Jeffrie J. Silverberg v. Shan Padda

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
KATHALEEN ST. JUDE MCCORMICK LEONARD L. WILLIAMS JUSTICE CENTER
VICE CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734
October 18, 2019
Robert Karl Hill, Esquire Marc S. Casarino, Esquire
Seitz, Van Ogtrop & Green, P.A. White & Williams LLP
222 Delaware Ave., Suite 1500 600 N. King St., Suite 800
Wilmington, DE 19801 Wilmington, DE 19801
Samuel A. Nolen, Esquire Thad Bracegirdle, Esquire
Richards, Layton & Finger, P.A. Wilks, Lukoff & Bracegirdle, LLC
920 N. King St. 4250 Lancaster Pike, #200
Wilmington, DE 19801 Wilmington, DE 19805
David J. Teklits, Esquire Edward B. Micheletti, Esquire
Morris Nichols Arsht & Tunnell LLP Skadden, Arps, Slate, Meagher & Flom LLP
1201 N. Market St. 920 N. King St.
Wilmington, DE 19801 Wilmington, DE 19801
Gregory W. Hauswirth, Esquire
Leech Tishman Fuscaldo & Lampl, LLC
1007 N. Orange St., 4th Floor
Wilmington, DE 19801
Re: Jeffrie J. Silverberg v. Shan Padda, C.A. No. 2017-0250-KSJM
Dear Counsel:
This letter addresses Plaintiffs’ motion to reargue (the “Motion”) 1 portions of
the September 19, 2019, Memorandum Opinion (the “Opinion”)2 granting
Defendants’ motion to dismiss in part and ordering supplemental briefing.
1
Docket (“Dkt.”) 98, Pls.’ Mot. for Reargument of the Dismissal of the Thirteenth and
Fourteenth Claims.
2
Silverberg v. Padda, 2019 WL 4566909 (Del. Ch. Sept. 19, 2019).
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October 18, 2019
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The Motion seeks reargument concerning dismissal of Counts Thirteen and
Fourteen, which challenge an offering of convertible debentures conducted by
Health Integrated, Inc. in 2015. Count Thirteen alleges that the directors who
approved this 2015 offering did so in breach of their fiduciary duties, and Count
Fourteen alleges that some of the investors who participated in the offering—
defendants Rivers Cities, Midwest, and Stonehenge3 (referred to in this decision as
the “Venture Capital Defendants”)—aided and abetted the directors’ breaches.
Plaintiffs conceded that Count Thirteen is derivative in nature, but they argued
that it should also be regarded as direct under Gentile v. Rossette. 4 The Opinion
considered the merits of Plaintiffs’ Gentile argument concerning Count Thirteen,5
only to reject it. As discussed in the Opinion, for a Gentile claim to be viable, a
plaintiff must adequately allege the existence of a controller or control group. 6 The
Opinion concluded that because Plaintiffs had not adequately alleged either a
controller or control group, Gentile did not apply, and thus the dismissal of Count
3
Terms not defined in this letter have the same meaning ascribed to them in the Opinion.
4
906 A.2d 91 (Del. 2006).
5
Id. Considering Plaintiffs’ Gentile argument as to Count Thirteen was generous on the
part of the Court, because Plaintiffs did not expressly plead Count Thirteen as a direct claim
under Gentile. Dkt. 33, Verified Sec. Am. Compl. (“Sec. Am. Compl.”) ¶¶ 290–98. Nor
did Plaintiffs name the alleged control group members as defendants in Count Thirteen as
Gentile requires. Id.
6
Silverberg, 2019 WL 4566909, at *5.
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October 18, 2019
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Thirteen was appropriate. 7 The Motion seeks reargument of this aspect of the
Opinion.
“A motion for reargument under Court of Chancery Rule 59(f) will be denied
unless the court has overlooked a controlling decision or principle of law that would
have controlling effect, or the court has misapprehended the law or the facts so that
the outcome of the decision would be different.” 8 “Reargument motions may not be
used to relitigate matters already fully litigated or to present arguments or evidence
that could have been presented before the court entered the order from which
reargument is sought.” 9 “A party may not present a new argument for the first time
in a motion for reargument.” 10
In support of reargument, Plaintiffs contend that the Opinion both overlooked
principles of law and misapprehended certain factual allegations supporting
Plaintiffs’ claim that the Venture Capital Defendants comprised a control group at
the time of the 2015 offering.
7
Id. at *7. Count Fourteen for aiding and abetting, in turn, failed for lack of a necessary
predicate. Id.
8
Those Certain Underwriters at Lloyd’s, London v. Nat’l Installment Ins. Servs., Inc.,
2008 WL 2133417, at *1 (Del. Ch. May 21, 2008).
9
Quantlab Gp. GP, LLC v. Eames, 2018 WL 5778445, at *1 (Del. Ch. Nov. 2, 2018)
(citation omitted).
10
inTEAM Assocs., LLC v. Heartland Payment Sys., Inc., 2016 WL 6819734, at *2 (Del.
Ch. Nov. 18, 2016) (citing Oliver v. Boston Univ., 2006 WL 4782232, at *1 (Del. Ch.
Dec. 8, 2006)).
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October 18, 2019
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Turning first to the principles of law, Plaintiffs direct the Court to a Delaware
Supreme Court decision issued within a month after the Opinion—Sheldon v. Pinto
Technology Ventures, L.P., 11 which affirmed the Court of Chancery’s dismissal of a
Gentile claim where the complaint failed to allege stockholder connections sufficient
to form a control group.12 In directing the Court to Sheldon, Plaintiffs suggest that
Sheldon articulates a new legal principle that might alter the outcome of the Opinion.
Plaintiffs are mistaken.
Sheldon involved allegations that the venture capital defendants:
(i) collectively controlled a majority of the company’s voting equity; (ii) “were
parties to a voting agreement that gave them the right to appoint three directors to
[the board]”; (iii) “acted in concert” to complete the challenged transactions; and
(iv) enjoyed a “long and close relationship of investing together.” 13
In evaluating whether these allegations supported the finding of a control
group at the trial level, Vice Chancellor Zurn cited the standard set forth in Dubroff
v. Wren Holdings, LLC: “A group of stockholders ‘can collectively form a control
group where those shareholders are connected in some legally significant way—e.g.,
11
– A.3d –, 2019 WL 4892348 (Del. Oct. 4, 2019).
12
See Sheldon v. Pinto Tech. Ventures, L.P., 2019 WL 336985, at *9–10 (Del. Ch. Jan. 25,
2019).
13
Id. at *8 (citations omitted).
Civil Action No. 2017-0250-KSJM
October 18, 2019
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by contract, common ownership, agreement, or other arrangement—to work
together toward a shared goal.’” 14
To guide the Court’s analysis, the Vice Chancellor then turned to two Court
of Chancery decisions that applied the Dubroff standard at the pleadings stage. 15 In
van der Fluit, this Court deemed an agreement between alleged group members
insufficient to show that they were “connected in some legally significant way”
where the agreement did not relate to the underlying challenged transaction and was
not entered into exclusively by members of the control group.16 In Hansen, this
Court denied a motion to dismiss a control group theory where the two group
members were identified by the company as “key stockholders,” were allegedly
given exclusive power to negotiate the challenged transaction, and were alleged to
have coordinated their investment strategy in at least seven different companies over
the course of two decades. 17
14
Id. (quoting Dubroff v. Wren Hldgs., LLC, 2009 WL 1478697, at *3 (Del. Ch. May 22,
2009)).
15
Id. at *8–9 (discussing van der Fluit v. Yates, 2017 WL 5953514 (Del. Ch. Nov. 30,
2017) and In re Hansen Med. S’holders Litig., 2018 WL 3025525 (Del. Ch. June 18,
2018)).
16
van der Fluit, 2017 WL 5953514, at *5.
17
Hansen, 2018 WL 3030808, at *7.
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Using van der Fluit and Hansen as barometers, the Vice Chancellor concluded
that the complaint failed to plead the existence of a control group.18 The Vice
Chancellor observed that in Sheldon, like in van der Fluit, the agreement at issue did
not bind the signatories with respect to their votes on the challenged transaction and
included persons other than the purported control group members. 19 The Vice
Chancellor further observed that in Sheldon, unlike in Hansen, the complaint failed
to sufficiently plead a factual basis for the allegation that the alleged group members
enjoyed a long-standing relationship of co-investments.20 For these reasons, the
Vice Chancellor concluded that Sheldon “more closely resemble[d] van der Fluit
than Hansen,” and thus found that the complaint failed to allege that the venture
capital defendants comprised a control group.21
On appeal, the Supreme Court adopted Dubroff and related cases as the
standard for demonstrating the existence of a control group, stating:
To demonstrate that a group of stockholders exercises
control collectively, the Appellants must establish that
they are connected in some legally significant way—such
as by contract, common ownership, agreement, or other
arrangement—to work together toward a shared goal. To
18
Sheldon, 2019 WL 336985, at *10.
19
Id. at *10 (noting the challenged agreement did not “bind the Venture Capital Defendants
beyond selecting directors”).
20
Id. (concluding that “[p]laintiffs’ allegations merely indicate that venture capital firms
in the same sector crossed paths in a few investments”).
21
Id.
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show a legally significant connection, the Appellants must
allege that there was more than a mere concurrence of self-
interest among certain stockholders. Rather, there must be
some indication of an actual agreement, although it need
not be formal or written. 22
The Supreme Court then proceeded to track the Court of Chancery’s
comparative analysis using van der Fluit and Hansen as the two poles of the
spectrum, and then independently reached the conclusion that the facts alleged in
Sheldon failed to establish “anything but a ‘mere concurrence of self-interest.’”23
Thus, although Sheldon is notable in that it was the Delaware Supreme Court’s first
opportunity to address the standard for establishing that a group of stockholders
exercised control collectively, Sheldon did not alter Delaware law concerning
control group requirements.
The Opinion applied the same standard as, and in a manner consistent with,
Sheldon. The Opinion applied the Dubroff standard, searching the complaint for any
legally significant connection among the alleged group members.24 The Opinion
22
Sheldon, 2019 WL 4892348, at *4. In articulating this standard, the Supreme Court
adopted Dubroff, cases on which Dubroff relied, including In re PNB Hldg. Co. S’holders
Litig., 2006 WL 2403999, (Del. Ch. Aug. 18, 2006), and recent cases interpreting Dubroff,
including In re Crimson Expl., Inc. S’holder Litig., 2014 WL 5449419 (Del. Ch. Oct. 24,
2014). Id.
23
Id. at *7 (quoting Carr v. New Enter. Assocs., Inc., 2018 WL 1472336, at *10 (Del. Ch.
Mar. 26, 2018)).
24
Silverberg, 2019 WL 4566909, at *6–7.
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concluded that the complaint failed “to allege more than parallel interests among the
alleged group members.”25 The Opinion, therefore, did not misapprehend any legal
principle germane to the control group analysis that would affect the outcome. Thus,
Sheldon does not support reargument.
The Motion further cites to four additional authorities in support of
reargument. The Opinion did not overlook these authorities; rather, Plaintiffs failed
to cite to them. 26 By failing to include them in briefing, Plaintiffs waived their right
to rely on them. 27 In any event, these authorities do not alter the outcome of the
Opinion. Of these four decisions, three involve distinguishable allegations that
supplied a legally significant relationship among group members sufficient to
support the existence of a control group, 28 and the fourth does not reach the merits
25
Id. at *6.
26
See Dkt. 98 at 10–12, ¶¶ 19–21 (citing Frank v. Elgamal, 2012 WL 1096090 (Del. Ch.
Mar. 30, 2012); eBay Domestic Hldgs, Inc. v. Newmark, 16 A.3d 1 (Del. Ch. 2010); Carr,
2018 WL 1472336; Williamson v. Cox Commc’ns, Inc., 2006 WL 1586375 (Del. Ch.
June 5, 2006)).
27
Emerald P’rs v. Berlin, 726 A.2d 1215, 1224 (Del. 2004) (“Issues not briefed are deemed
waived.”).
28
See Frank, 2012 WL 1096090, at *4 (finding a series of contemporaneously executed
agreements, including employment agreements reflecting that the alleged group members
would together manage the post-merger entity, sufficient to support the existence of a
control group); eBay, 16 A.3d at 13 (finding an agreement between two stockholders
“spell[ing] out how [the two stockholders] will vote their shares in director elections”
sufficient to support the existence of a control group); Williamson, 2006 WL 1586375,
at *5 (deeming a confluence of “special business relationships” including revenue sharing
agreements that linked controllers sufficient to plead they formed a control group).
Civil Action No. 2017-0250-KSJM
October 18, 2019
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of the control group issue.29 These four additional authorities do not support
reargument.
Turning next to the factual issues, the Motion describes Count Thirteen’s
control group theory as follows:
Plaintiffs allege that River Cities, [Midwest] and
Stonehenge were a “control group” based on [1] their
majority ownership of the preferred stock, [2] blocking
rights afforded a majority of preferred shareholders under
a 2014 amendment to the [Health Integrated] certificate of
incorporation . . . , [3] their representatives on the [Health
Integrated] board and [4] their de facto control of the
officer directors Shan Padda and Sam Toney. 30
Although the Motion argues that the Court overlooked these four categories,31
it bears noting that the above articulation of Plaintiffs’ control group theory first
appeared in the Motion. It is true that the above-quoted passage cites to four
paragraphs of the operative complaint, creating the impression that the factual basis
for this articulation of the control group argument can be found in those four
paragraphs. But the four facts do not appear grouped together in the operative
complaint. Nor did Plaintiffs articulate their control group theory in this manner in
29
Carr, 2018 WL 1472336, at *10 (finding that the plaintiff failed to plead facts supporting
the assertions that two stockholders constituted a control group where the agreement
between the stockholders concerned only two of seven board seats, and thus was
insufficient to establish control).
30
Dkt. 98 at 4–5, ¶ 8 (citing Sec. Am. Compl. ¶¶ 80, 122, 293, 295).
31
Id. at 10–12, ¶¶ 19–21.
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briefing. 32 Indeed, the first two of the four facts—i.e., the Venture Capital
Defendants’ respective or collective stock ownership and the April 2014 amendment
to the Health Integrated Certificate of Incorporation (the “April 2014
Amendment”)—are not found in the complaint at all. 33 To be sure, Plaintiffs cited
32
See Dkt. 75, Pls.’ Corrected Br. in Opp’n to Defs.’ Mots. to Dismiss (“Pls.’ Ans. Br.”)
at 19–22 (factual background section titled “The Transaction Challenged by the Thirteenth
and Fourteenth Claims: The March 2015 Convertible Notes Offering”); id. at 46 (argument
section addressing Counts Thirteen and Fourteen). Plaintiffs’ argument in briefing
concerning Counts Thirteen and Fourteen can best be described as a “head counting”
analysis intended to demonstrate that a majority of the board that approved the 2015
offering was conflicted with respect to that decision. But the Plaintiffs’ head counting
analysis does not directly—nor, in this instance, even indirectly, as discussed below—
speak to the standard for pleading the existence of a control group.
33
See Sec. Am. Compl. ¶ 80 (“On May 27, 2005, the Health Integrated certificate of
incorporation was amended to reduce the number of authorized (but unissued) Series A
shares, set an original issue price of $14.97 for the Series B stock, grant the Series B stock
a liquidation preference in the multiple of 1.5x, reduce the liquidation preference of the
holders of the Series A from 2x to 1.5x, subordinate the rights of the holders of the Series
A stock upon liquidation to those of the holders of the Series B stock, and grant weighted
average price protection to the holders of both the Series B stock. (The ratchet price
protection previously granted the Series A stock had been withdrawn by a 2004 amendment
to the certificate, and therefore both the Series A and Series B stock had only weighted
average price protection.) These changes were necessitated in order to undertake an
offering of Series B stock. The amendment also gave the holders of the Series B stock the
same voting rights associated with the common stock.”); id. ¶ 122 (“McNabb, DiSalvo and
Lux were conflicted with respect to the approval of this transaction since their firms, River
Cities, [Midwest] and Stonehenge, respectively, received notes in this transaction. Padda
and Toney were conflicted since they were beholden to River Cities, [Midwest] and
Stonehenge. Kobielski, the representative of HealthNow-NY supported this transaction
based on promises from McNabb, DiSalvo and Lux that they would support Health
Integrated, granting future preferred rights to HealthNow-NY.”); id. ¶ 293 (“A majority of
the directors who approved the March 2015 Notes Offering were either interested in or
lacked independence in determining whether to approve that transaction. Specifically,
McNabb, DiSalvo and Lux were conflicted because River Cities, [Midwest] and
Stonehenge received securities in the offering. Kobielski supported this transaction in
consideration for the approval McNabb and DiSalvo had in the past provided for the 2005
Civil Action No. 2017-0250-KSJM
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to the April 2014 Amendment in their Answering Brief twice in passing, but
presented no argument concerning its significance. 34
Having failed to timely plead or argue the control group theory that Plaintiffs
now advance, Plaintiffs are barred from pursuing it on reargument. 35 At the very
least, because Plaintiffs neither pled the existence of nor argued the significance of
the first two facts that the Court supposedly overlooked, Plaintiffs cannot now claim
that these facts form a basis for reargument. 36
Series B offering and in consideration for promises from McNabb and DiSalvo that they
would support future offerings benefitting HealthNow-NY. As Health Integrated officers
whose employment, compensation and managerial authority were dependent on satisfying
the demands of the existing preferred shareholders (River Cities, West Broadway,
[Midwest], HealthNow-NY and Stonehenge) and the directors (McNabb, Liptak, DiSalvo,
Kobielski and Lux) who represented the existing preferred shareholders, Padda and Toney
were not independent with respect to the March 2015 Notes Offerings.”); id. ¶ 295
(“Because a majority of the directors who approved the March 2015 Notes Offering were
either conflicted or not independent, the board has the burden of showing that these
transactions were entirely fair to the holders of the common stock.”).
34
See Pls.’ Ans. Br. at 47, 61; Orman v. Cullman, 794 A.2d 5, 28 n.59 (Del. Ch. 2002)
(“Briefs relating to a motion to dismiss are not part of the record and any attempt contained
within such documents to plead new facts or expand those contained in the complaint will
not be considered.”).
35
inTeam Assocs., 2016 WL 6819734, at *2 (“A party may not present a new argument for
the first time in a motion for reargument.”).
36
Quantlab, 2018 WL 5778445, at *1 (“Reargument motions may not be used to . . .
present . . . evidence that could have been presented before.”).
Civil Action No. 2017-0250-KSJM
October 18, 2019
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Plaintiffs’ factual allegations, addressed in order below, do not alter the
outcome of the Opinion in any event.37
First, Plaintiffs’ submission of the Venture Capital Defendants’ actual equity
ownership percentages does not affect the Opinion’s analysis. That analysis rested
on the lack of any alleged or reasonably inferred legally significant connection
between the Venture Capital Defendants. Whether the Venture Capital Defendants
wielded sufficient voting power to act collectively and exercise control did not factor
into the Opinion. Plaintiffs’ additional facts regarding the actual percentages are
thus of no moment.
Second, the April 2014 Amendment does not supply the legally significant
connection sufficient to create a control group under Dubroff.38 The April 2014
Amendment provided voting rights to the holders of categories of preferred stock,
which included the Venture Capital Defendants, concerning transactions required
for new equity financing. 39 Under the April 2014 Amendment, the Venture Capital
Defendants “retain[ed] at all times the right to vote [their preferred shares] in [their]
sole discretion on all matters presented to [Health Integrated’s] Shareholders for a
37
Those Certain Underwriters, 2008 WL 2133417, at *1 (noting reargument motions are
denied even in the face of misapprehended facts unless “the outcome of the decision would
be different”).
38
Dkt. 98 at 5, ¶ 9.
39
Id. at 7, ¶ 14.
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vote.”40 Thus, the April 2014 Amendment did not evidence an agreement among
the Venture Capital Defendants to vote together on the challenged transaction. In
the end, Plaintiffs’ theory still only alleges the existence of parallel interests, and it
still “improperly conflates acts of consensus with the act of forming a group.” 41
Third and fourth, Plaintiffs repeat their “head counting” argument made in
briefing, contending that a control group can be inferred from the allegations that
five of the nine directors were conflicted with respect to the actions challenged by
Counts Thirteen and Fourteen.42 Specifically, Plaintiffs note as the third factor that
three of the directors on the Health Integrated Board were appointed by and affiliated
with the entities that participated in the challenged transaction. 43 They further
contend as the fourth factor that two of the remaining six directors were insiders who
were beholden to these entities given the Venture Capital Defendants’ board
nominees’ roles in setting executive salaries. 44
This argument, however, continues to conflate the existence of parallel
interests with the requirement that Plaintiffs plead a legally significant connection
40
Sheldon, 2019 WL 4892348, at *6.
41
Silverberg, 2019 WL 4566909, at *7.
42
Dkt. 98 at 12–13, ¶ 22–23.
43
Id.
44
Id.
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among the alleged group members concerning the challenged transaction. Plaintiffs
presuppose that the Venture Capital Defendants’ parallel interests automatically
cause their board nominees to act in concert to exercise control over the insiders and
the 2015 offering. But as discussed above, Plaintiffs allege no legally significant
connection among the Venture Capital Defendants permitting this inference. Thus,
even assuming solely for the sake of argument that the Venture Capital Defendants
were interested in the 2015 offering, the Venture Capital Defendants’ board
nominees lacked independence from the Venture Capital Defendants, and the
insiders were beholden to the Venture Capital Defendants or their board nominees,
Plaintiffs still fail to plead the existence of a control group.
For the foregoing reasons, Plaintiffs’ Motion is DENIED.
IT IS SO ORDERED.
Very truly yours,
/s/ Kathaleen St. Jude McCormick
Kathaleen St. Jude McCormick
Vice Chancellor
KSJM/lef
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