 31, 2016) (citing INFOUSA, Inc., 953 A.2d at 985).
157
OB 40.
30
of the four possibly relevant managers lacks independence from Irvin and therefore
could not impartially consider a demand.158
The inquiry into demand futility is complicated by the so-called 2021
Consent. The Plaintiff receives the benefit of the reasonable inferences at this stage.
And the Plaintiff has pled a pattern of behavior by Irvin that is troubling—an
apparent disregard both for corporate formalities and for ensuring the fidelity of
corporate documentation. The inference the Plaintiff wishes me to draw is that,
consistent with her past alleged behavior, Irvin backdated the 2021 Consent, which
was actually formulated post-Complaint, to frustrate this suit.
This inference is reasonable, and it arises logically from the particularized
facts pled with respect to Irvin’s historical behavior. I need not rely on it, however,
because even if the date of the 2021 Consent is true, it is reasonable to believe that
the change in the Managers was made in anticipation of this action, without notice
to the Company’s members, in order to frustrate the litigation. If so, this type of
gamesmanship is inconsistent with equity, which will not require a plaintiff to go to
the expense and effort of showing why he did not make a demand on a board of
which he was unaware, created to frustrate a derivative action.159
158
Compl. ¶¶ 217–80.
159
Compare the situation here with that in Smith, wherein the Plaintiff filed a complaint
immediately prior to a publicly announced change in composition of the board of directors. Smith,
2016 WL 3223395, at *2. The Smith Court found that the newly appointed board was instead the
appropriate board for purposes of assessing demand futility. Id. at *9.
31
The Defendants ask me to look outside the Complaint to exhibits they provide
as attachments to their opening and reply briefs. Those exhibits are emails
evidencing the 2021 Consent. 160 Exhibit 1 is an email dated January 29, 2021 from
Irvin, sent to Lodish, Dunbar, and Clear Align’s external counsel, attaching the 2021
Consent. 161 Exhibit 2 is an email by external counsel forwarding the 2021 Consent
to counsel representing the Defendants.162 On a motion to dismiss I am generally
constricted to reviewing only the Complaint. But even if I consider these emails
here, they imply only that the Board was validly changed in January 2021, prior to
the filing of this Complaint. They do not show that the 2021 Consent was in fact
circulated to members. The Defendants correctly argue that, as a general matter, a
consent is still effective even if prompt notice is not provided. 163 But this Court has,
in at least one case, found that failure to provide notice compelled the Court to
deviate from the default rule that written consents are effective when executed. 164
In that case, Di Loreto v. Tiber Holding Corporation, majority stockholders
executed a written consent making a change to a provision in the pertinent
company’s certificate of incorporation. 165 That provision was currently being
160
See RB at Exs. 1, 2.
161
Id. at Ex. 1.
162
Id. at Ex. 2.
163
See Brown v. Kellar, 2018 WL 6721263 (Del. Ch. Dec. 21, 2018) (“I conclude that Section
228(e)’s notice requirement is not a condition precedent or prerequisite to a corporate action by
written consent, but rather an additional obligation resulting from that corporate action.”).
164
See id. at *10.
165
1999 WL 1261450, at *4 (Del. Ch. June 29, 1999).
32
litigated between the company and certain minority stockholders, 166 and the
company failed to provide prompt notice to the minority stockholders of the edit.167
The company had also failed to file the amendment promptly with the Delaware
Secretary of State. 168 The Court found that “failure to give notice promptly may in
certain instances, such as this one, preclude enforcement of the amended
provisions—at least until it is filed and notice is actually given.”169 The Court then
concluded that “an unexplained five-month delay in informing the minority
stockholders of [the consent], a period during which the deleted transfer restrictions
were themselves the subject of litigation, is not prompt notice within the meaning of
Section 228.”170
The facts before me are similar, but not identical. There was no need to file
the updated Board slate with the Delaware Secretary of State. I do not think this
distinction saves the Defendants’ arguments, however. Here, a five-month delay
also inured, during at least some portion of which the Defendants knew that
Schoenmann was purporting to bring a derivative action on behalf of the Company.
If, perhaps, the Company had immediately provided notice of the Purported Current
Board to Schoenmann, equity might be more sympathetic to the Defendants’
166
Id. at *2, *3.
167
Id. at *4.
168
Id.
169
Id. (emphasis in original).
170
Id.
33
arguments. But the record reflects that this case was on file for almost two months
before the Company provided notice to Schoenmann that the Original Demand
Board had been replaced. The delay in informing Schoenmann of the change is, as
in Di Loreto, not readily explicable absent gamesmanship.171 Knowing, as the
Company did, that Clear Align was the likely subject of litigation, and that such
litigation was in part derivative, should have compelled the Managers to provide
prompt notice of its change in Board, even if the original notice had been for some
reason delayed. The Company’s actions here do not comport with equity, even if
the 2021 Consent is valid.
I therefore disregard the 2021 Consent in conducting the demand futility
analysis, though I do not do so lightly. The facts before me are sui generis, and
equity at the pleading stage requires that I consider the broader circumstances rather
than insisting on the form of the somewhat suspect 2021 Consent.
To establish demand futility, then, Schoenmann must have pled particularized
facts demonstrating that either of Bell or Custer lacked independence from Irvin such
that he could not impartially consider a demand made that would, in effect, cause
171
Defendants’ counsel noted the need for their team to get up to speed after being retained at oral
argument, indicating that some delay was only a practical reality of engaging with a new matter.
See Oral Arg., at 36:18–37:2. I accept this as true. Counsel also argued that the Board had no
knowledge that the differences in the Board composition mattered: “[i]t’s not like there were three
Delaware lawyers on the board that knew this distinction.” Id. at 39:17–19. Fair enough. But one
need not be a lawyer to notice that the Board composition had changed from that challenged in the
Complaint and to raise flags with counsel about that inconsistency.
34
Irvin to become the subject of Company litigation. This Court has noted before the
difficulty a director (or here Manager) might face in determining whether to cause a
Company to sue a fellow fiduciary. 172
The allegations the Complaint pleads against Bell and Custer are quite similar.
Both managers are compensated by Clear Align for services provided to the
Company: Bell as Chief Operating Officer; Custer via a consulting contract.173 Bell
directly reports to Irvin. 174 Irvin has the discretion to remove both or either from the
Board at will, as she did with Noteware and Schoenmann. 175 Bell and Custer are
alleged to have acted in a way that shows they are aligned with Irvin, although much
of this pleading is conclusory or inferential. 176
I first consider whether Bell can be considered independent. While it is not
directly alleged, I can reasonably infer that his position as Chief Operating Officer
is his primary employment.177 I can also reasonably infer that, given Irvin’s
contractual control of the Company, as well as her history of replacing individuals
on the Board of Managers, her status as the majority member, and her status as the
172
In re Oracle Corp. Deriv. Litig., 824 A.2d 917, 940 (Del. Ch. 2003).
173
Compl. ¶¶ 220–21.
174
Id. ¶ 225.
175
Id. ¶ 224.
176
See, e.g., ¶¶ 227–52.
177
See, e.g., Sciabaucchi v. Liberty Broadband Corp., 2018 WL 3599997, at *13 (Del. Ch. July
26, 2018) (quoting Rales v. Blasband, 634 A.2d 927, 937 (Del. 1993)) (inferring that two senior
executives with titles CEO and CTO receive their primary employment from the employing
entity).
35
individual to whom Bell directly reports, Bell may in fact be beholden to Irvin, as
she is “in a position to exert considerable influence” over him. 178 The allegations
are sufficient to sustain a reasonable inference that Bell is not independent of Irvin.
I may infer, therefore, that any demand served by the Plaintiff would have been
futile, and Schoenmann’s derivative claims may proceed unless they fail to state a
claim. The Defendants challenge only Count 3 on this basis, and I turn to that
analysis now.
1. The Breach of Contract Cause of Action Fails to State a Claim
Count 3 of the Complaint alleges a derivative breach of contract, particularly
Section 6.1(c)(i) of the LLC Agreement. 179 The Plaintiff reads the pertinent
provision to require that, once the Board of Managers was expanded beyond its
original size—one Manager, Irvin—the Board must remain upsized and contain two
or three managers. 180 Count 4 also indicates that any action taken by Irvin on behalf
of the Board when “there was not a full Board complement” is unauthorized and
invalid.181
Section 6.1(c)(i) of the LLC Agreement provides:
(i) The number of Managers shall be one (1) until such
time as the Members holding a majority of the Voting
Rights determine to increase such number, and such
178
Id. (citing Rales, 634 A.2d at 937).
179
Compl. ¶ 295.
180
Id. ¶¶ 295–99.
181
Id. ¶ 299.
36
Manager(s) shall be elected (including election following
removal, resignation or death) by the affirmative vote of
the Members holding a majority of the Voting Rights.
Unless so determined otherwise, the Manager shall be
Angelique Irvin.182
Delaware caselaw requires contracts to be interpreted per their terms; “clear
and unambiguous terms are interpreted according to their ordinary and usual
meaning.”183 Contract interpretation is a question of law. 184 To interpret contracts,
Delaware courts apply an objective theory, construing the contract as would an
objective, reasonable third party. 185 The court’s analysis is focused “solely on the
language of the contract itself. If that language is unambiguous, its plain meaning
alone dictates the outcome.”186
The provision replicated above provides plenary authority to the majority of
the members to determine the number and identity of the Board at any time. It does
not, moreover, contain any express language supporting the Plaintiff’s position that
once expanded, Clear Align’s Board must remain so expanded. The entirety of the
Plaintiff’s argument hinges on the word “until”; his answering brief argues that this
language is unambiguous and clearly requires the Board remain upsized following
182
LLC Ag., at § 6.1(c).
183
Allied Cap. Corp. v. GC-Sun Holdings, L.P., 910 A.2d 1020, 1030 (Del. Ch. 2006) (citation
omitted).
184
Id.185
Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010).
186
Comet Sys., Inc. S’holders’ Agent v. MIVA, Inc., 980 A.2d 1024, 1030 (Del. Ch. 2008) (quoting
Chambers v. Genesee & Wyo. Inc., 2005 WL 2000765, at *5 (Del. Ch. Aug. 11, 2005)).
37
the original expansion to add Noteware to the Board in 2009. 187 But that is a non-
sequitur, to my mind. A statement that the number of the managers shall be one,
“until” it is not, does not imply a limitation on the members’ ability to return the
number to one.
Again, the contractual standard by which the actions of the Defendants must
be measured is loyalty (including good faith) and care. At oral argument, the
Plaintiff’s counsel with respect to this claim “concede[d] it’s duplicative—perhaps
duplicative of our fiduciary duty claim.” 188 Based on this representation, and based
on the lack of contractual language supporting the instant Count, I conclude that the
separate Count 3 for breach of contract should be dismissed. To the extent the
Plaintiff seeks to vindicate the substance of this claim, he has not waived his ability
to argue that Irvin’s removal of Managers, coupled with any self-dealing activity,
was a breach of fiduciary duty arising under Count 4.189
***
The Defendants’ motion to dismiss did not seek dismissal of Count 4 for
failure to state a claim. Because I have found that demand was futile, and because
it was not challenged under Rule 12(b)(6), Count 4 (for breach of fiduciary duty)
survives.
187
AB 31.
188
Oral Arg., at 32:2–6.
189
See id.38
III. CONCLUSION
The Defendants’ motion to dismiss is GRANTED in part and DENIED in part.
For clarity, the motion to dismiss is GRANTED as to Counts 2 and 3 of the
Complaint. The motion to dismiss is DENIED as to Counts 1 and 4 of the Complaint.
The parties should submit an appropriate form of order.
39