Neurvana Medical, LLC v. Balt USA, LLC

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
NEURVANA MEDICAL, LLC, a )
Delaware limited liability company, )
)
Plaintiff, )
)
v. ) C.A. No. 2019-0034-KSJM
)
BALT USA, LLC, a Delaware limited )
liability company, BALT )
INTERNATIONAL, a French S.A.S., )
DAVID FERRERA, an individual, and )
PASCAL GIRIN, an individual, )
)
Defendants. )
MEMORANDUM OPINION
Date Submitted: November 26, 2019
Date Decided: February 27, 2020
Jason A. Cincilla, Amaryah K. Bocchino, Ryan W. Browning, Tye C. Bell,
MANNING GROSS + MASSENBURG LLP, Wilmington, Delaware; John M.
Pierce, Michael M. Pomerantz, Elizabeth C. DeGori, Matthew J. Kokot, PIERCE
BAINBRIDGE BECK PRICE & HECHT LLP, New York, New York; Counsel for
Plaintiff Neurvana Medical, LLC.
Lori W. Will, Phillip R. Sumpter, Daniyal M. Iqbal, Jeremy W. Gagas, WILSON
SONSINI GOODRICH & ROSATI, P.C., Wilmington, Delaware; Dylan J.
Liddiard, Charles A. Talpas, WILSON SONSINI GOODRICH & ROSATI, P.C.,
Palo Alto, California; Brian J. Levy, WILSON SONSINI GOODRICH & ROSATI,
P.C., New York, New York; Counsel for Defendants Balt USA, LLC, Balt
International, S.A.S., David Ferrera, and Pascal Girin.
McCORMICK, V.C.
The main plot in this case follows one trending storyline—that of the post-
closing earn-out dispute. The plaintiff, Neurvana Medical, LLC (“Neurvana”) sold
a medical device that required regulatory approval and commercialization. In an
effort to allocate the risk associated with the device, the parties agreed to a post-
closing earn-out structure. Under that structure, the buyer, Balt USA, LLC (“Balt
USA”) would pay additional post-closing consideration upon the achievement of
milestone events such as regulatory approval. The asset purchase agreement gave
Balt USA sole discretion post-closing on how to achieve the milestones, but it also
obligated Balt USA to use commercially reasonable efforts in doing so. When Balt
USA failed to achieve the regulatory approval condition to the first milestone
payment, Neurvana commenced this litigation. Neurvana asserts claims for breach
of the commercially reasonable efforts provision along with a boatload of other
contractual and tort claims.
The subplot of this case involves another familiar storyline—that of the
conflicted fiduciary. The chairman of Neurvana’s board, David Ferrera, doubled as
an executive of Balt USA and was thus conflicted with respect to the sale of the
medical device. Rather than distancing himself from negotiations, Ferrera inserted
himself into the thick of them, and even hired his long-time personal attorney to
advise Neurvana. Neurvana’s board became concerned that this duo were overly
soft in negotiations, but the board allowed Ferrera and his attorney to negotiate on
1
behalf of Neurvana and enter into a term sheet setting out the basic economic terms
of the asset purchase agreement. After the term sheet was executed, Neurvana
replaced Ferrera’s attorney and Ferrera was asked to resign from the board.
Neurvana claims that Ferrera breached his duty of loyalty in negotiating the
transaction, and that Balt USA’s CEO, Pascal Girin, aided and abetted in this breach.
Ferrera and Girin moved to dismiss the claims against them for lack of
personal jurisdiction under Rule 12(b)(2), and all of the defendants have moved to
dismiss the complaint for failure to state a claim under Rule 12(b)(6).
The outcome of these motions is that the subplot overtakes the main. This
decision denies the Rule 12(b)(2) motion as to Ferrera in light of the Delaware LLC
Act’s implied consent statute, but it grants the Rule 12(b)(2) motion as to Girin
because the complaint fails to support the conspiracy theory of jurisdiction. This
decision largely grants the defendant’s Rule 12(b)(6) motion, dismissing all
contractual and tort claims relating to the post-closing earn-out dispute, and denying
the motion only as to the claim against Ferrera for breach of the duty of loyalty. The
complaint pleads facts making it reasonably conceivable that Ferrera, who could not
be presumed disinterested or independent due to his dual roles as fiduciary of both
Balt USA and Neurvana, breached his duty of loyalty to Neurvana when he
negotiated the economic terms of the asset purchase agreement.
2
I. FACTUAL BACKGROUND
The background facts are drawn from the Verified Complaint and the
documents it incorporates by reference. 1
A. The Parties
In 2011, Ferrera co-founded Blockade Medical LLC (“Blockade”), a company
focused on developing catheter-based therapeutic devices for the treatment of
cerebral aneurysms. By 2016, Blockade owned one commercial product and had
three products in development.
In September 2016, Balt International, S.A.S (“Balt International”), a French
medical device company, acquired Blockade’s commercial product and California
headquarters. Blockade became Balt USA, a Delaware limited liability company.
Ferrera became Balt USA’s COO and President, and Girin, the CEO of Balt
International, became Balt USA’s CEO.
Balt International did not acquire the three Blockade products still in
development—Titan, Lumenate, and Dimension. Those products were spun out to
Neurvana, a new Delaware limited liability company. Ferrera became a member of
Neurvana and was named Chairman of Neurvana’s board of managers (the “Board”).
1
C.A. No. 2019-0034-KSJM, Docket (“Dkt.”) 1, Verified Compl. (“Compl.”).
3
B. Ferrera Negotiates Terms of a Sale of Titan to Balt USA.
Of Neurvana’s three products, Titan was the closest to launch at the time of
the 2016 transaction. Titan is a catheter used to guide or deliver another medical
device to the brain in order to treat neurovascular conditions. In mid-2017, Balt
USA submitted a letter of intent to purchase Titan.
Over the summer of 2017, Balt USA and Neurvana negotiated the sale of
Titan. Although Ferrera served dual roles as both Neurvana’s Chairman and Balt
USA’s COO and President, Ferrera was involved in these negotiations on behalf of
Neurvana. During those negotiations, Ferrera retained his own “long-time corporate
counsel” to represent Neurvana. 2
On August 1, 2017, Neurvana and Balt USA entered into a letter agreement
(the “Letter Agreement”). The Letter Agreement attached a non-binding term sheet
(the “Term Sheet”) and stated that it was the “intent of the parties that their
discussions initially proceed based on the term sheet.”3 The Term Sheet
contemplated that Neurvana would sell Titan to Balt USA for a purchase price of up
to $16 million. Balt USA would pay $250,000 up front and the rest post-closing.
The post-closing payments would be conditioned on the achievement of
contractually defined milestone events, which included regulatory approvals.
2
Compl. ¶ 33.
3
Id. ¶ 35; Dkt. 28, Transmittal Aff. of Lori W. Will in Supp. of Defs.’ Opening Br. in Supp.
of Their Mot. to Dismiss Pl.’s Verified Compl. (“Will Aff.”) Ex. 1, at 1.
4
At the time of the Letter Agreement, Titan required 510(k) FDA regulatory
approval in the United States and Conformité Européene Mark (“CE Mark”)
approval in Europe. The Term Sheet established milestone payments for each. It
provided for a $250,000 “CE Mark Milestone” payment to be made when Neurvana
received written notice, on or prior to September 30, 2018, that the CE Mark could
be “lawfully affixed” to Titan.4 It further provided for a $250,000 “510(k)
Milestone” payment to be made when Neurvana received written notice, on or prior
to September 30, 2018, of 510(k) clearance from the FDA. 5 The Letter Agreement
assigned to Neurvana the responsibility to achieve both regulatory approvals. The
rest of the payments related to “Commercial Milestones,” 6 which would be
calculated using a formula tied to Titan’s revenue but were capped at $15.25 million.
C. After Negotiating the Term Sheet, Ferrera Is Asked to Resign
from the Board.
Over the course of the negotiations leading to the Letter Agreement and Term
Sheet, the Board became increasingly concerned with Ferrera’s involvement. The
Board worried that the attorney Ferrera installed “had been soft on multiple elements
of the negotiation.”7 During this period, Ferrera allegedly “became abusive” toward
4
Will Aff. Ex. 1, at 6.
5
Id.
6
Id.
7
Compl. ¶ 36.
5
Neurvana CEO Tom Fogarty, repeatedly “butted heads” with Board members,8
called for the removal of Fogarty as Neurvana CEO, sent Fogarty “several abusive
emails and texts,”9 and made culturally derogatory statements. 10
After the Letter Agreement was executed, the Board removed Ferrera’s
chosen counsel and ultimately secured Ferrera’s resignation. Around August 2017,
the Board appointed new counsel to represent Neurvana during negotiation of a
confidentiality agreement with Balt USA. Then, in September 2017, the Board
recommended that Ferrera resign from his position as Chairman.
Ferrera officially resigned from his position as Chairman on November 10,
2017. He and Neurvana entered into a consulting agreement (the “Consulting
Agreement”)11 whereby Ferrera agreed not to divulge Neurvana’s confidential
information or make disparaging statements about Neurvana. In exchange,
Neurvana allowed Ferrera’s equity interests to continue to vest during the consulting
period, which ended on January 1, 2019.
The Complaint is unclear as to who negotiated on behalf of Balt USA for the
acquisition of Titan prior to Ferrera’s resignation from the Board. The Complaint
8
Id.
9
Id. ¶ 39.
10
Id. ¶ 37.
11
Compl. Ex. D.
6
does allege, however, that Girin negotiated directly with Fogarty and Neurvana’s
new outside counsel after Ferrera’s resignation.
D. Neurvana Struggles to Obtain Regulatory Approvals.
By early December 2017, Neurvana grew concerned that it would not achieve
the CE Mark milestone memorialized in the Term Sheet. Neurvana’s concern
stemmed in part from the difficulties it had encountered with a process called
“sterilization validation.”12 Like many medical devices, Titan must be sterilized
before use, and the sterilization validation process determines the appropriate
sterilization method. There are several different types of sterilization validation
processes. Neurvana initially chose to pursue a plan for “standard process
validation,” but ran into problems. 13 Instead of proceeding with standard process
validation, Neurvana determined to submit Titan for regulatory approval with
another type of validation process called a “lot release.”14 Neurvana informed Balt
USA of the difficulties it encountered with the pursuit of standard process validation
for Titan and that it had determined to pursue a lot release system in the first instance.
In December 2017, after Neurvana informed Balt USA of the sterilization
validation difficulties, Balt USA’s Regulatory Vice President Charles Yang told
12
Compl. ¶ 45.
13
Id. ¶ 46.
14
Id.
7
Fogarty that Balt USA could secure CE Mark approval within forty-five days. Yang
based this representation on Balt USA’s “superior relationship” with “DQS,” a
notified body in Europe with the authority to issue the CE Mark.15 Plaintiff alleges
that Ferrera and Girin had previously expressed a confidence similar to Yang’s, as
they boasted “good relationship[s]” with a DQS auditor.16
Ultimately, Balt USA proposed that the parties execute an agreement based
on the terms of the Letter Agreement and Term Sheet, but that they do so with the
understanding that they would immediately amend the agreement to transfer the
obligation to obtain CE Mark approval to Balt USA. Although this obligation would
be transferred to Balt USA, the amendment would preserve Neurvana’s entitlement
to the corresponding $250,000 milestone payment. Girin approved this proposal.
Neurvana agreed.
E. The Asset Purchase Agreement
On December 21, 2017, Neurvana and Balt USA executed an Asset Purchase
Agreement (the “Asset Purchase Agreement”). The Asset Purchase Agreement was
consistent with the Letter Agreement and Term Sheet’s economic terms and
milestone payment structure. Like the Letter Agreement and Term Sheet, the Asset
15
Id. ¶ 47.
16
Id. ¶ 48.
8
Purchase Agreement assigned to Neurvana the responsibility to achieve regulatory
milestones on or before September 30, 2018. 17
As contemplated, however, the parties amended the Asset Purchase
Agreement three weeks after it was executed, on January 12, 2018 (the
“Amendment”). 18 The Amendment required Neurvana to withdraw its CE Mark
application and Balt USA to file its CE Mark application on or before February 11,
2018. 19 The Amendment also required that Balt USA use “Commercially
Reasonable Efforts” to achieve the CE Mark Milestone on or before September 30,
2018. 20 This decision refers to the Asset Purchase Agreement as modified through
the Amendment as the “Amended Agreement.”
The Amended Agreement gives Balt USA “authority over all matters relating
to [Titan] after the Closing,” but requires that Balt USA exercise its authority in
accordance with its “duty of good faith and fair dealing under applicable Law.”21
The Amended Agreement also contains a “Further Assurances” provision
requiring the parties, upon request, to “take, or cause to be taken, all such further or
other actions as a Party may reasonably deem necessary or desirable in order to carry
17
Compl. Ex. A § 1.06(b).
18
Compl. Ex. B § 1.
19
Id. § 4.
20
Id.
21
Compl. Ex. A § 1.06(d)(i)(4).
9
out the intent and accomplish the purposes of this Agreement.” 22 The Amended
Agreement further prohibits Balt USA from taking “any action with the intent and
purpose of reducing the Milestone Payments,”23 and it includes an indemnification
provision.24
F. Balt USA Delays Expected CE Mark Approval to October 2018.
In the months following the execution of the Amended Agreement, Balt USA
allegedly “failed to regularly communicate with Neurvana and kept Neurvana in the
dark about its pursuit of Titan’s CE Mark approval.” 25 Balt USA did submit its CE
Mark application, but not until February 22, 2018, eleven days after the contractually
imposed deadline of February 11.26 The day after Balt USA submitted its
application, Yang expressed concern, allegedly “for the first time,” about Titan’s lot
release sterilization method and the impact that method would have on the device’s
commercialization. 27 Subsequently, Fogarty wrote to Girin twice—once on
February 27, 2018, and once on March 6, 2018—to express Neurvana’s willingness
22
Id. § 4.07.
23
Id. § 1.06(d)(i)(1).
24
Id. § 5.03.
25
Compl. ¶ 60.
26
Amendment § 4.
27
Compl. ¶ 62.
10
to work with Balt USA in order to resolve any perceived issues with Titan’s
sterilization validation process.
After a meeting between Balt USA and Neurvana on March 13, 2018, Yang
wrote to Neurvana and made several representations, including that CE Mark
approval was expected between mid-May and June 2018 and that the application had
been submitted with a lot release protocol. Plaintiff alleges that, based on Balt
USA’s representation that it expected CE Mark approval within that timeframe,
Neurvana “believed that Balt USA planned to launch Titan a few months later.”28
The Complaint notes that despite this, “Balt USA had not done anything to prepare
for the launch, including ordering enough of the product, which required lead time
of six to eight weeks.” 29
Simultaneously, Balt USA pursued another type of sterilization validation for
Titan called “universal sterilization validation” and disclosed as much to
Neurvana. 30 On May 18, 2018, Balt USA failed the universal sterilization validation
for Titan. It planned for a new sterilization validation cycle to begin in June and end
on September 17.
28
Id. ¶ 66.
29
Id.
30
Id. ¶ 65.
11
On June 15, 2018, DQS contacted Balt USA with questions about the lot
release sterilization validation that Balt USA had submitted with its initial CE Mark
application. Balt USA informed DQS that it was in the process of completing a
universal sterilization validation. In June 2018, Balt USA resubmitted its universal
sterilization validation application to DQS.
On July 20, 2018, Balt USA decided to wait for Titan’s universal sterilization
validation to be completed in September before it resumed pursuit of CE Mark
approval for Titan. Balt USA told DQS not to consider the Titan CE Mark
application until it had successfully achieved universal sterilization validation. This
delayed the expected approval date to October 2018. Plaintiff alleges that this
decision “eliminated any chance that Titan would obtain CE Mark approval by the
regulatory milestone date of September 30, 2018,” thereby eliminating Balt USA’s
obligation to make the corresponding $250,000 milestone payment to Neurvana.31
Balt USA informed Neurvana of its decision to wait for universal sterilization
validation on August 13, 2018.
On August 21, 2018, Neurvana Chairman Jeff Goldberg—Ferrera’s
successor—wrote to Girin to formally express Neurvana’s concerns with Balt USA’s
performance under the Amended Agreement. Specifically, Goldberg explained that
Neurvana “relied on Balt’s representations regarding its regulatory experience”
31
Id. ¶ 72.
12
when it agreed to execute the Amendment and believed that commercially
reasonable efforts had not been expended in that regard.32 Goldberg further
requested weekly phone calls until CE Mark approval was obtained. Balt USA did
not respond.
Neurvana alleges that Balt USA’s delay in obtaining CE Mark approval
deprived it of the funds needed to secure 501(k) clearance from the FDA. Because
Balt USA never made the CE Mark approval regulatory milestone payment owed
under the Amended Agreement, Neurvana “no longer had adequate supplies of the
product or the funding to continue to pursue approval.” 33 As of the time the
Complaint was filed, Neurvana had received no updates on the status of Titan’s CE
Mark application since August 2018.
G. Neurvana Requests Indemnification Under the Amended
Agreement.
By letter dated October 27, 2018, Neurvana notified Balt USA that it sought
to invoke its indemnification rights under Section 5.03 of the Amended Agreement
(the “Indemnification Notice”).34
The Indemnification Notice cited several obligations imposed by the
Amended Agreement perceived to have been breached or unfulfilled by Balt USA
32
Id. ¶ 73.
33
Id. ¶ 74.
34
Compl. Ex. E.
13
in connection with the CE Mark approval process. Specifically, the Indemnification
Notice alleged that Balt USA “has failed to abide by its assurances and promises to
Neurvana, to consider requested options that would expedite the product launch, to
obtain CE Mark approval using Commercially Reasonable Efforts, and to prepare
for a reasonably timed launch using Commercially Reasonable Efforts.”35
On November 30, 2018, Neurvana sent a second letter to Balt USA (the
“Indemnification Follow-Up”) stating that it “construe[d] Balt’s failure to respond
as a rejection of the indemnification claim” under the terms of the Amended
Agreement. 36 The Indemnification Follow-Up further stated that Neurvana
“remain[ed] willing to discuss [its indemnification claim] with Balt in good faith to
resolve [the] dispute” within sixty days of the Indemnification Notice, as required
by Section 5.05 of the Amended Agreement. 37 The parties did not reach a resolution
within that sixty-day period, and as of the date the Complaint was filed, no
indemnification agreement was reached.
35
Id. at 3.
36
Compl. Ex. F. Section 5.05(b) of the Amended Agreement provides: “If an Indemnifying
Party does not accept the liability described in an Indemnification Claim Notice within the
thirty (30) day period following receipt of such notice . . . such failure to so accept shall
constitute a rejection of such claim by the Indemnifying Party.” Compl. Ex. A § 5.05(b).
37
Indemnification Follow-Up at 1. The Amended Agreement provides that, if the
indemnification dispute is not resolved “us[ing] good faith efforts” within sixty days of the
initial notice, the indemnification claim “shall be resolved” through litigation.
Compl. Ex. A §§ 5.05(b), 7.13.
14
H. Ferrera Revokes an Alleged Licensing Agreement Between Balt
USA and Neurvana in Early 2018.
In 2017, while Ferrera was still Chairman of the Board, Ferrera twice assured
the Board that Balt USA would license its “pusher” delivery device to Neurvana so
that Neurvana could use it to develop another of its medical devices called
“Dimension.”38 Neurvana “made plans” based on these representations and
“compensated Balt USA for the use of the pusher technology based on this
agreement.”39
On January 23, 2018, in response to an email sent by a Neurvana employee
concerning the pusher delivery system, Ferrera stated: “[Girin] and I have discussed
this matter. Balt USA and Neurvana are separate companies. We have no business
relationship in terms of licensing any delivery system. We suggest that Neurvana
seek other means to [develop Dimension].” 40 As Neurvana had been using Balt
USA’s pusher delivery system for months, Fogarty appealed to Girin for an interim
solution while Neurvana secured a replacement.
On March 2, 2018, Ferrera emailed Fogarty and copied Girin. In that email,
Ferrera wrote that he “sought to clarify the apparent confusion over why Balt [USA]
38
Compl. ¶¶ 78–79.
39
Id. ¶ 79.
40
Id. ¶ 80.
15
had stopped licensing its delivery system to Neurvana.”41 Ferrera denied the
existence of any licensing agreement and claimed that “some prerequisite to the
agreement had not occurred.”42
I. Neurvana Notifies Ferrera of Its Intent to Terminate the
Consulting Agreement.
Several additional events that occurred throughout mid-to-late 2018 led
Neurvana to terminate the Consulting Agreement with Ferrera.
On July 4, 2018, Ferrera wrote to the Board “out of the blue,” in Plaintiff’s
words, to ask whether Neurvana had entered into an asset sale with a third party.43
The Complaint alleges “[u]pon information and belief” that “Ferrera sent this email
to probe the financial condition of Neurvana.” 44
On October 5, 2018, Ferrera demanded payment from Neurvana on behalf of
Balt USA of approximately $265,000, claiming that Balt USA had covered certain
of Neurvana’s expenses totaling that amount from August 2016 to November 2017.
Ferrera stated that if payment was not made within ten days, Balt USA would initiate
collection proceedings and possibly litigation. Balt USA had “never before sought
repayment of that purported debt.” 45 Plaintiff alleges that Ferrera’s demand and
41
Id. ¶ 81.
42
Id.
43
Id. ¶ 86.
44
Id.
45
Id. ¶ 87.
16
threat of litigation constituted a breach of the Consulting Agreement, which prohibits
Ferrera from using Neurvana’s confidential information—including knowledge of
Neurvana’s “financial condition”—for “any purpose not expressly set forth” in the
Consulting Agreement.46
The Complaint further alleges “[u]pon information and belief” that Ferrera
“repeatedly disparaged Neurvana and its officers to investors, potential investors,
members of [the Board], and other people and entities in the neuro-medical device
industry, which impaired Neurvana’s ability to raise capital . . . and further drove
Neurvana into the ground.”47
In light of these events, Neurvana believed that Ferrera was engaged in a
“coordinated effort to not only deprive Neurvana of the benefit of the [Agreement],
but to destroy the company completely for Ferrera’s and Balt’s benefit” and that
Ferrera had breached the Consulting Agreement. 48 Neurvana thus notified Ferrera
on December 26, 2018, that it was terminating the Consulting Agreement. 49 Because
46
Id. ¶ 88; Consulting Agreement § 5(a).
47
Compl. ¶ 85.
48
Id. ¶¶ 88, 89.
49
Consulting Agreement § 2(b) (“This Agreement may be terminated by the Company
upon five (5) days written notice to Consultant in the event Consultant breaches this
Agreement . . . .”).
17
of this termination, Ferrera’s LLC units were cancelled and forfeited under
Neurvana’s operative LLC Agreement. 50
J. This Litigation
Neurvana commenced this litigation on January 17, 2019. In its original form,
the Complaint named four defendants—Balt USA, Balt International, Ferrera, and
Girin (the “Original Defendants”)—and asserted the following fourteen causes of
action:
• Count 51 One for fraudulent inducement against Balt USA and Balt
International;
• Count Two for equitable fraud or negligent misrepresentation against
Balt USA and Balt International;
• Count Three for breach of contract against Balt USA and Balt
International;
• Count Four for breach of the implied covenant of good faith and fair
dealing against Balt USA and Balt International;
• Count Five for promissory estoppel against Balt USA and Balt
International;
• Count Six for breach of the Consulting Agreement against Ferrera;
• Count Seven for breach of fiduciary duty against Ferrera;
• Count Eight for aiding and abetting breach of fiduciary duty against
Girin;
50
Compl. ¶ 89; Will Aff. Ex. 4 (“LLC Agreement”).
51
For clarity, this decision assigns a “Count” number to each of the fourteen causes of
action asserted in the Complaint.
18
• Count Nine for tortious interference with prospective economic
advantage against all Defendants;
• Count Ten for anticipatory repudiation against Balt USA and Balt
International;
• Count Eleven for specific performance against Balt USA and Balt
International;
• Count Twelve for alter ego liability against Balt USA and Balt
International;
• Count Thirteen for indemnification against Balt USA; and
• Count Fourteen for declaratory judgment against Balt USA and Balt
International.
On February 25, 2019, the Original Defendants filed a motion to dismiss the
Complaint under Court of Chancery Rules 12(b)(2) and 12(b)(6). 52 The parties fully
briefed the motion, 53 and the Court heard oral arguments on June 20, 2019.54 On
September 18, 2019, the Court issued a Memorandum Opinion dismissing Balt
International from the case under Rule 12(b)(2) for lack of personal jurisdiction.55
Balt International’s dismissal had the practical effect of resolving all of Count
52
Dkt. 20, Mot. to Dismiss the Verified Compl.
53
Dkt. 28, Defs.’ Opening Br. in Supp. of Their Mot. to Dismiss Pl.’s Verified Compl.
(“Defs.’ Opening Br.”); Dkt. 35, Pl. Neurvana Medical LLC’s Answering Br. in Opp’n to
Defs.’ Mot. to Dismiss Pl.’s Verified Compl. (“Pl.’s Answering Br.”); Dkt. 39, Defs.’
Reply Br. in Further Supp. of Their Mot. to Dismiss Pl.’s Verified Compl. (“Defs.’ Reply
Br.”).
54
Dkt. 43, Oral Arg. on Defs.’ Mot. to Dismiss.
55
Dkt. 44; Neurvana Med., LLC v. Balt USA, LLC, 2019 WL 4464268 (Del. Ch.
Sept. 18, 2019).
19
Twelve against Balt International for alter ego liability. 56 In connection with the
September 18 Memorandum Opinion, the Court requested that the parties make
supplemental submissions concerning their theories for the Court’s personal
jurisdiction (or lack thereof) over Ferrera and Girin.57 The Court also held the Rule
12(b)(6) motion in abeyance pending receipt of those submissions. 58 The parties
completed their supplemental submissions on November 26, 2019. 59
II. LEGAL ANALYSIS
Given the sprawling nature of the Complaint, this analysis begins by grouping
each of the Counts into four categories.
The first category comprises claims specific to Ferrera and Girin based on
Ferrera’s status as a fiduciary: Count Seven for breach of fiduciary duty against
Ferrera and Count Eight for aiding and abetting Ferrera’s breach of fiduciary duty
against Girin (the “Fiduciary Duty Claims”).
56
Count Twelve was initially asserted against Balt USA and Balt International, but is
directed in substance to Balt International. Compl. ¶¶ 166–70. Specifically, Count Twelve
alleges that Balt International, acting through Balt USA “fraudulently induced Neurvana
to enter into the [Agreement] and Amendment in order to obtain the Titan catheters for less
than fair value.” Id. ¶ 167. Accordingly, Count Twelve is dismissed.
57
Dkt. 45.
58
Id.
59
Dkt. 51, Defs.’ Opening Suppl. Br. in Supp. of Their Mot. to Dismiss the Verified
Compl.; Dkt. 53, Pl. Neurvana Medical LLC’s Answering Br. in Opp’n to Defs.’ Opening
Suppl. Br. in Supp. of Their Mot. to Dismiss the Pl.’s Verified Compl.; Defs.’ Suppl. Reply
Br. in Further Supp. of Their Mot. to Dismiss the Verified Compl. (“Defs.’ Suppl. Reply
Br.”).
20
The second category comprises contract claims against Balt USA: Count
Three for breach of the Amended Agreement, Count Four for breach of the implied
covenant of good faith and fair dealing, Count Five for promissory estoppel, Count
Ten for anticipatory repudiation, Count Eleven for specific performance, Count
Thirteen for indemnification, and Count Fourteen for declaratory relief (the
“Contract Claims Against Balt USA”).
The third category comprises a contract claim against Ferrera: Count Six for
breach of the Consulting Agreement (the “Contract Claim Against Ferrera”).
The fourth category comprises tort claims against various Defendants: Count
One against Balt USA for fraudulent inducement, Count Two against Balt USA for
equitable fraud or negligent misrepresentation, and Count Nine against all
Defendants for tortious interference with prospective economic advantage (the “Tort
Claims”).
Ferrera and Girin have moved to dismiss the claims against them for lack of
personal jurisdiction under Rule 12(b)(2). Under Rule 12(b)(2), “the plaintiff bears
the burden of showing a basis for the court’s exercise of jurisdiction over the
defendant.”60 In ruling on a 12(b)(2) motion, this Court may “consider the pleadings,
60
Ryan v. Gifford, 935 A.2d 258, 265 (Del. Ch. 2007) (citing Werner v. Miller Tech. Mgmt.,
L.P., 831 A.2d 318 (Del. Ch. 2003)).
21
affidavits and any discovery of record.”61 “If, as here, no evidentiary hearing has
been held, plaintiffs need only make a prima facie showing of personal jurisdiction
and ‘the record is construed in the light most favorable to the plaintiff.’” 62
All Defendants have moved to dismiss all categories of claims under Rule
12(b)(6). Under Rule 12(b)(6), the Court may grant a motion to dismiss if the
complaint “fail[s] to state a claim upon which relief can be granted.”63 “[T]he
governing pleading standard in Delaware to survive a motion to dismiss is
reasonable ‘conceivability.’” 64 When considering such a motion, the Court must
“accept all well-pleaded factual allegations in the [c]omplaint as true . . . , draw all
reasonable inferences in favor of the plaintiff, and deny the motion unless the
plaintiff could not recover under any reasonably conceivable set of circumstances
susceptible of proof.” 65 The Court, however, need not “accept conclusory
allegations unsupported by specific facts or . . . draw unreasonable inferences in
61
Id. (citing Cornerstone Techs., LLC v. Conrad, 2003 WL 1787959, at *3 (Del. Ch.
Mar. 31, 2003)).
62
Id. (first citing Benerofe v. Cha, 1996 WL 535405, at *3 (Del. Ch. Sept. 12, 1996) and
then quoting Cornerstone Techs., 2003 WL 1787959, at *3).
63
Ct. Ch. R. 12(b)(6).
64
Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531, 537 (Del.
2011).
65
Id. at 536 (citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002)).
22
favor of the non-moving party.” 66 Nor may a plaintiff point to what discovery might
show to bolster its allegations.67
A. The Fiduciary Duty Claims and Personal Jurisdiction Issues
Plaintiff argues that the Court has jurisdiction over Ferrera under the Delaware
LLC Act’s implied consent provision codified at 6 Del. C. § 18-109. Plaintiff further
argues that jurisdiction over Girin is appropriate because he aided and abetted
Ferrera’s breach of fiduciary duty. Because Plaintiff’s Rule 12(b)(2) arguments
hinge on the Rule 12(b)(6) analysis as to the Fiduciary Duty Claims, this section
resolves the Rule 12(b)(2) motion and the Rule 12(b)(6) motion as to the Fiduciary
Duty Claims together.
66
Price v. E.I. du Pont de Nemours & Co., Inc., 26 A.3d 162, 166 (Del. 2011) (citing
Clinton v. Enter. Rent-A-Car Co., 977 A.2d 892, 895 (Del. 2009)).
67
“The complaint generally defines the universe of facts that the trial court may consider
in ruling on a 12(b)(6) motion to dismiss.” In re Gen. Motors (Hughes) S’holder Litig.,
897 A.2d 162, 168 (Del. 2006) (collecting cases). Plaintiff’s assertions that discovery will
reveal facts to support its claims do not aid Plaintiff at the pleading stage. See Pl.’s
Answering Br. at 24 (“Neurvana more than adequately alleged breach; why Balt’s conduct
was not commercially reasonable will be proven through discovery and expert
testimony.”); id. at 40 (“Discovery will show either that Defendants knew they were lying
when they claimed that Balt could rapidly achieve [CE Mark approval] and fulfill the intent
of the [Amended Agreement], or that they did not care if what they said was true.”); id. at
58 (“Discovery will show both that third parties had shown interest in acquiring Neurvana’s
other products, and that the value of the [neuro]-medical devices increases exponentially
after certain thresholds . . . are crossed.”).
23
1. Jurisdiction Over Ferrera
Section 18-109 of the Delaware LLC Act authorizes service of process on the
managers of Delaware LLCs in certain types of proceedings:
A manager . . . of a limited liability company may be
served with process . . . in all civil actions or proceedings
brought in the State of Delaware involving or relating to
the business of the limited liability company or a violation
by the manager . . . of a duty to the limited liability
company. 68
Defendants concede that because Ferrera served as Chairman of the Board until
November 10, 2017, Ferrera is subject to this Court’s jurisdiction under Section 18-
109 for any breach of fiduciary duty allegedly committed while in that role.69 The
question is thus whether the Court may exercise ancillary jurisdiction as to the
remaining Counts against Ferrera—Count Six for breach of the Consulting
Agreement and Count Nine for tortious interference with prospective economic
advantage.
In both the corporate and alternative business entity contexts, “Delaware
public policy favors Delaware courts assuming personal jurisdiction over parties in
in order to adjudicate claims which sufficiently relate to other claims which do
68
6 Del. C. § 18-109(a).
69
Def.’s Reply Br. at 6 (“Defendants acknowledge that Plaintiff’s breach of fiduciary duty
[claim] against Ferrera falls under the statute.”). But see id. at 7 n.4 (arguing that Section
18-109 does not “create personal jurisdiction for conduct after Ferrera resigned”).
24
properly bring the party within those courts’ jurisdiction.”70 Once a fiduciary is
properly subject to jurisdiction for a claim of breach of fiduciary duty, “the trial court
may also subject that fiduciary to personal jurisdiction for claims that are
‘sufficiently related’ or ‘[not] distantly related’ to the breach of fiduciary duty
claim.” 71 Whether the non-fiduciary duty claims are “sufficiently related” to the
fiduciary duty claim “depends on whether the claims arise out of the ‘same nucleus
of operative facts.’” 72 Further, a claim may be “adequately alleged to be ‘sufficiently
related’” 73 for the purpose of ancillary jurisdiction despite its failure to state a claim
under Rule 12(b)(6). 74
70
Fitzgerald v. Chandler, 1999 WL 1022065, at *4 (Del. Ch. Oct. 14, 1999).
71
Hazout v. Tsang Mun Ting, 134 A.3d 274, 292 n.63 (Del. 2016). Although Hazout
involved an application of 10 Del. C. § 3114, this Court has recognized that it “often looks
to analogies in the corporate law for guidance on similar issues involving alternative
business entities.” Fitzgerald, 1999 WL 1022065, at *4.
72
Canadian Commercial Workers Indus. Pension Plan v. Alden, 2006 WL 456786, at *11
(Del. Ch. Feb. 22, 2006) (quoting Hovde Acq., LLC v. Thomas, 2002 WL 1271681, at *4
n.16 (Del. Ch. June 5, 2002)).
73
N. Am. Catholic Educ. Programming Found., Inc. v. Gheewalla, 2006 WL 2588971, at
*1 (Del. Ch. Sept. 1, 2006).
74
Id. at *7 n.73 (“[T]hat the averments fail to state a claim upon which relief can be granted
does not determine whether the Court has personal jurisdiction with respect to any claim,
as an initial matter.”). Cf. Carlton Invs. v. TLC Beatrice Int’l Hldgs., Inc., 1995 WL
694397, at *13 (Del. Ch. Nov. 21, 1995) (“The ability of a shareholder to invoke Section
3114 cannot turn upon whether the facts allege[d] constitute a valid claim. If they do not,
the director may have the case dismissed on its merits under Rule 12(b)(6), not under Rule
12(b)(2) . . . .”); Bell v. Hood, 327 U.S. 678, 682 (1946) (“[I]t is well settled that the failure
to state a proper cause of action calls for a judgment on the merits and not for a dismissal
for want of jurisdiction.”).
25
Ferrera argues that the non-fiduciary claims against him are not sufficiently
related to the fiduciary duty claim because they address conduct occurring after
Ferrera resigned from his fiduciary position. 75 This argument rests on a flawed
premise—that Ferrera cannot be liable for breach of fiduciary duty for actions taken
after he ceased being a fiduciary. 76 While generally “former directors owe no
fiduciary duties,” 77 Delaware law recognizes limited exceptions to this rule. “A
former director, of course, breaches his fiduciary duty if he engages in transactions
that had their inception before the termination of the fiduciary relationship or were
founded on information acquired during the fiduciary relationship.”78 Plaintiff
invokes this exception, alleging that Ferrera breached his fiduciary duties by using
confidential information and knowledge that he acquired before his resignation to
harm Neurvana. 79
75
Defs.’ Suppl. Reply Br. at 4.
76
Id.77
In re Walt Disney Co. Deriv. Litig., 907 A.2d 693, 658 (Del. Ch. 2005).
78
BelCom, Inc. v. Robb, 1998 WL 229527, at *3 (Del. Ch. Apr. 28, 1998) (emphasis
removed); see also Seiden v. Kaneko, 2015 WL 7289338, at *11 (Del. Ch. Nov. 3, 2015)
(recognizing that a former director continued to owe fiduciary duties to his former company
where the director continued to serve as a director or officer of an affiliate and continued
to have access to the former company’s confidential information post-resignation).
79
Compl. ¶ 139 (alleging that Ferrera was “repeatedly disparaging Neurvana to investors
and other members of the neuro-medical industry, using confidential information to
undermine Neurvana’s product development, arbitrarily rescinding an agreement to license
a device that would allow for further product development, delaying Titan’s pursuit of CE
Mark approval, failing to prepare for the launch of Titan, and demanding repayment of
26
Plaintiff’s claims against Ferrera for breach of the Consulting Agreement and
for tortious interference with prospective economic advantage are sufficiently
related to this aspect of the claim for breach of fiduciary duty such that ancillary
jurisdiction is appropriate in this case. At their core, the additional claims against
Ferrera center on Ferrera’s alleged “ongoing efforts . . . to sabotage and destroy”
Neurvana through non-performance of the Amended Agreement and other conduct
designed to impair Neurvana’s value.80 The Complaint alleges that, “[i]n support of
these efforts, Ferrera has violated his [C]onsulting [A]greement with Neurvana . . .
by using Neurvana’s confidential information to Neurvana’s detriment.” 81 The
Consulting Agreement was a byproduct of Ferrera’s resignation from the Board, and
it prohibited Ferrera from using any confidential information he acquired during the
fiduciary relationship. 82 Ferrera’s alleged breach of this confidentiality obligation
forms one of the bases for Plaintiff’s breach of fiduciary duty claim. 83
The Complaint further alleges that Ferrera’s “ouster” from the Board84
prompted Ferrera to take nefarious actions designed in part to “intentionally
over $264,000 in October 2018 in an attempt to further cripple Neurvana using his
knowledge of Neurvana’s financial vulnerability”); see also Pl.’s Answering Br. at 50–51.
80
Compl. ¶ 1.
81
Id. ¶ 2.
82
Id.
83
Id. ¶¶ 138–39.
84
Id. ¶ 2.
27
interfere[] with the development of Lumenate and Dimension.” 85 Such alleged
actions included using confidential information he acquired in his capacity as
manager of Neurvana to “undermine Neurvana’s product development” 86 and
demanding repayment of a substantial debt “in an attempt to further cripple
Neurvana using knowledge of Neurvana’s financial vulnerability,” which he also
acquired in his capacity as manager.87 These alleged actions form additional bases
for Plaintiff’s breach of fiduciary duty claim against Ferrera. 88
As alleged, therefore, Plaintiff’s claims against Ferrera for breach of the
Consulting Agreement and for tortious interference with prospective economic
advantage are sufficiently related to Plaintiff’s claim against Ferrera for breach of
fiduciary duty. Thus, the exercise of ancillary jurisdiction over Count Six and Count
Nine, as asserted against Ferrera, is appropriate.
2. Jurisdiction Over Girin
“[A]iding and abetting claims represent a context-specific application of civil
conspiracy law.” 89 The Delaware Supreme Court established the elements of the
conspiracy theory of jurisdiction in Istituto Bancario SpA v. Hunter Engineering Co.:
85
Id. ¶ 150.
86
Id. ¶ 151.
87
Id.
88
Id. ¶ 139.
89
Allied Capital Corp. v. GC-Sun Hldgs., L.P., 910 A.2d 1020, 1038 (Del. Ch. 2006).
28
A conspirator who is absent from the forum state is subject
to the jurisdiction of the court . . . if the plaintiff can make
a factual showing that (1) a [tortious conspiracy] existed;
(2) the defendant was a member of that conspiracy; (3) a
substantial act or substantial effect in furtherance of the
conspiracy occurred in the forum state; (4) the defendant
knew or had reason to know of the act in the forum state
or that acts outside the forum state would have an effect in
the forum state; and (5) the act in, or effect on, the forum
state was a direct and foreseeable result of the conduct in
furtherance of the conspiracy. 90
“Delaware courts construe this test narrowly and require a plaintiff to assert specific
facts, not conclusory allegations, as to each element.”91 “Sufficiently pleading a
claim for breach of fiduciary duty and a related claim for aiding and abetting a breach
of fiduciary duty satisfies the first and second elements of the Istituto Bancario
test.”92 The threshold questions are thus (a) whether Plaintiff has sufficiently
pleaded a claim for breach of fiduciary duty against Ferrera, and if so, (b) whether
Plaintiff has sufficiently pleaded a claim for aiding and abetting breach of fiduciary
duty against Girin.
90
Perry v. Neupert, 2019 WL 719000, at *22 (Del. Ch. Feb. 15, 2019) (quoting Istituto
Bancario Italiano SpA v. Hunter Eng’g Co., 449 A.2d 210, 225 (Del. 1982)).
91
Hartsel v. Vanguard Gp., Inc., 2011 WL 2421003, at *10 (Del. Ch. June 15, 2011) (citing
Werner v. Miller Tech. Mgmt., L.P., 831 A.2d 318, 329–30 (Del. Ch. 2003)).
92
Virtus Capital, L.P. v. Eastman Chem. Co., 2015 WL 580553, at *13 (Del. Ch. Feb. 11,
2015) (citing Benihana of Tokyo, Inc. v. Benihana, Inc., 2005 WL 583828, at *7 (Del. Ch.
Feb. 4, 2005)).
29
a. Count Seven States a Claim for Breach of Fiduciary
Duty Against Ferrera.
Count Seven of the Complaint alleges that Ferrera breached his fiduciary duty
to Neurvana. The Complaint alleges that, while serving as Chairman, Ferrera “owed
Neurvana ongoing fiduciary duties of loyalty, good faith, and care.” 93 As discussed
above, the Complaint further alleges that Ferrera was obligated after his resignation
as Chairman not to use information obtained in the fiduciary relationship to harm
Neurvana. 94 Although the LLC Agreement does not eliminate default fiduciary
duties,95 it does exculpate managers from liability for breaches of the duty of care.96
The practical effect of the exculpation provision is that to state a claim for breach of
fiduciary duty, Plaintiff must plead a reasonably conceivable basis for this Court to
infer that Ferrera breached his duty of loyalty or otherwise acted in bad faith.
Where a Complaint alleges breach of the fiduciary duty of loyalty, “a plaintiff
can survive a motion to dismiss . . . by pleading facts supporting a rational inference
that the director harbored self-interest adverse to the stockholders’ interests, acted to
93
Compl. ¶ 136.
94
See supra Section II.A.1.
95
See generally LLC Agreement art. V.
96
Id. § 5.4(b) (providing that “[n]o Member, Manager or Officer shall be liable, responsible
or accountable in damages or otherwise to [Neurvana] or to any other Member for . . . any
act performed in good faith on behalf of [Neurvana] and in a manner reasonably believed
to be within the scope of authority conferred on the Member, Manager or Officer . . . except
for the gross negligence or willful misconduct of the Member, Manager or Officer”).
30
advance the self-interest of an interested party from whom they could not be
presumed to act independently, or acted in bad faith.”97 Bad faith may be
demonstrated where “the fiduciary intentionally acts with a purpose other than that
of advancing the best interests of the corporation, where the fiduciary acts with the
intent to violate applicable positive law, or where the fiduciary intentionally fails to
act in the face of a known duty to act, demonstrating a conscious disregard for his
duties.”98
The Complaint adequately alleges that Ferrera breached his duty of loyalty
and acted in bad faith while serving as Chairman. The Complaint alleges that Ferrera
served as President and COO of Balt USA while he negotiated the Term Sheet and
Letter Agreement on behalf of Neurvana. Despite this dual role, Ferrera “inserted
himself” into negotiations with Balt USA rather than distancing himself from the
process.99 Ferrera went so far as to “push[] for his long-time counsel to work on the
deal during initial negotiations over the deal term sheet.” 100 Members of the Board
were concerned that Ferrera failed to negotiate in Neurvana’s best interests and
believed that Ferrera’s lawyer was soft on multiple terms, including with respect to
97
In re Cornerstone Therapeutics Inc. S’holder Litig., 115 A.3d 1173, 1179–80 (Del.
2015).
98
Stone, 911 A.2d at 369 (quoting Disney, 906 A.2d at 67).
99
Compl. ¶ 33.
100
Id. ¶ 35.
31
the milestone earn-out structure adopted in the Amended Agreement, which
contemplated an up-front payment of a small fraction of the total possible
consideration—$250,000 of $16 million.101 These allegations make it reasonably
conceivable that Ferrera was acting for a purpose “other than that of advancing the
best interests of the corporation”102 and thus breached his duty of loyalty and good
faith.
The Complaint also alleges that Ferrera breached his fiduciary duties to
Neurvana after he resigned from the Board by using Neurvana’s confidential
information to harm Neurvana. Specifically, the Complaint alleges that Ferrera
[1] repeatedly disparag[ed] Neurvana to investors and
other members of the neuro-medical industry, [2] us[ed]
confidential information to undermine Neurvana’s
product development, [3] arbitrarily rescind[ed] an
agreement to license a device that would allow for further
product development, [4] delay[ed] Titan’s pursuit of CE
Mark approval, [5] fail[ed] to prepare for the launch of
Titan, and [6] demand[ed] repayment of over $264,000 in
October 2018 in an attempt to further cripple Neurvana
using his knowledge of Neurvana’s financial
vulnerability. 103
As discussed above, “[a] former director . . . breaches his fiduciary duty if he
engages in transactions that had their inception before the termination of the
101
Id. ¶¶ 35, 50.
102
Stone, 911 A.2d at 369 (quoting Disney, 906 A.2d at 67).
103
Compl. ¶ 139; Pl.’s Answering Br. at 50–51.
32
fiduciary relationship or were founded on information acquired during the fiduciary
relationship.”104 Of the six alleged ways Ferrera breached his fiduciary duties post-
resignation, however, none fit this description. Plaintiff does not allege that Ferrera
engaged in a transaction that had its inception before his resignation. Although
Plaintiff alleges in a conclusory fashion that Ferrera used “his knowledge of
Neurvana’s financial vulnerability” in engaging in these activities, 105 Plaintiff does
not plead facts to support this assertion. The notion fails at a high level, as it is not
reasonable to infer that any knowledge of Neurvana’s vulnerability was only attained
by Ferrera in his fiduciary capacity. A closer examination of the six allegations
supports this conclusion.
Four of these post-resignation allegations form the bases for the Contract
Claim Against Ferrera. 106 As discussed below, however, these allegations are
conclusory, lacking in well-pleaded factual support, and insufficient to state a claim
104
BelCom, 1998 WL 229527, at *3.
105
Compl. ¶ 139.
106
See infra Section II.C. Plaintiff alleges that Ferrera breached the Consulting Agreement
by “us[ing] confidential information to harm and undermine Neurvana’s development and
prospective business relations” when he caused Balt USA to “revoke Neurvana’s license
to use Balt’s ‘pusher’ delivery-system” and “demanded immediate payment of over
$264,000.” Compl. ¶ 132; Pl.’s Answering Br. at 54. Plaintiff also alleges that Ferrera
breached the Consulting Agreement by “repeatedly disparag[ing] Neurvana and its officers
to investors . . . and other people and entities in the neuro-medical industry.” Compl. ¶ 133.
33
for breach of the Consulting Agreement. 107 For the same reasons, they are
insufficient to state a claim for breach of fiduciary duty.
The remaining two allegations—that Ferrera “delay[ed] Titan’s pursuit of CE
Mark approval” and “fail[ed] to prepare for the launch of Titan” 108 using Neurvana’s
confidential information or his knowledge of Neurvana’s financial vulnerability—
are also conclusory and unsupported by well-pleaded facts in the Complaint. The
Complaint contains no allegation that Ferrera was even marginally involved with the
CE Mark approval process after his resignation from the Neurvana Board. 109 Rather,
the Complaint alleges only that Yang, Girin, and Fogarty participated in or
communicated about that process. 110 Similarly, the Complaint contains no allegation
that Ferrera was involved with Balt USA’s preparation for the launch of Titan.
107
See infra Section II.C.
108
Compl. ¶ 139.
109
Id. ¶¶ 59–76.
110
E.g., id. ¶ 59 (alleging that Yang suggested the ultimately agreed-upon plan that Balt
would obtain accelerated CE Mark approval and that Girin approved this plan); id. ¶ 62
(“On February 23, the Neurvana team received an email from Charles Yang, which noted
that Balt USA had submitted Titan’s CE Mark application.”); id. ¶ 63 (“On February 27,
Tom Fogarty wrote to Girin to report that the parties’ respective regulatory employees,
Charles Yang and Nate Knock, had found some common ground . . . .” (internal quotation
marks omitted)); id. (“The next day, Fogarty wrote again to clarify that the Neurvana team
members stood ready to resolve any sterilization challenges and ‘can help’ if Yang is
‘resource constrained’ . . . .”); id. ¶ 64 (“On March 6, Fogarty wrote to Girin to again offer
Neurvana’s help . . . .”); id. ¶ 65 (“After a meeting between the Balt USA and Neurvana
teams on March 13, Yang wrote to the Neurvana team to confirm Balt’s plan to secure CE
Mark approval . . . .”); id. ¶ 66 (“Shortly thereafter, Fogarty reached out again to Girin to
offer Neurvana’s help with a market forecast based on the interim sterilization plan.”).
34
In sum, Plaintiff has sufficiently stated a claim against Ferrera for breach of
fiduciary duty concerning his pre-resignation conduct, but has failed to state a claim
for the same concerning Ferrera’s post-resignation conduct. One consequence of
this conclusion is that Defendants’ motion to dismiss Count Seven of the Complaint
pursuant to Rule 12(b)(6) is denied. Another consequence of this conclusion is that
the Complaint sufficiently pleads the first essential element for asserting personal
jurisdiction over Girin.
b. Count Eight Fails to State a Claim for Aiding and
Abetting Breach of Fiduciary Duty Against Girin.
Count Eight of the Complaint alleges that Girin aided and abetted Ferrera’s
breach of fiduciary duty. Plaintiff does not assert Count Eight against Balt USA. A
party is liable for aiding and abetting when he knowingly participates in any
fiduciary breach. 111 An aider and abettor knowingly participates in a breach when
he acts “with the knowledge that the conduct advocated or assisted constitutes such
111
In re Santa Fe Pac. Corp. S’holder Litig., 669 A.2d 59, 72 (Del. 1995) (“A claim for
aiding and abetting requires the following three elements: (1) the existence of a fiduciary
relationship, (2) a breach of the fiduciary’s duty, and (3) a knowing participation in that
breach by [the non-fiduciary].”); see RBC Capital Markets, LLC v. Jervis, 129 A.3d 816,
861–62 (Del. 2015).
35
a breach.”112 This standard requires well-pleaded facts that the aider and abettor
acted with “scienter,” or “knowingly, intentionally or with reckless indifference.”113
As discussed above, Plaintiff has stated a claim against Ferrera for breach of
fiduciary duty relating to his pre-resignation conduct in negotiating the Letter
Agreement and Term Sheet. But there are no facts in the Complaint allowing for the
rational inference that Girin knowingly participated in this breach, as the Complaint
does not allege that Girin was involved in those negotiations or that Girin and Ferrera
ever communicated throughout that period. 114
The aspect of Plaintiff’s breach of fiduciary duty claim relating to Ferrera’s
post-resignation conduct does not survive Defendants’ motion. But even assuming
that a predicate breach of fiduciary duty occurred after Ferrera resigned from the
Neurvana Board, the Complaint does not contain non-conclusory allegations
concerning Girin’s knowing participation in that breach. Aside from the allegation
that Girin and Ferrera were simultaneously employed by Balt USA after Ferrera
resigned from the Neurvana Board, the only allegation tying Girin to Ferrera’s post-
112
In re Rural Metro Corp., 88 A.3d 54, 97 (Del. Ch. 2014) (citation and internal quotation
marks omitted); see also In re Comverge, Inc. S’holders Litig., 2014 WL 6686570, at *18
(Del. Ch. Nov. 25, 2014) (explaining that knowing participation “requires an understanding
between the parties with respect to their complicity”).
113
Mesirov v. Enbridge Energy Co., 2018 WL 4182204, at *13 (Del. Ch. Aug. 29, 2018)
(citing, Jervis, 129 A.3d at 862).
114
See Compl. ¶¶ 33–35.
36
resignation conduct is an email from Ferrera to Fogarty, stating: “Pascal [Girin] and
I have discussed this matter. . . . We have no business relationship in terms of
licensing any delivery system.” 115 This allegation is insufficient to constitute
“knowing participation” in fiduciary breach. That Ferrera and Girin were co-officers
of Balt USA and may have “discussed” the alleged licensing agreement does not
provide a reasonably conceivable basis to conclude that Girin acted with the sort of
“scienter” necessary for a finding of knowing participation in fiduciary breach.116
Thus, the Complaint fails to plead the second essential element for asserting
personal jurisdiction over Girin, and Girin’s motion to dismiss pursuant to Rule
12(b)(2) is granted.
B. The Contract Claims Against Balt USA
Count Three of the Complaint claims that Balt USA breached the express
terms of the Amended Agreement. Count Four asserts that Balt USA breached the
implied covenant of good faith and fair dealing. Count Five asserts a claim for
promissory estoppel. Count Ten asserts a claim for anticipatory repudiation. Count
Thirteen asserts a claim for indemnification. And Count Eleven and Fourteen seek
specific performance and declaratory relief, respectively.
115
Id. ¶ 66.
116
Mesirov, 2018 WL 4182204, at *13.
37
1. Count Three Fails to State a Claim for Breach of the
Amended Agreement.
Plaintiff claims that Balt USA breached four express provisions of the
Amended Agreement, by (a) failing to use Commercially Reasonable Efforts to
obtain CE Mark approval for Titan, in violation of Sections 1.06 and 4.06; (b) failing
to provide Neurvana with Further Assurances, in violation of Section 4.07; (c) failing
to submit its CE Mark application by the contractually specified deadline of
February 11, 2018, in violation of Section 4.06; and (d) failing to make the milestone
payments, in violation of Section 1.06. 117
“To establish a breach of contract claim, a party must prove: (1) the existence
of a contract; (2) the breach of an obligation imposed by the contract; and (3)
damages that the plaintiff suffered as a result of the breach.”118 Delaware courts
follow the objective theory of contracts, giving words “their plain meaning unless it
appears that the parties intended a special meaning.”119 The objective theory of
contracts requires that a court “give priority to the parties’ intentions as reflected in
117
Pl.’s Answering Br. at 20–22.
118
Osram Sylvania Inc. v. Townsend Ventures, LLC, 2013 WL 6199554, at *6 (Del. Ch.
Nov. 19, 2013) (citing Bakerman v. Sidney Frank Importing Co., 2006 WL 3927242, at
*19 (Del. Ch. Oct. 10, 2006)); see also VLIW Techs., LLC v. Hewlett-Packard Co., 840
A.2d 606, 612 (Del. 2003).
119
Allen v. Encore Energy P’rs, L.P., 72 A.3d 93, 104 (Del. 2013) (citing AT & T Corp. v.
Lillis, 953 A.2d 241, 252 (Del. 2008)); see also Salamone v. Gorman, 106 A.3d 354, 367–
68 (Del. 2014) (“A contract’s construction should be that which would be understood by
an objective, reasonable third party.” (quoting Osborn ex rel. Osborn v. Kemp, 991 A.2d
1153, 1159 (Del. 2010))).
38
the four corners of the agreement, construing the agreement as a whole and giving
effect to all its provisions.” 120
a. Commercially Reasonable Efforts
Section 1.06(d)(i)(4) of the Amended Agreement vests Balt USA with the sole
discretion and authority post-closing to make decisions concerning “all matters
relating to” Titan. 121 This discretion is limited by Balt USA’s obligations to use
“Commercially Reasonable Efforts” to achieve the CE Mark Milestone as provided
in Sections 4.06(b) of the Amended Agreement. 122
Efforts standards like that imposed by the Amended Agreement are
common. 123 Typical forms of efforts clauses require “good faith efforts,”
120
In re Viking Pump, Inc., 148 A.3d 633, 648 (Del. 2016) (citing Salamone, 106 A.3d at
368).
121
Compl. Ex. A § 1.06(d)(i)(4) (“The Purchaser shall have authority over all matters
relating to the Milestone Products after the Closing, including, but not limited to, any
research, development, manufacturing, Commercialization, clinical trial design, site
selection, regulatory, quality standards, legal, intellectual property rights, marketing,
licensing and sales decisions relating to the Milestone Products.”).
122
As amended, Section 4.06(b) provides that Balt USA “shall and shall cause its Affiliates
to use Commercially Reasonable Efforts to achieve the CE Mark Milestone.” Amendment
§ 4. Similarly, Section 1.06(d)(i)(2) requires Balt USA to “use Commercially Reasonable
Efforts to Commercialize the Milestone Products in the applicable market(s) in which the
applicable regulatory approval(s) that is/are the subject of the Regulatory Milestone(s)
was/were achieved.” Compl. Ex. A § 1.06(d)(i)(2).
123
Akorn, Inc. v. Fresenius Kabi AG, 2018 WL 4719347, at *86 (Del. Ch. Oct. 1, 2018)
(“In acquisition transactions, the parties will generally bind themselves to achieve specified
results with respect to activities that are within their control . . . and reserve [an efforts]
standard for things outside of their control or those dependent upon the actions of third
parties.” (quoting Lou R. Kling & Eileen T. Nugent, 2 Negotiated Acquisitions of
39
“commercially reasonable efforts,” “reasonable efforts,” “reasonable best efforts,”
and “best efforts.”124 “Deal practitioners have a general sense of a hierarchy of
efforts clauses,”125 but “[c]ommentators who have surveyed the case law find little
support for the distinctions that transactional lawyers draw.”126 This Court has
“wrestled” with the meaning of efforts clauses on many occasions,127 ascribing
default meanings to efforts clauses where the parties failed to contractually set
one. 128
Companies, Subsidiaries and Divisions § 13.06 (2019)), aff’d, 198 A.3d 724 (Del. 2018)
(TABLE).
124
Id. at *86–87 (identifying the five efforts clauses and explaining the meaning ascribed
to each by the ABA Committee on Mergers and Acquisitions); see Ryan Aaron Salem, An
Effort to Untangle Efforts Standards Under Delaware Law, 122 Penn St. L. Rev. 793, 799–
803 (2018) (listing several “variant[s]” of efforts standards used by contractual parties).
125
Akorn, 2018 WL 4719347, at *86.
126
Id. at *87.
127
Himawan v. Cephalon, Inc., 2018 WL 6822708, at *7 & n.83 (Del. Ch. Dec. 28, 2018)
(collecting cases).
128
See, e.g., Williams Cos. v. Energy Transfer Equity, L.P., 159 A.3d 264, 273 (Del. 2017)
(construing contractual clauses requiring the parties to use undefined “reasonable best
efforts” and “commercially reasonable efforts” as placing “an affirmative obligation on the
parties to take all reasonable steps” to accomplish contractual objectives); Akorn, 2018 WL
4719347, at *46, 87 (construing a contractual clause requiring the plaintiff to use undefined
“commercially reasonable efforts” as requiring the plaintiff to “‘take all reasonable steps’
to maintain its operations in the ordinary course of business” (quoting Williams, 159 A.3d
at 272)). Cf. Kenneth A. Adams, Understanding “Best Efforts” and Its Variants (Including
Drafting Recommendations), 50 Prac. Law. 11, 14 (2004) (commenting that “case law on
the meaning of best efforts suggests that instead of representing different standards, other
efforts standards mean the same thing as best efforts, unless a contract definition provisions
otherwise (emphasis added)).
40
In this case, the parties agreed to a definition of Commercially Reasonable
Efforts in Section 6.01 of the Amended Agreement:
activities using efforts and resources comparable to those
which an entity in the medical device industry of similar
resources and expertise as the Purchaser and its Affiliates
(taken as a whole) generally use in the exercise of its
reasonable business judgment to accomplish such
activities and objectives in an expeditious manner for its
own products . . . of similar market potential at a similar
stage in development or product life, considering
conditions then prevailing.129
Section 6.01 then goes on to list several factors to consider when applying this
definition.130 Provisions like Section 6.01 impose an objective “outward facing
definition,” which “applies an industry-standard requirement or looks to other
participants in the industry to define the diligence obligations of the buyer.” 131 Such
provisions create a “standard based on the effort that companies similarly situated in
the market employ, or would employ.” 132 These provisions are viewed as seller-
129
Compl. Ex. A § 6.01.
130
Id. (listing several considerations to be “tak[en] into account, without limitation,”
including issues of safety, efficacy, expected and actual cost of development, profitability,
competitiveness of third-party products, market exclusivity, and “all other relevant
scientific, technical, commercial, and other factors”).
131
Kristian A. Werling & Richard B. Smith, “Commercially Reasonable Efforts”
Diligence Obligations in Life Science M&A (Mergers and Acquisitions), Nat. L. Rev.
(May 29, 2014), https://www.natlawreview.com/article/commercially-reasonable-efforts-
diligence-obligations-life-science-ma-mergers-and-ac.
132
Himawan, 2018 WL 6822708, at *1 (considering a clause that defined “commercially
reasonable efforts” as “the exercise of such efforts and commitment of such resources by
a company with substantially the same resources and expertise as [the buyer]” and
41
friendly, as they allow the seller, when attempting to plead or prove that the buyer
has breached its obligations, to point to an objective metric—comparable industry
standards—rather than the buyer’s subjective intent or state of mind. 133
Despite the seller-friendly nature of Section 6.01’s efforts standard, the
Complaint fails to plead any facts that could conceivably support a claim for breach
of that standard. The Complaint does not identify a single “entity in the medical
device industry of similar resources and expertise as” Balt USA. 134 Nor does it
identify what activities such an entity would “generally use in the exercise of its
reasonable business judgment to accomplish such activities and objectives in an
expeditious manner for its own products.”135 And the Complaint does not identify
any “products . . . of similar market potential at a similar stage in development or
product life” as Titan.136 Notably, Plaintiff does not attempt to plead any such facts
in even a conclusory fashion. Plaintiff alleges that Balt USA told DQS to stop
processing Titan’s CE Mark application until after it had successfully achieved
commenting that it appeared to create a “standard based on the effort that companies
similarly situated in the market employ, or would employ”).
133
See Werling & Smith, supra note 131 (commenting that outward facing definitions are
“generally viewed as more favorable to the seller of a technology, as it enables the seller
to point to other industry standards that would have the buyer take additional steps to
achieve the goal that would result in a payout on the earnout”).
134
Compl. Ex. A § 6.01.
135
Id.
136
Id.
42
universal sterilization validation, but alleges nothing to suggest that Balt USA’s
approach stopped short of Commercially Reasonable Efforts in pursuing sterilization
validation as defined in Section 6.01. 137
The allegations in this action contrast with those made in Himawan, where
Vice Chancellor Glasscock interpreted a nearly identical, outward facing
commercially reasonable efforts provision. 138 The merger agreement in Himawan
was similar in form to the Amended Agreement in that it: provided an up-front
payment and post-closing earn-out structure; gave the acquirer complete discretion
over business decisions relating to the surviving company; and obligated the acquirer
to use “commercially reasonable efforts” to develop and commercialize the antibody
it was acquiring.139 The plaintiffs alleged that the defendant failed to use
commercially reasonable efforts to develop and commercialize the antibody, where
the merger agreement defined “commercially reasonable efforts” as “the exercise of
such efforts and commitment of such resources by a company with substantially the
same resources and expertise as [the acquirer], with due regard to the nature of
efforts and cost required for the undertaking at stake.” 140 The defendants moved to
dismiss the claim.
137
Pl.’s Answering Br. at 21–22.
138
2018 WL 6822708, at *3.
139
Id. at *34.
140
Id. at *3.
43
In denying the motion to dismiss, Vice Chancellor Glasscock observed that
the plaintiffs had pleaded at least some facts tying to the “relevant yardstick”
supplied by the contractual commercially reasonable efforts provision.141 The
plaintiffs pointed to “several companies with substantially the same resources and
expertise as [the acquirer]” that were “working to develop treatments” for the
relevant disease.142 The Court concluded that these allegations, scant as they were,
supported the reasonable inference that the defendant failed to satisfy the contractual
standard. 143 By contrast, Plaintiff in this case made no effort to apply the “relevant
yardstick” supplied by Section 6.01 of the Amended Agreement.
Rather than plead facts regarding similar entities or similar products in similar
stages of development, the Complaint focuses primarily on Balt USA’s interactions
with Plaintiff. The Complaint alleges that Balt USA “turned down Neurvana’s
offers to help” with regulatory approval, “promised to continue to pursue lot release”
in its CE Mark application and then “reneged” on that alleged promise to Neurvana,
and “failed to keep Neurvana informed” about the CE Mark approval process or
communications with DQS. 144
141
Id. at *8.
142
Id.
143
Id.
144
Pl.’s Answering Br. at 21–22.
44
None of Plaintiff’s allegations, standing alone or taken collectively, create the
reasonable inference that Balt USA breached the objective Commercially
Reasonable Efforts standard set forth in Section 6.01. These allegations demonstrate
nothing more than that Balt USA did not want Plaintiff’s involvement or that
Plaintiff disagreed with Balt USA’s regulatory strategy—a strategy Balt USA was
contractually entitled to undertake. 145 The Complaint fails to allege facts making it
reasonably conceivable that Balt USA failed to use Commercially Reasonable
Efforts to timely submit and obtain CE Mark approval. 146
145
Compl. Ex. A § 1.06(d)(i)(4). Cf. GRT, Inc. v. Marathon GTF Tech., Ltd.,
2012 WL 2356489, at *5 (Del. Ch. June 21, 2012) (“If a contract specifically contemplates
that a party may take action, . . . and then the party takes that action in full accordance with
its attendant obligations, there is no proper basis to conclude that the party has breached
the contract by doing what the objective terms of the contract authorize.” (emphasis added)
(citing Seidensticker v. Gasparilla Inn, Inc., 2007 WL 4054473, at *1 (Del. Ch. Nov. 8,
2007))).
146
Compl. ¶ 114. For the same reasons, the Complaint also fails to allege facts making it
reasonably conceivable that Balt USA failed to use Commercially Reasonable Efforts to
commercialize Titan under Section 1.06(d)(i)(2). This argument additionally fails because
the Commercial Milestone Efforts Period throughout which Balt USA was required to use
Commercially Reasonable Efforts to commercialize Titan never commenced. See Compl.
Ex. A § 1.06(d)(i)(2) (“During the Commercial Milestone Efforts Period, [Balt USA] shall
use Commercially Reasonable Efforts to Commercialize [Titan] in the applicable market(s)
in which the applicable regulatory approval(s) . . . was/were achieved.” (emphasis added));
id. § 1.06(a)(i) (defining “Commercial Milestone Efforts Period” as the period
“commencing on the earliest to occur of the date (1) the Purchaser receives notice that a
CE mark may be lawfully affixed to one or both Titan Products . . . or (2) the Seller receives
notice of 510(k) clearance from the FDA”).
45
b. Further Assurances
Section 4.07 of the Amended Agreement provides that, “as and when
requested” by Plaintiff, Balt USA must “take . . . all such further or other actions as
a Party may reasonably deem necessary or desirable in order to carry out the intent
and accomplish the purposes of this Agreement.” 147
Because Plaintiff has not adequately alleged that Balt USA breached the
Commercially Reasonable Efforts provision, Plaintiff effectively argues that Section
4.07 imposes a more onerous obligation, which Balt USA breached. Plaintiff
dedicates but one paragraph of its brief to this claim. 148 In that paragraph, Plaintiff
does not point to a single allegation in the Complaint concerning Balt USA’s failure
to take actions that may be reasonably deemed necessary or desirable to carry out
the intent and accomplish the purposes of the Amended Agreement. Instead,
Plaintiff argues that the sufficiency of Balt USA’s efforts to obtain CE Mark
approval “are factual determinations for trial.”149 This non sequitur does nothing at
the pleading stage to aid Plaintiff in satisfying its burden of demonstrating a
reasonable conceivability that Balt USA breached Section 4.07.
147
Compl. Ex. A § 4.07.
148
Pl.’s Answering Br. at 26.
149
Id.
46
c. CE Mark Application Deadline
Section 4.06(b) of the Amended Agreement provides that, “[o]n or before
February 11, 2018 . . . [Balt USA] will file an application for approval that a CE
mark may be lawfully affixed to” Titan. 150 Plaintiff argues that Balt USA breached
the Amended Agreement by failing to submit its CE Mark application by the
contractually mandated deadline of February 11, 2018. But the Complaint
acknowledges that Balt USA eventually filed its CE Mark application on
February 22, 2018,151 and Plaintiff pleads no facts suggesting that this delay of eight
business days caused it to suffer damages. 152
d. Milestone Payments
Section 1.06(b) of the Amended Agreement provides that Balt USA “shall pay
(or cause to be paid) to the Seller, in accordance with and subject to the terms of this
Section 1.06, the following payments . . . upon the achievement of the following
milestone events.” 153 Sections 1.06(b)(i) and 1.06(b)(ii) then list the “Regulatory
150
Amendment § 4.
151
Compl. ¶ 61.
152
To the contrary, Plaintiff alleges that independent events other than the eight-day delay
were the cause of Plaintiff’s alleged damages: “[A]lthough the initial application was
‘only’ eight days late, Neurvana alleges several additional unexplained delays, and Balt
later withdrew the [CE Mark] application entirely to pursue universal sterilization instead,
which meant that the milestone deadline would not be met . . . .” Pl.’s Answering Br. at 27
(emphasis added).
153
Compl. Ex. A § 1.06(b).
47
Milestones” and “Commercial Milestones” and their corresponding milestone
payments. 154
Plaintiff alleges that Balt USA breached the Amended Agreement by failing
to make the regulatory and commercial milestone payments required under
Section 1.06(b). Plaintiff does not allege that any of the milestone events triggering
Balt USA’s milestone payment obligations actually occurred—indeed, the non-
occurrence of those milestone events forms the basis for Plaintiff’s claim that Balt
USA breached its obligation to use Commercially Reasonable Efforts. Rather,
Plaintiff argues that Section 1.06(b)’s prefatory language mandates that Balt USA
“shall pay” Neurvana the milestone payments on a date certain regardless of whether
the relevant milestone is achieved.155
In addition to ignoring the manifest purpose of the earn-out structure—to
allocate risk by requiring payment only upon the achievement of specific milestone
events—Plaintiff’s argument ignores the plain language of the Amended Agreement.
In full, Section 1.06(b) requires payment only “upon the achievement of the
following milestone events.” 156 The “Regulatory Milestones” subsections that
154
Id. §§ 1.06(b)(i), (ii).
155
Id. § 1.06(b).
156
Id. (emphasis added).
48
follow also contain conditional language. 157 Similarly, the “Commercial
Milestones” subsections that follow expressly acknowledge that a failure to receive
regulatory approval may result in no payments to Neurvana whatsoever.158 And in
Section 1.06(f) of the Amended Agreement, Neurvana expressly acknowledges that
“the achievement of any Milestone is uncertain and it is therefore not assured that
[Balt USA] will be required to pay any Milestone Payment at all if no Milestones
described in Section 1.06 are achieved.” 159
Plaintiff alternatively argues that the prevention doctrine applies because Balt
USA’s supposed breaches impeded the conditions that would have triggered the
157
The Regulatory Milestones provisions in Section 1.06(b)(i) require payment to
Neurvana only where regulatory approval is obtained by a date certain. Id. § 1.06(b)(i)(1)
(stating that the $250,000 CE Mark milestone payment shall be made “in the event that the
following shall have occurred on or prior to September 30, 2018 (emphasis added)); id.
§ 1.06(b)(i)(2) (stating that the $250,000 510(k) approval milestone payment shall be made
“in the event that the following shall have occurred on or prior to September 30, 2018.”
(emphasis added)).
158
Each of the “Commercial Milestones” subsections contemplates “a payment, if any,” to
Neurvana using some multiple of “Titan Revenue.” See id. §§ 1.06(b)(ii)(1)–(5). The term
“Titan Revenue” is defined in Section 1.06(a)(vii) as “(a) the actual gross amounts
invoiced from or on account of the sale or distribution of [Titan] by [Balt USA] . . . in a
particular period” less certain specified deductions, and “(b) the royalties or license fees
actually received from unaffiliated third parties by [Balt USA]” in connection with
distribution rights Balt USA may have granted. Id. § 1.06(a)(vii) (emphases added). In
other words, “Titan Revenue” cannot exist without the sale or distribution of Titan—and
the sale or distribution of Titan cannot occur without the requisite regulatory approvals.
See Compl. ¶ 25 (“Before Neurvana could market and sell Titan, it had to . . . acquire
regulatory approvals.” (emphasis added)).
159
Compl. Ex. A § 1.06(f).
49
milestone payments. 160 The prevention doctrine “provides that a party may not
escape contractual liability by reliance upon the failure of a condition precedent
where the party wrongfully prevented performance of that condition precedent.”161
Plaintiff asserts that the doctrine applies here because “Balt continuously worked to
undermine the application process and resulting payments.” 162 This conclusory
assertion is unsupported by the facts alleged in the Complaint. And as discussed
above, Plaintiff’s disagreement with the regulatory strategy Balt USA was
contractually entitled to undertake does not give rise to the inference that Balt USA
“wrongfully prevented” performance of the Amended Agreement.163
2. Count Four Fails to State a Claim for Breach of the Implied
Covenant of Good Faith and Fair Dealing.
Count Four of the Complaint alleges that Balt USA breached the implied
covenant of good faith and fair dealing. Under Delaware law, “[t]he implied
160
Pl.’s Answering Br. at 28.
161
Mobile Commc’ns Corp. of Am. v. MCI Commc’ns Corp., 1985 WL 11574, at *4 (Del.
Ch. Aug. 27, 1985) (emphasis added) (citations omitted).
162
Pl.’s Answering Br. at 28.
163
Some decisional authority suggests that the wrongful prevention doctrine’s application
is limited where “one party assumes the risk that fulfillment of the condition precedent will
be prevented.” Mobile Comm’cns, 1985 WL 11574, at *4. Defendants thus argue that
Plaintiff expressly assumed the risk that it would not receive milestone payments when it
agreed that Balt USA would have authority over all matters relating to Titan post-closing.
Defs.’ Reply Br. at 14. This decision notes the point without resolving it in view of the
multiple other deficiencies in this aspect of Plaintiff’s claim.
50
covenant is inherent in all contracts.”164 Delaware courts have characterized the
implied covenant as “a limited and extraordinary legal remedy” 165 whose application
is a “cautious enterprise.” 166 “[T]he implied covenant ‘does not apply when the
contract addresses the conduct at issue,’ but only ‘when the contract is truly silent’
concerning the matter at hand.”167 The implied covenant “should not be applied to
give plaintiffs contractual protections that ‘they failed to secure for themselves at the
bargaining table.’” 168
Plaintiff argues that the implied covenant applies because the Amended
Agreement is “silent about the sterilization protocol.”169 That argument is
inconsistent with the plain language of the Amended Agreement, which vests Balt
USA with “authority over all matters relating to [Titan] after the Closing, including,
but not limited to, any research, development, manufacturing, Commercialization,
clinical trial design, site selection, regulatory, quality standards,” and other
164
Dieckman v. Regency GP LP, 155 A.3d 358, 366 (Del. 2016).
165
Oxbow Carbon & Minerals Hldgs. v. Crestview-Oxbow Acq., LLC, 202 A.3d 482, 507
(Del. 2019) (quoting Nemec v. Shrader, 991 A.2d 1120, 1128 (Del. 2010)).
166
Nemec, 991 A.2d at 1125 (Del. 2010).
167
Oxbow, 202 A.3d at 507 (first quoting Nationwide Emerging Managers, LLC v.
Northpointe Hldgs. LLC, 112 A.3d 878, 896 (Del. 2015); then quoting Allied Capital, 910
A.2d at 1033).
168
Winshall v. Viacom Int’l, Inc., 55 A.3d 629, 636–37 (Del. Ch. 2011), aff’d, 76 A.3d 808(Del. 2013) (quoting Aspen Advisors LLC v. United Artists Theatre Co., 861 A.2d 1251,
1260 (Del. 2004)).
169
Pl.’s Answering Br. at 31.
51
decisions. 170 Neurvana affirmatively agreed to vest Balt USA with the discretionary
authority to proceed with any and all regulatory, commercial, and other decisions
related to Titan post-closing.171 This language suggests that conferred discretion to
Balt USA “was a contractual choice to grant authority . . . not a gap.”172
Of course, “vesting [a contracting party] with discretion does not relieve [the
party] of its obligation to use that discretion constituently with the implied covenant
of good faith and fair dealing.” 173 Yet Plaintiff does not plead facts that Balt USA
acted in bad faith when it exercised its discretion to pursue universal sterilization
validation instead of a lot release sterilization protocol. For example, Plaintiff
asserts that Balt USA “represented that they could achieve approval within 45 days”
and that “[t]his timeline would have been possible only with a lot-release submission
because universal validation takes more than 30 days.” 174 But neither of the
paragraphs to which Plaintiff cites for this proposition contain the factual allegation
that universal sterilization validation takes more than thirty days. 175 Indeed, that
170
Compl. Ex. A § 1.06(d)(i)(4).
171
Id.
172
Oxbow, 202 A.3d at 503.
173
Id. (citing Miller v. HCP Trumpet Investments, LLC, 2018 WL 4600818, at *1–2 (Del.
Sept. 20, 2018) (TABLE)); Amirsaleh v. Bd. of Trade of N.Y.C., Inc., 2008 WL 4182998,
at *1 (Del. Ch. Sept. 11, 2008) (“[T]he law presumes that parties never accept the risk that
their counterparties will exercise their contractual discretion in bad faith.”).
174
Pl.’s Answering Br. at 32.
175
See Compl. ¶¶ 46, 65.
52
allegation exists nowhere in the Complaint. And even if it did, Plaintiff does not
allege that approval with a universal sterilization validation would have been
impossible within the timeline Balt USA proposed.
3. Count Five Fails to State a Claim for Promissory Estoppel.
Count Five of the Complaint alleges that the doctrine of promissory estoppel
makes Balt USA’s “promise” to secure CE Mark approval using a lot release
sterilization protocol within forty-five days an enforceable one. But Plaintiff’s
argument ignores well-settled Delaware law: “Promissory estoppel does not
apply . . . where a fully integrated, enforceable contract governs the promise at
issue.” 176 The Amended Agreement contains an integration clause, which provides:
“This Agreement and the documents referred to herein contain the complete
agreement between the Parties relating to the subject matter hereof and supersede
any prior understandings, agreements or representations by or between the Parties,
written or oral, which may have related to the subject matter hereof in any way . . .
.” 177
Plaintiff does not argue that the Amended Agreement is not fully integrated
or that the Amended Agreement’s integration clause is somehow void. Nor does
Plaintiff dispute that Balt USA’s alleged promise to secure CE Mark approval within
176
SIGA Techs., Inc. v. PharmAthene, Inc., 67 A.3d 330, 348 (Del. 2013).
177
Compl. Ex. A § 7.08.
53
forty-five days using a lot release sterilization protocol relates to “subject matter” of
the Amended Agreement. Indeed, Plaintiff would be hard-pressed to make such
arguments. Thus, the Amended Agreement supersedes the alleged promise made
prior to its execution, and the doctrine of promissory estoppel may not be applied to
revive them.
4. Count Ten Fails to State a Claim for Anticipatory
Repudiation.
Count Ten of the Complaint alleges that Balt USA anticipatorily repudiated
the Amended Agreement. As Chancellor Allen once observed, the doctrine of
anticipatory repudiation derives from the principle that, “[i]f it is clear that the
promisor intends not to perform his promise, there seems little reason to force the
parties to wait to have their rights and obligations determined while markets rise and
fall.” 178 However, “[t]he theory justifying an action for breach of contract prior to
the contracted-for time of performance really only holds when the repudiation
is . . . ‘positive and unconditional.’” 179 Thus, “[u]nder Delaware law, repudiation is
an outright refusal by a party to perform a contract or its conditions” 180 requiring an
“unequivocal statement”181 of an intent not to perform.
178
Carteret Bancorp, Inc. v. Home Gp., Inc., 1988 WL 3010, at *5 (Del. Ch. Jan. 13, 1988).
179
Id. at *6 (quoting 11 Williston on Contracts § 1322 (3d ed. 1968)).
180
CitiSteel USA, Inc. v. Connell Ltd. P’ship, 758 A.2d 928 (Del. 2000).
181
Veloric v. J.G. Wentworth, Inc., 2014 WL 4639217, at *15 (Del. Ch. Sept. 18, 2014)
(quoting Carteret, 1988 WL 3010, at *5).
54
Plaintiff alleges that, “by unilaterally refusing to submit the CE Mark file to
DQS for regulatory approval with a lot release sterilization protocol,” Balt USA
anticipatorily repudiated the Amended Agreement. 182 But nowhere in the Complaint
does Plaintiff allege that such unilateral refusal occurred. In fact, the Complaint
alleges the opposite: After a meeting between the parties on March 13, 2018, Yang
wrote to Neurvana and represented that the CE Mark “application had been
submitted [by Balt USA] with an aspiration indication and with a sterile lot release
protocol.”183 At no point, according to the Complaint, did Balt USA “unilaterally
refuse” to submit its CE Mark application with a lot release sterilization protocol.
Rather than pointing the Court to an “unequivocal statement” by Balt USA
evidencing an intent not to perform, Plaintiff points the Court to Balt USA’s
“actions” (in no definite terms) and argues that those actions “render[ed] contractual
performance impossible.” 184 This argument is unpersuasive. Nothing in the
Complaint suggests that Balt USA’s undefined actions made contractual
performance impossible.
182
Compl. ¶ 158.
183
Id. ¶ 65.
184
Pl.’s Answering Br. at 36.
55
5. Count Thirteen Fails to State a Claim for Indemnification.
Count Thirteen of the Complaint seeks indemnification for alleged losses
incurred “[a]s a result of Balt’s breaches of its obligations under the
[Agreement].” 185 Section 5.03 of the Amended Agreement provides that Balt USA
“shall indemnify” Neurvana and its representatives and “hold them harmless against
any Losses paid, incurred, suffered or sustained . . . directly or indirectly, resulting
from, arising out of, or relating to” any of the following:
(a) Any inaccuracy or breach of any representation or
warranty of [Balt USA] contained in [the relevant portion
of the Amended Agreement]; (b) any non-fulfillment or
breach by [Balt USA] of any covenant or agreement
contained in this Agreement; (c) any Assumed Liability;
and/or (d) [Neurvana’s] development and
186
commercialization of the Titan Products.
Plaintiff has failed to adequately plead that any of the four circumstances delineated
in Section 5.03 are present. As discussed above, the Complaint does not demonstrate
that any sort of inaccuracy, breach, or non-fulfillment of any of the covenants or
obligations contained in the Amended Agreement. 187 Thus, Count Thirteen fails to
state a claim upon which relief can be granted.
185
Compl. ¶ 176.
186
Compl. Ex. A § 5.03.
187
Plaintiff does not argue that the “Assumed Liability” language in Section 5.03 applies
in this case.
56
6. Counts Eleven and Fourteen Fail to State Claims for
Alternative Forms of Relief.
Counts Eleven and Fourteen of the Complaint seek specific performance of
the Amended Agreement and declaratory judgment concerning Balt USA’s
obligations at issue in Counts Three, Four, and Ten. Because each of the predicate
claims to Counts Eleven and Fourteen fail to state a claim, the equitable and
declaratory relief Plaintiff requests in connection with those claims is denied.
C. The Contract Claim Against Ferrera
Count Six of the Complaint alleges that Ferrera breached the Consulting
Agreement’s confidentiality and non-disparagement clauses.188 The confidentiality
clause provides: “Consultant agrees during the term of this Agreement and for five
(5) years thereafter that Consultant will take all steps reasonably necessary to hold
Company’s Confidential or Proprietary Information . . . in trust and
confidence . . . .” 189 The non-disparagement clause provides: “Consultant agrees
that he will not . . . make any non-flattering statement or disparage . . . the Company,
its technology or business, or any of the (past, present or future) employees, officers,
188
Although the Consulting Agreement is governed by California law, Consulting
Agreement § 9(c), Delaware law provides the procedural standard, and thus Plaintiff must
still plead facts under Rule 12(b)(6) sufficient to support a reasonable inference that Ferrera
breached the Consulting Agreement.
189
Consulting Agreement § 5(a).
57
managers, independent contractors, consultants, equity holders or lenders of the
Company . . . .” 190
Plaintiff first contends that Ferrera breached the confidentiality clause when
he “revoke[d] Neurvana’s license to use Balt’s ‘pusher’ delivery system,” and
“demanded immediate payment” of the debts owed by Neurvana to Balt USA.191
These events occurred throughout 2018, after Ferrera’s resignation.192 Plaintiff
asserts that “the timing of each act was informed by Ferrera’s inside knowledge as
former chairman of the board of Neurvana’s confidential financial information.”193
These allegations are conclusory and unsupported by well-pleaded facts in the
Complaint. Other than by broad reference to Ferrera’s “inside knowledge” as former
Chairman, 194 Plaintiff pleads no facts indicating specifically or even generally which
“nonpublic or proprietary information regarding [Neurvana or] its business” Ferrera
possessed that was protected by the Consulting Agreement.195 And other than the
conclusory allegation that Ferrera “used confidential information about Neurvana to
190
Id. § 8(a).
191
Pl.’s Answering Br. at 54.
192
Compl. ¶¶ 77, 87.
193
Pl.’s Answering Br. at 54 (internal quotation marks omitted).
194
Compl. ¶ 76.
195
Consulting Agreement § 5(a) (defining the “Confidential or Proprietary Information”
that Ferrera was prohibited from using).
58
harm and undermine Neurvana and its prospective business relations,”196 Plaintiff
pleads no facts indicating that Ferrera actually used such confidential information in
a contractually prohibited manner. Plaintiff has failed to plead facts making it
reasonably conceivable that Ferrera breached the Consulting Agreement’s
confidentiality clause.
Plaintiff next argues that Ferrera breached the non-disparagement clause when
he “repeatedly disparaged Neurvana and its officers to investors, potential investors,
members of Neurvana’s board, and other people and entities in the neuro-medical
device industry.” 197 But this allegation was made merely “[u]pon information and
belief” and was unsupported by well-pleaded facts in the Complaint—thus, the Court
need not accept it as true.198
D. The Tort Claims
Count One asserts that Balt USA fraudulently induced Neurvana to enter into
the Amended Agreement. Count Two asserts that the same conduct giving rise to
the fraudulent inducement claim gives rise to a claim for equitable fraud or negligent
misrepresentation. Count Nine asserts that all Defendants tortiously interfered with
196
Compl. ¶ 84.
197
Id. ¶ 85.
198
See Griffin Corp. Servs., LLC v. Jacobs, 2005 WL 2000775, at *6 (Del. Ch.
Aug. 11, 2005) (addressing one of the plaintiffs’ allegations made only “[u]pon
information and belief” and concluding that “[s]uch a bald statement, without further
factual allegations to support it, is merely conclusory and need not be accepted as true”
(citing Haber v. Bell, 465 A.2d 353, 357 (Del. Ch. 1983)).
59
the development and commercialization of Neurvana’s remaining two products,
Lumenate and Dimension.
1. Counts One and Two Fail to State Claims for Fraud.
Under Delaware law, a claim for fraud has five conjunctive elements: (1) a
false statement, generally of fact, made by the defendant; 199 (2) the defendant’s
knowledge or belief that the statement was false at the time it was made, or the
defendant’s reckless indifference to statement’s truth; (3) the defendant’s intent to
cause the plaintiff to act or refrain from acting as a result of the statement; (4) the
plaintiff’s justifiable reliance on that statement in acting or in refraining from acting;
and (5) damages incurred as a result of that reliance. 200 To state a claim for equitable
fraud, a plaintiff must “satisfy all the elements of common-law fraud with the
exception that [the] plaintiff need not demonstrate that the misstatement or omission
was made knowingly or recklessly.” 201 To state a claim for negligent
199
“In addition to overt representations, fraud may also occur through deliberate
concealment of material facts, or by silence in the face of a duty to speak.” H-M Wexford
LLC v. Encorp, Inc., 832 A.2d 129, 144 (Del. Ch. 2003) (citing Stephenson v. Capano
Dev., Inc., 462 A.2d 1069, 1074 (Del. 1983)). Though the Complaint alleges in a
conclusory manner that Balt USA made “representations . . . by fraudulently concealing
material facts,” Plaintiff neither points to any such omission in the Complaint nor
meaningfully argues that point in briefing. Compl. ¶ 95; see Pl.’s Answering Br. at 39–48
(referring only to affirmative statements by Balt USA).
200
Solow v. Aspect Res., LLC, 2004 WL 2694916, at *2 (Del. Ch. Oct. 19, 2004) (citing
Gaffin v. Teledyne, Inc., 611 A.2d 467, 472 (Del. 1992)).
201
H-M Wexford, 832 A.2d at 144 (quoting Zirn v. VLI Corp., 681 A.2d 1050, 1061 (Del.
1996)).
60
misrepresentation, a plaintiff must show: (1) “a particular duty to provide accurate
information, based on the plaintiff[’s] pecuniary interest in that information;”
(2) “the supplying of false information;” (3) “failure to exercise reasonable care in
obtaining or communicating information; and” (4) “a pecuniary loss caused by
justifiable reliance on the false information.” 202
Court of Chancery Rule 9(b) imposes a heightened pleading standard on
plaintiffs asserting fraud claims. Specifically, Rule 9(b) requires that “the
circumstances constituting fraud . . . be stated with particularity.” 203 “Under
Rule 9(b), the circumstances that must be stated with particularity are the time, place,
and contents of the false representation, the identity of the person(s) making the
representation, and what he intended to obtain thereby.” 204 “It is not necessary under
Rule 9(b) to plead knowledge or intent with particularity.” 205 “Essentially, to satisfy
that requirement, the plaintiff must allege circumstances sufficient to fairly apprise
the defendant of the basis for the claim.” 206
202
Id. at 147 n.44 (citing Glosser v. Cellcor, Inc., 1994 WL 593929, at *22 (Del. Ch.
Oct. 17, 1994)).
203
Ct. Ch. R. 9(b).
204
H-M Wexford, 832 A.2d at 145 (citations omitted).
205
KnightTek, LLC v. Jive Commc’ns, -- A.3d --, 2020 WL 414434, at *6 (Del.
Jan. 27, 2020); Ct. Ch. R. 9(b) (“Malice, intent, knowledge and other condition of mind . .
. may be averred generally.”)
206
H-M Wexford, 832 A.2d at 145 (citing Norman v. Paco Pharm. Servs., Inc., 1989 WL
110648, at *10 (Del. Ch. Sept. 22, 1989); Cont’l Ill. Nat’l Bank & Tr. Co. of Chi. v. Hunt
Int’l Res. Corp., 1987 WL 55826, at *6 (Del. Ch. Feb. 27, 1987)).
61
Plaintiff argues that Balt USA, through its agents and representatives, made
several misrepresentations that induced Plaintiff to enter into the Amended
Agreement. Specifically, Plaintiff takes issue with Balt USA’s statements that due
to its superior relationships, resources, and expertise, Balt USA could obtain CE
Mark approval for Titan faster than Neurvana could, within forty-five days. 207
The allegations supporting Plaintiff’s fraud claims closely resemble the
allegations supporting Plaintiff’s failed claim for promissory estoppel—and
Plaintiff’s fraud claims may fail for the same reasons.208 In any event, Plaintiff has
failed to adequately plead one element common to each of the three Tort Claims—
an actionable false statement. 209
207
Compl. ¶¶ 96–98.
208
There exists some support for the notion that an integration clause containing
unambiguous anti-reliance language precludes a finding of justifiable reliance, thus barring
certain fraud claims. See H-M Wexford, 832 A.2d at 142 (dismissing a fraud claim for
failure to demonstrate justifiable reliance and stating that, “if [the plaintiff] wanted to be
able to rely upon [a private placement memorandum it received prior to signing the
agreement] or particular facts represented therein, it had an obligation to negotiate to have
those matters included within the scope of the integration clause of the contract”). Cf.
Kronenberg v. Katz, 872 A.2d 568, 593 (Del. Ch. 2004) (“The presence of a standard
integration clause alone, which does not contain explicit anti-reliance representations and
which is not accompanied by other contractual provisions demonstrating with clarity that
the plaintiff had agreed that it was not relying on facts outside the contract, will not suffice
to bar fraud claims.”). Because Plaintiff’s fraud claims fail for more obvious reasons, the
Court need not reach this issue.
209
Plaintiff’s reliance on Narrowstep, Inc. v. Onstream Media Corp. is misplaced. Pl.’s
Answering Br. at 42 (citing Narrowstep, Inc. v. Onstream Media Corp., 2010 WL 5422405,
at *12 (Del. Ch. Dec. 22, 2010)). In Narrowstep, the Court held that the plaintiff
successfully pleaded the false statement element of its fraud claims. Narrowstep,
2010 WL 5422405, at *12 (explaining that the plaintiff, Narrowstep, adequately pleaded
the elements of its fraud claims, stating: “Narrowstep alleges that Onstream made several
62
Balt USA’s statement that it could secure CE Mark approval within forty-five
days is a forward-looking opinion, and such opinions are generally not actionable as
fraud. 210 Acknowledging this line of case law, 211 Plaintiff first argues that the
disputed statement misrepresented facts known by Balt USA (“then-existing
facts”)212 at the time the statement was made about Balt USA’s “supposed superior
relationship with European regulators that would allow Titan to rapidly achieve
CEM.” 213 Delaware law recognizes that forward-looking statements can support a
claim of fraud where the declarant knows the statement to be false at the time it is
made. 214 In this case, Plaintiff neither alleges nor argues what then-existing facts
false representations with respect to its communicated desire to close a merger with
Narrowstep in an expeditious manner.”). In so holding, the Court observed that “the
Complaint sufficiently describe[d] the details” of the alleged misappropriation scheme,
which in turn indicated that the false representations were made intentionally. Id. Here,
unlike in Narrowstep, Plaintiff has not properly alleged that Balt USA made “false
representations” in the first place.
210
Grunstein v. Silva, 2009 WL 4698541, at *13 (Del. Ch. Dec. 8, 2009) (observing that
“expressions as to what will happen in the future are not actionable as fraud” (citation
omitted)); BAE Sys. N. Am. Inc. v. Lockheed Martin Corp., 2004 WL 1739522, at *7 (Del.
Ch. Aug. 3, 2004) (“Expressing opinions or predictions about the future, however, ‘cannot
give rise to actionable common law fraud.’” (quoting Great Lakes Chem. Corp. v.
Pharmacia Corp., 788 A.2d 544, 554 (Del. 2001))).
211
Pl.’s Answering Br. at 43 (acknowledging that “representations regarding future
conduct, predictions, and expressions of opinion generally do not create actionable fraud”).
212
Id. at 40.
213
Id. at 42.
214
Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 901 A.2d 106, 116 (Del. 2006); see also
KnighTek, 2020 WL 414434 at *6 (applying Utah law, distinguishing between “forward-
looking predictions or opinions that are subject to uncertainty and predictions or opinions
63
were supposedly false. 215 The Complaint does not support a reasonable inference
that Balt USA lacked superior relationships, resources, and expertise; in fact, the
Complaint supports the contrary inference. 216 And the 45-day prediction is a pure
expression as to what might happen in the future and not alleged to be based on any
specific fact known at the time the statement was made. 217
Tacitly conceding Balt USA’s superior knowledge and that the disputed
statement was an opinion only, Plaintiff next argues that “even an opinion may rise
to the level of a misstatement of fact when made by one with special or superior
knowledge.”218 Once again, however, Plaintiff fails to point to any supporting
allegations or otherwise develop this argument.
that the speaker knows are false,” and ruling that the complaint adequately alleged that the
defendant knew the statement to be false due to “presently existing material fact[s]”).
215
Compare Compl. ¶ 96 (“These misrepresentations included the claim that Balt had
superior relationships, resources, and expertise, which would lead to faster CE Mark
approval than Neurvana could achieve.”), and id. (“Balt represented that it could obtain
CE Mark approval for Titan within 45 days”), with KnighTek, 2020 WL 414434 at *2
(finding it reasonably conceivable that defendant’s statement that plaintiff would have to
wait more than five years to be bought out was known to be false when made where, the
day after the plaintiff agreed to be paid out at a discount, a change of control transaction
that would have accelerated the defendant’s payment obligations in full occurred).
216
See, e.g., Compl. ¶¶ 99, 108, 152 (referring to the foreseeability of Neurvana’s alleged
damages given “Balt’s knowledge of the industry and Neurvana’s products”).
217
In briefing, Plaintiff states: “Discovery will show either that Defendants knew they were
lying when they claimed that Balt could rapidly achieve [CE Mark approval] and fulfill the
intent of the [Amended Agreement], or that they did not care if what they said was true.”
Pl.’s Answering Br. at 40. But Plaintiff cannot point to future discovery to bolster its
allegations at the pleading stage.
218
Pl.’s Answering Br. at 43 (citing Aviation West Charters, LLC v. Freer,
2015 WL 5138285, at *6 (Del. Super. Ct. July 2, 2015); Wal-Mart Stores, Inc. v. AIG Life
64
2. Count Nine Fails to State a Claim for Tortious Interference
with Prospective Economic Advantage.
“To survive dismissal, a claim for tortious interference with business relations
must allege: ‘(a) the reasonable probability of a business opportunity, (b) the
intentional interference by defendant with that opportunity, (c) proximate causation,
and (d) damages.’” 219
Ins. Co., 901 A.2d 106, 116 (Del. 2006)). Plaintiff’s reliance on Aviation West Charters
and Wal-Mart is misplaced. In Aviation West Charters, the Delaware Superior Court did
not find that the misrepresentation forming the basis for the plaintiff’s fraudulent
inducement claim was an opinion. 2015 WL 5138285, at *7 (holding that a company’s
inflation of its accounts receivable was “a statement of past fact—not one of opinion or
future conduct”). And the expression of opinion in Wal-Mart is distinguishable from that
in this case. In Wal-Mart, several brokers sold to Wal-Mart corporate-owned life insurance
policies (“COLIs”) that they represented would generate significant tax benefits.
901 A.2d at 111. The brokers assured Wal-Mart that in the “worst case” scenario, Wal-
Mart would only lose $283,000. Id. But after an adverse change in tax laws, the COLIs
did not generate tax benefits, and Wal-Mart allegedly suffered more than $100 million in
damages. Id. at 110. The Delaware Supreme Court held that, while the broker’s assurance
that Wal-Mart would only lose $283,000 in the “worst case” scenario was an opinion, it
was “the type of opinion that suggests the reasonable belief that it was based on facts known
to the maker.” Id. at 116. This was so because the brokers, who were “experts in COLI
plans,” should have known that the COLIs “deviated from industry standards, and that
those deviations had prompted regulators to question or disapprove similar plans.” Id. at
111, 116. There are no similar allegations here. Plaintiff does not allege that Balt USA’s
approach “deviated from industry standards” or that Balt USA’s approach would have been
impossible.
219
Malpiede v. Townson, 780 A.2d 1075, 1099 (Del. 2001) (quoting DeBonaventura v.
Nationwide Mut. Ins. Co., 428 A.2d 1151, 1153 (Del. 1981)). Though Plaintiff asserts
Count Nine as a claim for “tortious interference with prospective economic advantage,”
that claim is the same as one for “tortious interference with business relations.” See Pl.’s
Answering Br. at 56 (citing the elements of a claim for tortious interference with business
relations).
65
Plaintiff’s claim fails on the first element. “To meet the reasonable probability
of a business opportunity prong, a plaintiff ‘must identify a specific party who was
prepared to enter into a business relationship but was dissuaded from doing so by
the defendant . . . .’” 220 The plaintiff “cannot rely on generalized allegations of
harm.” 221 “Furthermore, ‘[t]o be reasonably probable, a business opportunity must
be something more than a mere hope . . . or a mere perception of a prospective
business relationship.’” 222
The Complaint does not allege that any party, let alone a “specific party,” was
prepared to partner with Neurvana to develop and commercialize Lumenate or
Dimension. In briefing, Plaintiff highlights the potential value of Lumenate and
Dimension, Defendants’ knowledge of this value, and Defendants’ “intentional[]
sabotage[]” of CE Mark approval for Titan “in order to prevent Neurvana from being
able to commercialize Dimension and Lumenate.” 223 But these general points do
not identify the existence of a specific party or support a reasonable inference of the
existence of a specific party.
220
Soterion Corp. v. Soteria Mezzanine Corp., 2012 WL 5378251, at *13 (Del. Ch.
Oct. 31, 2012) (quoting Agilent Techs., Inc. v. Kirkland, 2009 WL 119865, at *7 (Del. Ch.
Jan. 20, 2009)).
221
Id. (quoting Agilent, 2009 WL 119865, at *7).
222
Id.223
Pl.’s Answering Br. at 57.
66
III. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss for lack of personal
jurisdiction pursuant to Court of Chancery Rule 12(b)(2) is GRANTED as to Girin
and DENIED as to Ferrera. Defendants’ motion to dismiss for failure to state a claim
pursuant to Court of Chancery Rule 12(b)(6) is GRANTED as to Counts One, Two,
Three, Four, Five, Six, Nine, Ten, Eleven, Twelve, Thirteen, Fourteen, and Count
Seven concerning Ferrera’s post-resignation conduct and DENIED as to Count
Seven concerning Ferrera’s pre-resignation conduct.
67