Teamsters Union 25 Health Services & Insurance Plan v. Gavin Baiera , 2015 Del. Ch. LEXIS 185 ( 2015 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
TEAMSTERS UNION 25 HEALTH SERVICES )
& INSURANCE PLAN, on behalf of itself and all )
other similarly situated stockholders of ORBITZ )
WORLDWIDE, INC., and derivatively on behalf )
of nominal defendant ORBITZ WORLDWIDE, )
INC., )
)
Plaintiff, )
)
v. ) C.A. No. 9503-CB
)
GAVIN BAIERA, MARTIN J. BRAND, MARK )
S. BRITTON, JEFF CLARKE, KENNETH S. )
ESTEROW, SCOTT FORBES, ROBERT L. )
FRIEDMAN, BRADLEY T. GERSTNER, )
BARNEY HARFORD, KRISTINA M. LESLIE, )
TRAVELPORT LIMITED, TRAVELPORT LP, )
TRAVELPORT GLOBAL DISTRIBUTION )
SYSTEM, B.V., TDS INVESTOR )
(LUXEMBOURG) S.A.R.L., WALTONVILLE )
LIMITED, TRAVELPORT HOLDINGS )
LIMITED, and THE BLACKSTONE GROUP LP, )
)
Defendants, )
)
and )
)
ORBITZ WORLDWIDE, INC., a Delaware )
corporation, )
)
Nominal Defendant. )
OPINION
Date Submitted: April 15, 2015
Date Decided: July 13, 2015
Christine S. Azar and Ned Weinberger of LABATON SUCHAROW LLP, Wilmington,
Delaware; Christopher J. Keller, Eric J. Belfi and Michael W. Stocker of LABATON
SUCHAROW LLP, New York, New York; Jeremy Friedman and Spencer Oster of
FRIEDMAN OSTER PLLC, New York, New York; Attorneys for Plaintiff.
Anne C. Foster and Christopher H. Lyons of RICHARDS, LAYTON & FINGER P.A.,
Wilmington, Delaware; Elizabeth Herrington of MCDERMOTT WILL & EMERY LLP,
Chicago, Illinois; John A. Sten of MCDERMOTT WILL & EMERY LLP, Boston,
Massachusetts; Attorneys for Orbitz Worldwide Inc., and Gavin Baiera, Martin J. Brand,
Mark S. Britton, Jeff Clarke, Kenneth S. Esterow, Scott Forbes, Robert L. Friedman,
Bradley T. Gerstner, Barney Harford and Kristina M. Leslie.
Martin S. Lessner, Elena C. Norman and Paul J. Loughman of YOUNG CONAWAY
STARGATT & TAYLOR, LLP, Wilmington, Delaware; Joseph Serino, Jr., P.C. and
Matthew Solum of KIRKLAND & ELLIS, New York, New York; Attorneys for the
Travelport Defendants and The Blackstone Group LP.
BOUCHARD, C.
I. INTRODUCTION
In this action, a stockholder of Orbitz Worldwide, Inc. (“Orbitz” or the
“Company”) challenges the fairness of the terms of a five-year services agreement (the
“New Agreement”) the Company entered into in February 2014 with a group of entities
affiliated with Travelport Limited (as defined below, “Travelport”). Plaintiff alleges that
Travelport owned approximately 48% of Orbitz and thus controlled the Company when it
negotiated and signed the New Agreement.
Plaintiff has asserted four derivative claims challenging the New Agreement. Its
two primary claims are that Travelport breached its fiduciary duty as a controlling
stockholder by causing the Company to enter into the New Agreement on unfair terms,
and that Orbitz’s directors breached their fiduciary duties by approving the New
Agreement. Plaintiff also asserts two related derivative claims for unjust enrichment and
aiding and abetting. Separately, plaintiff asserts a putative class claim for breach of
fiduciary duty against Orbitz’s directors for allegedly violating the rules of the New York
Stock Exchange. Defendants moved to dismiss plaintiff’s claims under Court of
Chancery Rule 23.1 for failure to make a demand or to adequately plead demand is
excused and under Court of Chancery Rule 12(b)(6) for failure to state a claim upon
which relief may be granted.
In this opinion, I conclude that demand is not excused as to any of plaintiff’s
derivative claims because plaintiff has failed to raise a reasonable doubt that at least half
of the directors on Orbitz’s board when this action was filed could have exercised
impartial business judgment in responding to a demand. In analyzing this issue, I apply
1
the Rales test for the reasons explained below, but I would reach the same conclusion
under the Aronson test. Significant to the analysis, I reject plaintiff’s assertion that
demand should be excused simply because an alleged controlling stockholder stood on
both sides of the New Agreement. As explained below, this theory is inconsistent with
Delaware Supreme Court authority that focuses the test for demand futility exclusively on
the ability of a corporation’s board of directors to impartially consider a demand to
institute litigation on behalf of the corporation—including litigation implicating the
interests of a controlling stockholder. For these reasons, and the others explained below,
I grant defendants’ motions to dismiss.
II. BACKGROUND 1
A. The Parties
Nominal Defendant Orbitz Worldwide, Inc., a Delaware corporation based in
Chicago, Illinois, is an online, travel company. It operates the websites known as
Orbitz.com, ebookers, HotelClub, and CheapTickets.
Defendants Travelport Limited, Travelport LP, Travelport Global Distribution
System, B.V., TDS Investor (Luxembourg) S.a.r.l., Waltonville Limited, and Travelport
1
Unless noted otherwise, the facts recited in this opinion are based on the well-pled
allegations of the Verified Second Amended Stockholder Class Action and Derivative
Complaint (the “Complaint”). At times, I rely upon certain extraneous documents that
are properly before the Court because they are integral to Plaintiff’s claims and
incorporated by reference into the Complaint. See In re Santa Fe Pac. Corp. S’holder
Litig., 669 A.2d 59, 69-70 (Del. 1995). Those documents were attached as exhibits to
two affidavits submitted by counsel for Orbitz and its directors (collectively, the “Orbitz
Defendants”). I refer to the affidavit dated December 4, 2014, as “Lyons Aff. I” and to
the affidavit dated March 9, 2015 as “Lyons Aff. II.”
2
Holdings Limited (collectively, “Travelport” or the “Travelport Defendants”) provide
transaction processing services to travel companies, including Orbitz. Each of the
Travelport Defendants “is a beneficial owner of Orbitz common stock or a party to” the
New Agreement. 2
Defendant The Blackstone Group LP (“Blackstone”) is an investment and
advisory firm. Until an April 2013 refinancing, Blackstone held a majority interest in
Travelport. As of February 4, 2014, the date of the New Agreement, Blackstone owned
approximately 13% of Travelport. As of November 18, 2014, the date of the Complaint,
Blackstone owned approximately 7% of Travelport. 3
Defendants Martin J. Brand, Mark S. Britton, Jeff Clarke, Kenneth S. Esterow,
Scott Forbes, Robert L. Friedman, Bradley T. Gerstner, Barney Harford, and Kristina
Leslie and non-party Jaynie Studenmund were the ten members of Orbitz’s board of
directors when the Company entered into the New Agreement on February 4, 2014
(collectively, the “Agreement Board”). At the time, Britton, Leslie, and Studenmund
were the three members of Orbitz’s Audit Committee. On February 7, 2014,
Studenmund resigned from the Orbitz board. Her former board seat remained vacant
when the Complaint was filed.
Brand, Britton, Clarke, Esterow, Forbes, Friedman, Gerstner, Harford, and Leslie
were the nine members of Orbitz’s board of directors when Plaintiff initiated this action
2
Compl. ¶ 30.
3
Id. ¶ 47.
3
on April 3, 2014 (the “Demand Board”). On April 10, 2014, Clarke resigned as an Orbitz
director, and the board appointed Defendant Gavin Baiera to fill the vacancy created by
that resignation.
Baiera, Brand, Britton, Esterow, Forbes, Friedman, Gerstner, Harford, and Leslie
are currently the nine members of Orbitz’s board of directors (collectively, the “Current
Board”). The table below reflects the composition of the Orbitz board at the relevant
times.
Composition of the Orbitz Board of Directors
Agreement Board Demand Board Current Board
Baiera
Brand Brand Brand
Britton Britton Britton
Clarke Clarke
Esterow Esterow Esterow
Forbes Forbes Forbes
Friedman Friedman Friedman
Gerstner Gerstner Gerstner
Harford Harford Harford
Leslie Leslie Leslie
Studenmund
Plaintiff alleges that at least five of the nine members of the Demand Board—
Brand, Clarke, Esterow, Friedman, and Harford—lack independence from Travelport and
Blackstone and/or are interested in the New Agreement for the following reasons:
• Brand, who became an Orbitz director in March 2010, is a Managing
Director in the Private Equity Group of Blackstone and was formerly a
director of Travelport Limited;
4
• Clarke, who became an Orbitz director in June 2007, was formerly
Chairman of the board of Travelport Limited from February 2012 to April
2013, Executive Chairman of Travelport Limited from June 2011 to
February 2012, and President and CEO of Travelport Limited from May
2006 to May 2011;
• Esterow, who became an Orbitz director in August 2011, was formerly the
President and CEO of Travelport Limited’s Gullivers Travel Associates
business from January 2007 to May 2011, and he was an employee of
Travelport and its former parent, Cendant Corporation, for sixteen years;
• Friedman, who became an Orbitz director in March 2011, is a Senior
Advisor in the Private Equity Group of Blackstone and was formerly
Blackstone’s Chief Legal Officer from January 2003 to August 2010; and
• Harford, who became an Orbitz director in 2009, assumed his position as
Orbitz’s Chief Executive Officer in 2009 when Travelport owned a
majority of Orbitz. He has received approximately $12 million in
compensation as CEO over the past three fiscal years (2011-2013). 4
For simplicity, I refer to the Travelport Defendants, Blackstone, and the Orbitz directors
named as defendants (who comprise the Demand Board and the Current Board)
collectively as “Defendants.”
Plaintiff Teamsters Union 25 Health Services & Insurance Plan (“Plaintiff”) has
been an Orbitz stockholder at all relevant times.
B. The Formation and Early History of Orbitz
In 2000, several United States airlines established the predecessor to Orbitz, which
launched Orbitz.com in June 2001. In December 2003, Orbitz’s predecessor completed
an initial public offering (IPO), and, in September 2004, it was acquired by Cendant
Corporation (“Cendant”). In August 2006, Blackstone and Technology Crossover
4
Id. ¶¶ 20, 22-23, 25, 27, 125, 125 n.6.
5
Ventures acquired Travelport, Cendant’s travel distribution services business, which
owned the Orbitz.com travel website.
In June 2007, Travelport separated its Orbitz.com and related businesses into the
Company, which was incorporated in Delaware as Orbitz Worldwide, Inc. In July 2007,
Orbitz completed an IPO, after which Travelport continued to own a majority of the
outstanding common stock of the Company. 5 Orbitz’s common stock trades on the New
York Stock Exchange (NYSE).
When Orbitz went public in 2007, its Amended and Restated Certificate of
Incorporation, dated July 18, 2007 (the “Orbitz Charter”), contained several provisions
requiring Travelport’s consent for the Company to take certain actions. Those actions
include effectuating a consolidation or merger transaction, declaring dividends on any
class of Orbitz capital stock, amending the amount of authorized capital stock or creating
any class or series of capital stock, changing the number of directors on the Orbitz board,
establishing any committee of the Orbitz board, determining the members of the Orbitz
board or of any committee of the Orbitz board, and filling any newly created
directorships or vacancies on the Orbitz board or on any committee of the Orbitz board. 6
5
Id. ¶ 36.
6
Id. ¶ 53; see also Lyons Aff. I, Ex. H (Orbitz Charter) at Art. Tenth.
6
These provisions remain in effect until Travelport ceases to beneficially own shares
entitled to vote at least 33 1/3% of the votes entitled to be cast by Orbitz’s then-
outstanding common stock. 7
C. The Old Agreement Between Orbitz and Travelport
In connection with its July 2007 IPO, Orbitz entered into a multi-year services
agreement with Travelport (the “Old Agreement”) under which Travelport would provide
global distribution system services (called “GDS” in the industry) to Orbitz. 8 The Old
Agreement was to expire on December 31, 2014.
Under the Old Agreement, Orbitz earned incentive revenue for processing air, car,
and hotel reservations (called “segments”) through Travelport, and Travelport earned
transaction processing revenue from Orbitz. Orbitz was obligated to process a minimum
number of segments for its domestic brands through Travelport. Specifically, if the
Company did not process at least 95% of its segments through Travelport, then it was
required to pay to Travelport a shortfall fee of $1.25 per segment below the required
minimum. 9
7
Lyons Aff. I, Ex. H (Orbitz Charter) at Art. Seventh §§ G(iii), H.
8
Compl. ¶ 37. According to Plaintiff, Orbitz and Travelport are also parties to “a
corporate travel management services agreement, master license agreement, and various
letter agreements and financial services agreements.” Id. ¶ 42. The terms of those other
agreements are not implicated in this action.
9
Id. ¶¶ 37-38. The Old Agreement also required Orbitz’s website ebookers to use
Travelport exclusively to process segments in certain European countries. If the
Company did not process at least 95% of those segments through Travelport, then it was
required to pay a shortfall fee of $1.25 per segment for each segment processed through
an alternative GDS provider. Id. ¶ 39.
7
For the year ended December 31, 2013, Orbitz recognized $88.6 million in
incentive revenue for segments processed through Travelport, which represented more
than 10% of the Company’s total net revenue. For the same period, Travelport generated
$152 million in transaction processing revenue from Orbitz, which represented
approximately 8% of Travelport’s transaction processing revenue.
D. Travelport Completes a Refinancing
In early 2013, Blackstone had majority control of Travelport, and Travelport
owned approximately 53% of Orbitz’s stock. Under NYSE Rule 303A.00, Orbitz was a
“controlled company” because Blackstone held more than 50% of the voting power for
the election of Orbitz directors. 10
In April 2013, Travelport completed a capital refinancing that resulted in
Blackstone no longer owning a majority equity interest in Travelport. 11 Around this time,
Travelport reduced its interest in Orbitz from 53% to 48%. 12 On April 18, 2013, Orbitz
announced that, as of April 15, 2013, it was no longer a “controlled company” as defined
10
Id. ¶ 44; see also N.Y. Stock Exchange, Listed Company Manual § 303A.00 (2015),
http://nyse.com/lcm (hereinafter NYSE Rules).
11
Compl. ¶¶ 45, 47. The record does not reflect Blackstone’s precise ownership stake in
Travelport immediately before or after the refinancing.
12
Id. ¶ 51. Counsel for the Orbitz Defendants stated at oral argument that Travelport’s
ownership interest at the time of the New Agreement was closer to 44.8%. Tr. of Oral
Arg. 7. Plaintiff acknowledged that its allegations were likely based on “slightly stale
numbers” from Travelport’s S-1 SEC filing and that, according to Orbitz’s 10-K that was
filed “two or three weeks” before this action was filed, “Travelport’s holdings were
approximately 45 percent.” Id. 92.
8
in NYSE Rule 303A.00 because no company or group of companies held more than 50%
of the voting power for the election of Orbitz directors. 13
After the refinancing, Blackstone remained a “significant stockholder” of
Travelport. According to Plaintiff, Blackstone’s “significant” ownership interest in
Travelport, coupled with Travelport’s own 48% ownership interest in Orbitz, meant that
“Travelport and Blackstone’s interests in Orbitz [were] squarely aligned.” 14
On December 5, 2013, Travelport filed a Shelf Registration Statement with the
Securities and Exchange Commission (SEC) under which Travelport would be able to
sell all of its Orbitz stock. Plaintiff alleges that this SEC filing “signal[ed] Travelport’s
intention to further reduce its equity stake in the Company.” 15
E. Orbitz and Travelport Negotiate the New Agreement
Before Travelport sold any additional Orbitz stock, it allegedly sought to extend
the Old Agreement on “favorable” terms. 16 Early renewal of the Old Agreement was
important to Travelport because, by early 2014, it allegedly had begun planning its own
IPO to occur later in 2014. According to Plaintiff, “[s]ecuring a long-term and lucrative
13
Compl. ¶ 45.
14
Id. ¶¶ 47-48.
15
Id. ¶ 58.
16
Id. ¶ 59.
9
contract with Orbitz in advance of the IPO would help increase Travelport’s valuation
and the proceeds generated in the offering.” 17
In early 2014, Orbitz and Travelport negotiated the Subscriber Services
Agreement (as defined above, the “New Agreement”). The New Agreement was subject
to review and approval by Orbitz’s Audit Committee because, under its charter, the Audit
Committee is responsible for “reviewing and approving” any “Related Party
Transactions” between the Company and a “Related Party.” 18 The New Agreement
qualified as such because it was an agreement involving more than $120,000 per year in
which Orbitz was a participant and in which Travelport, which was a Related Party, had a
material interest. 19
On January 29, 2014, Orbitz’s Audit Committee (directors Britton, Leslie, and
Studenmund) approved the New Agreement. 20 On February 3, 2014, Studenmund
notified Orbitz of her intent to resign as a director, effective February 7, 2014. 21
17
Id.
18
Id. ¶¶ 71-74. The Audit Committee charter defines “Related Party Transactions” to
include those transactions “(i) in which the Company . . . is a participant, (ii) in which the
amount involved will (or may reasonably be expected to) exceed $120,000 in any
calendar year and (iii) in which a Related Party has or will have a direct or indirect
material interest.” Id. ¶ 72. The definition of a “Related Party” includes a person or
entity known to be “the beneficial owner of 5% or more of the outstanding equity
securities of Company.” Id. ¶ 73; see also Lyons Aff. II Ex. B (Charter of the Audit
Committee of the Board of Directors of Orbitz Worldwide, Inc., at § 4(t) (Revised Feb.
20, 2013)).
19
Compl. ¶ 74.
20
Id. ¶ 75.
21
Id. ¶¶ 76-77.
10
F. The Terms of the New Agreement
On February 4, 2014, Orbitz and Travelport entered into the New Agreement,
which terminated and replaced the Old Agreement. Under the New Agreement, which
expires on December 31, 2018, Orbitz was obligated for the remainder of 2014 to use
Travelport exclusively “for all air and car segments booked on its domestic agencies” as
well as for certain “segments booked in Europe and other markets.” 22
Starting January 1, 2015, Orbitz would no longer be subject to an exclusivity
obligation, meaning that it could contract with Travelport’s competitors (such as
Amadeus and Sabre, Inc.) for a portion of the Company’s bookings, but Orbitz would be
required to provide minimum volume levels to Travelport (the “Minimum Volume
Guarantee”). In certain cases, if Orbitz fails to meet the Minimum Volume Guarantee, it
must pay a shortfall fee to Travelport. 23 The financial terms of the New Agreement are
not publicly available and were not alleged in the Complaint.
G. Orbitz’s Public Disclosures About Studenmund’s Resignation
and the New Agreement
On February 7, 2014, Orbitz filed a Form 8-K with the SEC disclosing
Studenmund’s resignation. The full text of that Form 8-K is as follows:
22
Id. ¶ 60.
23
Id. ¶¶ 60-61.
11
On February 3, 2014, Jaynie Studenmund notified us of her intent to
resign as a member of the Orbitz Worldwide, Inc. Board of Directors
effective February 7, 2014. 24
Plaintiff alleges that the “[n]oticeably absent” lack of explanation for Studenmund’s
resignation is a departure from precedent because Orbitz “has historically provided
stockholders an explanation for director departures.” 25 When the Complaint was filed on
November 18, 2014, the Orbitz board had not filled the vacancy created by
Studenmund’s resignation.
On February 10, 2014, Orbitz filed a Form 8-K with the SEC announcing the New
Agreement, but that Form 8-K did not disclose that the Audit Committee had approved
the New Agreement. 26 On March 6, 2014, Orbitz filed a Form 10-K with the SEC that
referenced the Audit Committee’s approval of the New Agreement. 27 On May 5, 2014,
after Plaintiff initiated this action, Orbitz filed with the SEC a Form 10-Q for the quarter
ended March 31, 2014, which specifically disclosed that the Audit Committee had
approved the New Agreement on January 29, 2014, pursuant to a delegation by the
24
Lyons Aff. I Ex. C (Orbitz Worldwide, Inc., Current Report (Form 8-K), at Item 5.02
(Feb. 7, 2014)).
25
Compl. ¶ 78.
26
Id. ¶¶ 60, 75.
27
Lyons Aff. I Ex. B (Orbitz Worldwide, Inc., Annual Report (Form 10-K), at 15 (Mar.
6, 2014)) (“[O]ur Audit Committee . . . takes an active role in reviewing and approving
any agreement involving more than $120,000 of payments or receipts in which
Travelport (or any other related party) has an interest, including the New Travelport GDS
Service Agreement entered into on February 4, 2014.”).
12
Company’s board of directors. 28 Orbitz attached a redacted version of the New
Agreement as an exhibit to that Form 10-Q.
H. Changes in the Composition of Orbitz’s Board of Directors
On April 10, 2014, the Orbitz board appointed Forbes to the Audit Committee to
fill the committee vacancy created by Studenmund’s resignation. Thereafter, directors
Britton, Forbes, and Leslie were the three members of the Audit Committee. 29
Also on April 10, Clarke notified the Company of his resignation as an Orbitz
director, effective immediately, due to his appointment as the CEO of Eastman Kodak
Co. The Orbitz board appointed Baiera to fill the vacancy created by Clarke’s
resignation. 30 Baiera is a Travelport director and a Managing Director at Angelo, Gordon
& Co., L.P., a privately-held investment advisor that held an approximately 17% stake in
Travelport at the time of Baiera’s appointment. 31
28
Compl. ¶ 75; see also Lyons Aff. I Ex. G (Orbitz Worldwide, Inc., Quarterly Report
(Form 10-Q), at 19-20 (May 5, 2014)) (“On January 29, 2014, the Audit Committee of
the Board of Directors had approved the New Travelport Service Agreement and
authorized the execution of such agreement, pursuant to a delegation by the Company’s
Board of Directors on August 13, 2013.”).
29
Compl. ¶ 83; Lyons Aff. I Ex. F (Orbitz Worldwide, Inc., Proxy Statement (Form
14A), at 9 (Apr. 25, 2014)).
30
Compl. ¶ 85; Orbitz Worldwide, Inc., Current Report (Form 8-K), at Ex. 99.1 (Apr. 14,
2014) (explaining that Clarke “resigned from the board after seven years as chairman
following his recent appointment as chief executive officer of Eastman Kodak
Company”).
31
Compl. ¶ 19.
13
On April 14, 2014, the Company filed a Form 8-K with the SEC disclosing these
developments. 32 Plaintiff contrasts the public explanation of Clarke’s resignation and
quick appointment of Baiera to the resulting vacancy with Studenmund’s unexplained
resignation and the ongoing vacancy created by her resignation. 33
I. Travelport Liquidates Substantially All of its Orbitz Stock
and Completes its Own IPO
On May 23, 2014, the Company filed a prospectus supplement with the SEC to
facilitate an underwritten offering of 7.5 million shares of Orbitz stock held by
Travelport. The underwriters also had a 30-day option to buy an additional 1.125 million
shares of Orbitz stock from Travelport. After consummating the offering, Travelport
owned approximately 37% of Orbitz’s stock. 34 Around the time of the offering, a
Travelport spokesperson stated that “[Travelport’s] Orbitz equity stake is no longer a
strategic investment for [Travelport].” 35
On June 4, 2014, Travelport filed an IPO prospectus to offer up to $100 million in
stock. In its prospectus, Travelport noted that it had “addressed legacy contracts” by,
among other actions, “entering into a new long-term contract [i.e., the New Agreement]
32
Id. ¶ 85. According to Orbitz’s 2014 proxy statement, which was filed with the SEC
on April 25, 2014, Travelport had previously recommended Clarke to be an Orbitz
director, and “Travelport recommended Gavin Baiera to fill the vacancy created by
[Clarke’s] resignation.” Id.
33
Id. ¶¶ 86-87.
34
Id. ¶¶ 88, 90.
35
Id. ¶ 89.
14
in February 2014 with Orbitz Worldwide.” 36 Travelport disclosed that Orbitz “currently
is the largest travel agency on [its] Travel Commerce Platform, accounting for 7% of [its]
net revenue in the year ended December 31, 2013.” 37 Travelport further disclosed that
“[i]n the event Orbitz Worldwide . . . terminates its relationship with [Travelport], . . .
[Travelport’s] business and results of operations would be adversely affected.” 38
On July 16, 2014, the Company announced an underwritten public offering by
Travelport of 20 million shares of Orbitz stock, with a 30-day option for the underwriters
to buy an additional 3 million shares. At the time, Travelport beneficially owned
39,782,697 shares of Orbitz stock, or approximately 36.1% of the Company. On July 17,
2014, the Company announced that the size of the offering would be increased to 34
million shares, with the 30-day option for the underwriters increasing to an additional 5
million shares. 39 On July 22, 2014, Travelport completed an underwritten offering of 39
million shares of Orbitz stock. After the offering, Travelport owned 782,697 shares of
Orbitz, or less than 1% of the Company. 40
36
Id. ¶ 91.
37
Id. ¶ 92.
38
Id.
39
Id. ¶¶ 95-97.
40
Id. ¶¶ 98-99.
15
J. Orbitz’s Compliance with the NYSE Rules
Plaintiff alleges that the Orbitz board has failed to comply with the NYSE Rules
and the Company’s Corporate Governance Guidelines (the “Guidelines”). 41 Under both
the NYSE Rules and the Guidelines, the Orbitz board was required to have a majority of
“independent” directors by April 14, 2014, which was one year after Orbitz was no
longer a “controlled company” under NYSE Rule 303A.00. 42 NYSE Rule 303A.02 sets
forth certain standards to be deemed an “independent” director.
In its proxy statement for its 2013 annual meeting, filed with the SEC on April 26,
2013, Orbitz disclosed that its board had determined that four directors (Britton, Gerstner,
Leslie, and Studenmund) were independent under the NYSE Rules and that six directors
(Brand, Esterow, Forbes, Friedman, Jill Greenthal, 43 and Harford) were not
independent. 44 In its 2014 proxy statement, filed on April 25, 2014, Orbitz disclosed that
its board had determined that seven directors (Brand, Britton, Esterow, Forbes, Friedman,
Gerstner, and Leslie) were independent under the NYSE Rules and that two directors
(Baiera and Harford) were not independent. 45 Thus, by April 2014, the Orbitz board had
41
Id. ¶¶ 101-16.
42
Id. ¶¶ 105-06.
43
Greenthal, a Senior Advisor in the Private Equity Group of Blackstone, resigned from
the Orbitz board in May 2013. Id. ¶ 49.
44
Id. ¶ 107.
45
Id. ¶ 110.
16
determined that a majority of its members were “independent” as required by NYSE Rule
303A.01.
K. Procedural History
On April 3, 2014, Plaintiff filed its initial complaint. On November 18, 2014,
Plaintiff filed the Verified Second Amended Stockholder Class Action and Derivative
Complaint (as defined above, the “Complaint”), asserting five causes of action.
On December 4, 2014, the Orbitz Defendants moved to dismiss the Complaint
under Court of Chancery Rule 23.1 for failure to make a pre-suit demand or to plead facts
excusing such a demand, and under Court of Chancery Rule 12(b)(6) for failure to state a
claim. Also on December 4, Travelport and Blackstone moved to dismiss the Complaint
under Court of Chancery Rules 23.1 and 12(b)(6). On April 15, 2015, I heard oral
argument on these motions.
III. LEGAL ANALYSIS
A. Demand is Not Excused as to Counts I-IV
1. Counts I-IV are Derivative
In Count I of the Complaint, Plaintiff alleges that Travelport breached its fiduciary
duties as Orbitz’s controlling stockholder by causing “the Company to enter the unfair
[New Agreement] to suit Travelport’s unique needs to the detriment of the Company.” 46
In Count II, Plaintiff alleges that the Agreement Board (excluding Studenmund) breached
their fiduciary duties by participating “in the planning and execution of the unfair and
46
Compl. ¶ 129.
17
improper [New Agreement]” and by failing “to take the necessary actions to extract fair
terms in this related-party transaction.” 47 In Count III, Plaintiff alleges that Travelport
was unjustly enriched by the New Agreement. 48 In Count IV, Plaintiff alleges that
Travelport and Blackstone aided and abetted the board’s breaches of fiduciary duty by
“knowingly solicit[ing], encourag[ing] and/or participat[ing] in the unlawful [New
Agreement].” 49
Plaintiff asserts Counts I-IV derivatively. Defendants agree that these claims are
derivative. I agree as well because Counts I-IV all center on whether or not the New
Agreement is fair to the Company. Thus, under Tooley v. Donaldson, Lufkin & Jenrette,
Inc., 50 Counts I-IV are straightforward examples of derivative claims because Orbitz
suffered the alleged harm as a party to the New Agreement, and Orbitz would receive the
benefit of any recovery from Defendants.
2. Demand Futility is Governed by Rales v. Blasband
“Because the shareholders’ ability to institute an action on behalf of the
corporation inherently impinges upon the directors’ power to manage the affairs of the
47
Id. ¶ 135. Count II also alleges that the members of the Agreement Board (excluding
Studenmund) breached their fiduciary duties by failing “to reconstitute the Board to
consist of a majority of independent directors as required under the NYSE Rules and the
. . . Guidelines.” Id. ¶ 135. I address this allegation in the context of the identical
allegations made against the Current Board under Count V.
48
Id. ¶¶ 142-43.
49
Id. ¶ 146.
50
845 A.2d 1031 (Del. 2004).
18
corporation the law imposes certain prerequisites on a stockholder’s right to sue
derivatively.” 51 Under Court of Chancery Rule 23.1, because Plaintiff did not make a
demand on the Company’s board before initiating this action, 52 it must allege with
particularity that its failure to make such a demand should be excused. In this analysis, I
accept as true Plaintiff’s particularized allegations of fact and draw all reasonable
inferences that logically flow from those allegations in Plaintiff’s favor. 53
Under Delaware law, there are two tests for demand futility: (i) the test articulated
in Aronson v. Lewis, 54 which applies when a plaintiff challenges “a decision of the board
upon which plaintiff must seek demand”; 55 and (ii) the test set forth in Rales v.
Blasband, 56 which applies when a plaintiff does not challenge “a decision of the board in
place at the time the complaint is filed.” 57 A decision approved by at least half of the
corporation’s directors who would consider a demand, even when acting by committee,
can be imputed to the entire board and thus triggers the Aronson test “for purposes of
51
Kaplan v. Peat, Marwick, Mitchell & Co., 540 A.2d 726, 730 (Del. 1988).
52
Compl. ¶ 120.
53
See White v. Panic, 783 A.2d 543, 549 (Del. 2001).
54
473 A.2d 805 (Del. 1984).
55
Ryan v. Gifford, 918 A.2d 341, 353 (Del. Ch. 2007).
56
634 A.2d 927 (Del. 1993).
57
Ryan, 918 A.2d at 352.
19
proving demand futility.” 58 By contrast, the Rales test applies where a derivative plaintiff
challenges a decision approved by a board committee consisting of less than half of the
directors who would have considered a demand, had one been made. 59 To establish
demand futility under Aronson or Rales for Counts I-IV, Plaintiff must impugn the ability
of at least half of the directors in office when it initiated this action (i.e., the Demand
Board) to have considered a demand impartially. 60
Citing to the Company’s public filings, the Complaint alleges that the Audit
Committee, consisting of three members, approved the New Agreement. 61 In fact, the
Complaint alleges that such approval not only occurred, but was required under the Audit
Committee’s charter because the New Agreement was a “Related Party Transaction.” 62
As the Audit Committee’s charter states: “The audit committee will . . . be responsible
58
Id. at 353 (applying Aronson because the challenged decisions were approved
unanimously by a three-member committee of a six-member board).
59
See Calma v. Templeton, 114 A.3d 563, 575 (Del. Ch. 2015) (“[B]ecause the decisions
to grant the [non-employee director compensation awards] were made by less than half of
the Citrix directors in office when Plaintiff filed the Complaint, the Rales test applies.”);
see also Conrad v. Blank, 940 A.2d 28, 37 (Del. Ch. 2007) (“Since the challenged
transaction was not made by the board, or even half of its members, the test articulated in
Rales is the proper standard.”).
60
See Beneville v. York, 769 A.2d 80, 82 (Del. Ch. 2000).
61
Compl. ¶ 9 (citing the Company’s proxy statement dated April 25, 2014); id. ¶ 75
(citing the Company’s Form 10-Q dated May 5, 2014); see also id. ¶¶ 70, 74, 81.
62
Id. ¶ 74 (“Thus, the Company could not enter into [the New Agreement] without the
review and approval of the Audit Committee.”); see also id. ¶ 8.
20
for the review, approval or ratification of Related Party Transactions.” 63 Despite these
well-pled allegations, Plaintiff argues that Aronson should apply because there is “a
reasonable inference that the full Board would have been involved in the [New
Agreement’s] approval” (1) “[g]iven the significance of the [New Agreement] to
Orbitz—including that it constitutes 10% of Orbitz’s annual revenue and is central to
Orbitz’s online travel-booking business” and (2) given that the Audit Committee charter,
which required committee review and approval of the New Agreement, does not use the
word “negotiate.” 64 I disagree.
The inference of full board approval Plaintiff asks me to draw amounts to little
more than speculation. This is contrary to a well-recognized purpose of the demand
futility requirement of Rule 23.1, which is to “not permit a stockholder to cause the
corporation to expend money and resources in discovery and trial in the stockholder’s
quixotic pursuit of a purported corporate claim based solely on conclusions, opinions or
speculation.” 65 Given that the Company’s organic documents placed the responsibility
for review and approval of the New Agreement, as a Related Party Transaction, in the
63
Lyons Aff. II Ex. B (Charter of the Audit Committee at § 4(t)). Consistent with this
policy, Orbitz disclosed in its 2014 proxy statement that the Orbitz board “delegated to
the Audit Committee the responsibility, power and authority to, on behalf of the Board,
consider, evaluate and approve all agreements for the provision of global distribution
systems services, including the agreement entered into with Travelport in February
2014.” Lyons Aff. I Ex. F (Orbitz Worldwide, Inc., Proxy Statement (Form 14A), at 9
(Apr. 25, 2014)).
64
Pl.’s Ans. Br. 9, 16-17.
65
Brehm v. Eisner, 746 A.2d 244, 255 (Del. 2000).
21
hands of the Audit Committee, and the absence of any well-pled facts suggesting that the
Company deviated from this policy, I decline to draw the inference that the full board
approved the New Agreement. I also view Plaintiff’s construction of the Audit
Committee’s charter to be hyper-technical and unreasonable. 66 It is an unsupported leap
of logic to infer from the lack of the word “negotiate” in that charter that the full board
approved the New Agreement.
Drawing an inference of full board approval would be particularly inappropriate
here given Plaintiff’s decision not to use 8 Del. C. § 220 to obtain documents relating to
the review and approval of the New Agreement, 67 despite repeated admonitions Delaware
courts have made for representative plaintiffs to do so before launching derivative claims.
Documents from such an inspection undoubtedly would have confirmed whether any
factual basis exists for the assertion of full board approval that Plaintiff asks the Court to
infer. There is no equity in asking the Court to speculate over a factual matter that was
well within Plaintiff’s control to determine through basic due diligence.
In sum, from my reading of the Complaint, the reasonable inference to be drawn
from its well-pled allegations is that only the Audit Committee approved the New
66
See In re Walt Disney Co. Deriv. Litig., 907 A.2d 693, 764 (Del. Ch. 2005) (rejecting
the argument that a compensation committee lacked the authority to negotiate the
President’s salary where its charter expressly provided that it was responsible for
establishing and approving the President’s salary, because “there is no language in the
charter that would indicate that the committee does not have this power” to negotiate),
aff’d, 906 A.2d 27 (Del. 2006).
67
Tr. of Oral Arg. 103 (“We made a determination not to make a 220 demand.”).
22
Agreement. 68 Because the Audit Committee consisted of just three members when it
approved the New Agreement, only two of whom remained on the Orbitz board when
Plaintiff initiated this action, the Rales test applies because more than half of the nine
members of the Demand Board did not approve the New Agreement.
3. Demand is Not Excused for Counts I-IV under Rales
Under Rales, Plaintiff’s claims should be dismissed under Rule 23.1 unless the
particularized allegations of the Complaint “create a reasonable doubt that, as of the time
the complaint is filed, the board of directors could have properly exercised its
independent and disinterested business judgment in responding to a demand.” 69 When
Plaintiff initiated this action, the Demand Board had nine members. Thus, under Rales,
the Complaint “must plead facts specific to each director, demonstrating that at least half
of them could not have exercised disinterested business judgment in responding to a
demand.” 70 Plaintiff advances three arguments for why its failure to make a demand
should be excused as futile. 71 I address each argument in turn.
68
In contrast to its factually supported allegations of Audit Committee approval of the
New Agreement, the Complaint alleges in other places in conclusory fashion that the
“New GDS Agreement Director Defendants”—defined as the nine individuals on the
Demand Board (Compl. ¶ 29)—approved the New Agreement. See id. ¶¶ 122, 135, 145,
147. Presumably recognizing the lack of factual support for this allegation, Plaintiff did
not rely on it to argue for the application of the Aronson test.
69
Rales, 634 A.2d at 934.
70
Desimone v. Barrows, 924 A.2d 908, 943 (Del. Ch. 2007).
71
Plaintiff frames its demand futility arguments collectively as to all of Counts I-IV even
though, under Delaware law, the demand futility analysis “is conducted on a claim-by-
23
a. Plaintiff Has Not Raised a Reasonable Doubt as to the
Impartiality of a Majority of the Demand Board
Plaintiff first argues that a majority of the nine members of the Demand Board
either were interested in the New Agreement or were not independent from Travelport
and/or Blackstone, such that there is a reasonable doubt that a majority of the Demand
Board could have properly exercised their business judgment in responding to a
demand. 72 Because Plaintiff concedes that four members of the Demand Board (Britton,
Forbes, Gerstner, and Leslie) were independent and did not have a financial interest in the
New Agreement, 73 it must raise a reasonable doubt that each of the five other directors on
the Demand Board (Brand, Clarke, Esterow, Friedman, and Harford) could have
impartially considered a demand for all of Counts I-IV. To resolve that issue, I need only
consider the allegations concerning one of these five directors. I focus on Esterow.
Plaintiff does not argue that Esterow had any financial interest in the New
Agreement but rather contends that he is not independent from Travelport because of his
“long-term and high-level employment with Travelport.” 74 As alleged, Esterow was an
executive of Travelport or Cendant (Travelport’s former parent) for sixteen years, ending
claim basis.” Cambridge Ret. Sys. v. Bosnjak, 2014 WL 2930869, at *4 (Del. Ch. June
26, 2014).
72
Pl.’s Ans. Br. 18.
73
One could interpret Plaintiff’s second demand futility argument (i.e., that the directors
who approved the New Agreement did so in bad faith so as to expose them to a
substantial likelihood of personal liability) as a challenge to the disinterestedness of
Britton and Leslie, but this argument is without merit for the reasons discussed below.
74
Id. 28-30.
24
in May 2011. For the last four of those years, from January 2007 to May 2011, Esterow
was President and CEO of Travelport Limited’s Gullivers Travel Associates business. In
August 2011, three months after Esterow left his position at Travelport, he was appointed
to the Orbitz board. 75 In my opinion, these allegations do not raise a reasonable doubt as
to Esterow’s independence in considering a demand for any of Counts I-IV.
In the demand futility context, directors are “presumed to be independent.” 76
Under Delaware law, “[i]ndependence means that a director’s decision is based on the
corporate merits of the subject before the board rather than extraneous considerations or
influences.” 77 “[A] lack of independence can be shown by pleading facts that support a
reasonable inference that the director is beholden to a controlling person or ‘so under
their influence that their discretion would be sterilized.’ ” 78 Thus, a non-interested
director is not independent if particularized allegations support the inference that he or
she “would be more willing to risk his or her reputation than risk the relationship with the
interested [person].” 79
75
Compl. ¶¶ 23, 125.
76
Beam v. Stewart, 845 A.2d 1040, 1055 (Del. 2004).
77
Aronson, 473 A.2d at 816.
78
In re Trados Inc. S’holder Litig., 2009 WL 2225958, at *6 (Del. Ch. July 24, 2009)
(quoting Rales, 634 A.2d at 936).
79
Beam, 845 A.2d at 1052.
25
With these general principles in mind, the case of In re Western National Corp.
Shareholders Litigation 80 provides a useful lens with which to evaluate Plaintiff’s
challenge to Esterow’s presumed independence. In Western National, the plaintiffs
asserted that the chairman and CEO (Poulos) of Western National was not independent of
its 46% stockholder (American General) when Poulos and the other members of the
Western National board approved a merger with American General. In opposing the
defendants’ motion for summary judgment, the plaintiffs put forward evidence showing
that, before Poulos was hired at Western National, he had been an employee of American
General for over two decades, including as a senior officer. Chancellor Chandler rejected
the plaintiffs’ argument that this past employment was a sufficient basis to overcome the
presumption that Poulos was an independent director:
Plaintiffs . . . argue that Poulos’s former employment by American
General coupled with his personal friendships with American General
executives caused him to improperly favor that company in the merger. It
may indeed be true that Poulos enjoys fond recollections of his twenty-
three year career at American General (prior to joining Western National)
and it is undoubtedly true that he maintained close social and professional
ties with his colleagues there. Nevertheless, such facts do not warrant the
inference that Poulos favored the fortunes of American General over those
of a company in which he holds substantial equity and has served as
executive chairman for its entire existence as a publicly-held entity. 81
80
2000 WL 710192 (Del. Ch. May 22, 2000).
81
Id. at *12. The Court ultimately concluded, based on a peculiar provision in a
shareholders’ agreement between Western National and American General, that there
was an issue of material fact as to whether “Poulos was entirely independent of American
General.” Id. at *14.
26
Plaintiff’s allegations about Esterow’s supposed lack of independence from
Travelport are similar in my view to those the Court rejected in Western National. As
with Poulos in Western National, it is unreasonable in my view to question Esterow’s
presumptive independence based solely on an employment relationship that ended in
May 2011, almost three years before this action was filed in April 2014. Even if I infer
from the three-month window between Esterow’s departure from Travelport and his
appointment to the Orbitz board that his directorship was a “loyalty appointment” by
Travelport, 82 the mere fact that Travelport, an alleged controlling stockholder, “played
some role in the nomination process should not, without additional evidence,
automatically foreclose a director’s potential independence.” 83 Thus, the inference that
Esterow “was nominated by or elected at the behest of” Travelport, which had the ability
to “control[] the outcome of a corporate election” by virtue of its majority interest when
Esterow joined the Orbitz board, does not overcome his presumed independence. 84
The only additional fact Plaintiff has alleged to challenge Esterow’s independence
is that, at the time of the Company’s April 2013 proxy statement, which was filed
82
Pl.’s Ans. Br. 28.
83
W. Nat’l, 2000 WL 710192, at *15 (citing Aronson, 473 A.2d at 815); see also Beam,
845 A.2d at 1051 (“Allegations that [the controller] and the other directors . . . developed
business relationships before joining the board . . . are insufficient, without more, to rebut
the presumption of independence.”); In re KKR Fin. Hldgs. LLC S’holder Litig., 101
A.3d 980, 996 (Del. Ch. 2014) (“It is well-settled Delaware law that a director’s
independence is not compromised simply by virtue of being nominated to a board by an
interested stockholder.”), appeal docketed No. 629,2014 (Del. Nov. 13, 2014).
84
See Aronson, 473 A.2d at 816.
27
approximately two years after Esterow had left Travelport, Orbitz did not consider him to
be an “independent” director under the NYSE Rules. 85 As then-Chancellor Strine
observed in In re MFW Shareholders Litigation, 86 the NYSE Rules may be “a useful
source for this court to consider when assessing an argument that a director lacks
independence” because they “were influenced by experience in Delaware and other states
and were the subject of intensive study by expert parties.” 87 That said, a board’s
determination of director independence under the NYSE Rules is qualitatively different
from, and thus does not operate as a surrogate for, this Court’s analysis of independence
under Delaware law for demand futility purposes.
For example, NYSE Rule 303A.02(b)(i) establishes a bright-line rule of
disqualification for independence if a director has been an employee of the “listed
company” within the last three years. The NYSE Rules define “listed company” to
include a parent entity that owns over 50% of the company. 88 Thus, because Travelport
85
Compl. ¶ 107.
86
67 A.3d 496 (Del. Ch. 2013), aff’d sub nom., Kahn v. M & F Worldwide Corp., 88
A.3d 635 (Del. 2014).
87
Id. at 510. In MFW, the plaintiffs challenged that three directors, all of whom had been
deemed “independent” under the NYSE Rules, were not independent of the company’s
controlling stockholder when they approved a merger between the two. In concluding on
the defendants’ summary judgment motion that those directors were independent, then-
Chancellor Strine relied, in part, on the fact that the plaintiffs’ evidence of conflicts did
not rise to the level to disqualify those directors’ independence under the NYSE Rules.
See id. at 512-13.
88
More precisely, the references to “listed company” in the bright-line disqualification
provisions of NYSE Rule 303A.02 include any parent or subsidiary in a consolidated
group with the listed company. The NYSE defines “consolidated group” to mean “a
28
held over 50% of the stock of Orbitz before April 2013, it fell within the definition of
“listed company” as of that date, meaning that Esterow could not be deemed independent
under the NYSE Rules until the earlier of (i) three years from May 2011, when he left
Travelport, or (ii) when Travelport ceased to own a majority of Orbitz’s stock. Notably,
after Travelport had reduced its position in Orbitz below 50%, the Company disclosed in
its April 2014 proxy statement that the Orbitz board had determined that Esterow was
independent within the meaning of the NYSE Rules. 89
Unlike the NYSE Rules, Delaware law does not contain bright-line tests for
determining independence but instead engages in a case-by-case fact specific inquiry
based on well-pled factual allegations. 90 The relevant inquiry here is whether, based on
the factual allegations of the Complaint, Esterow should be deemed independent when
this action was filed in April 2014—almost three years after he had severed his ties with
Travelport, and after he had been named President, CEO, and a director of Bankrate, Inc.,
company, its parent or parents, and/or its subsidiaries that would be required under U.S.
generally accepted accounting principles to prepare financial statements on a
consolidated basis.” See Section 303A Corporate Governance Standards, Frequently
Asked Questions, NYSE Regulation, 7 (Jan. 4, 2010), https://www.nyse.com/publicdocs/
nyse/regulation/nyse/final_faq_nyse_listed_company_manual_section_303a_updated_1_
4_10.pdf.
89
Compl. ¶ 110 (“The Board has determined that Mark [Britton], Brad [Gerstner], Kris
[Leslie], Martin [Brand], Ken [Esterow], Bob [Friedman] and Scott [Forbes] are
independent within the meaning of NYSE corporate governance rules and have no other
material relationships with us that could interfere with their ability to exercise
independent judgment.”).
90
See Orman v. Cullman, 794 A.2d 5, 23 (Del. Ch. 2002) (“[Delaware courts] reach
conclusions as to the sufficiency of allegations regarding interest and independence only
after considering all the facts alleged on a case-by-case basis.”).
29
a company unaffiliated with Travelport. 91 Given the peculiarities of the NYSE Rules, the
fact that Esterow was not designated as “independent” under the NYSE Rules in Orbitz’s
April 2013 proxy statement carries little weight. Rather, for the reasons explained above,
the factual allegations concerning Esterow’s former relationship with Travelport are
insufficient in my view to cast reasonable doubt on his presumed independence under
Delaware law.
Because Plaintiff has not raised a reasonable doubt as to Esterow’s independence
from Travelport, I conclude that demand is not excused as to any of Counts I-IV because
a majority of the Demand Board (Britton, Esterow, Forbes, Gerstner, and Leslie) could
have impartially exercised their business judgment in responding to such a demand.
Based on this conclusion, I need not consider Plaintiff’s challenges to the
disinterestedness or independence of the remaining four members of the Demand Board
(Brand, Clark, Forbes and Friedman).
b. Plaintiff Has Not Raised a Reasonable Doubt that the
New Agreement was Approved in Bad Faith
Plaintiff’s second demand futility argument is that the New Agreement was not a
valid exercise of business judgment. Although Plaintiff did not frame it as such, the crux
of the argument is that the Orbitz directors who approved the New Agreement did so in
bad faith such that they cannot impartially consider a demand as to Counts I-IV. 92 Put in
91
Lyons Aff. I Ex. J (Orbitz Worldwide, Inc., Proxy Statement (Form 14A), at 6 (Apr.
25, 2014)).
92
Pl.’s Ans. Br. 44.
30
demand futility terms, Plaintiff contends that Britton and Leslie (as the only members of
the Demand Board who approved the New Agreement) are not disinterested because they
face a substantial likelihood of personal liability for not approving the New Agreement in
good faith. 93 In my view, Plaintiff has not made such a showing.
“[I]f the directors face a ‘substantial likelihood’ of personal liability, their ability
to consider a demand impartially is compromised under Rales, excusing demand.” 94 “A
simple allegation of potential directorial liability is insufficient to excuse demand, else
the demand requirement itself would be rendered toothless, and directorial control over
corporate litigation would be lost.” 95 Where, as here, the corporation’s charter includes
an exculpatory provision pursuant to 8 Del. C. § 102(b)(7), 96 a substantial likelihood of
liability “may only be found to exist if the plaintiff pleads a non-exculpated claim against
the directors based on particularized facts.” 97 The theory here is a lack of good faith.
93
Even if Plaintiff adequately pled a lack of good faith by Britton and Leslie, Rales
would still require Plaintiff to raise a reasonable doubt as to a majority of the Demand
Board. I need not perform this analysis because Plaintiff has failed to plead a lack of
good faith by either Britton or Leslie for the reasons explained above.
94
Guttman v. Huang, 823 A.2d 492, 501 (Del. Ch. 2003).
95
In re Goldman Sachs Gp., Inc. S’holder Litig., 2011 WL 4826104, at *18 (Del. Ch.
Oct. 12, 2011).
96
Lyons Aff. I, Ex. H (Orbitz Charter) at Art. Sixth (“No director shall be personally
liable to the Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director, except to the extent such exemption from liability or
limitation thereof is not permitted under the [DGCL] as the same exists or may hereafter
be amended.”).
97
See Wood v. Baum, 953 A.2d 136, 141 (Del. 2008) (citation omitted).
31
Because “the duty of loyalty mandates that the best interest of the corporation and
its shareholders takes precedence over any interest possessed by a director, officer or
controlling shareholder and not shared by the stockholders generally,” 98 a plaintiff can
show a lack of good faith by establishing that a director “failed to pursue the best
interests of the corporation and its stockholders.” 99 Additionally, as Chancellor Allen
recognized in In re J.P. Stevens & Co., Inc. Shareholders Litigation, 100 a plaintiff may
show a lack of good faith by establishing that a director’s decision was “so far beyond the
bounds of reasonable judgment that it seems essentially inexplicable on any ground other
than bad faith.” 101 This is a high pleading standard, as Delaware courts typically frame a
lack of good faith in terms of “intentional” misconduct. 102
The New Agreement was approved by the three members of the Audit Committee:
Britton, Leslie, and Studenmund. The Complaint does not allege that any of these
98
Cede & Co. v. Technicolor, Inc., 634 A.2d 345, 361 (Del. 1993).
99
In re Orchard Enters., Inc. S’holder Litig., 88 A.3d 1, 33 (Del. Ch. 2014).
100
542 A.2d 770 (Del. Ch. 1988).
101
Id. at 780-81; see also Parnes v. Balley Entm’t Corp., 722 A.2d 1243, 1246 (Del.
1999) (citing J.P. Stevens, 542 A.2d at 780-81). Elsewhere, Chancellor Allen described
this demand futility theory as akin to the test for waste. See Kahn v. Tremont Corp., 1994
WL 162613, at *6 (Del. Ch. Apr. 21, 1994) (“The second prong of Aronson is, I suppose,
directed to extreme cases in which despite the appearance of independence and disinterest
a decision is so extreme or curious as to itself raise a legitimate ground to justify further
inquiry and judicial review. The test for [establishing demand futility on this ground] is
thus necessarily high, similar to the legal test for waste.”).
102
See, e.g., Walt Disney, 906 A.2d at 67 (“A failure to act in good faith may be shown,
for instance, where the fiduciary intentionally acts with a purpose other than that of
advancing the best interests of the corporation[.]”).
32
individuals had a personal financial interest in the New Agreement or were not
independent. 103 Rather, Plaintiff contends they acted in bad faith because the “material
terms” of the New Agreement “deviate from market standards and are patently unfair to
Orbitz yet highly beneficial to Travelport.” 104 The provisions of the New Agreement that
Plaintiff challenges as “patently unfair” include “(a) continued exclusivity; (b) the
Minimum Volume [Guarantee]; (c) shortfall penalties; and (d) a five-year term.” 105
In response, Defendants submit that the terms of the New Agreement “represent a
value-for-value contract.” 106 They argue, under the reasoning of In re Sanchez Energy
Derivative Litigation, 107 that “Plaintiff’s failure to allege or point to any specific financial
information (negative or otherwise) concerning the [New Agreement], especially in light
of its positive economic aspects, . . . requires dismissal of the Complaint.” 108 I agree.
In Sanchez Energy, plaintiffs argued that demand was excused because an
agreement between a company and its alleged controlling stockholder was “so facially
unfair that it could not possibly have been the product of a valid business judgment.” 109
103
See Compl. ¶¶ 120-126.
104
Pl.’s Ans. Br. 46.
105
Id. 44-45.
106
Orbitz Defs.’ Reply Br. 32.
107
2014 WL 6673895 (Del. Ch. Nov. 25, 2014), appeal docketed No. 702,2014 (Del.
Dec. 19, 2014).
108
Orbitz Defs.’ Reply Br. 34.
109
Sanchez Energy, 2014 WL 6673895, at *10.
33
Specifically, they alleged that the price of the transaction at issue (the sale of a one-half
interest in 80,000 acres of potential oil reserves at roughly $2,500 per acre) was grossly
unfair because it was approximately 17 times higher than the price paid in an ostensibly
comparable, arms-length transaction (the sale of a working interest in 172,000 acres of
potential oil reserves reportedly at $144 per acre). The Court rejected this argument,
concluding that the derivative complaint did not support an inference of bad faith on
behalf of the directors because it was devoid of “information about the nature, quality and
duration of the . . . working interests [in the 172,000 acres] to allow a meaningful
comparison to those acquired by [the company].” 110 In other words, the Court was
unable to conclude that the challenged transaction was so unfair as to support an
inference of bad faith because the plaintiffs failed to allege material terms of the
supposedly comparable transaction.
Here, as in Sanchez Energy, Plaintiff has failed to allege with particularity facts
from which I could reasonably infer that the New Agreement was so facially unfair as to
constitute a lack of good faith by Britton and Leslie, the members of the Audit
Committee who were part of the Demand Board. While in Sanchez Energy the problem
was the lack of information about the allegedly comparable transaction, here the pleading
deficiency is more basic: Plaintiff has not alleged any of the financial terms of the New
110
Id. at *12. For similar reasons, the Court also rejected the plaintiffs’ comparisons to
another transaction.
34
Agreement. 111 Instead, Plaintiff asks that I look at the publicly available terms—such as
the Minimum Volume Guarantee and the five-year duration—without regard for the
financial terms that formed the basis of Orbitz’s and Travelport’s mutual exchange of
consideration. It would be imprudent for me to do so because there is no well-pled
baseline from which I can make a “meaningful comparison” between the New Agreement
and other GDS services contracts in the travel industry, the financial terms of which
Plaintiff also failed to allege in the Complaint. 112 Thus, I have no informational basis
from which I could conclude that the New Agreement was “so far beyond the bounds of
reasonable judgment” as to constitute bad faith or to demonstrate that the members of the
Audit Committee put the interests of Travelport and/or Blackstone ahead of the best
interests of the Company. 113 Accordingly, Plaintiff failed to establish that demand should
be excused as to any of Counts I-IV on this ground.
111
Admittedly, the publicly available version of the New Agreement is redacted to
conceal these financial terms. Once again, however, Plaintiff failed to use Section 220 to
attempt to fill this informational void. Had Plaintiff done so, it presumably would have
obtained this information, subject to entering an appropriate confidentiality agreement.
See Tr. of Oral Arg. 63-64.
112
For example, the Complaint includes quotations from an October 4, 2011, letter from,
among others, the Interactive Travel Services Association and a purported industry
expert’s statements on May 5, 2011, and July 24, 2013, about the typical terms of a GDS
services agreement. Compl. ¶¶ 64-65, 67. The Complaint does not allege the financial
terms of such “typical” agreements.
113
See J.P. Stevens, 542 A.2d at 780-81.
35
Plaintiff’s refrain that “the members of the Board should have exercised the
Company’s leverage to secure a substantially more favorable GDS agreement” 114 is
precisely the type of “Monday morning quarterbacking” that this Court routinely rejects
as insufficient to establish demand futility. 115 “In the absence of well pleaded allegations
of director interest or self-dealing, failure to inform themselves, or lack of good faith, the
business decisions of the board are not subject to challenge because in hindsight other
choices might have been made instead.” 116
c. Demand Should Not Be Excused Simply Because the
Challenged Transaction Involved an Alleged Controlling
Stockholder
Plaintiff’s third demand futility argument is that demand should be excused for
Counts I-IV as a matter of law because the New Agreement was a conflicted transaction
subject to entire fairness review. 117 Plaintiff advances two theories for the application of
entire fairness, neither of which provides a basis for excusing demand in my view.
First, Plaintiff contends that entire fairness should apply because a majority of the
ten directors on the Agreement Board were financially interested in the New Agreement
or otherwise not independent from Travelport and/or Blackstone. 118 Accepting for the
114
Pl.’s Ans. Br. 44.
115
See In re Affiliated Computer Servs., Inc. S’holders Litig., 2009 WL 296078, at *10
(Del. Ch. Feb. 6, 2009).
116
Id.117
Pl.’s Ans. Br. 31.
118
Id. 40.
36
sake of argument that the full board provides the appropriate frame of reference for
determining the standard of review for the breach of fiduciary duty claim against the
Agreement Board (Count II), 119 the Complaint fails to allege facts legitimately calling
into question the independence or disinterestedness of at least six of the ten members of
the Agreement Board (Britton, Esterow, Forbes, Gerstner, Leslie and Studenmund) for
the reasons explained above.
Second, Plaintiff contends that demand should be excused under the second prong
of Aronson because the New Agreement was a conflicted transaction in which Orbitz’s
controlling stockholder, Travelport, stood on both sides. 120 The logical extension of this
argument is that demand would be excused as a matter of law whenever a transaction
between a corporation and its putative controlling stockholder implicates the entire
119
As discussed above, the reasonable inference from the Complaint is that the full board
did not approve the New Agreement and that only the Audit Committee did so. Thus, the
relevant focus for determining the standard of review for the breach of fiduciary duty
claim asserted against the Orbitz directors in Count II is on the members of the Audit
Committee, whose presumed independence, disinterestedness, and good faith Plaintiff
failed to call into question for the reasons explained above. Thus, the business judgment
standard would presumably govern Count II. See In re Tyson Foods, Inc. Consol.
S’holder Litig., 919 A.2d 563, 589 (Del. Ch. 2007) (observing that, where a majority of
the compensation committee did not have disabling conflicts but where at least half of the
full board did, the business judgment standard would govern if only the committee
approved the compensation awarded to the managing general partner of the company’s
controlling stockholder).
120
Pl.’s Ans. Br. 32.
37
fairness standard. Although this argument has some superficial appeal, it is inconsistent
with controlling authority in my opinion. 121
Under 8 Del. C. § 141(a), “[t]he business and affairs of every corporation . . . shall
be managed by or under the direction of a board of directors.” In Zapata Corp. v.
Maldonado, 122 the Delaware Supreme Court observed that the “managerial decision
making power” granted to directors by 8 Del. C. § 141(a) “encompasses decisions
whether to initiate, or refrain from entering, litigation.” 123 As noted above, because a
derivative action infringes upon the board’s managerial authority, Court of Chancery
Rule 23.1 requires a derivative plaintiff to allege with particularity “the efforts, if any,
made by the plaintiff to obtain the action the plaintiff desires from the directors . . . and
the reasons for the plaintiff's failure to obtain the action or for not making the effort.” 124
Building on this core tenet of Delaware corporate law, the Supreme Court
articulated in Aronson the now-familiar demand futility standard for a derivative claim
challenging a decision of the board. In that case, the plaintiff challenged certain
121
Given that the second prong of Aronson asks simply whether “the challenged
transaction was otherwise the product of a valid exercise of business judgment,” Aronson,
473 A.2d at 814, it is understandable how one might find that test to be satisfied
whenever entire fairness review might be triggered, irrespective of the circumstances
triggering such review or the nature of the claims to which such review might apply. The
sole authority on which Plaintiff relies consists of a transcript ruling that appears to
endorse this approach. I decline to follow this ruling because it is inconsistent in my
opinion with controlling Supreme Court precedent for the reasons explained above.
122
430 A.2d 779 (Del. 1981).
123
Id. at 782.
124
Ct. Ch. R. 23.1.
38
agreements entered into between the company (Meyers) and a director (Fink), who also
owned 47% of Meyers’s common stock. The plaintiff alleged that Fink “dominated and
controlled” each of the company’s other nine directors, such that demand should be
excused, because Fink “personally selected each director.” 125 Analyzing the plaintiff’s
allegations, the Supreme Court appeared to assume that Fink, with his 47% ownership
interest, was Meyers’s controlling stockholder. The Aronson Court nevertheless squarely
rejected the notion that a controlling interest in a corporation is itself sufficient to
overcome the directors’ presumption of independence:
[I]n the demand context even proof of majority ownership of a company
does not strip the directors of the presumptions of independence, and that
their acts have been taken in good faith and in the best interests of the
corporation. There must be coupled with the allegation of control such
facts as would demonstrate that through personal or other relationships the
directors are beholden to the controlling person. 126
After rejecting the plaintiff’s allegations of Fink’s control over the nine directors, 127 the
Supreme Court found that the plaintiff’s complaint failed to plead demand futility under
Rule 23.1.
125
Aronson, 473 A.2d at 808, 810.
126
Id. at 815.
127
See id. (“Here, plaintiff has not alleged any facts sufficient to support a claim of
control. The personal-selection-of-directors allegation stands alone, unsupported. At
best it is a conclusion devoid of factual support. The causal link between Fink’s control
and approval of the employment agreement is alluded to, but nowhere specified. The
director’s approval, alone, does not establish control, even in the face of Fink’s 47%
stock ownership.”).
39
Twenty years later, in Beam v. Stewart, 128 the Delaware Supreme Court again
addressed the effect of a controlling stockholder on a demand futility analysis, albeit
outside the context of a self-dealing transaction. The Beam case involved a derivative
claim for breach of fiduciary duty against the company’s (MSO’s) founder, chairman,
and CEO (Martha Stewart) for allegedly jeopardizing MSO’s financial future by illegally
selling stock in another public corporation (ImClone) and mishandling the media
attention that followed. The plaintiffs alleged that three other directors were not
independent from Stewart for demand futility purposes because of alleged social and
business relationships, and the fact that Stewart owned 94% of MSO’s voting shares.
Citing to Aronson, the Beam Court’s analysis began with the presumption that
directors act independently and faithfully to their fiduciary duties. 129 The Supreme Court
concluded that the alleged social and business relationships did not raise a reasonable
doubt as to the independence of the three directors. Then, citing to the part of Aronson
discussed above, the Beam Court firmly rejected the notion that Stewart’s majority voting
control in MSO alone overcame the other directors’ presumed independence:
Beam attempts to bolster her allegations regarding the relationships
between Stewart and Seligman and Moore by emphasizing Stewart’s
overwhelming voting control of MSO. That attempt also fails to create a
reasonable doubt of independence. A stockholder’s control of a
corporation does not excuse presuit demand on the board without
particularized allegations of relationships between the directors and the
controlling stockholder demonstrating that the directors are beholden to the
stockholder. As noted earlier, the relationships alleged by Beam do not
128
845 A.2d 1040 (Del. 2004).
129
Id. at 1048 (citing Aronson, 473 A.2d at 812).
40
lead to the inference that the directors were beholden to Stewart and, thus,
unable independently to consider demand. Coupling those relationships
with Stewart’s overwhelming voting control of MSO does not close that
gap. 130
As Aronson, Beam, and Rule 23.1 make plain, the demand futility test under
Delaware law focuses exclusively on whether there is a reasonable doubt that the
directors could impartially respond to a demand. The fact that Rales, rather than
Aronson, governs here is of no moment, because—regardless of the applicable test—the
demand futility analysis focuses on whether there is a reason to doubt the impartially of
the directors, who hold the authority under 8 Del. C. § 141(a) to decide “whether to
initiate, or refrain from entering, litigation.” 131 Under these authorities, neither the
presence of a controlling stockholder nor allegations of self-dealing by a controlling
stockholder changes the director-based focus of the demand futility inquiry.
For the reasons explained above, the fact that Travelport arguably held a
controlling interest in Orbitz when it entered into the New Agreement does not affect the
demand futility analysis for Counts I-IV. Stated differently, the potential that the entire
fairness standard may govern Plaintiff’s breach of fiduciary duty claim against Travelport
130
Id. at 1054 (citing Aronson, 473 A.2d at 815).
131
Zapata, 430 A.2d at 782. Indeed, in Guttman, then-Vice Chancellor Strine explained
that, although the “Rales test looks somewhat different from Aronson, in that [it] involves
a singular inquiry[,] . . . that singular inquiry makes germane all of the concerns relevant
to both the first and second prongs of Aronson.” Guttman, 823 A.2d at 501; see also
David B. Shaev Profit Sharing Account v. Armstrong, 2006 WL 391931, at *4 (Del. Ch.
Feb. 13, 2006) (“[T]he Rales test, in reality, folds the two-pronged Aronson test into one
broader examination.”), aff’d, 911 A.2d 802 (Del. 2006) (TABLE). Given this reality, our
jurisprudence would benefit in my view from the adoption of a singular test to address
the question of demand futility.
41
as an alleged controlling stockholder (Count I) does not remove that claim, or any of the
other derivative claims (Counts II-IV), from the purview of the Demand Board to decide
for themselves under 8 Del. C. § 141(a) whether to exercise the Company’s right to bring
such a claim. The focus instead, as explained in Aronson and repeated in Beam, is on
whether Plaintiff’s allegations raise a reasonable doubt as to the impartially of a majority
of the Demand Board to have considered such a demand. For the reasons set forth above,
Plaintiff has not done so in my view for any of Counts I-IV.
* * *
In sum, after accepting as true Plaintiff’s particularized allegations of fact and
drawing all reasonable inferences from those allegations in Plaintiff’s favor, I conclude
that Plaintiff has failed to raise a reasonable doubt under Rales as to the ability of a
majority of the Demand Board to have impartially considered a demand as to all of
Counts I-IV. 132
132
Even if I were to analyze Plaintiff’s claims under the two prongs of the Aronson test
(i.e., if the New Agreement had been approved by the entire Agreement Board), my
conclusions would be no different. To plead demand futility under Aronson, Plaintiff
must allege particularized facts that raise a reasonable doubt that “(1) the directors are
disinterested and independent [or] (2) the challenged transaction was otherwise the
product of a valid exercise of business judgment.” Aronson, 473 A.2d at 814. For the
reasons explained above, Plaintiff failed to satisfy the first prong of Aronson because it
failed to raise a reasonable doubt as to the independence or disinterestedness of a
majority of Orbitz’s directors when this action was filed (Britton, Esterow, Forbes,
Gerstner and Leslie) and Plaintiff failed to satisfy the second prong because it failed to
raise a reasonable doubt that the New Agreement was approved in bad faith.
42
B. Count V Fails to State a Claim for Relief
In Count V of the Complaint, Plaintiff asserts that the members of the Current
Board breached their fiduciary duties by determining that Brand, Esterow, and Friedman
were “independent” under the NYSE Rules. 133 Plaintiff contends that this claim is both
direct and derivative. As to the former, Plaintiff submits it has alleged direct injury from
material misstatements in the Company’s 2014 proxy statement, “which solicited
stockholder votes in connection with the election of directors,” because that proxy
“falsely claimed that three incumbent directors—Brand, Esterow, and Friedman—were
independent when, in reality, they were not.” 134 As to the latter, Plaintiff argues that it
has alleged derivative injury from violations of the NYSE Rules, under the theory that
“directors act in bad faith, and breach their fiduciary duty of loyalty, when they violate
regulations applicable to their company.” 135 I need not resolve whether Plaintiff’s claim
133
Compl. ¶ 157. Count V also alleges that the members of the Current Board breached
their fiduciary duties by failing to replace the director vacancy created by Studenmund’s
resignation from the board and by failing to comply with the Company’s Guidelines in
certain respects. Id. Plaintiff did not advance any argument in its brief concerning either
of these issues; thus, those aspects of Count V are waived. See Emerald P’rs v. Berlin,
726 A.2d 1215, 1224 (Del. 1999) (“Issues not briefed are deemed waived.”). There is no
affirmative duty under Delaware law, moreover, for a board to fill a director vacancy.
See In re Aquila Inc. S’holders Litig., 805 A.2d 184, 191 (Del. Ch. 2002) (holding that
directors “had no identifiable duty to appoint anyone to the board of directors” even
though the company failed to “form an audit committee comprised of at least two
independent directors within three months of listing” as required by the NYSE Rules).
134
Pl.’s Ans. Br. 61.
135
Id. 63.
43
is direct or derivative (or both) because the claim must be dismissed under Court of
Chancery Rule 12(b)(6) for failure to state a claim for relief. 136
Significantly, Plaintiff does not assert that the 2014 proxy statement failed to
accurately disclose all material facts relevant to assessing the independence of any of
Orbitz’s directors under Delaware law, 137 such as facts concerning the nature of their
relationships, if any, with Travelport or Blackstone. Thus, Plaintiff’s challenge to the
propriety of an independence determination under the NYSE Rules does not undermine
the sufficiency of the disclosures in the 2014 proxy statement. For this reason, the
authorities on which Plaintiff relies, which involved allegations that directors omitted or
misstated material information when soliciting stockholder action, are plainly
distinguishable. 138
136
Defendants’ motion to dismiss Count V under Court of Chancery Rule 12(b)(6) must
be denied unless, accepting as true all well-pled allegations of the Complaint and drawing
all reasonable inferences from those allegations in Plaintiff’s favor, there is no
“reasonably conceivable set of circumstances susceptible of proof” in which Plaintiff
could recover. See Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27
A.3d 531, 536 (Del. 2011).
137
See, e.g., Stroud v. Grace, 606 A.2d 75, 85 (Del. 1992) (“Delaware law imposes upon
a board of directors the fiduciary duty to disclose fully and fairly all material facts within
its control that would have a significant effect upon a stockholder vote.”).
138
See In re Ebix, Inc. S’holder Litig., 2014 WL 3696655, at *16 (Del. Ch. July 24, 2014)
(denying the defendants’ motion to dismiss a claim that stockholder approval of an
incentive compensation plan, which was required under the NYSE Rules, was invalid due
to material misstatements about the CEO’s bonus agreement in the relevant proxy
statement); Millenco L.P. v. meVC Draper Fisher Jurvetson Fund I, Inc., 824 A.2d 11, 18
(Del. Ch. 2002) (granting summary judgment to plaintiff because the proxy statements
for two annual meetings omitted material information about an extraneous relationship
between two directors, one deemed “interested,” and the other deemed “independent,”
under the Investment Company Act of 1940).
44
The actual harm alleged in Count V is that the Orbitz board improperly
determined that Brand, Esterow, and Friedman were “independent” under NYSE Rule
303A.02 such that, because Baiera and Harford were determined to not be “independent,”
the Orbitz board does not have a majority of “independent” directors as required by
NYSE Rule 303A.01. In essence, Plaintiff challenges the substance of the board’s
determination of independence for Brand, Esterow, and Friedman under the NYSE Rules.
Thus, if this case were to proceed, Plaintiff would need to establish that the Current
Board violated the NYSE Rules.
“The NYSE is registered with the Securities and Exchange Commission . . . as a
national securities exchange pursuant to [S]ection 6 of the Exchange Act. As a registered
exchange, the NYSE is deemed by the Exchange Act a self-regulatory organization.”139
In effect, this means that the NYSE is responsible for maintaining the compliance of
listed companies with the NYSE Rules. For example, under NYSE Rule 303A.13, the
NYSE may issue a public reprimand letter to a listed company that violates NYSE Rule
303A.01. Here, Plaintiff has not alleged that the NYSE has, by public reprimand letter or
otherwise, informed Orbitz that it is in violation of the NYSE Rules. In other words, the
Complaint fails to allege any indication from the NYSE that Orbitz has done anything
wrong under the NYSE Rules. Nor has Plaintiff alleged a contract-based claim with
respect to the board’s independence determinations, such as a violation of the Orbitz
139
In re NYSE Specialists Sec. Litig., 503 F.3d 89, 91 (2d Cir. 2007) (citing 15 U.S.C. §§
78f, 76c(a)(26)).
45
Charter or the Company’s bylaws. 140 Thus, to prove its breach of fiduciary duty claim,
Plaintiff would be prosecuting the functional equivalent of a claim to enforce the NYSE
Rules. In my view, Plaintiff has no standing to do so.
Plaintiff cites no authority from Delaware or any other jurisdiction that supports
the proposition that a violation of the NYSE Rules in the circumstances alleged here
could sustain a claim for breach of fiduciary duty. In the only case Defendants have
identified in which this Court considered a related issue, In re Aquila Inc. Shareholders
Litigation, 141 the plaintiffs conceded they had “no standing directly to bring an action to
enforce the NYSE rules or to seek sanctions for any alleged violation thereof.” 142
Defendants also point to federal case law, which has observed that “courts in [the Third
Circuit] have ‘unanimously refused to recognize any private right of action for violation
of a stock exchange rule.’ ” 143 I find this federal authority to be persuasive, and I
140
See DiRienzo v. Lichtenstein, 2013 WL 5503034, at *23 n.97 (Del. Ch. Sept. 30,
2013) (noting that, where a limited partnership agreement incorporated the definition of
“independent” under the NYSE Rules, and where that agreement required the general
partner’s board to have a majority of independent directors, the failure to satisfy this
charter obligation would be a breach of contract).
141
805 A.2d 184 (Del. Ch. 2002).
142
Id. at 192 n.11 (addressing a contract-based claim for the board’s failure to appoint
two directors who would qualify as “independent” under the NYSE Rules where the
corporation’s charter required the majority stockholder’s right to nominate a majority of
directors under the charter to be exercised “in a manner to ensure compliance by the
Corporation with . . . the requirements of any securities exchange to which the
Corporation is then subject”).
143
Mill Bridge V, Inc. v. Benton, 2009 WL 4639641, *11 (E.D. Pa. Dec. 3, 2009)
(quoting In re Farmers Gp. Stock Options Litig., 1989 WL 73245, at *3 (E.D. Pa. July 5,
1989)); see also Witt v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 602 F. Supp. 867,
46
likewise conclude that Plaintiff has no standing to prosecute a violation of the NYSE
Rules.
It is true that, under Delaware law, “one cannot act loyally as a corporate director
by causing the corporation to violate the positive laws it is obliged to obey.” 144 But, as
noted above, the Complaint does not allege that the NYSE, as a self-regulatory
organization, has indicated that Orbitz violated the NYSE Rules and Plaintiff has no
standing to assert or prove that Orbitz violated the NYSE Rules. Thus, I conclude that it
is not reasonably conceivable that Plaintiff could establish that the Current Board caused
the Company to violate the NYSE Rules. A fortiori, I conclude that Count V fails to
allege a reasonably conceivable claim for breach of fiduciary duty by the Current Board
with respect to the NYSE Rules.
IV. CONCLUSION
For the foregoing reasons, the Orbitz Defendants’ motion to dismiss Count II of
the Complaint under Rule 23.1 is GRANTED, and their motion to dismiss Count V of the
Complaint under Rule 12(b)(6) is GRANTED. The Travelport and Blackstone
Defendants’ motion to dismiss Counts I, III, and IV of the Complaint under Rule 23.1
also is GRANTED.
IT IS SO ORDERED.
869 (W.D. Pa. 1985) (“[T]here is no private right of action against defendants, either
express or implied, under the New York Stock Exchange . . . Rules [for alleged violations
of NYSE Rules 405 and 435].”).
144
Guttman, 823 A.2d at 506 n.34.
47