RED Capital Investment L.P. v. RED Parent LLC

EFiled: Feb 11 2016 02:43PM EST
Transaction ID 58563959
Case No. 11575-VCN
COURT OF CHANCERY
OF THE
STATE OF DELAWARE
JOHN W. NOBLE 417 SOUTH STATE STREET
VICE CHANCELLOR DOVER, DELAWARE 19901
TELEPHONE: (302) 739-4397
FACSIMILE: (302) 739-6179
February 11, 2016
Brock E. Czeschin, Esquire Steven L. Caponi, Esquire
Richards, Layton & Finger, P.A. Blank Rome LLP
920 North King Street 1201 N. Market Street, Suite 800
Wilmington, DE 19801 Wilmington, DE 19801
Re: RED Capital Investment L.P. v. RED Parent LLC
C.A. No. 11575-VCN
Date Submitted: January 15, 2016
Dear Counsel:
Plaintiffs RED Capital Investment L.P. (“RED Capital”) and George Polk
(“Polk,” and together, “Plaintiffs”) assert that Defendant RED Parent LLC (“RED
Parent” or the “Company”) violated their rights to inspect certain Company books
and records pursuant to the Amended and Restated Operating Agreement of RED
Parent, LLC (the “Operating Agreement”) and 6 Del. C. § 18-305(a)-(b)
Red Capital Investment L.P. v. Red Parent LLC
C.A. No. 11575-VCN
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Page 2
(“Section 18-305”).1 RED Capital is a Delaware limited partnership and a member
of RED Parent, a Delaware limited liability company (“LLC”).2 Polk controls
RED Capital through his control of Tulum Management USA LLC (“Tulum”), the
general partner of RED Capital.3 RED Parent is a Delaware LLC focused on
reducing greenhouse gas emissions by harnessing waste energy in industrial
facilities.4 RED Parent wholly owns two subsidiaries: Recycled Energy
Development LLC (“RED”), used to conduct RED Parent’s operating and
development activities, and RED Investment LLC (“RED Investment”), a holding
company for various energy projects.5
The Operating Agreement requires that each energy project be
compartmentalized in a separate entity owned by RED Investment.6 Each project
entity owned by RED Investment has separate employment agreements, contractor
agreements, and debt contracts in an attempt to ensure that each is “bankruptcy
1
Plaintiffs filed the Verified Complaint on October 5, 2015, and the case was tried
on December 21, 2015. This letter opinion sets out the Court’s post-trial findings
of fact and conclusions of law.
2
Def. RED Parent LLC’s Post-Trial Opening Br. (“Def.’s Opening Br.”) 3-4.
3
Pls. RED Capital Investment L.P.’s and George Polk’s Pretrial Br. 4.
4
Trial Tr. 6.
5
Pre-Trial Stipulation and Order ¶¶ 4-5.
6
JX 40 (“Operating Agmt.”) § 3.3(d); Trial Tr. 15-16.
Red Capital Investment L.P. v. Red Parent LLC
C.A. No. 11575-VCN
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remote.”7 Accordingly, neither RED Parent nor RED Investment directly retains
employees—the Company’s corporate-level employees are retained by RED.8
The Casten family owns 53% of RED Parent, and Tulum owns, through
RED Capital, 39% of RED Parent (including 75% of its preferred interests).9 The
Company is governed by a board of managers (each a “Manager”) comprised of
nine Managers, six appointed by the Castens and three appointed by RED
Capital.10 Polk therefore acts both as a Manager of RED Parent appointed by RED
Capital, and as a representative of RED Capital’s membership interest in RED
Parent.11
On September 22, 2015, Polk emailed Myra Karegianes (“Karegianes”),
RED’s general counsel, a request for three categories of information:
7
Trial Tr. 16.
8
Id. at 17.
9
JX 44.
10
Operating Agmt. § 5.1.
11
Trial Tr. 40.
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(1) All available monthly financial reports for each individual
entity in the RED family[,]
(2) The bank statements and if not yet available the digital records
of financial transactions of each entity in the RED family for the
period May 1 through the date the information was supplied[, and]
(3) A list of all intercompany financial payments, showing the date,
amount and purpose, made between June 1 and [September 22].
The file we are looking for is similar to the one you sent in June
“Cash Activity with RED-Rochester” but covering all the
operating asset entities.12
Polk’s email essentially amounted to a request for the books and records of RED
Investment’s subsidiaries. Polk’s stated purpose for the request was to “understand
the current cash financial position at RED, because by our calculations RED may
be facing an imminent cash crisis, and as investors as well as as a Manager we are
bound by our fiduciary obligations to diligently reassure ourselves that all of the
assets are solvent and stable.”13 In response, Karegianes assured Polk that the
Company would continue to send him periodic financial reports pursuant to the
Operating Agreement,14 although Polk desired additional information to “test
12
JX 32. RED-Rochester is the “most significant” project owned by RED
Investment. Def.’s Opening Br. 5.
13
JX 32.
14
JX 33.
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management’s positions, especially when his own calculations suggest[ed] that
management is incorrect.”15
***
The parties dispute whether Polk’s September 22 email request was made
solely in his capacity as a representative of RED Capital (a member of RED
Parent) or whether it was also made in his capacity as a Manager of RED Parent.
RED Parent argues the former, which would limit Polk’s inspection rights,
pursuant to his email request, to those enumerated in Section 10.2(c) of the
Operating Agreement (“Section 10.2(c)”), specifically, to the “books of account of
the Company.”16 Plaintiffs argue, to the contrary, that Polk requested such
information in both his representative and his individual capacities, which would
subject to Polk’s inspection all Company information encompassed by Section 18-
305(a).
15
Pls. RED Capital Investment L.P.’s and George Polk’s Post-Trial Reply Br. 11.
16
Operating Agmt. § 10.2(c).
Red Capital Investment L.P. v. Red Parent LLC
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***
1. Inspection Rights Under the Operating Agreement and Section 18-305
Limited liability company agreements are contracts and must be interpreted
as such.17 Such agreements operate to displace otherwise applicable default
provisions in Delaware’s Limited Liability Company Act.18 Section 18-305(a)
enumerates certain categories of information subject to member and manager
inspection in the absence of any limitations in an applicable LLC agreement.19 A
member’s or manager’s right to receive such information is contingent on the
member or manager stating “a purpose reasonably related to the position.”20
17
6 Del. C. § 18-1101(b); Mickman v. Am. Int’l Processing, L.L.C., 2009
WL 2244608, at *2 (Del. Ch. July 28, 2009) (“LLC agreements are creatures of
contract, which should be construed like other contracts. The construction of an
LLC agreement, therefore, begins with the language of the agreement.” (footnote
omitted)); Arbor Place, L.P. v. Encore Opportunity Fund, L.L.C., 2002
WL 205681, at *3 (Del. Ch. Jan. 29, 2002).
18
6 Del. C. § 18-305(a); see Grove v. Brown, 2013 WL 4041495, at *5 (Del. Ch.
Aug. 8, 2013).
19
“The rights of a member or manager to obtain information as provided in
[Section 18-305] may be restricted in an original limited liability company
agreement.” 6 Del. C. § 18-305(g).
20
Id. § 18-305(b); DFG Wine Co. v. Eight Estates Wine Hldgs., LLC, 2011
WL 4056371, at *4 (Del. Ch. Aug. 31, 2011).
Red Capital Investment L.P. v. Red Parent LLC
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The Operating Agreement purports to limit Company members’ statutory
right to inspection.21 Specifically, Section 10.2(c) limits a Company member’s
right to inspect Company records to “books of account” of the Company.22
Section 10.2(d) provides, in turn, that Company officers shall prepare and deliver
to Managers monthly management reports and an annual audited balance sheet,
income statement, and cash flow statement. This latter provision does not,
contrary to RED Parent’s position,23 restrict a Manager’s access to information;
requiring officers to prepare and deliver certain information to Managers does not,
without more, limit a Manager’s access to additional information.24
21
Operating Agmt. § 10.2(c). See 6 Del. C. § 18-305(g); NAMA Hldgs., LLC v.
World Mkt. Ctr. Venture, LLC, 948 A.2d 411, 419 (Del. Ch. 2007) (operating
agreement limiting investor’s access to company records), aff’d, 945 A.2d 594
(Del. 2008).
22
The phrase “‘books of account’ is a less expansive term than ‘books and
records.’” Madison Real Estate Immobilien-Anlagegesellschaft Beschrankt
Haftende Kg v. Kanam USA XIX Ltd., 2008 WL 1913237, at *12 n.91 (Del. Ch.
May 1, 2008); see also Arbor Place, 2002 WL 205681, at *3.
23
Trial Tr. 66-67.
24
Madison Ave. Inv. P’rs, LLC v. Am. First Real Estate Inv. P’rs, L.P., 806 A.2d
165, 173 (Del. Ch. 2002).
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2. Polk’s Request Was Made in His Representative Capacity on
Behalf of RED Capital as a Member and in His Individual Capacity
as a Manager
RED Parent contends that Polk’s September 22 request to Karegianes was
made solely on behalf of RED Capital, arguing that Polk’s alleged improper
motives and his last-minute email, sent after the pre-trial conference, suggest such
an interpretation.25 Neither argument, however, addresses the language of Polk’s
September 22 request. Specifically, Polk’s email stated that “[he] act[s] at all
times as a member of RED, regardless of whether [he is] also acting as a
Manager,” that he requested the information “[o]n behalf of RED Capital
Investment LP,” and that, given his calculations suggesting an imminent cash
crisis, he is bound by fiduciary obligations “as an investor[] as well as as a
manager” to “diligently reassure [himself] that all of the assets are solvent and
stable.”26
RED Parent focuses on the first two statements, contending that such
language expressly indicates Polk’s intent to request the information solely on
25
Def.’s Opening Br. 16-17.
26
JX 32.
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behalf of RED Capital.27 While these two statements in isolation support the
Company’s interpretation, when read in conjunction with the third statement and
the purpose for the demand—to ensure the stability of the Company’s assets and
cash position—the demand as a whole suggested that Polk made the request in his
capacity as both a representative of RED Capital and an individual Manager.28
Therefore, Polk’s request is not subject to Section 10.2(c)’s limitation on member
inspection to “books of account.”29
3. Polk is Entitled to the Requested Books and Records
RED Parent argues that Polk is not entitled to project-level data because
each operating subsidiary of RED Investment “is a legally distinct entity created
27
Def. RED Parent LLC’s Post-Trial Reply Br. (“Def.’s Reply Br.”) 22-23; Def.’s
Opening Br. 14.
28
Although the request began with the language “[o]n behalf of RED Capital
Investment,” it also implicated Polk’s capacity as a Manager when it later stated
that the justification for seeking books and records regarding the Company’s cash
position is to ensure compliance with his duties as a Manager. JX 32.
29
The Court notes that simply holding more than one position does not mean that
every act taken is done in every capacity held. While the Court concludes that
Polk requested the desired books and records in both his capacity as a
representative of RED Capital and as a Manager, the content of his demand letter
could support a reasonable inference otherwise. In general, corporate actors should
identify in which capacity they are acting at any given time in order to avoid the
uncertainty present in Polk’s request.
Red Capital Investment L.P. v. Red Parent LLC
C.A. No. 11575-VCN
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for a host of legitimate business reasons.”30 Polk cites DFG Wine to support his
contention that records of RED Investment’s subsidiaries are subject to his request
for inspection.31 There, the Court held that where a subsidiary is the parent’s sole
asset and is wholly owned by the parent; the subsidiary’s value accrues to the
parent; and the subsidiary has no board of directors, is managed by the parent, has
the same address as the parent, and has no budget or plan apart from the parent’s,
the relationship suggests an absence of distinct entities and “it would be unfair,
under the circumstances, to” restrict the member’s access to subsidiary
information.32 The facts here are similar: RED Parent has no business other than
those of its operating subsidiaries,33 RED Parent has no employees or daily
30
Def.’s Opening Br. 26.
31
Pls. RED Capital Investment L.P.’s and George Polk’s Opening Post-Trial
Br. 26, 29.
32
DFG Wine, 2011 WL 4056371, at *6.
33
Operating Agmt. § 1.42 (defining RED as a subsidiary of RED Parent “through
which the Company shall conduct all its development activities”); id. § 1.7 (stating
that all assets of RED Parent “shall be held by RED Investment, LLC, a separate
limited liability company the sole member of which shall be the Company”).
Red Capital Investment L.P. v. Red Parent LLC
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operations of its own,34 and each entity shares the same computer system, email
domain, accounting software, and director and officer insurance policy.35
RED Parent attempts to distinguish DFG Wine from the present facts. First,
it argues that the request in DGF Wine sought “books and records” and was not
limited to “books of account.”36 As explained above, however, Polk’s request, in
his capacity as a Manager, is not subject to the “books of account” limitation in
Section 10.2(c). Second, the Company argues that each operating subsidiary is
legally distinct, created for a legitimate business purpose, and maintains separate
books and records.37 While each RED Investment subsidiary is certainly distinct
from other subsidiaries, it does not follow that each is distinct from the parent, to
which its value accrues.38
34
Trial Tr. 9. In fact, the officers of RED Parent serve as officers or managers of
each of RED Investment’s operating subsidiaries. Id. at 72, 121-22.
35
Id. at 75-77, 143.
36
Def.’s Opening Br. 25.
37
Id. at 26-27.
38
While Polk has a strong argument that the subsidiaries are sufficiently connected
to RED Parent to warrant inspection by Company members, the Court need not
reach this issue. See infra note 43 and accompanying text. DGF Wine applies in
the context of a member’s demand for inspection—if Polk’s demand were
interpreted solely as such, it would be subject to the “books of account” limitation
in Section 10.2(c), obviating much of the DGF Wine analysis, which is based on a
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C.A. No. 11575-VCN
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In DGF Wine, however, the at-issue request for subsidiary information was
made by an LLC member solely in that capacity.39 Here, Polk’s request was made
on behalf of RED Capital as a member of RED Parent, but also in his capacity as a
Manager of RED Parent. Managers are entitled to all information falling within
Section 18-305(a)(1)-(6) that is “reasonably related to the position of manager.”40
This language is tantamount to that used in 8 Del. C. § 220 with respect to director
requests for corporate information.41 As such, LLC managers should be afforded
similar “unfettered”42 access to company books and records, absent restrictions in
an applicable LLC agreement. With this context, the Court is unwilling to deprive
an LLC holding company’s manager of books and records of the company’s
wholly-owned operating entities—such information is “reasonably related” to a
request unrestricted by contractual limitations. DFG Wine, 2011 WL 4056371, at
*6.
39
Id. at *1.
40
6 Del. C. 18-305(b).
41
“Any director shall have the right to examine the corporation’s stock ledger, a
list of its stockholders and its other books and records for a purpose reasonably
related to the director’s position as a director.” 8 Del. C. § 220(d). “Delaware
courts have interpreted Section 18-305 by looking to ‘cases interpreting similar
Delaware statutes,’” namely, 8 Del. C. § 220. Sanders v. Ohmite Hldgs., LLC, 17
A.3d 1186, 1193 (Del. Ch. 2011).
42
McGowan v. Empress Entm’t, Inc., 791 A.2d 1, 5 (Del. Ch. 2000).
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manager’s position as such, and falls within the scope of Section 18-305(a)(1).43
Because Polk has stated a proper purpose—i.e., to “understand the current cash
financial position at RED” in order to discharge his managerial fiduciary duties44—
he is entitled to inspection of the information requested45 to the extent that it is
43
Specifically, Section 18-305 contemplates inspection of “[t]rue and full
information regarding the status of the business and financial condition of the
limited liability company; . . . [and] [o]ther information regarding the affairs of the
limited liability company as is just and reasonable.”
44
JX 32. RED Parent contends that Polk is motivated to further personal interests
by ousting the Company’s management and obtaining control of the Company.
Def.’s Opening Br. 29. This argument relies on the contention that Polk
purposefully requested the information solely as a representative of RED Capital
so as to not subject himself to managerial fiduciary duties with respect to its
eventual use. Id. at 28-29. The Court’s determination that Polk’s request was
made in his capacity both as a representative of RED Capital and as a Manager,
however, largely resolves this concern. In any event, “[p]roper purpose has been
construed to mean that a shareholder’s primary purpose must be proper,
irrespective of whether any secondary purpose is proper.” Grimes v. DSC
Commc’ns Corp., 724 A.2d 561, 565 (Del. Ch. 1998).
45
The books and records requested here fall within subsection (1) of Section 18-
305(a), that is, “information regarding the status of the business and financial
condition of the limited liability company.” Because all requested information
falls within Section 18-305(a)(1) and is therefore subject to manager inspection, it
follows that the scope of the request is sufficiently tailored such that it does not
offend the summary nature of Section 18-305 proceedings. Maitland v. Int’l
Registries, LLC, 2008 WL 2440521, at *2 (Del. Ch. June 6, 2008).
Red Capital Investment L.P. v. Red Parent LLC
C.A. No. 11575-VCN
February 11, 2016
Page 14
within RED Parent’s control or is “in the subsidiary’s possession and control and
can be obtained through [RED Parent’s] exercise of control over the subsidiary.”46
RED Parent argues that the books and records requested are not under the
control of RED Parent or the Casten family because each operating subsidiary has
its own contracts and customers and maintains its own financial records, and RED
Parent has no direct ownership in the separate operating entities.47 That the
operating entities are distinct from each other, however, does not mandate the
conclusion that each is distinct from RED Parent.48 Further, RED Parent’s
operations occur solely at the subsidiary entity level,49 Sean Casten is listed as
Chief Executive Officer of all RED entities, and Scott Kerrigan, “the controller of
RED Parent, is also the controller of all the subsidiary entities.”50 Such unity of
control and management composition is sufficient to subject operating subsidiary
information to a proper request by a parent Manager in accordance with
Section 18-305(b).
46
Weinstein Enters., Inc. v. Orloff, 870 A.2d 499, 508 (Del. 2005); see also 8 Del.
C. § 220(b).
47
Def.’s Reply Br. 9-10.
48
See supra text accompanying note 38.
49
See supra notes 33-35 and accompanying text.
50
Trial Tr. 72.
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***
Because Polk made a proper request in his capacity as Manager51 and stated
a proper purpose, and because the requested information is within RED Parent’s
control, he is entitled, pursuant to Section 18-305(b), to inspect the requested
books and records.52
IT IS SO ORDERED.53
Very truly yours,
/s/ John W. Noble
JWN/cap
cc: Register in Chancery-K
51
Polk satisfied his burden under Section 18-305(f) to establish that his demand
“complied with the provisions of [Section 18-305] respecting the form and manner
of making demand for obtaining or examining such information,” and that the
information demanded “is reasonably related to . . . [his] position as a manager.”
52
RED Parent has provided to Polk much parent-level information. Def.’s Reply
Br. 25-26. RED Parent argues the information provided is sufficient to allow Polk
to discharge his fiduciary duties. Id. at 26; Def.’s Opening Br. 17-20. While this
may be the case, the standard is not whether the manager has sufficient
information—it is whether the information requested is “reasonably related to the
position of manager.” 6 Del. C. § 18-305. Polk’s request, though granted, is
therefore limited to information not otherwise produced. In addition, because RED
Parent must allow Polk to inspect the identified books and records as a Manager, it
is not necessary to determine RED Capital’s inspection rights as a member.
53
The parties shall bear their own costs and attorneys’ fees.