Maheep Goyal v. Anthony Durkacz ( 2022 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
MAHEEP GOYAL, derivatively on )
behalf of FSD BioSciences, Inc., )
)
Plaintiff, )
)
v. ) C.A. No. 2021-0629-LWW
)
ANTHONY DURKACZ, ZEESHAN )
SAEED, and DONAL CARROLL, )
)
Defendants, )
)
and )
)
FSD BIOSCIENCES, INC. and FSD )
PHARMA, INC., )
)
Nominal Defendants. )
MEMORANDUM OPINION
Date Submitted: February 8, 2022
Date Decided: May 5, 2022
Paul D. Brown and Joseph B. Cicero, CHIPMAN BROWN CICERO & COLE, LLP,
Wilmington, Delaware; Roger A. Lane and Courtney Worcester, HOLLAND &
KNIGHT LLP, Boston, Massachusetts; Counsel for Plaintiff Maheep Goyal
Larry R. Wood, Jr. and Brandon W. McCune, BLANK ROME LLP, Wilmington,
Delaware; Jason A. Snyderman and John P. Wixted, BLANK ROME LLP,
Philadelphia, Pennsylvania; Euripides D. Dalmanieras and James Fullmer, FOLEY
HOAG LLP, Boston, Massachusetts; Counsel for Defendants Anthony Durkacz,
Zeeshan Saeed, and Donal Carroll and Nominal Defendants FSD BioSciences, Inc.
and FSD Pharma, Inc.
WILL, Vice Chancellor
A stockholder in an Ontario public corporation seeks to bring double
derivative claims on behalf of the corporation’s wholly-owned Delaware subsidiary.
The nominal defendants and defendants have moved to dismiss this action on
multiple grounds, including that the plaintiff lacks derivative standing. For the
reasons explained below, I conclude that the plaintiff’s standing to sue is determined
by Ontario law and that he has failed to satisfy Ontario’s derivative standing
requirements. The motion to dismiss is therefore granted without prejudice to the
plaintiff’s ability to re-file his claims if the governing standing requirements are met.
I. BACKGROUND
Unless otherwise noted, the following facts are based on the plaintiff’s
Verified Derivative Complaint.1 Any additional facts considered in this
Memorandum Opinion are not subject to reasonable dispute.
A. FSD Pharma and Its Business
Nominal defendant FSD Pharma, Inc. (“Pharma”) is a public corporation
organized under the Ontario Business Corporations Act (the “OBCA”) with its
1
Verified Deriv. Compl. (“Compl.”) (Dkt. 1); see Elf Atochem N. Am, Inc. v. Jaffari, 727
A.2d 286, 287 n.1 (Del. 1999) (confining review in the context of a Rule 12(b)(1) motion
to the allegations of the complaint and the exhibits it attached); Dover Hist. Soc’y. v. City
of Dover Plan. Comm’n, 838 A.2d 1103, 1110 (Del. 2003) (“In ruling upon a Rule 12(b)(6)
motion to dismiss, the relevant universe of facts are ordinarily confined to the allegations
of the petition. Accordingly, as a general rule, factual matters outside the petition may not
be considered in ruling upon a motion to dismiss.”).
1
principal place of business and registered office in Toronto, Ontario, Canada.2 Its
shares are traded on the Canadian Stock Exchange and the Nasdaq Capital Market.3
Pharma was founded as a medical cannabis company.4 In 2019, it shifted its
focus to the research and development of drugs with anti-inflammatory properties.5
As a part of that transition, Pharma purchased Prismic Pharmaceuticals Inc. and
acquired the rights to an anti-inflammatory drug called FSD-201.6
In March 2020, Pharma formed FSD BioSciences, Inc. (“BioSciences”), a
specialty biotech pharmaceutical company, to pursue the development of FSD-201.7
BioSciences is a Delaware corporation and a wholly-owned subsidiary of Pharma.8
Shortly after BioSciences obtained approval from the Food and Drug
Administration to launch a Phase 1 human study of FSD-201, the COVID-19
pandemic began to spread around the globe.9 Pharma informed the FDA that
physicians and scientists in Italy were advocating for the use of drugs like FSD-201
2
Compl. ¶¶ 7, 89.
3
Id. ¶ 7.
4
Id. ¶ 23.
5
Id. ¶ 24.
6
Id. ¶¶ 24-28.
7
Id. ¶ 34.
8
Id. ¶ 6.
9
Id. ¶¶ 35-37.
2
as a potential COVID-19 treatment.10 The FDA allowed Pharma to submit an
application for the use of FSD-201 as a COVID-19 treatment and approved FSD-
201 for a Phase 2 clinical trial.11 By the end of the first quarter of 2021, Pharma had
raised approximately $75 million through a stock sale and $10 million by selling
assets to support the development of FSD-201.12
B. The Potential Acquisition
In November 2020, defendants Anthony Durkacz and Zeeshan Saeed—both
directors of Pharma and BioSciences—proposed that Pharma acquire Lucid
Psycheceuticals Inc., a start-up focused on developing psychedelic compounds to
treat mental illness.13 Durkacz and Saeed allegedly had personal financial interests
in Lucid that they did not disclose.14 Pharma’s then-Chief Executive Officer
Dr. Raza Bokhari undertook due diligence into Lucid and recommended against a
transaction.15 Pharma’s board of directors declined to pursue Lucid.16
10
Id. ¶ 38.
11
Id. ¶¶ 39-40.
12
Id. ¶ 45.
13
Id. ¶¶ 8, 10, 51-52.
14
Id. ¶¶ 57-58.
15
Id. ¶¶ 53-55.
16
Id. ¶ 59.
3
The plaintiff alleges that Durkacz, Saeed, and defendant Donald Carrol—a
Pharma director and Chief Executive Officer of BioSciences—retaliated.17 The
defendants purportedly undertook a scheme to impair the clinical trials of FSD-201,
harming Pharma and BioSciences while seeking to enrich themselves.18
C. This Litigation
Plaintiff Maheep Goyal is a Pharma stockholder.19 On July 20, 2021, Goyal
filed a Verified Derivative Complaint alleging that defendants Durkacz, Saeed, and
Carroll breached their fiduciary duties and wasted corporate assets.20 Goyal asserts
that he is pursuing his claims double derivatively on behalf of BioSciences.21
II. ANALYSIS
Pharma and BioSciences have moved to dismiss the Complaint under Court
of Chancery Rules 12(b)(1) and 12(b)(6) on the grounds that Goyal lacks derivative
standing and that the court otherwise lacks subject matter jurisdiction.22
Alternatively, they argue that dismissal is appropriate under Rule 12(b)(2) because
17
Id. ¶¶ 62-74.
18
E.g., id. ¶¶ 60-79, 96, 101.
19
Id. ¶ 5.
20
Dkt 1.
21
Compl. ¶ 1; Pl.’s Answering Br. 1 (Dkt. 32).
22
Dkt. 19.
4
the court lacks personal jurisdiction over Pharma.23 The individual defendants join
in those arguments.24
My analysis begins and ends with the threshold question of derivative
standing.25
A. Ontario Law on Derivative Standing Applies.
Because he is not a BioSciences stockholder, Goyal’s ability to sue
derivatively arises from his ownership of Pharma shares. “Under Delaware law, a
shareholder that holds shares only in a parent corporation must establish its standing
to proceed derivatively at the parent level, in order to claim standing to enforce, on
the parent’s behalf, a claim belonging to that parent’s Delaware subsidiary.”26 The
23
Id. For a discussion of whether standing is properly challenged under Rule 12(b)(1) or
12(b)(6), see the Delaware Supreme Court’s decision in Appriva Shareholder Litigation
Company, LLC v. EV3, Inc. 937 A.2d 1275, 1285-86 (Del. 2007). Goyal lacks standing
to pursue this action regardless of which provision of Rule 12 applies.
24
Dkt. 21.
25
El Paso Pipeline GP Co. v. Brinckerhoff, 152 A.3d 1248, 1257 (Del. 2016) (“[T]he
question of derivative standing is ‘properly a threshold question that the Court may not
avoid.’” (quoting Gerber v. EPE Hldgs., 2013 WL 209658, at *12 (Del. Ch. Jan. 18,
2013))); Dover Hist. Soc’y, 838 A.2d at 1110 (“Standing is a threshold question that must
be answered by a court affirmatively to ensure that the litigation before the tribunal is a
‘case or controversy’ that is appropriate for the exercise of the court’s judicial powers.”).
26
Sagarra Inversiones, S.L. v. Cementos Portland Valderrivas, S.A., 34 A.3d 1074, 1080
(Del. 2011); Lambrecht v. O’Neal, 3 A.3d 277, 282 (Del. 2010) (“[Where] the parent
corporation owns the subsidiary’s stock . . . and the plaintiff owns stock only in the
parent . . . [a demand can] only be made—and a derivative action [can] only be brought—
at the parent, not the subsidiary, level.”).
5
stockholder’s standing to sue derivatively is governed by the derivative standing
rules that apply at the parent level—here, Pharma.27
As confirmed by the Delaware Supreme Court in Sagarra Inversiones, S.L. v.
Cementos Portland Valderrivas, S.A., the right to sue derivatively on behalf of a
corporation is an internal affair of the corporation “that falls within the scope of the
internal affairs doctrine.”28 That choice of law principle requires, in this context,
that Delaware courts apply the derivative standing rules “of the jurisdiction of
incorporation of the entity in which the plaintiff owns shares.”29
Pharma is incorporated under the laws of Ontario. Thus, Goyal must satisfy
Ontario’s derivative standing requirements in order to sue—on Pharma’s behalf—
to enforce BioSciences’ claims against the defendants.
27
Sagarra, 34 A.3d at 1080-81 (“[The plaintiff’s] standing to sue derivatively, including
its presuit demand obligations, is governed by the derivative standing rules that apply at
the parent . . . level.”).
28
Id. at 1082; see McDermott Inc. v. Lewis, 531 A.2d 206, 215 (Del. 1987) (“Delaware’s
well established conflict of laws principles require that the laws of the jurisdiction of
incorporation . . . govern this dispute involving [the internal affairs of the corporation].”).
29
Id. at 1081; see id. (holding that a stockholder in a Spanish corporation seeking to sue
derivatively on behalf of the Spanish corporation’s wholly-owned Delaware subsidiary was
required to satisfy Spanish law’s derivative standing requirements); Microsoft Corp. v.
Vadem, Ltd., 2012 WL 1564155 (Del. Ch. Apr. 27, 2012) (holding that a stockholder lacked
standing to pursue claims on behalf of a British Virgin Islands corporation because he
failed to meet the derivative standing requirements under the law of the British Virgin
Islands), aff’d, 62 A.3d 1224 (Del. 2012).
6
B. Goyal Did Not Comply with Ontario’s Derivative Standing
Requirements.
The defendants assert that Goyal lacks derivative standing because he failed
to apply to an Ontario court for leave before filing this action, as required by Ontario
law. Unlike Delaware law, which treats derivative actions as “creature[s] of equity,”
Ontario law regards derivative actions as creatures of statute.30 The right to bring
derivative litigation under Ontario law derives exclusively from the OBCA.31
Ontario law provides that “a shareholder cannot sue for a wrong done to the
corporation” other than “by way of derivative action, for which leave is required.”32
30
Rea v. Wildeboer (2015), 126 O.R. (3d) 178, 182 (Can. Ont. C.A.) (describing how
Canadian provisional and federal legislatures tempered the traditional rule that
stockholders lacked “a personal cause of action for a wrong done to the corporation” by
creating a statutory right for shareholders to bring derivative actions); Schoon v. Smith, 953
A.2d 196, 202 (Del. 2008) (“As ‘a creature of equity,’ the derivative action [under
Delaware law] has generally served as a vehicle to enforce a corporate right.”).
31
See Farnham v. Fingold (1973), 2 O.R. 132 (Can. Ont. C.A.) (“[T]he very broad
language of [the OBCA] embraces all causes of action under any statute or in law or in
equity, that a shareholder may sue for on behalf of a corporation. All forms of derivative
actions purporting to be brought on behalf of and for the benefit of the corporation come
within it, and therefore [the requirement that a shareholder must obtain leave of the court
to bring a derivative action] applies to all such actions.”).
32
1186708 Ontario Inc. v. Gerstein (2016), 264 A.C.W.S (3d) 776, para. 23 (Can. Ont.
Super. Ct.); see Hevey v. Wonderland Com. (2021), 154 O.R. (3d) 86, 94-95 (Can. Ont.
Super. Ct.) (“Derivative actions under s. 246 of the OBCA are available, with leave of the
court, to assert claims to recover damages for wrongs done to a corporation where the
directors and/or officers of the corporation do not intend to pursue those claims.”); Melnyk
v Acerus Pharm. Corp. (2017), 277 A.C.W.S (3d) 747, para. 13 (Can. Ont. Super. Ct.)
(explaining that claims belonging to an Ontario corporation “must be pursued by way of a
derivative action with leave of the court”).
7
The process for seeking leave to pursue a derivative action “on behalf of a
corporation or any of its subsidiaries” is described in Section 246 of the OBCA:
Subject to section (2), a complainant may apply to the
court for leave to bring an action in the name and on behalf
of a corporation or any of its subsidiaries, or intervene in
an action to which any such body corporate is a party, for
the purpose of prosecuting, defending or discontinuing the
action on behalf of the body corporate.33
The word “court” is defined in the OCBA to mean the Ontario Superior Court of
Justice.34
That procedure is a “preliminary step before an action can be commenced.”35
To obtain leave, the applicant must demonstrate to the Ontario court that:
(a) he or she is a complainant within the definition
contained in section 245 [of the OCBA];
(b) the directors of the corporation will not bring,
diligently prosecute or defend or discontinue the
action;
(c) the complainant is acting in good faith; [and]
(d) the action appears to be in the interest of the
corporation.36
33
Ontario Business Corporations Act R.S.O. 1990, c. B.16 § 246(1) (Can.).
34
Id. § 1(1).
35
Jennings v. Bernstein (2001), 11 B.L.R (3d) 259, para. 29 (Can. Ont. Super. Ct.)
(“Section 246(1) [of the OBCA] established a process that a complainant must engage in
before bringing an action in the name of a particular corporation. This process is not the
action as such but a preliminary step before an action can be commenced.”).
36
Id. para. 33; see 1939163 Ontario Ltd. v. Greenhow (2020), 153 O.R. (3d) 418, para. 56
(Can. Ont. Super. Ct.) (“A shareholder cannot sue for a wrong done to the corporation.
Pursuant to s. 246(1) of the Ontario Business Corporations Act, however, with leave of the
8
Goyal admittedly did not apply to the Ontario Superior Court of Justice for
leave to pursue litigation on behalf of Pharma. It follows that he lacks standing to
pursue claims on Pharma’s behalf.37 He resists the conclusion that dismissal is
appropriate by contending that his claims are brought to remedy harms to
BioSciences (not Pharma).38 There are, however, several flaws in his argument.
First, a review of the Complaint makes plain that Goyal is attempting to pursue
claims concerning both entities. The Complaint is replete with allegations that the
individual defendants harmed Pharma by pursuing a deal with Lucid.39 For example,
Goyal alleges that the individual defendants disregarded the interests of Pharma and
BioSciences, causing “sustained severe damage” to both entities.40 His request for
relief includes a demand for money damages “for all losses and damages suffered
by FSD BioSciences and FSD Pharma.”41
court, a shareholder can bring a derivative action and sue in the name and on behalf of a
corporation for a wrong done to a corporation.”).
37
Vadem, 2012 WL 1564155, at *6 (dismissing derivative claims for lack of standing
because the plaintiff did not first seek leave from the British Virgin Islands high court); see
also Gutstadt v. Nat. Fin. P’rs Corp., 2013 WL 5859550 (N.Y. Sup. Ct. Oct. 22, 2013)
(dismissing claims brought on behalf of an Ontario corporation because the plaintiff did
“not obtain[] leave from the Ontario Superior Court of Justice to bring a derivative action”).
38
Goyal also argues that this court, rather than an Ontario court, has subject matter
jurisdiction because the internal affairs of a Delaware corporation are concerned. Because
I dismiss this action for lack of standing, I do not reach the question of whether this court
has subject matter jurisdiction to hear the underlying claims.
39
See Compl. ¶¶ 52-59, 62, 67, 69, 71, 73, 84, 96.
40
Id. ¶¶ 96-97, 101-02, 107.
41
Id. ¶ 107.
9
More importantly, Goyal cannot bypass the requirements of the OBCA by
arguing that he is only advancing claims to redress purported harms to BioSciences.
Goyal relies on Section 2(1) of the OBCA, which he asserts limits the scope of
Section 246 to Ontario corporations:
[The OBCA], except where it is otherwise expressly
provided, applies to every body corporate with share
capital (a) incorporated by or under a general or special
Act of the Parliament of the former Province of Upper
Canada; (b) incorporated by or under a general or special
Act of the Parliament of the former Province of Canada
that has its registered office and carries on business in
Ontario; or (c) incorporated by or under a general or
special Act of the Legislature.42
But even if Goyal is correct that the OBCA does not apply to foreign
subsidiaries like BioSciences, he would lack derivative standing to maintain his
double derivative claims in this court.43 Goyal is not a stockholder in a Delaware
42
Ontario Business Corporations Act R.S.O. 1990, c. B.16 § 2(1) (Can.).
43
Rather than aid his position, the Canadian case law cited by Goyal indicates that a
stockholder in a foreign corporation should apply to bring derivative claims in the
corporation’s home jurisdiction. In Voyage Company Industries v. Craster, the British
Columbia Supreme Court found that a stockholder in a Yukon Territory corporation was
obligated to pursue his stockholder oppression claims in a Yukon Territory court. [1998]
B.C.J. No. 1884 (Can. B.C.S.C.) (QL). Likewise, in Cira v. Rico Resources, an Ontario
court declined to exercise jurisdiction over a dispute between stockholders in a Utah
corporation—the entity in which the stockholders directly owned stock. (2004), 41 B.L.R
(3d) 206, para. 7 (Can. Ont. Super. Ct.). And in Axis v. Management Inc. v. Alsager, a
Saskatchewan court held that it did not have the power under the Saskatchewan Business
Corporations Act to grant an application allowing a stockholder in a Texas corporation to
bring a single derivative action. (2000), 197 Sask. R. 234, para. 11 (Can. Sask. Q.B.).
None of the cases he relies on are relevant to determining the derivative standing
requirements that Goyal must meet to bring claims on Pharma’s behalf.
10
corporation. He owns shares in Pharma, an entity organized under the laws of
Ontario. As discussed above, that jurisdiction’s rules on derivative standing apply.
Delaware law does not provide Goyal with an avenue to press his claims at
the subsidiary level without first satisfying the derivative standing requirements that
apply to Pharma.44 He has not obtained the requisite leave of court to step into the
shoes of Pharma for purposes of the present action. Thus, he lacks standing to
proceed.
One issue remains unresolved: whether the Ontario court would authorize a
derivative action involving a Delaware subsidiary. The parties debate whether the
language of Section 246(1) providing the Ontario court with the authority to preside
over a derivative action “in the name and on behalf of a corporation or any of its
subsidiaries” should be read to include foreign subsidiaries.45 Neither party has cited
Canadian precedent on point and this court’s research has turned up none; perhaps
it is a matter of first impression.
I decline to wade into a matter best decided by the courts of that jurisdiction.
For this court to opine on the internal affairs of a Canadian corporation just because
44
See, e.g., supra notes 26, 27.
45
Ontario Business Corporations Act R.S.O. 1990, c. B.16 § 246(a) (Can.) (emphasis
added).
11
it has a Delaware entity in its corporate structure would do little to further a
legitimate Delaware interest.46
III. CONCLUSION
For the reasons explained above, Goyal lacks standing to bring his claims.
The defendants’ motion to dismiss is granted and Goyal’s claims are dismissed
without prejudice. If Goyal seeks and obtains leave of the Ontario court to pursue
his double derivative claims, he may refile this action.47
46
Sagarra, 34 A.3d at 1083; see Kostolany v. Davis, 1995 WL 662683, at *3 (Del. Ch.
Nov. 7, 1995) (“Delaware does have a strong interest in protecting minority stockholders
of Delaware corporation. However, plaintiff is a stockholder of the Dutch parent, not of
the Delaware subsidiaries.”). The National Trust Company v. Ebro Irrigation & Power
decision cited by Goyal is not to the contrary. (1954), 3 D.L.R 326 (Can. Ont. Sup. Ct.).
There, the Ontario Supreme Court held that the internal affairs of a Canadian subsidiary of
a Spanish holding corporation were not subject to Spanish jurisdiction under Spanish law.
47
See Vadem, 2012 WL 1564155, at *6 (dismissing derivative claims without prejudice so
that the plaintiff could refile them if leave of the British Virgin Islands court was obtained).
12