Michael Perik v. Student Resource Center, LLC ( 2024 )

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
MORGAN T. ZURN LEONARD L. WILLIAMS JUSTICE CENTER
VICE CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734
January 17, 2024
Kevin M. Coen, Esquire Jeffrey J. Lyons, Esquire
Morris, Nichols, Arsht & Tunnell LLP Baker & Hostetler LLP
1201 North Market Street, Suite 1600 1201 North Market Street, Suite 1407
Wilmington, DE 19801 Wilmington, DE 19801
RE: Michael Perik, et al. v. Student Resource Center, LLC, et al.,
Civil Action No. 2023-0813-MTZ
Dear Counsel:
Plaintiffs Michael Perik, Nichole Rowe Colclasure, John Haseley, and
Daniel Jones (together, “Plaintiffs”) filed this action for advancement from
defendants Student Resource Center, LLC (“SRC”) in connection with underlying
litigation pending in the United States District Court for the District of Delaware.
Plaintiffs seek advancement pursuant to SRC’s Amended and Restated Limited
Liability Company Agreement (the “2018 Operating Agreement”).1 Perik also
seeks advancement from defendant Student Resource Center Holdings, LLC
(“SRC Holdings” and together with SRC, “Defendants”) under SRC Holdings’
1
Docket item (“D.I.”) 13, Ex. A.
Perik, et al. v. Student Resource Center, LLC, et al.
C.A. No. 2023-0813-MTZ
January 17, 2024
Page 2 of 18
operating agreement.2 Plaintiffs filed a motion for partial summary judgment.3 I
heard oral argument on November 14, 2023.4 I write for the parties, who are
familiar with the facts underlying this dispute.
I conclude Defendants have waived any right to invoke the 2018 Operating
Agreement’s arbitration provision. I also conclude the record is insufficiently
developed for me to rule on Plaintiffs’ advancement request concerning the
fraudulent inducement, fraudulent concealment, fraud, and conspiracy to commit
fraud claims. As to the tortious interference and breach of the Unit Purchase
Agreement (the “UPA”) claims, Perik’s motion is denied, and I enter summary
judgment in Defendants’ favor.
I. Defendants Have Waived Any Right To Invoke The 2018
Operating Agreement’s Arbitration Provision.
I begin with the gating issue of arbitration. On November 13, I wrote the
parties requesting their positions on how the 2018 Operating Agreement’s
arbitration provision affected these proceedings.5 Defendants responded that the
2
D.I. 13, Ex. B.
3
D.I. 11.
4
D.I. 35; D.I. 36.
5
D.I. 31 at 1–2.
Perik, et al. v. Student Resource Center, LLC, et al.
C.A. No. 2023-0813-MTZ
January 17, 2024
Page 3 of 18
claims arising out of the 2018 Operating Agreement should be arbitrated.6 For
their part, Plaintiffs asserted that the arbitration provision is inapplicable, and that
Defendants waived the right to wield the provision through their delay in asserting
it.7 I agree Defendants have waived any right to invoke the arbitration provision.8
A party to an agreement with an arbitration provision can move to compel
arbitration of claims ostensibly falling within the provision’s scope.9 But a party
forfeits her right to enforce an arbitration provision “by expressly waiving that
right, actively participating in litigation as to an arbitrable claim, or otherwise
taking action inconsistent with the right to arbitration.”10 “This rule is in part due
to the ‘essential purpose of arbitration, which is to provide an alternate dispute
resolution mechanism that affords a relatively speedy remedy to the litigants while
6
D.I. 33 at Ltr. 1–2.
7
D.I. 32.
8
It is not immediately apparent how SRC Holdings would have a right to invoke that
provision.
9
See, e.g., Pettinaro Const. Co. v. Harry C. Partridge, Jr., & Sons, Inc., 408 A.2d 957(Del. Ch. 1979).
10
Parfi Hldg. AB v. Mirror Image Internet, Inc., 842 A.2d 1245, 1260 n.39 (Del. Ch.
2004).
Perik, et al. v. Student Resource Center, LLC, et al.
C.A. No. 2023-0813-MTZ
January 17, 2024
Page 4 of 18
at the same [time] alleviating congestion in the docket of the court system.’”11
Absent contractual language to the contrary, the Court, rather than an arbitrator,
decides whether a party’s conduct constitutes such a waiver.12
Here, Defendants filed an answer, stipulated to a case schedule, briefed
Plaintiffs’ motion for summary judgment, filed a motion for leave to file a
sur-reply, and filed a sur-reply.13 This occurred over more than three months. Yet
they did not raise the arbitration provision until the Court inquired about it in a
letter to counsel, which was sent the day before the hearing on summary judgment.
Only then did Defendants take the position that the arbitration provision mandates
dismissal.
Defendants’ conduct is inconsistent with their right to arbitrate a claim
subject to a summary proceeding. “Advancement actions are expedited by nature,
and the Court of Chancery strives to resolve them in forty-five to ninety days so
that the advancement right—if it exists—can fund the underlying litigation.”14
11
Menn v. Conmed Corp., 2019 WL 925848, at *2 (Del. Ch. Feb. 25, 2019) (alteration in
original) (quoting Dorsey v. Nationwide Gen. Ins. Co., 1989 WL 102493, at *2 (Del. Ch.
Sept. 8, 1989)).
12
See Gandhi-Kapoor v. Hone Cap. LLC, -- A.3d --, 2023 WL 8480970, at *19 (Del. Ch.
Nov. 22, 2023).
13
D.I. 8; D.I. 10; D.I. 15; D.I. 20; D.I. 27.
14
Gandhi-Kapoor, 2023 WL 8480970, at *21.
Perik, et al. v. Student Resource Center, LLC, et al.
C.A. No. 2023-0813-MTZ
January 17, 2024
Page 5 of 18
Such actions are often resolved on motions for summary judgment.15 It follows
that raising an arbitration provision on the eve of an advancement summary
judgment hearing represents a significant delay relative to the proceedings.
Further, dismissing this case in favor of arbitration is contrary to the underlying
policy of affording litigants a speedy remedy and would not alleviate docket
congestion.16 I conclude Defendants waived any right to invoke the 2018
Operating Agreement’s arbitration provision.
II. Fraud Claims
I next turn to Plaintiffs’ request for advancement, as officers under Article
XI of the 2018 Operating Agreement, concerning the fraudulent inducement,
fraudulent concealment, fraud, and conspiracy to commit fraud claims. As the
inquiry into that request unfolded over briefing and at argument, it became
apparent that Plaintiffs did not address the universe of instruments that potentially
15
See id. (“Advancement proceedings are summary and expedited. Parties do not
typically take discovery, and the court generally resolves the case as a matter of law.”);
accord Senior Tour Players 207 Mgmt. Co. LLC v. Golftown 207 Hldg. Co., LLC, 853
A.2d 124, 126–27 (Del. Ch. 2004) (“Summary judgment is an appropriate way to resolve
advancement disputes because ‘the relevant question turns on the application of the terms
of the corporate instruments setting forth the purported right to advancement and the
pleadings in the proceedings for which advancement is sought.’” (quoting Weinstock v.
Lazard Debt Recovery GP, 2003 WL 21843254, at *2 (Del. Ch. Aug. 1, 2003)).
16
See Dorsey v. Nationwide Gen. Ins. Co., 1989 WL 102493, at *2 (Del. Ch.
Sept. 8, 1989) (discussing underlying policy interests).
Perik, et al. v. Student Resource Center, LLC, et al.
C.A. No. 2023-0813-MTZ
January 17, 2024
Page 6 of 18
affect their rights. In particular, the 2018 Operating Agreement was amended and
restated in a way that might eliminate Plaintiffs’ advancement rights.17 Plaintiffs
did not address this amendment, and neither party briefed its significance. I cannot
conclude Plaintiffs are entitled to a summary judgment.
This Court will grant a motion for summary judgment where “there is no
genuine issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.”18 In deciding a motion for summary judgment, the
facts must be viewed in the light most favorable to the nonmoving party, and the
moving party has the burden of demonstrating that no material question of fact
exists.19
Delaware follows the objective theory of contracts, meaning “a contract’s
construction should be that which would be understood by an objective, reasonable
third party.”20 Delaware courts interpret contracts with the goal of effectuating the
17
D.I. 33, Ex. 3 [hereinafter “2021 Op. Agr.”].
18
Ct. Ch. R. 56(c).
19
Weil v. VEREIT Operating P’ship, L.P., 2018 WL 834428, at *3 (Del. Ch.
Feb. 13, 2018) (citing Gary v. Beazer Homes USA, Inc., 2008 WL 2510635, at *3 (Del.
Ch. June 11, 2008)).
20
Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010) (internal quotation
marks omitted) (quoting NBC Universal v. Paxson Commc’ns, 2005 WL 1038997, at *5
(Del. Ch. Apr. 29, 2005)).
Perik, et al. v. Student Resource Center, LLC, et al.
C.A. No. 2023-0813-MTZ
January 17, 2024
Page 7 of 18
parties’ intent.21 “When a contract is clear and unambiguous, the court will give
effect to the plain meaning of the contract’s terms and provisions.”22 The Court
“will read a contract as a whole and we will give each provision and term effect, so
as not to render any part of the contract mere surplusage.”23
Plaintiffs’ rights under the 2018 Operating Agreement vested at the time of
their service as officers.24 Plaintiffs seek advancement for fraud claims based on
acts or omissions in the months before the UPA’s closing.25 An amendment to the
2018 Operating Agreement around the time of that closing may have altered
Plaintiffs’ vested advancement rights for those claims—if it complied with Section
11.6. That section reads:
21
Lorillard Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 739 (Del. 2006).
22
Manti Hldgs., LLC v. Authentix Acq. Co., Inc., 261 A.3d 1199, 1208 (Del. 2021)
(internal quotation marks omitted) (quoting Osborn, 991 A.2d at 1159–60).
23
See Osborn, 991 A.2d at 1159 (internal quotation marks omitted) (quoting Kuhn
Construction, Inc. v. Diamond State Port Corp., 2010 WL 779992, *2 (Del.
Mar. 8, 2010).
24
See Marino v. Patriot Rail Co., 131 A.3d 325, 341 (Del. Ch. 2016); D.I. 1, Ex. A §§
11.1, 11.6 [hereinafter “2018 Op. Agr.”].
25
D.I. 15 at Aff., Ex. 1.
Perik, et al. v. Student Resource Center, LLC, et al.
C.A. No. 2023-0813-MTZ
January 17, 2024
Page 8 of 18
The provisions of this Article XI may be amended or repealed in
accordance with Article IX; provided, however that no amendment or
repeal of such provisions that adversely affects the rights of any
Indemnified Person under this Article XI with respect to its acts or
omissions at any time prior to such amendment or repeal shall apply
to any Indemnified Person without its prior consent.
Section 11.6 of the 2018 Operating Agreement provides that once the acts or
omissions giving rise to a claim against Plaintiffs occurred, Plaintiffs’ rights to
advancement or indemnification cannot be altered for claims concerning those acts
or omissions without their prior consent.26 The first clause, which I will refer to as
the “Amendment Clause,” allows amendment or repeal of the operating
agreement’s provision of advancement rights. The Amendment Clause requires
that any such amendment comply with Article IX of the 2018 Operating
Agreement. Article IX provides the agreement “may be modified or amended only
with the prior written consent of the holders of a majority of the outstanding Units
voting together as a single class.”27
The Amendment Clause is qualified by a proviso. This proviso provides that
any amendment made pursuant to the Amendment Clause requires the director’s or
26
2018 Op. Agr. § 11.6.
27
Id. § 9.1.
Perik, et al. v. Student Resource Center, LLC, et al.
C.A. No. 2023-0813-MTZ
January 17, 2024
Page 9 of 18
officer’s consent before it can affect her vested advancement rights for acts or
omissions that took place before any such amendment.
The day the UPA closed, SRC and SRC Holdings entered into SRC’s
Second and Restated Limited Liability Company Agreement (the “2021 Operating
Agreement”).28 Its preliminary statement provides that it “amends and restates the
[2018] Operating Agreement] in its entirety.”29 It also includes a merger clause.30
Through this language, the parties indicated that the 2021 Operating Agreement
replaced and superseded the 2018 Operating Agreement.31 The parties do not
dispute that Article IX was followed in executing the 2021 Operating Agreement.
The 2021 Operating Agreement differs significantly from the 2018
Operating Agreement and includes no reference to officer advancement rights. I
read this omission as eliminating the officers’ advancement rights. For the 2021
Operating Agreement to eliminate Plaintiffs’ advancement rights for claims based
28
2021 Op. Agr. at preamble.
29
Id. at prelim. statement.
30
Id.§ 9.1 (“This Agreement contains the complete agreement of the Member concerning
its subject matter, and it supersedes any earlier agreements among them, whether written
or oral, concerning its subject matter.”).
31
See Focus Fin. P’rs, LLC v. Holsopple, 241 A.3d 784, 822–23 (Del. Ch. 2020).
Perik, et al. v. Student Resource Center, LLC, et al.
C.A. No. 2023-0813-MTZ
January 17, 2024
Page 10 of 18
on acts or occurrences before that agreement, it must comport with Section 11.6’s
proviso: Plaintiffs must have given their “prior consent.”32
The parties did not address the proviso in briefing. They did not brief the
meaning of “prior consent,” nor did they brief the extent to which this standard
might differ from the common law waiver standard.33 I cannot determine whether
Plaintiffs gave their “prior consent” to amend the 2018 Operating Agreement and
eliminate their advancement rights based on the parties’ submissions. Because this
issue may be dispositive, I decline to enter a summary judgment.34
Plaintiffs also request advancement for fraud claims concerning allegedly
false representations and warranties in the UPA. The relevant acts or omissions
occurred at the UPA’s closing.35 If the 2021 Operating Agreement was executed
32
2018 Op. Agr. § 11.6.
33
Indeed, no party meaningfully addressed the 2021 Operating Agreement until the
hearing on Plaintiffs’ motion.
34
See Gerald N. & Myrna M. Smernoff Rev. Trs. v. King’s Grant Condo. Assn., 2022 WL
6331860, at *1 (Del. Ch. Oct. 10, 2022) (“[T]here is no . . . absolute right to summary
judgement, [sic] and it is within the discretion of the presiding judicial officer to require a
developed record before rendering a decision on the merits.” (footnote omitted)).
35
See Kilcullen v. Spectro Sci., Inc., 2019 WL 3074569, at *7 (Del. Ch. July 15, 2019)
(“Where a fraud claim alleges false representations and warranties in a purchase
agreement, the fraud claim accrues at closing.”); see also ISN Software Corp. v. Richards,
Layton & Finger, P.A., 226 A.3d 727, 732 (Del. 2020) (“Delaware is an ‘occurrence rule’
jurisdiction, meaning a cause of action accrues ‘at the time of the wrongful act . . . .’”
(quoting Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312, 319 (Del. 2004))).
Perik, et al. v. Student Resource Center, LLC, et al.
C.A. No. 2023-0813-MTZ
January 17, 2024
Page 11 of 18
simultaneously with the UPA’s closing, it may have revoked Plaintiffs’
advancement rights for those claims. The parties dispute when the 2021 Operating
Agreement was executed and did not brief whether the UPA provides that it was
executed simultaneously with the UPA’s closing.36 Even if the 2021 Operating
Agreement became effective after closing, a showing that Plaintiffs gave prior
consent to limit their advancement rights in accordance with Section 11.6 would be
dispositive. As with the pre-closing fraud claims, I cannot resolve whether the
2021 Operating Agreement repealed Plaintiffs’ advancement rights.37
Rather than focus on the 2018 Operating Agreement or the effect of the 2021
Operating Agreement, Defendants argued Plaintiffs waived their advancement
rights through Section 6.1(d) of the UPA. I will address that argument, assuming
arguendo that Plaintiffs had advancement and indemnification rights when the
36
At the hearing, Plaintiffs argued that the amendment must have occurred after closing
because SRC Holdings executed the amendment, and it did not hold the interests
necessary to do so until closing was completed. D.I. 39 at 4–8. While this appears
correct as a factual matter, the issue was not briefed. Nor did the parties brief whether
the amendment could be deemed to have occurred simultaneously with closing. See, e.g.,
D.I. 15 at Aff., Ex. 1 § 2.1. The Court will defer resolution of this question until the
parties have the opportunity to fully present it.
37
See King’s Grant Condo. Assn., 2022 WL 6331860, at *1.
Perik, et al. v. Student Resource Center, LLC, et al.
C.A. No. 2023-0813-MTZ
January 17, 2024
Page 12 of 18
UPA closed. A covered person can waive her contractual advancement rights.38
“The Delaware Supreme Court has held that waiver has three elements: ‘(1) there
is a requirement or condition to be waived, (2) the waiving party must know of the
requirement or condition, and (3) the waiving party must intend to waive that
requirement or condition.’”39 Delaware courts have required contractual waivers
to be “clear and unequivocal.”40
38
See Kokorich v. Momentus Inc., 2023 WL 3454190, at *10 (Del. Ch. May 15, 2023),
aff’d, 2023 WL 8276361 (Del. Nov. 30, 2023).
39
Javice v. JPMorgan Chase Bank, 2023 WL 4561017, at *4 (Del. Ch. July 13, 2023)
(quoting AeroGlobal Cap. Mgmt., LLC v. Cirrus Indus., Inc., 871 A.2d 428, 444 (Del.
2005)).
40
Id.Perik, et al. v. Student Resource Center, LLC, et al.
C.A. No. 2023-0813-MTZ
January 17, 2024
Page 13 of 18
Section 6.1(d) of the UPA reads:
Notwithstanding anything to the contrary, no [current or former SRC
director or officer] shall have any rights with respect to
indemnification, exculpation, advancement, contribution or recovery
of any kind from Purchaser or [SRC] or any of their respective
Affiliates or Subsidiaries for any matter which (i) is a claim in
connection with or arising under this Agreement or any other
document, certificate or agreement referenced herein or executed or
delivered in connection with the transactions contemplated by this
Agreement or (ii) such [current or former SRC director or officer]
may be liable to Purchaser or [SRC] or their respective Affiliates or
Subsidiaries for Fraud based on the representations and warranties
contained in this Agreement (including the costs and expenses of
defending any claims with respect to such matter) or any other
document, certificate or agreement referenced in this Agreement or
executed or delivered in connection with the consummation of the
transactions contemplated by this Agreement.
Only some of those covered persons signed the UPA, and most that did
signed on behalf of an entity.41 It follows that some covered persons did not
manifest the requisite intent to waive their rights through Section 6.1(d), making
Section 6.1(d) at least partially unenforceable as a waiver. It is unreasonable to
interpret Section 6.1(d) as a waiver when it is not enforceable as one.42
41
D.I. 36 at 66–67. And SRC could not waive Plaintiffs’ rights on their behalf through
this language. See Javice, 2023 WL 4561017, at *2 (“[C]ontracting parties may not
unilaterally eliminate vested rights of third parties.”).
42
Ashland LLC v. Samuel J. Heyman 1981 Continuing Tr. for Heyman, 2017 WL
1191099, at *5 (Del. Super. Ct. Mar. 29, 2017) (“The cardinal rule in contract
construction is to give effect to all contract provisions. Delaware courts ‘look to
harmonize the entire agreement and remain consistent with the objective intent of the
Perik, et al. v. Student Resource Center, LLC, et al.
C.A. No. 2023-0813-MTZ
January 17, 2024
Page 14 of 18
A better reading provides the parties intended to effectuate Section 6.1(d) by
amending the 2018 Operating Agreement. As explained, such an amendment can
retroactively eliminate the directors’ and officers’ advancement rights so long as
those individuals give prior consent. Perhaps the 2021 Operating Agreement was
intended to effectuate Section 6.1(d) by retroactively eliminating director and
officer advancement rights, so long as they gave prior consent. Perhaps it was not.
As explained, I cannot resolve that today.
III. Post-Termination Claims
Finally, Perik seeks advancement in connection with tortious interference
and breach of contract claims concerning his conduct after the UPA closed.
Counts V and VI of the underlying complaint allege Perik made disparaging
comments about Defendants and their affiliates and that he worked with one of
SRC’s business partners to establish a competing business, among other things.
He seeks advancement under SRC Holdings’ Amended and Restated Limited
Liability Company Agreement (the “Holdings Operating Agreement”).
parties that drafted the contract.’” (footnote omitted) (quoting Land–Lock, LLC v.
Paradise Prop., LLC, 2008 WL 5344062, at *3 (Del. Super. Dec. 23, 2008))).
In their sur-reply, Defendants made an additional argument based on Section 6.4.
D.I. 27 at 2. They waived this argument by failing to raise it in their answering brief.
Perik, et al. v. Student Resource Center, LLC, et al.
C.A. No. 2023-0813-MTZ
January 17, 2024
Page 15 of 18
Section 5.5(e) of the Holdings Operating Agreement provides for
advancement “for action taken or omitted to be taken on behalf of [SRC Holdings]
or in connection with any involvement with [SRC Holdings] or its Subsidiaries.”43
Because no party has offered an interpretation of Section 5.5(e) that varies from
the “by reason of the fact” standard in 8 Del. C. § 145, I find Section 145 precedent
helpful here.44 In that context, our courts have found that expenses are incurred by
reason of the fact one is a director or officer “if there is a nexus or causal
connection between any of the underlying proceedings . . . and one’s official
corporate capacity.”45 “That link is shown ‘if the corporate powers were used or
necessary for the commission of the alleged misconduct.’”46 Additionally, if the
claims at issue require one to defend her conduct as a director or officer, the claims
are brought by reason of that person’s corporate status.47
Emerald P’rs v. Berlin, 726 A.2d 1215, 1224 (Del. 1999) (“Issues not briefed are deemed
waived.”).
43
D.I. 13, Ex. B § 5.5(e).
44
See Fillip v. Centerstone Linen Servs., 2013 WL 6671663, at *7–8 (Del. Ch.
Dec. 11, 2013).
45
Homestore, Inc. v. Tafeen, 888 A.2d 204, 214 (Del. 2005).
46
Evans v. Avande, Inc., 2022 WL 2092126, at *4 (Del. Ch. June 9, 2022) (quoting
Bernstein v. TractManager, Inc., 953 A.2d 1003, 1011 (Del. Ch. 2007)).
47
Mooney v. Echo Therapeutics, Inc., 2015 WL 3413272, at *10–11 (Del. Ch.
May 28, 2015).
Perik, et al. v. Student Resource Center, LLC, et al.
C.A. No. 2023-0813-MTZ
January 17, 2024
Page 16 of 18
Perik makes two arguments in support of his position that these claims relate
to his status as an SRC Holdings director. First, he argues that because he was a
director at the time of the alleged wrongdoing, the claims were necessarily brought
for acts taken in his capacity as a director. But none of the claims at issue involve
the exercise of Perik’s power as a director. Nor do they require him to defend his
conduct as a director. As pled in the Delaware federal action, and as presented to
this Court, these claims have no relationship to Perik’s service as a director.
Perik’s argument essentially reads out the nexus requirement in favor of a broad
rule requiring advancement for all actions covered persons took in any capacity
while, and only because, they served in a covered capacity.
Second, Perik argues that the claims relate to his actions as a director
because the Delaware federal complaint alleges that he did not return confidential
company information after his termination. This argument draws on a line of cases
concluding claims premised on post-termination conduct triggered advancement or
indemnification rights because they involved the misuse of confidential
information that the director or officer obtained in that role.48 But those cases
demonstrate the claims must concern confidential information obtained through
48
See, e.g., Ephrat v. MedCPU, Inc., 2019 WL 2613281 (Del. Ch. June 26, 2019).
Perik, et al. v. Student Resource Center, LLC, et al.
C.A. No. 2023-0813-MTZ
January 17, 2024
Page 17 of 18
their service as a director or officer. Ephrat v. MedCPU, on which Perik relies,
explains that certain claims did not “warrant advancement because they do not rely
on allegations that Petitioners misused or misappropriated information they learned
by reason of the fact of their service to [the company], and allege no other nexus or
causal connection to that service.”49
So too here. The allegations in the underlying complaint concerning Perik’s
alleged failure to return company information do not inform these tortious
interference and breach of contract claims. Put the other way, the claim for
tortious interference does not rely on the allegations that Perik did not return SRC
Holdings’ confidential information. It also does not appear that Perik obtained the
relevant information by reason of the fact he was an SRC Holdings director. The
allegations concerning company information do not push Counts V and VI within
the scope of Perik’s advancement rights.
Perik’s motion for summary judgment on this point is denied. Summary
judgment is entered in Defendants’ favor on this issue.50
49
Id. at *8.
50
Bank of Del. v. Claymont Fire Co. No. 1, 528 A.2d 1196, 1199 (Del. 1987) (“When a
party moves for summary judgment under Chancery Court Rule 56, and the court
concludes that the moving party is not entitled to summary judgment, and the state of the
record is such that the nonmoving party clearly is entitled to such relief, the judge may
Perik, et al. v. Student Resource Center, LLC, et al.
C.A. No. 2023-0813-MTZ
January 17, 2024
Page 18 of 18
IV. Conclusion
Plaintiffs’ motion for summary judgment is denied. Summary judgment is
entered in Defendants’ favor on Perik’s claim for advancement based on his
post-termination conduct.
Sincerely,
/s/ Morgan T. Zurn
Vice Chancellor
MTZ/ms
cc: All Counsel of Record, via File & ServeXpress
grant final judgment in favor of the nonmoving party. The form of the pleadings should
not place a limitation upon the court's ability to do justice.”).
Defendants also seek fee shifting in connection with this action. Section 10.11 of
the 2021 Operating Agreement provides the prevailing party “[i]n any action or
proceeding brought to enforce any provision of” the agreement “shall be entitled to
recover reasonable attorneys’ fees and expenses from the non-prevailing party in addition
to any other available remedy.” 2021 Op. Agr. § 10.11. I will address the issue of
prevailing party fee shifting at the conclusion of this action.