Rizk v. Tractmanager

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
THOMAS A. RIZK and JOHN A. DOUGLAS, )
)
Plaintiffs, )
)
v. ) C.A. No. 9073-ML
)
TRACTMANAGER, INC., a Delaware Corporation, )
)
Defendant. )
MASTER‟S REPORT
(Cross-Motions for Summary Judgment)
Date Submitted: March 12, 2014
Final Report: May 30, 2014
Rudolf Koch, Esquire and A. Jacob Werrett, Esquire of RICHARDS, LAYTON &
FINGER, P.A., Wilmington, Delaware; OF COUNSEL: Peter R. Bray, Esquire of
BRAY & BRAY, LLC, Parsippany, New Jersey; Andrew J. Levander, Esquire and David
A. Kotler, Esquire of New York, New York; Attorneys for Plaintiffs.
Kenneth J. Nachbar, Esquire, Megan Ward Cascio, Esquire and Frank Martin, Esquire of
MORRIS, NICHOLS, ARSHT & TUNNELL, LLP, Wilmington, Delaware; OF
COUNSEL: Troy S. Brown, Esquire and Jeffrey A. Sturgeon, Esquire of MORGAN
LEWIS & BOCKIUS, LLP, Philadelphia, PA 19103; Attorneys for Defendant.
LEGROW, Master
The advancement disputes that reach this Court often begin to take on a quality
reminiscent of the late Harold Ramis‟s comedic masterpiece, “Groundhog Day.”
Although the arguments change slightly, and companies occasionally seize upon novel
arguments to advance their ultimate goal of avoiding their contractual obligations, the
plot rarely shifts: a company that granted its directors and officers broad indemnification
and advancement rights in bylaws or employment agreements seeks to avoid the
consequences of that promise when a director or officer is accused of serious wrongdoing
that allegedly injured the company.
Such is the case here. 1 Although the defendant company argues that the plaintiffs
– its former officers – are not entitled to advancement because the underlying litigation
does not involve actions the plaintiffs took in their official corporate capacity, the
company‟s briefs reveal its real position: that Delaware‟s public policy “is contravened
when advancement is provided to an individual who has undertaken serious financial
wrongdoing and other misconduct to further his own interests, contrary to the best
interests of the company.”2 This argument, of course, ignores one important procedural
fact: the plaintiffs have been accused of wrongdoing, but the underlying litigation is
ongoing and the plaintiffs are entitled to defend themselves against those allegations with
the benefit of the advancement rights granted by the company they served. That result is
wholly consistent with, and in fact required by, the public policy of this State, a
1
“My years are not advancing as fast as you think.” “More coffee?” “Keep it coming.”
GROUNDHOG DAY (Columbia Pictures 1993).
2
Def.‟s Opening Br. in Supp. of its Mot. for Summ. J. at 13.
1
conclusion repeatedly confirmed in decisions of this Court and the Delaware Supreme
Court.
BACKGROUND
Except as noted, the background facts are not in dispute. As is typical in
advancement cases, the parties steadfastly disagree about the truth of the factual
allegations in the underlying litigation, but the plaintiffs‟ right to advancement does not
turn on a resolution of those disputed facts, but rather on the contractual rights granted to
the plaintiffs under the defendant‟s bylaws and application of those rights to the claims
asserted in the underlying litigation.
A. The Parties
Thomas A. Rizk (“Rizk”) founded the defendant TractManager, Inc. (“TMI” or
the “Company”) in 2000 and served as its CEO and a director of the Company until April
5, 2013. Rizk also served as an officer or director of several entities affiliated with TMI.
John A. Douglas (“Douglas”) served as TMI‟s Chief Information Officer (“CIO”) from
May 2011 until April 5, 2013. Rizk and Douglas are the plaintiffs (“Plaintiffs”) in this
advancement action. TMI is a Delaware corporation with its principal place of business
in Saddle Brook, New Jersey. TMI provides contract management services in the
healthcare industry and utilizes proprietary technology and applications developed by the
Company.
B. The Joint Venture
In 2010, TMI began operating internationally through a joint venture (the “Joint
Venture”) with SCG Limitless International GP Inc. (“SCG”), whose members include
2
Rizk‟s son, Geoffrey Rizk (“Geoffrey”), Prince Emir Saud Bin Abdul Azziz Bin Majid
Al Saud, and Celestino Diaz, a Venezuelan national. The Joint Venture was formed to
explore business opportunities in certain foreign countries. TractManager International
GP Inc. (“TMI International GP”) is the managing general partner of the Joint Venture
and is controlled by TMI. Rizk was the initial CEO of TMI International GP.
C. Arsenal’s Investment in TMI
In December 2012, Arsenal Capital Partners (“Arsenal”) entered into a merger
whereby Arsenal acquired majority ownership of TMI (the “Merger”). Arsenal is a
private equity firm that invests in middle-market companies. After the Merger, TMI
became wholly-owned by TractManager Holdings LLC (“Holdings”), in which Arsenal
controls a majority stake. In connection with the Merger, some of TMI‟s stockholders
sold their entire interest in the Company to Arsenal, while others – including Rizk – sold
some of their stock but retained an investment in the Company when their interests were
converted in the Merger into membership units of Holdings.
As a result of the Merger, Arsenal has the right to appoint three of TMI‟s four
directors, with each Arsenal director having two votes. The minority stockholders
designated Rizk as their representative on TMI‟s board of directors. The minority
stockholders‟ board designee holds one vote.
D. Plaintiffs’ Termination from TMI
After the Merger, Rizk and Douglas continued in their positions as CEO and CIO,
respectively, of TMI, and signed employment agreements with TMI dated December 19,
2012 (the “Employment Agreements”). In the litigation now pending in New Jersey,
3
TMI alleges that – shortly after taking control of the Company – the three directors
appointed by Arsenal discovered “serious improprieties” in the Company‟s record-
keeping and expenses, particularly relating to the Joint Venture. 3 TMI contends in the
New Jersey litigation that the monthly expenses for the Joint Venture outpaced revenue
by approximately 600%, and the Joint Venture‟s results were markedly different from the
budget and projections provided to Arsenal in connection with the Merger negotiations. 4
Arsenal also learned through investigation and discussions with TMI employees that
Geoffrey Rizk and his partners in SCG had been issued TMI credit cards and routinely
incurred substantial charges on questionable activities, including tens of thousands of
dollars incurred in a three-month period at restaurants, bars, and nightclubs in New York
City, Las Vegas, Miami, and Park City, along with payments to an unknown woman. 5
On April 5, 2013, at a telephonic meeting of TMI‟s board, TMI terminated Rizk
and Douglas from their employment with the Company. TMI stated that the termination
was “for cause, by reason of „willful misconduct, acts of dishonesty, malfeasance and
material breaches of [Rizk‟s and Douglas‟s] responsibilities to the company and its
shareholders … .‟” 6 TMI also required Rizk to resign as CEO of TractManager
3
Rizk v. Brown, Answer, Separate Defenses and Countercls. of Defs. to the 2d. Am. Verified
Compl. (hereinafter cited as “NJ Countercl.”), Dkt. No. C-40-13, (N.J. Super. Ct. Ch. Div.), ¶
42.
4
Id. ¶ 42.
5
Id. ¶¶ 43-45.
6
Id. ¶ 51.
4
International GP, and there is a dispute between the parties about whether Rizk resigned
from that position in a timely manner.7
E. The First New Jersey Action
On April 10, 2013, Rizk, Douglas, and several other individuals and entities filed a
complaint against TMI, its directors, and other individuals and entities in New Jersey
state court (the “First New Jersey Action”). Among other things, the complaint in the
First New Jersey Action alleges Rizk and Douglas improperly were terminated from
TMI. On June 17, 2013, TMI and certain other defendants filed an answer to the second
amended complaint in the New Jersey Action, along with a series of counterclaims
against Rizk, Douglas, and the other plaintiffs (the “New Jersey Counterclaims”).
In all, the New Jersey Counterclaims assert nine claims against various plaintiffs.
As described above, TMI alleges that, after the Merger, the directors appointed by
Arsenal discovered significant issues at the Company, primarily relating to the Joint
Venture, including expenses that substantially outpaced revenue and a culture in which
Geoffrey and some of his SCG associates lived an extravagant lifestyle largely financed
by TMI. More significantly for purposes of this advancement action, the New Jersey
Counterclaims allege that this pattern of Geoffrey and his associates incurring expenses
on the Company‟s credit cards for costs unrelated to TMI‟s business was authorized and
enabled by Rizk. TMI alleges Rizk directed that Company credit cards be issued to his
son and his friends and told other TMI executives that Geoffrey was their boss and
7
See id. ¶ 68.
5
“going against his wishes was a „fireable offense.‟” 8 TMI also alleges that Rizk
improperly allocated to the Company expenses associated with the Joint Venture and
required TMI employees to devote time to development efforts of the Joint Venture, in an
effort to inflate artificially the Joint Venture‟s profits at the expense of TMI‟s domestic
business.9
The New Jersey Counterclaims also describe what TMI contends was an
intentional and concerted effort by Douglas and Rizk to destroy TMI‟s data. The New
Jersey Counterclaims describe incidents in February and March 2013 in which Douglas –
with the knowledge and support of Rizk – deleted e-mails from TMI‟s server, including
deleting a specific e-mail chain regarding the allocation of expenses between TMI and
the Joint Venture and removing all of Rizk‟s work e-mails from the server.10 In early
April 2013, George Brown, who is the President of TMI, Rizk‟s brother-in-law, and a
“whistleblower” regarding Rizk‟s purported wrongdoing, allegedly received a call from
Douglas in which Douglas stated that he was going to delete all of Brown‟s e-mails. The
following day, TMI alleges, all of George Brown‟s e-mails were deleted.11 In the New
Jersey Counterclaims, TMI further alleges that Douglas “re-imaged” several company-
issued computers in the hours leading up to and following the April 5, 2013 board
meeting, causing all of the data on those computers to be deleted permanently.12
8
Id. ¶¶ 44, 45(G).
9
Id. ¶¶ 46-47.
10
Id. ¶¶ 56-57.
11
Id. ¶ 58.
12
Id. ¶¶ 53-55.
6
The theme running through the New Jersey Counterclaims is that Rizk engaged in
mismanagement and impropriety in connection with managing TMI and allocating
expenses to the Company, and that Douglas and Rizk took affirmative steps to conceal
this wrongdoing by deleting TMI‟s information, including e-mails, from the Company‟s
computers and servers. The pleadings specifically allege that the financial improprieties
and waste of resources occurred “with the express or tacit approval of [Rizk],” and that
Douglas used his “superior access” as CIO to delete data.13
Counts I and II of the New Jersey Counterclaims are asserted against Rizk and
Douglas, respectively, and allege that each of them breached their employment
agreement with TMI by engaging in the various acts of wrongdoing described in the
counterclaims, including the financial improprieties and destruction of data.14 Counts I
and II also allege that Rizk and Douglas breached their employment agreements by (i)
violating the exclusive remedy provisions in the agreement by bringing the First New
Jersey Action, (ii) refusing to return the Company‟s confidential and privileged
information, (iii) disclosing the Company‟s confidential information, and (iv) as to Rizk,
refusing to resign promptly from positions Rizk held with TMI-related entities.15 Counts
III and IV of the New Jersey Counterclaims allege that Risk and Douglas breached the
covenant of good faith and fair dealing implied in their employment agreements by
engaging in the wrongful acts alleged in the complaint.16
13
Id. ¶¶ 48, 60.
14
Id. ¶¶ 63, 72.
15
Id. ¶¶ 64-68, 73-76.
16
Id. ¶¶ 82-83, 88-89.
7
Counts V and VI are fiduciary duty claims against Rizk and Douglas that TMI
concedes are subject to advancement, although it nevertheless refused the advancement
demands made by Rizk and Douglas and – according to the record – has not advanced
any of the fees and expenses Rizk and Douglas have incurred in connection with those
claims. Finally, Counts VII, VIII, and IX are claims for replevin, conversion, and
conspiracy. In those three counts, TMI alleges that Rizk, Douglas, and possibly others
have possession of TMI‟s computer equipment and confidential and proprietary data,
which they have refused to return.17
F. The Second New Jersey Action
On May 28, 2013, several non-parties to this action filed a complaint against TMI
and others in New Jersey state court (the “Second New Jersey Action”). Neither Rizk nor
Douglas is a plaintiff in that action. On June 17, 2013, TMI and others filed a third party
complaint (the “Third Party Complaint”) against Rizk and several other individuals
associated with the Joint Venture. The Third Party Complaint rehashes many of the same
allegations of Rizk‟s and Douglas‟s wrongful conduct that are contained in the First New
Jersey Action. Douglas, however, is not named as a defendant in the Third Party
Complaint. The Second New Jersey Action alleges four third party claims against Rizk:
fraud, conversion, and conspiracy to commit fraud and conversion. TMI does not dispute
that the claims alleged against Rizk in the Third Party Complaint are subject to
advancement under TMI‟s bylaws, although TMI has not advanced any of Rizk‟s fees or
expenses in that action.
17
Id. ¶¶ 101 - 117.
8
G. The New York Action
In addition to the two separate actions in New Jersey, TMI also separately filed on
October 25, 2013 an action against Rizk and other principal stockholders of TMI who
sold their interests in the Company to Arsenal in the Merger (the “New York Action”).
The New York Action again recites much of the alleged wrongdoing attributed to Rizk in
the two New Jersey actions, including the allegations regarding the expenses improperly
incurred by Geoffrey and his associates and the improper allocation of the Joint
Venture‟s expenses to TMI and misuse of TMI‟s resources and employees to prop up the
Joint Venture. 18 The New York Action contains a single count of breach of contract
claim stemming from alleged breaches of the representations made by TMI‟s selling
shareholders in the Merger Agreement.
H. The Plaintiffs’ Demands for Advancement and TMI’s Bylaws
On September 4, 2013, Rizk and Douglas demanded advancement from TMI for
the fees and expenses incurred in defense of the New Jersey Counterclaims, and Rizk
demanded advancement for his fees and expenses incurred in defense of the Third Party
Complaint. 19 Rizk and Douglas maintained they were entitled to advancement under
TMI‟s bylaws, which provide:
Each person who was or is made a party or is threatened to be made a party
to or is otherwise involved … in any actual or threatened action, suit or
proceeding … by reason of the fact that he or she is or was a director or
officer of the Corporation or, while a director or officer of the Corporation,
18
TractManager, Inc. v. TM Holding, LLC, (N.Y. Sup. Ct.), Compl. (hereinafter cited as “N.Y.
Compl.”) ¶¶ 22-29.
19
Rizk v. TractManager, Inc., C.A. No. 9073-ML, Verified Am. Compl. for Advancement
(hereinafter cited as “Advancement Compl.”) Exs. B, E.
9
is or was serving at the request of the Corporation as an employee or agent
of the Corporation or as a director, officer, partner, member, trustee,
administrator, employee or agent of another corporation or of a partnership,
joint venture, limited liability company, trust or other enterprise, including
service with respect to an employee benefit plan (an “indemnitee”), whether
the basis of such proceeding is alleged action in an official capacity as a
director or officer or in any official capacity as a director or officer, or in
any other capacity while serving as a director or officer, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the DGCL.
***
[I]n addition to the right to indemnification conferred herein, an indemnitee
shall also have the right to be paid by the Corporation the expenses incurred
in defending any such proceeding in advance of its final disposition (an
“advance of expenses”); provided however, that if and to the extent that the
DGCL requires, an advance of expenses incurred by an indemnitee in his or
her capacity as a director or officer … shall be made only upon delivery to
the Corporation of an undertaking[.]20
The advancement demands submitted by Rizk and Douglas were accompanied by
undertakings to repay TMI in the event of a final, non-appealable determination that the
Plaintiffs were not entitled to indemnification in connection with the claims for which
advancement was paid. TMI quickly rejected the demands, responding that advancement
was neither permitted nor required under TMI‟s bylaws and 8 Del. C. § 145, because the
claims against Rizk and Douglas “assert acts of bad faith … which were opposed to the
best interests of [TMI].” 21 Rizk also demanded advancement for the fees incurred in
connection with the claim asserted against him in the New York Action, a demand the
Company also refused.22
20
Id. Ex. H, Art. V, § 1.
21
Id. Exs. C, F.
22
Id. ¶ 16 & Ex. I;
10
I. Procedural Background
Rizk and Douglas filed this advancement action on November 12, 2013, seeking
advancement for the claims asserted against them in the New Jersey Counterclaims,
along with advancement for Rizk for the claims asserted against him in the Third Party
Complaint. The Plaintiffs also seek indemnification for the fees and expenses incurred in
this action. The Plaintiffs amended their complaint on November 22, 2013 to add a claim
for advancement of the fees and expenses incurred by Rizk in the New York Action.
The parties agreed to a stipulated scheduling order that permitted abbreviated
discovery, after which the parties filed cross-motions for summary judgment.23 Shortly
after argument on the cross-motions, the parties advised the Court that TMI had filed an
amended complaint in the New York Action and dismissed without prejudice its claims
against Rizk.24 Rizk argues that he now is entitled to indemnification for the New York
Action, and is entitled to “fees on fees” for prosecuting his advancement claim relating to
that action. TMI, however, maintains that the dismissal of Rizk from the New York
Action has no bearing on this Court‟s analysis, and that Rizk is not now, and never has
been, entitled to advancement or indemnification relating to that case.25
23
Before the parties moved for summary judgment, the Plaintiffs moved for a protective order
against discovery TMI sought into the Plaintiffs‟ bills in the underlying litigation. At the
conclusion of argument on the motion for protective order, I issued a report recommending that
the Court grant the Plaintiffs‟ motion, concluding that the Plaintiffs were not required to produce
their bills in the underlying litigation until the Court reached a conclusion regarding the claims
for which the Plaintiffs were entitled to advancement. See Rizk v. TractManager, Inc., C.A. No.
9073-ML (Jan. 17, 2014) (TRANSCRIPT) at 37-41.
24
Letter from Rudolf Koch, Esq. to the Court (Mar. 11, 2014), Exs. A, B.
25
Letter from Kenneth J. Nachbar, Esq. to the Court (Mar. 12, 2014), at 1-2.
11
ANALYSIS
Where, as here, the parties file cross-motions for summary judgment, the Court
may deem the motions to be the equivalent of a stipulation for decision based on the
record submitted. 26 Advancement disputes routinely are resolved through summary
judgment practice because the summary nature of the dispute allows the Court to resolve
on a paper record issues that almost always depend on the terms of the bylaws and the
nature of the pleadings in the underlying litigation.27 Although the submission of cross-
motions for summary judgment does not operate per se as a concession that no material
facts are in dispute, the parties have not identified any factual issues that preclude an
entry of judgment in this case, nor do any appear from my review of the record.
Although the briefing on the pending motions was extensive, the parties succeeded
in narrowing the issues before the Court, largely because TMI conceded for the first time
that the Plaintiffs were entitled to advancement for certain of the claims in the First New
Jersey Action, and that Rizk is entitled to advancement for the entirety of the Second
New Jersey Action, although those concessions are subject to a waiver defense discussed
below. The issues that remain between the parties for purposes of the pending cross-
motions are (1) the extent, if any, to which Douglas and Rizk are entitled to advancement
for their defense of counterclaims I-IV and VII-IX in the First New Jersey Action, (2)
whether Rizk is entitled to advancement for his defense of the New York Action, and (3)
26
Ct. Ch. R. 56(h).
27
Sun-Times Media Gp., Inc. v. Black, 954 A.2d 380, 388 (Del. Ch. 2008); Senior Tour Players
207 Mgmt. Co. LLC v. Golftown 207 Holding Co. LLC, 853 A.2d 124, 126-27 (Del. Ch. 2004);
Weinstock v. Lazard Debt Recovery Gp., LLC, 2003 WL 21843254, at *2 (Del. Ch. Aug. 8,
2003).
12
whether the Plaintiffs waived their right to seek mandatory advancement from TMI by
arguing in the First New Jersey Action that the advancement rights conferred by TMI‟s
bylaws are discretionary.
I. The Scope of the Plaintiffs’ Advancement Rights Generally
Section 145 of the Delaware General Corporation Law (“DGCL”) allows – and at
times requires − corporations to indemnify current and former officials for expenses they
incur in actions brought against them in their official capacity. 28 As the Delaware
Supreme Court has explained,
Section 145 serves the dual policies of: (a) allowing corporate officials to
resist unjustified lawsuits, secure in the knowledge that, if vindicated, the
corporation will bear the expenses of litigation; and (b) encouraging
capable women and men to serve as corporate directors and officers, secure
in the knowledge that the corporation will absorb the costs of defending
their honesty and integrity.29
Advancement, which is an “important corollary” to indemnification, furthers those
purposes by attracting capable individuals to serve corporations, secure in the knowledge
that the corporation will provide “immediate interim relief” by advancing the fees and
costs the official may incur in connection with investigations or legal proceedings.30
Although the authority conferred on corporations to advance expenses is
permissive under Section 145(e), a corporation may make the right to advancement
mandatory through its charter or bylaws. 31 As many corporations do, TMI‟s bylaws
provided mandatory advancement rights to its directors and officers, a point TMI
28
8 Del. C. § 145(a)-(c).
29
VonFeldt v. Stifel Fin. Corp., 714 A.2d 79, 84-85 (Del. 1998).
30
Homestore, Inc. v. Tafeen, 888 A.2d 204, 211 (Del. 2005).
31
Citadel Holding Corp. v. Roven, 603 A.2d 818, 823 (Del. 1992).
13
concedes. By using the word “shall,” and assuming an obligation to advance fees and
expenses incurred by an officer or director, TMI also undertook the burden of proving
that mandatory advancement is not required in a particular case.32
TMI‟s bylaws require the company to indemnify “each person who was or is made
a party to … any actual or threatened action, suit or proceeding … by reason of the fact
that he or she is or was a director or officer of the Corporation … (an “indemnitee”),” and
confers upon an indemnitee “the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final disposition,” subject
only to a requirement that the indemnitee deliver an undertaking to the corporation if
required by the DGCL.33 The meaning of this “by reason of the fact” standard is by now
well-worn; several decisions of both this Court and the Delaware Supreme Court explain
that a proceeding is “by reason of the fact” that one was a corporate officer if there is a
nexus or causal connection between the underlying proceeding and one‟s official
capacity, “without regard to one‟s motivation for engaging in that conduct.” 34 The
necessary causal connection is established if the corporate powers were used or necessary
for the commission of the alleged misconduct, even if the cause of action does not specify
32
See VonFeldt v. Stifel Fin. Corp., 1999 WL 413393, at *3 (Del. Ch. Jun. 11, 1999). Although
VonFeldt was decided in the context of a mandatory indemnification provision, rather than a
mandatory advancement provision, the Court‟s reasoning applies with equal force to an
advancement dispute. See id. (“By using the mandatory word “shall” in the indemnification
bylaw, [the corporation] has contractually agreed to indemnify persons covered by the bylaw … .
To overcome this self-imposed, mandatory obligation on [the corporation‟s] part, [the
corporation] must demonstrate to this Court why it should not be required to indemnify [the
corporate official].”). See also Paolino v. Mace Security Int’l, Inc., 985 A.2d 392, 407 (Del. Ch.
2009).
33
Advancement Compl. Ex. H, Art. V, § 1.
34
Homestore, Inc. v. Tafeen, 888 A.2d 204, 214 (Del. 2005); Danenberg v. Fitracks, Inc., 2012
WL 11220, at *5 (Del. Ch. Jan. 3, 2012).
14
a claim for breach of fiduciary duty.35 The “by reason of the fact” standard is interpreted
broadly and in favor of advancement in order to further the goals of Section 145.36
II. The First New Jersey Action
The Plaintiffs contend that they are entitled to advancement for all of the
counterclaims asserted against them in the First New Jersey Action, not just counts V and
VI, which are styled as breach of fiduciary duty claims. TMI disagrees, arguing that
counts I-IV and VII-IX are claims that arise from actions the Plaintiffs allegedly took in
their personal capacity, separate from their duties as officers or a director of the
Company.
To recap, counts I and II allege that Rizk and Douglas breached their employment
contracts by refusing to return company property and e-mails, disclosing confidential
company documents, and violating the exclusive remedy provisions of their employment
agreements. 37 Count I also alleges that Rizk violated his employment agreement by
refusing to resign promptly from certain positions he held with TMI-related entities.38 In
counts III and IV, TMI alleges that Rizk and Douglas breached the covenant of good faith
and fair dealing in their employment agreements by failing to act in good faith under the
agreement, damaging the business interests of TMI, and causing the expenditure of funds
35
Zaman v. Amadeo Holdings, Inc., 2008 WL 2168397, at *17 (Del. Ch. May 23, 2008);
Bernstein v. TractManager, Inc., 953 A.2d 1003, 1011 (Del. Ch. 2007).
36
Underbrink v. Warrior Energy Servs. Corp., 2008 WL 2262316, at *6-7 (Del. Ch. May 30,
2008).
37
NJ Countercl. ¶¶ 64-67, 73-76.
38
Id. ¶ 68.
15
in bad faith.39 Although these allegations appear to implicate the Plaintiffs‟ conduct as
officers of TMI, the Company argues that the claims were brought against the Plaintiffs
“in their personal capacity as employees under a contract, rather than „by reason of the
fact‟ that they were officers and a director, which status is completely incidental.” 40 To
support its contention that these claims must be purely employment-related claims
divorced from the Plaintiffs‟ official capacity, TMI argues that the Plaintiffs could have
engaged in this conduct even if they were not officers or a director of the Company,
offering the rather unremarkable truth that “[a]n employee need not be an officer or
director of a company to steal company property, disclose confidential documents or
violate provisions in contracts.”41
Although this Court has recognized that the “by reason of the fact” standard
should not be construed so as to draw within its ambit every claim brought against an
officer or director,42 a corporation seeking to avoid advancement on the basis that the
underlying litigation arises solely from terms of an employment agreement must show
that the claims “clearly involve a specific and limited contractual obligation without any
nexus or causal connection to official duties.”43 This Court‟s decision in Paolino v. Mace
Security International, Inc. provides a detailed summary of the cases that delineate the
line between a narrow employment-related claim that does not implicate an officer‟s
official duties, and a broader contractual claim that bears the necessary causal connection
39
Id. ¶¶ 82-83, 88-89.
40
Def.‟s Opening Br. in Support of its Mot. for Summ. J. at 17.
41
Id. at 18.
42
See Weaver v. Zenimax Media, Inc., 2004 WL 243163, at *3 (Del. Ch. Jan. 30, 2004).
43
Paolino v. Mace Security Int’l, Inc., 985 A.2d 392, 407 (Del. Ch. 2009) (emphasis added).
16
to those duties. For example, this Court has concluded that former officers are not
entitled to advancement for claims alleging that they received employment benefits
inconsistent with the terms of their contracts. 44 In contrast, this Court has awarded
advancement when an official ostensibly is sued for violating his employment agreement
but where (1) the conduct at issue was identical to conduct alleged to be a breach of
fiduciary duty,45 or (2) the contractual claims are grounded in an official‟s alleged misuse
of the substantial fiduciary responsibility he was given. 46 In Paolino, the Court
concluded that this line of cases shows that advancement rights do not arise “when the
parties are litigating a specific and personal contractual obligation that does not involve
the exercise of judgment, discretion, or decision-making authority on behalf of the
corporation.”47 To determine on which side of the line the New Jersey Counterclaims
fall, I must read the claims as a whole and interpret the substance of the allegations in
each count.48
TMI cites no authority in support of its argument that this inquiry should turn on
whether a non-officer employee could engage in the wrongdoing alleged in the
complaint, and such a rule appears inconsistent with the summary nature of advancement
proceedings and the record typically considered by the Court in resolving these disputes.
In fact, adopting TMI‟s proposed rule would place a narrow reading on the “by reason of
the fact” standard, a standard this Court consistently interprets broadly and in favor of
44
Weaver, 2004 WL 243163, at *3.
45
Reddy v. Electronic Data Sys. Corp., 2002 WL 1358761, at *7 (Del. Ch. Jun. 18, 2002).
46
Zaman v. Amedeo Holdings, Inc., 2008 WL 2168397, at *28 (Del. Ch. May 23, 2008).
47
985 A.2d at 403.
48
Weaver, 2004 WL 243163, at *4.
17
advancement. 49 TMI‟s argument, if accepted, would create an artificial distinction in
which advancement was dependent on whether the conduct at issue in the underlying
complaint was conduct in which only an officer could engage, requiring the Court to
undertake fact-finding outside the limited inquiry typically involved in an advancement
dispute.50 This distinction is particularly ill-fitted in this case, where the Plaintiffs‟ only
positions with TMI were as officers or – in the case of Mr. Rizk – a director. TMI does
not explain why this Court should shift its focus from the capacity in which a plaintiff
actually served to consider whether a hypothetical non-officer employee could have
engaged in the same conduct. The argument appears to be one designed to achieve a
particular result, without regard for its consistency with settled practice or Delaware law
or policy.
Even if TMI‟s argument had merit, however, it would not succeed in this case,
because a careful reading of the New Jersey Counterclaims shows that TMI alleges that
the Plaintiffs‟ unique positions as officers allowed them to engage in the alleged
wrongdoing. For example, the counterclaims charge that the Plaintiffs “caused” the
expenditure of funds in bad faith, an action that appears to implicate their authority as
officers. The counterclaims also allege that Douglas, in his capacity as CIO, has superior
access to TMI‟s servers, enabling him to delete and move e-mails, and that Rizk directed
Douglas to undertake those actions.51
49
Underbrink v. Warrior Energy Servs. Corp., 2008 WL 2262316, at *6-7 (Del. Ch. May 30,
2008).
50
Homestore, Inc. v. Tafeen, 888 A.2d 204, 213 (Del. 2005).
51
NJ Countercl. ¶¶ 57, 60.
18
Reading the claims as a whole, I cannot conclude that counts I-IV solely implicate
personal contractual obligations that do not involve the exercise of the Plaintiffs‟
judgment, discretion, or decision-making authority as officers. To the contrary, those
claims allege that the Plaintiffs injured the company by failing to act fairly and in good
faith, including by authorizing improper expenditures of Company funds, disclosing
confidential company information, and refusing to return Company property and data. I
acknowledge that counts I and II of the counterclaims also allege that the Plaintiffs
violated the exclusive remedy provision in their employment agreements by bringing
claims against the Company and participating in the First New Jersey Action, allegations
that appear to involve limited, personal obligations in the employment agreements, The
Company, however, chose to combine those allegations with allegations implicating the
Plaintiffs‟ conduct in their official capacity, and TMI therefore is obligated to advance all
of the Plaintiffs‟ fees and expenses relating to those counts.52
The Plaintiffs also are entitled to advancement for counts VII-IX of the New
Jersey Counterclaims. These counts – for conversion, replevin, and conspiracy – are
based on allegations that the Plaintiffs are in possession of TMI‟s equipment and data,
have refused to return the same, and that the data contains highly confidential and
52
See Danenberg v. Fitracks, Inc., 2012 WL 11220, at *6 (Del. Ch. Jan. 3, 2012) (“[i]t is not
possible at this stage to parse between pre- and post-merger representations or among causes of
action such that a lesser allocation would be appropriate.”) TMI is the master of its own
pleadings and elected to combine allegations bearing a causal connection to the Plaintiffs‟
conduct as officers with allegations involving a limited contractual obligation in the employment
agreement. It does not appear equitable or efficient to force the Plaintiffs‟ counsel defending
those counterclaims to artificially segregate their time between various allegations within a
particular count. In a later dispute over indemnification, TMI may argue that it is entitled to
recover a portion of the advancement from the Plaintiffs. See id.
19
sensitive information belonging to TMI and its clients.53 TMI here reprises its argument
that the “„true basis‟ of [these] claims is entirely disconnected from [the Plaintiffs‟]
capacities as officers or a director,” because the Plaintiffs‟ access to the equipment and
data, and their obligations not to steal it, were “due to their status as employees of
TMI.” 54 As set forth above, that argument is unconvincing, both because it is
inconsistent with settled Delaware law applying the “by reason of the fact” standard, and
because the Plaintiffs‟ only employment with TMI was in their capacity as officers. It
necessarily follows that it was in that capacity that the Plaintiffs obtained the data and
equipment at issue in these claims. Although the alleged wrongful retention of the
equipment and data did not occur until after the Plaintiffs were terminated from TMI, the
claims bear a causal connection to the Plaintiffs‟ official capacity, because it was in that
capacity that they had access to the equipment and data.55
III. The New York Action
TMI‟s argument that Rizk cannot obtain advancement for his defense of the New
York Action carries more persuasive force because it is based on the argument that Rizk
is being sued in his capacity as a seller for representations the selling stockholders made
in the Merger Agreement. TMI argues that Rizk and several other sellers named as
defendants in the New York Action made a series of representations and warranties in the
53
NJ Countercl. ¶¶ 101-117.
54
Def.‟s Opening Br. in Support of its Mot. for Summ. J. at 20-21.
55
See Brown v. LiveOps, Inc., 903 A.2d 324, 328-30 (Del. Ch. 2006) (concluding that claims
against a former official for allegedly misappropriating the company‟s confidential and
proprietary information directly arose out of his former position because the claims alleged that
the official gained access to the information while serving as an officer of the company).
20
Merger Agreement, placed money and equity in escrow to cover “potential
indemnification liabilities” associated with breaches of those representations and
warranties, and that those escrowed funds are the subject of the breach of contract claim
filed in the New York Action.56 TMI contends it would be “nonsensical” to require the
company to advance to Rizk the fees he incurs in defense of the breach of contract claim,
while the other sellers are forced to fund their own defense.57 Rizk, on the other hand,
argues that the “crux” of the New York Action is the allegation that Rizk, in his capacity
as CEO, caused the Company to incur improper expenses and wrongfully diverted
personnel for his own personal benefit, and that those actions were outside the ordinary
course of business and inconsistent with the representations made by the sellers in the
Merger Agreement.58 In other words, TMI argues that the claim in the New York Action
is not subject to advancement because Rizk is being sued in his capacity as a seller, while
Rizk argues that the claim is subject to advancement because it requires him to defend his
conduct as an officer and director. Although I believe Rizk has the better argument, this
is concededly a thorny issue that turns on the particular facts of this case.
Although TMI correctly points out that Rizk is being sued for representations he
made as a seller in the Merger Agreement, it is inescapable that the claim in the New
York Action inextricably is intertwined with actions Rizk allegedly took in his capacity
as CEO of TMI. Much like the New Jersey actions, the complaint in the New York
Action alleges that Rizk incurred, and permitted Geoffrey and his associates to incur,
56
Def.‟s Opening Br. in Support of its Mot. for Summ. J. at 15.
57
Id. at 16.
58
Pls.‟s Answering Br. in Opp. to Def.‟s Mot. for Summ. J. at 14.
21
inappropriate expenses that were charged to TMI, and that Rizk improperly directed TMI
resources and personnel to the Joint Venture, at the expense of TMI‟s domestic
business. 59 Although TMI argues these contentions are mere “background facts”
divorced from the claim in the New York Action, that argument cannot be squared with
the operative complaint, which later alleges that the diversion of resources and personnel
for the personal benefit of Rizk and his son and associates, and for the benefit of the Joint
Venture, was “outside of the ordinary course of business and inconsistent with the
representations, warranties, and covenants in the Merger Agreement.”60 Although Rizk
was sued for representations he made as a seller, these allegations regarding Rizk‟s
conduct as CEO create the necessary causal connection between the New York Action
and Rizk‟s official capacity.61 That conclusion also is compelled by a cursory analysis of
the defense Rizk must make in order to prevail in the New York Action: that defense
necessarily will require Rizk to defend his actions as CEO, and possibly disprove the
59
N.Y. Compl. ¶¶ 23-28.
60
Id. ¶ 42.
61
In Danenberg v. Fitracks, Inc., 2012 WL 11220 (Del. Ch. Jan. 3, 2012), this Court held that
the former CEO of the defendant corporation was entitled to advancement for claims brought
against him arising from representations the CEO made during merger negotiations. The CEO
also was the selling shareholder in the merger. Rizk relies on Danenberg to support his
argument that the representations underlying the breach of contract claim in the New York
Action were made in Rizk‟s official capacity. TMI seeks to distinguish Danenberg on the basis
that the claims the corporation alleged against the former CEO were for fraud and conspiracy,
rather than breach of contract. Although I disagree that Danenberg can be distinguished on that
basis, it also is not clear that Danenberg can be read as broadly as Rizk contends, because that
case arguably turns on certain unique facts, particularly the fact that the former CEO apparently
made these representations over the course of a number of years and regarding technology the
CEO then was developing in his official capacity. See id. at *6. In any event, because I find that
there is a nexus between the allegations in the New York Action and Rizk‟s official capacity,
requiring Rizk to defend his conduct as CEO, my conclusions do not turn on an application or
extension of Danenberg.
22
allegations that he acted improperly in that capacity.62 A finding that Rizk‟s defense of
the claim in the New York Action bears a causal connection to his actions as TMI‟s CEO
is consistent with, and supported by, the broad interpretation this Court gives the “by
reason of the fact” standard in order to effectuate the policies underlying Section 145,
including the policy of “encouraging capable women and men to serve as corporate
directors and officers, secure in the knowledge that the corporation will absorb the costs
of defending their honesty and integrity.”63
Finally, I must consider whether TMI‟s decision to dismiss Rizk from the New
York Action moots his request for advancement relating to that claim. Notably, TMI did
not raise that mootness argument and instead specifically argued that “the dismissal of
the claim against Rizk has no bearing on the Court‟s resolution of the matters” before it.64
There is some precedent to support the conclusion that it would be inequitable to deny
advancement to a corporate official, and force the corporate official to pursue a separate
action for indemnification, simply because the claims against the official were dismissed
while the advancement action was pending.65 Because TMI has expressly disclaimed any
argument that the dismissal affects this advancement proceeding, and because previous
decisions of this Court have allowed advancement despite the resolution of the
62
See Imbert v. LCM Interest Holding LLC, C.A. No. 7845-VCL (Del. Ch. Jun. 24, 2013)
(TRANSCRIPT) at 22-24 (considering the defenses raised to a claim in determining whether a
claim carried a nexus to official capacity).
63
VonFeldt v. Stifel Fin. Corp., 714 A.2d 79, 84-85 (Del. 1998) (emphasis added).
64
Letter to the Court from Kenneth J. Nachbar, Esq. at 1.
65
See Underbrink v. Warrior Energy Servs. Corp., 2008 WL 2262316, at *15 (Del. Ch. May 30,
2008). But see Haseotes v. Cumberland Farms, Inc., C.A. No. 14921 (Del. Ch. July 23, 1996)
(TRANSCRIPT) at 5-8 (refusing to order advancement where the plaintiff waited eight months
before demanding advancement, the underlying claim had been adjudicated, and the claim
ultimately may not have been indemnifiable).
23
underlying litigation, at least where the underlying litigation was resolved in the official‟s
favor, I do not believe that equity favors dismissing Rizk‟s advancement claim as moot.
IV. TMI’s Waiver Argument
In a final bid to avoid the contractual obligations the company undertook in its
bylaws, TMI unconvincingly argues that the Plaintiffs waived their right to mandatory
advancement by arguing in the First New Jersey Action – in a brief to support their
motion to disqualify the New Jersey defendants‟ counsel and litigation consultant – that
the advancement rights conferred in TMI‟s bylaws are discretionary, rather than
mandatory.66 Because TMI cannot meet the “exacting” standards to demonstrate waiver,
this defense should be rejected.
A waiver is a “voluntary and intentional relinquishment of a known right.”67 The
doctrine rests on the equitable principle that a person who takes a position with full
knowledge of his rights should not be permitted to later act in a manner inconsistent with
that position.68 The Supreme Court has described the standards for demonstrating waiver
as “quite exacting,” requiring proof that (1) there is a requirement or condition capable of
being waived, (2) the waiving party knows of that requirement or condition, and (3) the
waiving party intends to waive that requirement or condition.69
As a preliminary matter, at the time the Plaintiffs filed their reply brief in the New
Jersey Action, it is not clear that they were aware that TMI would be asserting
66
Transmittal Aff. of Frank R. Martin, Esq. (hereinafter “Martin Aff.”)., Ex. 46, p. 21-22.
67
Realty Growth Inv. v. Council of First Unit Owners, 43 A.2d 450, 456 (Del. 1982).
68
In re Givans Estate, 1993 WL 50316 (Del. Ch. Feb. 1, 1993).
69
Amirsaleh v. Bd. of Trade of the City of New York, Inc., 27 A.3d 522, 529-30 (Del. 2011).
24
counterclaims against them in their official capacities. 70 Assuming, however, that the
Plaintiffs had full knowledge of the nature of the claims TMI intended to bring against
them in New Jersey, TMI has not established that the Plaintiffs knew of their mandatory
advancement rights at the time they argued to the New Jersey court that advancement
rights were discretionary, or that the Plaintiffs intended to waive those rights. In fact, a
cursory reading of the brief on which TMI relies suggests that Plaintiffs‟ New Jersey
counsel entirely misunderstood Section 145 and Delaware law respecting advancement.71
Because the limited record before the Court shows that the Plaintiffs were not aware of
their mandatory advancement rights, TMI cannot provide “unequivocal” evidence of
either the Plaintiffs‟ knowledge of their rights or their intent to waive them.72
V. Apportionment
Resolving the claims for which the Plaintiffs are entitled to advancement
unfortunately only resolves a portion of the issues between the parties. It appears likely,
based on the course of this litigation to date, that future disputes may arise regarding the
particular fees and expenses for which the Plaintiffs, especially Rizk, seek advancement,
because Rizk and Douglas also are pursuing claims against TMI in the First New Jersey
Action, and are not entitled to advancement for those claims. Several of the parties in the
70
It appears from the record that the counterclaims in the New Jersey action were filed on the
same day as the reply brief that TMI relies upon to support its waiver argument.
71
Compare Martin Aff. Ex. 46, p. 22 (citing 8 Del. C. § 141(d)(3) [sic] for the proposition that
“if no directors can approve a request for advancement, the determination can be made „by
independent legal counsel in a written opinion‟”) with Havens v. Attar, 1997 WL 55957, at *14
& n. 58 (holding that the procedural limitations in Section 145(d) do not apply to a decision to
advance expenses).
72
See Amirsaleh, 27 A.3d at 529 (“the facts relied upon to demonstrate waiver must be
unequivocal”).
25
First New Jersey Action also may be represented by the same counsel. As a result, once
the Court determines whether to adopt the recommendations in this report, the Plaintiffs
and TMI should confer regarding a procedure to govern the submission of advancement
requests to TMI and the resolution of any disputes regarding apportionment or the
reasonableness of the fees and expenses. Other than a brief discussion during oral
argument, the parties do not appear to have discussed at length any such procedure.
VI. Fees on Fees
The Plaintiffs also seek indemnification, or “fees on fees,” for the expenses they
incurred in enforcing their advancement rights in this action. TMI does not dispute that
the Plaintiffs are entitled to indemnification, but correctly argues that the Plaintiffs only
are entitled to indemnification proportionate to their success in this case. Because it
appears likely that the parties will incur additional costs associated with resolving the
apportionment between fees that are subject to advancement and those that are not, and
because the Plaintiffs only are entitled to indemnification consistent with the level of
success they achieve in this action, I will defer resolving the amount of any
indemnification award until the completion of this case.73 To the extent it assists the
parties in resolving any future “fees on fees” dispute in this case, I note that Plaintiffs
have been entirely successful in the proceedings up to this point, and therefore likely are
entitled to indemnification for all of their fees incurred to date.
73
See Weinstock v. Lazard Debt Recovery GP, LLC, 2003 WL 21843254, at *7 (Del. Ch. Aug. 8,
2003).
26
VII. Interest
The Plaintiffs seek pre- and post-judgment interest on the fees and expenses they
have incurred in the various actions for which the Court determines the Plaintiffs are
entitled to advancement. TMI does not dispute the Plaintiffs‟ right to interest, aside from
pointing out that the Plaintiffs are not entitled to interest on any claims for which the
Court determines there is no right to advancement.74 The Plaintiffs are entitled to pre-
judgment interest for expenses incurred before they demanded advancement, with interest
accruing ten days after the date the relevant advancement demand and undertaking were
delivered to TMI. Pre-judgment interest on fees and expenses incurred after that date
should accrue from the date the expenses were paid. The Plaintiffs also are entitled to
post-judgment interest, compounded quarterly, at the legal rate under 6 Del. C. § 2301.75
74
Def‟s. Answering Br. in Opp. to Pls.‟s Mot. for Summ. J. at 24.
75
Underbrink v. Warrior Energy Servs. Corp, 2008 WL 2262316, at *19 (Del. Ch. May 30,
2008).
27
CONCLUSION
For the foregoing reasons, I recommend the Court find that (i) Douglas is entitled
to advancement for all the counterclaims asserted against him in the First New Jersey
Action, (ii) Rizk is entitled to advancement for all the claims asserted against him in the
First New Jersey Action, the Second New Jersey Action, and the New York Action, and
(iii) the Plaintiffs have not waived their right to advancement. This is my final report and
exceptions may be taken in accordance with Rule 144.
Respectfully submitted,
/s/ Abigail M. LeGrow
Master in Chancery
28