Claros Diagnostics, Inc. Shareholders Representative Committee v. OPKO Health, Inc.

COURT OF CHANCERY
OF THE
SAM GLASSCOCK III STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE
VICE CHANCELLOR 34 THE CIRCLE
GEORGETOWN, DELAWARE 19947
Date Submitted: March 4, 2020
Date Decided: June 2, 2020
Joanna J. Cline, Esq. David J. Teklits, Esq.
Christopher B. Chuff, Esq. Alexandra M. Cumings, Esq.
Ellis E. Herington, Esq. MORRIS, NICHOLS, ARSHT &
PEPPER HAMILTON LLP TUNNELL LLP
1313 N. Market Street, Suite 5100 1201 N. Market Street, 16th Floor
P.O. Box 1709 Wilmington, DE 19801
Wilmington, DE 19899
RE: Claros Diagnostics, Inc. Shareholders Representative Committee
et al. v. OPKO Health, Inc., C.A. No. 2019-0262-SG
Dear Counsel:
This matter is before me on the Motion of the Plaintiff Claros Diagnostics,
Inc. Shareholder Representative Committee (the “Committee”) for Reargument of a
portion of my Memorandum Opinion of February 19. 2020 (the “Decision”).1 The
Decision, inter alia, denied the Plaintiff’s Motion to Strike an affirmative defense of
unclean hands. One productive use of a motion for reargument is to “forestall a final
opinion in which the judge . . . has inadvertently failed to respond to an argument of
1
See Claros Diagnostics, Inc. S’holders Representative Comm. v. OPKO Health, Inc., 2020 WL
829361 (Del. Ch. Feb. 19, 2020).
counsel.”2 In the Decision, I found the allegation of unclean hands was best decided
on a record, and denied the Motion to Strike on that basis.3 The Committee correctly
points out that I did not explicitly rule on a part of its argument in favor of the Motion
to Strike; that, as a party discrete from those alleged to have acted with unclean
hands, it cannot be subject to an unclean hands defense. I regret not being more
explicit, an omission that has led to this reasonable motion practice by the
Committee and the effort from both sides associated with it. Nonetheless, the
Motion for Reargument is denied.
Among the issues to be addressed in way of the unclean hands defense upon
a developed record is whether the wrongdoing alleged in the unclean hands defense
against Claros and its agents is so intertwined with the creation of the Committee,
and the rights the Committee seeks to enforce here, that equity would be sullied by
granting that relief.4
For the foregoing reason, the Motion for Reargument of my denial of the
Motion to Strike the unclean hands defense is DENIED.
It is SO ORDERED.
2
Manti Holdings, LLC v. Authentix Acquisition Co., Inc., 2019 WL 3814453, at *1 (Del. Ch. Aug.
14, 2019).
3
Claros, 2020 WL 829361, at *12–*13.
4
See McKenna v. Singer, 2017 WL 3500241, at *14 (Del. Ch. July 31, 2017) (citing In re
Rural/Metro Corp. S’holders Litig., 102 A.3d 205, 238–39 (Del. Ch. 2014)) (“The Court of
Chancery has held that fraudulent misrepresentations can constitute inequitable conduct for
unclean hands purposes when the misrepresentations have an ‘immediate and necessary’
connection to the claims asserted.”).
2
Sincerely,
/s/ Sam Glasscock III
Sam Glasscock III
3