Simon Ogus v. SportTechie, Inc.

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
)
SIMON OGUS, )
)
Plaintiff, )
)
v. ) C.A. No. 2018-0869-LWW
)
SPORTTECHIE, INC., TAYLOR )
BLOOM, FRANCESCA BODIE, )
DANIEL KAUFMAN, and OAK )
VIEW GROUP, LLC, )
)
Defendants. )
MEMORANDUM OPINION
Date Submitted: December 15, 2022
Date Decided: April 3, 2023
Ryan M. Ernst & David M. Klauder, BIELLI & KLAUDER, LLC, Wilmington,
Delaware; Charles J. Hecht, CHARLES HECHT P.C., New York, New York;
Counsel for Plaintiff Simon Ogus
Michael C. Heyden, Jr. & Joseph E. Brenner, GORDON REES SCULLY
MANSUKHANI LLP, Wilmington, Delaware; Counsel for Defendants Taylor
Bloom and Daniel Kaufman
Samuel T. Hirzel, II & Elizabeth A. DeFelice, HEYMAN ENERIO GATTUSO &
HIRZEL LLP, Wilmington, Delaware; Sarah Lightdale & Christopher L. Martin, Jr.,
COOLEY LLP, New York, New York; Counsel for Defendants Francesca Bodie
and Oak View Group, LLC
WILL, Vice Chancellor
In 2012, plaintiff Simon Ogus cofounded SportTechie—a website covering
sports technology news. The company began as a hobby for Ogus and defendant
Taylor Bloom, who volunteered as a writer. Eventually, it began to take shape as a
viable media platform.
First Bloom, and then Ogus, quit their other jobs to focus on developing
SportTechie. They formalized the business by forming a limited liability company,
with Bloom a 55.5% member, and Ogus a 45.5% member and the sole manager.
They hired defendant Daniel Kaufman to assist with managing the business and to
provide in-house legal advice. They obtained the support of Vintage Capital
Investments, LLC and defendant Oak View Group, LLC, which offered financial
investments in exchange for influence in the business and a stake in its success.
With SportTechie’s growth, however, came challenges—particularly for
Ogus. Ogus’s interest in the business was significant and secure while SportTechie
was a limited liability company. That changed between late 2016 and early 2017
when Ogus endorsed several key decisions, with the encouragement of Bloom and
Kaufman. Ogus signed documents converting SportTechie from a limited liability
company to a Delaware corporation. He agreed to appoint three members to a board
of directors—Bloom, a Vintage representative, and defendant Francesca Leiweke-
Bodie as Oak View Group’s designee—but not himself. And he executed a
stockholders agreement that gave SportTechie the right to repurchase Ogus’s 44.5%
equity interest if he were terminated for any reason.
In March 2017, Bloom—SportTechie’s Chief Executive Officer—
recommended that the board fire Ogus for poor performance. Bloom and Bodie,
representing a quorum of the board, signed a written consent removing Ogus as an
officer and authorizing the termination of his employment. Two months later,
Bloom caused SportTechie to exercise its option in the stockholders agreement to
repurchase Ogus’s stock. An outside firm subsequently arrived at a valuation for
Ogus’s equity.
Ogus then sued SportTechie, Bloom, Kaufman, Bodie, and Oak View Group
in this court. In January 2020, Chancellor Bouchard dismissed several of Ogus’s
claims, including fiduciary duty and fraud claims challenging the repurchase under
the stockholders agreement. Several narrowed claims survived, including a fraud
claim, breach of fiduciary duty claims, an aiding and abetting claim, and a civil
conspiracy claim. After two years of discovery, the defendants moved for summary
judgment on the remaining claims against them.
For the reasons explained below, Bodie and Oak View Group’s motion for
summary judgment is granted. The record demonstrates that these defendants had
limited, tangential, and ultimately innocuous roles in the relevant events. Bodie’s
decision to sign the written consent terminating Ogus is protected by the business
2
judgment rule, and there is no evidence indicating that she acted in bad faith or out
of self-interest. With no underlying breach of fiduciary duty claim, the aiding and
abetting claim against Oak View Group and the civil conspiracy claim against Oak
View Group and Bodie necessarily fail.
As to Bloom and Kaufman, however, questions of material fact remain that
prevent summary judgment on the fraud, breach of fiduciary duty, and civil
conspiracy claims pending against them. Their motion is therefore denied.
I. FACTUAL BACKGROUND
Unless otherwise noted, the facts described in this section are drawn from the
Second Amended Verified Complaint (the “Complaint”) for uncontested
background facts and from the factual record as appropriate.1
1
Second Am. Verified Compl. (Dkt. 172) (“Second Am. Compl.”). Citations in the form
“PX __” refer to exhibits to the Affidavit of Simon Ogus in Support of Plaintiff’s
Opposition to Defendants’ Motions for Summary Judgment (Dkt. 283) and the Amended
Transmittal Affidavit of Ryan M. Ernst in Support of Plaintiff Simon Ogus’s Answering
Brief in Opposition to the Defendants’ Motions for Summary Judgment (Dkt. 281).
Citations in the form “DX __” refer to exhibits to the Transmittal Affidavit of Elizabeth A.
DeFelice in Support of Defendants Francesca Bodie and Oak View Group, LLC’s Motion
for Summary Judgment (Dkts. 236-37). Defendants Bloom and Kaufman adopt the
exhibits set forth in the DeFelice affidavit. See Defs.’ Taylor Bloom and Daniel Kaufman’s
Opening Br. in Supp. of Their Mot. for Summ. J. (Dkt. 240) 3 n.1. Bloom and Kaufman
provided additional exhibits also cited as “DX __.” Citations to DX 38 through DX 63
refer to exhibits to the Transmittal Affidavit of Joseph E. Brenner in Support of
Defendants’ Taylor Bloom and Daniel Kaufman’s Motion for Summary Judgment (Dkt.
240). Deposition transcripts are cited as “[Deponent’s Last Name] Dep. Tr. __.” Where
an exhibit lacks internal pagination, pin citations will reflect the last three digits of the
exhibit’s Bates stamp.
3
A. SportTechie’s Formation and Growth
In early 2012, Simon Ogus and Josh Folk began publishing content relating
to the intersection of sports and technology on a website called SportTechie.2 Ogus
and Folk pursued this project as a hobby. Shortly after the website’s launch, Taylor
Bloom—then a college student—began writing articles for SportTechie on a
volunteer basis.3
In August 2013, SportTechie LLC was formed as a District of Columbia
entity.4 Its members were Ogus, Folk, and Bloom.5
Ogus and Folk decided to give Bloom an ownership interest in SportTechie
LLC because he “was contributing substantial time” to the business.6 Folk left the
company by mid-2015, selling his interest to Ogus and Bloom.7 That summer,
Bloom turned his focus to SportTechie full time.8
2
Second Am. Comp. ¶ 23; see PX 7 (“Ogus Dep. Tr.”) 16-17; 20-21.
3
Second Am. Compl. ¶ 24; see Ogus Dep. Tr. 58.
4
Second Am. Comp. ¶ 25; Defs. Taylor Bloom and Daniel Kaufman’s Answer and
Affirmative Defs. to Pl.’s Second Am. Compl. (Dkt. 179) (“Bloom & Kaufman Answer”)
¶ 25.
5
Bloom & Kaufman Answer ¶ 25.
6
Second Am. Comp. ¶ 25; Bloom & Kaufman Answer ¶ 25.
7
See Ogus Dep. Tr. 17-18; Second Am. Comp. ¶ 25; Bloom & Kaufman Answer ¶ 25.
8
See DX 2; PX 5 (“Bloom Dep. Tr.”) 15.
4
SportTechie LLC was formed as a Delaware entity in October 2015.9 Two
months later, Ogus joined Bloom in working full time for the company.10 Bloom
served as SportTechie’s Chief Executive Officer and Ogus was its Chief Operating
Officer.11
On February 7, 2016, Ogus and Bloom executed a limited liability company
agreement to govern SportTechie LLC’s internal affairs (the “LLC Agreement”).12
Ogus and Bloom were the only members of the company.13 The LLC Agreement
allocated a 55.5% membership interest to Bloom and the remaining 44.5%
membership interest to Ogus.14 Each member had a right to block “Major
Decisions” by the Company, which required “the approval of all the Members.”15
Ogus was deemed SportTechie LLC’s sole manager.16
9
DX 4.
10
Ogus Dep. Tr. 29.
11
Id. at 61; see PX 6 (“Kaufman Dep. Tr.”) 21.
12
DX 6 (“LLC Agreement”).
13
Id. § 3.1 & Ex. A.
14
Id. Ex. A; see Kaufman Dep. Tr. 21.
15
LLC Agreement § 6.5(A)-(P) (defining “Major Decisions” to include “incurring any
debt,” “merging, consolidating, dissolving or terminating the Company,” “amending or
modifying the Articles or th[e LLC] Agreement,” and “admitting any new Member or
transferring any Member’s Interest”).
16
Id. § 6.1.
5
That summer, SportTechie hired several new employees.17 One was Daniel
Kaufman, who was hired as “managing director” in July 2016.18 Kaufman
performed various “business tasks” for SportTechie and served as its in-house
counsel.19
B. SportTechie’s Capital Raise
SportTechie’s capital needs grew with its business. In the summer of 2016,
SportTechie began discussions with Vintage Capital Investments, LLC and
defendant Oak View Group, LLC about potential investments in SportTechie.20
Vintage is an investment vehicle affiliated with startup investor Kai Sato.21 Oak
View Group is a sports entertainment and investment company.22 Bloom acted on
behalf of SportTechie in leading talks with Vintage and Oak View Group.23
On or about August 8, 2016, SportTechie and Vintage entered into a
promissory note purchase agreement under which Vintage agreed to lend
SportTechie $75,000 in exchange for a secured promissory note for the same
17
Ogus Dep. Tr. 63-64.
18
Id. at 73; see Kaufman Dep. Tr. 21-22.
19
Ogus Dep. Tr. 73, 81; see Kaufman Dep. Tr. 22.
20
See Bloom Dep. Tr. 174; Ogus Dep. Tr. 84-87.
21
PX 10 (“Sato Dep. Tr.”) 15-16.
22
PX 4 (“Bodie Dep. Tr.”) 12.
23
Ogus Dep. Tr. 89-91, 180; see Bloom Dep. Tr. 206-07; DX 9.
6
amount.24 The note purchase agreement contemplated that additional investors
would purchase promissory notes, with a maximum aggregate note issuance of
$750,000.25 In the following days, Bloom, Kaufman, and Ogus discussed amending
the LLC Agreement to add a three-member board of directors composed of Sato,
Bloom, “and a third party.”26 Meanwhile, Sato sent an introductory email
connecting Bloom with defendant Francesca Bodie—then a Vice President of
Business Development (now President of Business Development) at Oak View
Group.27
Negotiations between SportTechie and Oak View Group—through Bloom
and Bodie—resulted in an October 21, 2016 Secured Convertible Promissory Note
Agreement.28 Oak View Group agreed to lend SportTechie $675,000 in exchange
for a secured promissory note for the same amount.29 Oak View Group was provided
24
DX 10.
25
Id. at Recital.
26
DX 11.
27
See PX 13; Bodie Dep. Tr. 12-14, 20.
28
DX 12 (“OVG Note”).
29
The promissory note had a conversion feature. OVG Note at -789. In the event of a
qualified financing, the outstanding principal balance of the note would automatically
convert into limited liability company interests or other applicable equity securities at a set
conversion price. Id. at -789-90. The note was never converted. See Bloom Dep. Tr. 331.
7
the right to appoint a director to SportTechie’s nascent board, as well as information
and other rights.30
C. SportTechie’s Conversion
Starting in August 2016 and continuing into the following months, Ogus,
Bloom, and Kaufman began to consider converting SportTechie LLC into a
Delaware corporation.31 Bodie and Oak View Group were not involved in these
discussions.32 Around this time, Bloom and Kaufman began contemplating who
might sit on an eventual board of directors.33
The LLC Agreement required Ogus’s consent to the conversion.34 Despite
that, his role in drafting the conversion paperwork was limited.35 Ogus did, however,
engage in discussions with Kaufman and Bloom about the composition of the post-
conversion board of directors.36 For example, on November 1, 2016, Ogus
expressed concern about being “exposed” if the board were composed of “Kai
[Sato], Taylor [Bloom] and [an] OVG seat.”37 Kaufman assured Ogus that “major
30
OVG Note § 5.2; see also PX 25.
31
See Kaufman Dep. Tr. 160; Ogus Dep. Tr. 129; PX 29.
32
See Kaufman Dep. Tr. 160-61; Bodie Dep. Tr. 77-78; see also Ogus Dep. Tr. 348-49.
33
See Bloom Dep. Tr. 279; DX 43 at -427.
34
LLC Agreement §§ 6.2, 6.5.
35
See Second Am. Compl. ¶ 50; Bloom & Kaufman Answer ¶ 50.
36
See DX 45 at -005.
37
PX 32 at -428.
8
corporate decision[s]” would require “a vote of the shareholders” and that Ogus
would “have the ability” to contract for certain rights in a stockholders agreement.38
Bloom agreed with Kaufman, telling Ogus that such an agreement would allow for
control to shift “away from the board and to the shareholders.”39 Ogus insisted that
he “want[ed] the board as well” but also “want[ed] to maintain [a] grip on things.”40
On December 29, 2016, Kaufman sent Ogus the conversion documents.41
Kaufman wrote, “[t]hese are basic filings with the state of Delaware to effectuate the
conversion. They need to be filed [] by 2:30 pm eastern tomorrow. Take a look and
then let’s plan to talk.”42 Ogus signed the documents.43
On December 30, 2016, SportTechie LLC filed with the Delaware Secretary
of State a certificate of conversion pursuant to Section 265 of the Delaware General
Corporation Law.44 The conversion certificate provided that SportTechie would
convert from a limited liability company to a corporation on December 31, 2016 at
38
Id. at -427.
39
Id.
40
Id.
41
PX 34 at -039.
42
Id.
43
Second Am. Compl. ¶ 53; Bloom & Kaufman Answer ¶ 53.
44
DX 3 at -018.
9
11:59 p.m.45 The certificate also stated that SportTechie LLC would change its name
to SportTechie, Inc. (“SportTechie”) upon the conversion.46
Concurrently with the filing of the certificate of conversion, SportTechie filed
a certificate of incorporation with the Delaware Secretary of State.47 SportTechie’s
certificate of incorporation does not expressly limit the ability of the board of
directors (the “Board”) to manage the business and affairs of the corporation—
including the Board’s authority to hire and fire officers. The certificate of
incorporation also exculpates SportTechie’s directors from personal liability for
monetary damages for breaches of fiduciary duty “[t]o the fullest extent permitted
by law.”48
Just before midnight on December 31, Ogus and Bloom signed a written
consent in lieu of a special meeting of SportTechie’s stockholders that appointed
Bloom as the sole member of the Board.49
Bloom then signed a written consent electing himself as President and Chief
Executive Officer, Ogus as Vice President, and Kaufman as Secretary and
45
Id.
46
Id.
47
Id. at -020–025.
48
Id. at Art. IX.
49
DX 13 (“Whereas, the Bylaws provide that the Board shall have no less than one director
and no more than five directors. Initially there shall be one director.”).
10
Treasurer.50 Bloom also caused SportTechie to issue shares of common stock
consistent with the ownership of SportTechie LLC: 3,052,500 shares of
SportTechie’s common stock were issued to Bloom (55.5% of the outstanding issued
shares) and 2,447,500 shares were issued to Ogus (44.5% of the outstanding issued
shares).51
By the same written consent, Bloom adopted SportTechie’s bylaws.52 The
bylaws, effective as of December 31 at 11:59 p.m., provided that “[a]ny officer or
agent elected or appointed by the Board of Directors may be removed by the Board
of Directors whenever in its judgment the best interests of the Corporation would be
served thereby.”53
D. The Shareholders Agreement and Written Consent
On January 31, 2017, Kaufman sent Bloom and Ogus a Shareholders
Agreement.54 After discussion, Bloom and Ogus signed the Shareholders
Agreement on February 1.55
50
DX 14 at -676.
51
Id. at -677.
52
Id. at -676.
53
DX 15 § 4.3.
54
DX 50.
55
See DX 16 (“Shareholders Agreement”).
11
The Shareholders Agreement included a provision setting forth SportTechie’s
rights in the event that the employment of a “Founder”—defined as Ogus or
Bloom—was terminated.56 Under Section 6 of the Shareholders Agreement,
SportTechie had the right to repurchase the common stock of a Founder whose
employment was terminated “for any reason or for no reason.”57 Section 6.1 states:
Upon the termination of a Founder’s employment from the
Company . . . (for any reason or for no reason), then the Company
shall have the right and option, but not the obligation (the
“Company Option”) . . . to purchase all or a portion of the
Common Stock held by such Founder . . . .58
Section 6.2 sets out the method for determining the repurchase price for a Founder’s
shares of common stock:
The purchase price for the Common Stock purchased pursuant to
this Section 6 shall be an amount equal to the fair market value
(as determined in good faith by the Board) of the Shares sold
pursuant to the Company’s exercise of the Company Option;
provided, however, that in the event that the Company Option is
exercised as a result of the Company’s termination of such
Founder’s employment for Cause, the purchase price for the
Common Stock purchased pursuant to this Section 6 shall be
equal to 50% of the fair market value of the Shares (as
determined in good faith by the Board) sold pursuant to the
Company’s exercise of the Company Option.59
56
Id. § 1.
57
Id. § 6.1.
58
Id.
59
Id. § 6.2 (emphasis in original). The Shareholders Agreement further provided that, in
the event of a repurchase pursuant to Section 6.1, SportTechie could pay up to 90% of the
consideration by promissory note. Id. § 6.3.
12
Section 6.4(e) “appoint[ed] [SportTechie]” as “attorney-in-fact . . . to effectuate the
purchase and sale of such Shareholder’s Common Stock” under Section 6.60
Kaufman also sent Bloom and Ogus a draft written consent in lieu of a special
meeting of stockholders that appointed Bodie and Sato to the Board.61 Bloom and
Ogus each signed the written consent, which was effective as of February 1. The
written consent stated that it was “desirable and in the best interests of [SportTechie]
in order to fulfill its business purposes to appoint additional directors to serve as
members of the Board.”62 The written consent provided that “the Board shall have
no less than one (1) director and no more than five (5) directors.” 63 From February
1 through the date of Ogus’s termination, there were three Board members: Bloom,
Sato, and Bodie.
Separately, Kaufman executed a Restricted Stock Purchase Agreement
providing that he would receive shares of SportTechie common stock based on his
continued employment.64
60
Id. § 6.4(e).
61
DX 50.
62
DX 17.
63
Id.
64
DX 53; see DX 54.
13
E. Ogus’s Termination and Removal
In mid-February 2017, Bloom spoke to Kaufman and Sato about Bloom’s
intention to terminate Ogus.65 On February 23, Kaufman and Bloom retained a
valuation firm called Derivatas, LLC to determine the enterprise value of
SportTechie to facilitate the repurchase of Ogus’s shares.66
On March 1, Bloom wrote to Bodie that he had a few matters that he “wanted
to touch base on.”67 Bloom said that his “top priority” was to “remov[e] [Ogus] from
SportTechie altogether” because Ogus “ha[d] failed to scale with SportTechie’s
growing needs and ha[d] become an unreliable team member.”68 Bodie told Bloom
that she was “totally supportive of [Bloom’s] judgment” and supported his decision
to terminate Ogus.69
On March 7, Bloom and Bodie—a quorum of the Board—executed a written
consent to a resolution removing Ogus as an officer of SportTechie as of March 8,
65
See DX 18 at -105 (“Spoke with [Kaufman] last night about my decision to remove
[Ogus] from [SportTechie]. The first words out of his mouth after I laid out my reasoning:
‘This is the right move.’ He was in total agreement and said he knew this would have to
happen at some point. We are speaking with our lawyer this week to move the process
along.”).
66
DX 20; Kaufman Dep. Tr. 164.
67
DX 21.
68
Id.; see Bloom Dep. Tr. 534-35.
69
DX 21; see Bodie Dep. Tr. 114.
14
2017 at 11:59 p.m.70 The written consent authorized Bloom and his designees to
“take such further action necessary to effectuate the intent of th[e] resolution.”71
On March 8, Derivatas emailed Bloom and Kaufman a “final copy” of a
Restricted Appraisal Report.72 The cover letter to the Restricted Appraisal Report
explained that Derivatas had performed a valuation of SportTechie’s total equity
value on a non-controlling, non-marketable basis as of February 24, 2017.73 The
report concluded that the estimated range of market value of SportTechie’s equity
was $2.2 million to $2.6 million.74
On March 9, Bloom and Kaufman met Ogus at a coffee shop to inform him
that his employment was terminated. Ogus was handed a letter signed by Bloom
that said: “As you know, the Board has elected to remove you as an officer effective
at 11:59 pm on March 8, 2017. I’ve enclosed a copy of the official Board Consent
for your reference. Pursuant to the Board’s instructions, I am also hereby
terminating your employment, effective immediately.”75 The letter noted that
70
DX 22.
71
Id.
72
DX 23.
73
Id. at -399. The letter from Derivatas explained that the valuation was “performed solely
to assist Taylor Bloom and Daniel Kaufman (‘Clients’ or ‘Company’) for corporate
planning purposes related to the potential buyout of certain minority interest currently held
by Mr. Simon Ogus, Co-Founder and COO of the Company.” Id.
74
Id. at -402.
75
DX 24; see Ogus Dep. Tr. 172-73, 322; Bloom Dep. Tr. 582.
15
SportTechie “ha[d] the ability to unilaterally repurchase all of [Ogus’s] shares, per
Section 6 of the Shareholders Agreement” but “would prefer not to do that.” 76 The
letter included an offer to allow Ogus to retain a 5% interest in SportTechie in
exchange for his agreement to sell back the remainder of his stock based on an
enterprise valuation of $2.2 million.77 Ogus rejected the offer.
On May 9, SportTechie repurchased Ogus’s 2,447,500 shares of common
stock under a Purchase Agreement between SportTechie and Ogus.78 Bloom signed
the Purchase Agreement on Ogus’s behalf based on the power of attorney Ogus had
granted to SportTechie in Section 6.4(e) of the Shareholders Agreement.79 The
Purchase Agreement stated that the $819,951.35 aggregate purchase price was based
on a $2.2 million enterprise value for SportTechie, which was “determined pursuant
to a third party valuation.”80
Kaufman forwarded Ogus the executed Purchase Agreement, a certified check
for $82,000 (roughly 10% of the purchase price), and a promissory note issued by
76
DX 24.
77
Id.
78
DX 25 at -936.
79
Id. at -946.
80
Id.
16
SportTechie for the balance of $737,951.35 (90% of the purchase price).81 Ogus did
not accept the payment.82
F. Bodie Resigns
On August 27, 2018, Bodie voluntarily resigned from the Board.83 She
resigned following the receipt of communications from Ogus, whom she had never
met and had only spoken to once during an introductory group teleconference in the
fall of 2016.84
G. The Litigation
On November 30, 2018, Ogus filed a Verified Complaint in this court against
SportTechie, Bloom, Kaufman, Bodie, and Oak View Group.85 In response to a
motion to dismiss, Ogus filed an Amended Verified Complaint (the “Amended
Complaint”) advancing ten causes of action against different combinations of the
same defendants.86
81
Id. at -935, -947–49; see Bloom & Kaufman Answer ¶ 103.
82
Second Am. Compl. ¶ 103.
83
DX 30.
84
See Bodie Dep. Tr. 57, 72, 82, 143-44, 149-50; Ogus Dep. Tr. 90, 270-71.
85
Dkt. 1.
86
Am. Verified Compl. (Dkt. 30) (“Am. Compl.”).
17
The defendants moved to dismiss the Amended Complaint under Court of
Chancery Rule 12(b)(6). In connection with briefing and argument on the motion to
dismiss, Ogus voluntarily withdrew three of his claims.87
On January 31, 2020, Chancellor Bouchard issued a memorandum opinion
granting the motion to dismiss the Amended Complaint in part.88 Five of the
surviving claims remain for disposition: Counts I, III, IV, V, and VI. The court’s
ruling on the motion to dismiss narrowed and refined the scope of those claims.
Count I is a claim for fraud against defendants Bloom and Kaufman.89 It
survived the motion to dismiss “with respect to the aspects of Count I asserting a
claim for fraud in the inducement against Bloom and Kaufman for allegedly making
misrepresentations and omissions of material [] facts in order to induce Plaintiff to
(i) agree to converting SportTechie from an LLC to a corporation, and (ii) agree to
create and later expand the Board, which excluded Plaintiff.”90
Count III is a breach of fiduciary duty claim against Kaufman.91 It was
sustained insofar as Ogus alleged “that Kaufman breached his fiduciary duties by
87
See Order Implementing the Court’s Jan. 31, 2020 Mem. Op. (Dkt. 74) (“MTD Order”)
¶¶ 8, 10; Dkt. 43 at 57 n.11; Dkt. 59 at 5. Other claims that remained were later withdrawn
by Ogus—specifically, Counts VII, VIII, and X. See Dkt. 179 ¶¶ 186-11, 224-32.
88
Mem. Op. (Dkt. 66) (“MTD Mem. Op.”).
89
See Am. Comp. ¶¶ 105-29; see also Second Am. Comp. ¶¶ 106-30.
90
MTD Order ¶ 2.
91
See Am. Compl. ¶¶ 147-53; see also Second Am. Comp. ¶¶ 148-54.
18
making misrepresentations and omitting material facts when asking Plaintiff to sign
documents approving (i) the conversion of SportTechie from an LLC to a
corporation and (ii) the creation of, and appointment of directors to, the Board.”92
Count IV is a claim for breach of fiduciary duty against Bodie, Kaufman, and
Bloom.93 It survived the motion to dismiss regarding allegations that “Bloom
withheld information from Plaintiff with respect to Plaintiff’s approval of the
conversion and his approval of the creation of, and appointment of directors to, the
Board.”94 It also was deemed viable “as to the aspect of Count IV asserting that
Defendants Bloom and Bodie breached their fiduciary duties to Plaintiff by signing
the consent to terminate Plaintiff.”95
Count V is a claim asserting that Oak View Group aided and abetted a breach
of fiduciary duty.96 The claim survived the motion to dismiss only with regard to
allegations “that Oak View aided and abetted Defendant Bodie’s alleged breach of
fiduciary duty through her signing the consent to terminate Plaintiff.”97
92
MTD Order ¶ 4.
93
See Am. Compl. ¶¶ 154-60 (naming Bodie and Bloom); see also Second Am. Comp.
¶¶ 155-61 (naming Bloom, Kaufman, Bodie, and Sato).
94
MTD Order ¶ 5. Kaufman was later named as a defendant in Count IV. See Second
Am. Compl. ¶¶ 157-58.
95
MTD Order ¶ 5.
96
See Am. Compl. ¶¶ 161-75; see also Second Am. Compl. ¶¶ 162-76.
97
MTD Order ¶ 6.
19
Count VI is a claim for civil conspiracy against Bodie, Bloom, Kaufman, and
Oak View Group.98 The motion to dismiss this claim was denied.99
On October 7, 2021, SportTechie filed a petition in the United States
Bankruptcy Court for the District of Delaware under subchapter V of chapter 11 of
the United States Bankruptcy Code.100 The next day, SportTechie filed a notice in
this court of an automatic stay.101 The automatic stay included Ogus’s only
remaining claim against SportTechie in Count IX. After the bankruptcy case was
dismissed on January 12, 2022, the automatic stay ended.102 The parties later
stipulated to a voluntary dismissal with prejudice of all claims alleged against
SportTechie on March 31, 2022.103
On January 24, 2022, Ogus moved for leave to file a second amended
complaint in this action. He sought to amend his pleading to name Sato as a
defendant and to replead Count IV due to SportTechie’s bankruptcy.104 Ogus
acknowledged that the breach of fiduciary duty claim in Count IV had been
dismissed to the extent it was premised on the Shareholders Agreement. He argued
98
See Am. Compl. ¶¶ 176-84; see also Second Am. Compl. ¶¶ 177-85.
99
MTD Order ¶ 7.
100
DX 31.
101
Dkt. 128; Dkt. 133.
102
DX 36; see 11 U.S.C. § 362(c)(2)(B).
103
See Dkt. 183.
104
Dkt. 153 at 2-4.
20
that repleading was appropriate because SportTechie lacked assets to pay him if it
were found liable for breach of contract.105
On March 9, Ogus’s motion to amend was granted “[i]n light of the
[defendants’] lack of opposition” to the motion.106 The Second Amended Complaint
was filed on March 11. On June 30, the court granted Sato’s motion to dismiss the
claims against him as time barred.107
On June 15, the remaining defendants submitted letters requesting leave to
file motions for summary judgment.108 Ogus opposed the requests.109 After the
requests for leave were granted, Bodie and Oak View Group moved for summary
judgment on the claims against them.110 Bloom and Kaufman filed a separate motion
for summary judgment.111
On November 1, the court heard oral argument on the summary judgment
motions.112 A controversy then arose with respect to the plaintiff’s failure to
105
Id.106
Dkt. 170.
107
See Dkt. 223; Dkt. 235 at 59-60.
108
Dkts. 207-08.
109
Dkts. 212-13.
110
Dkt. 236.
111
Dkt. 240.
112
Dkts. 268, 270.
21
properly identify exhibits and attempt to introduce additional exhibits.113 After
much ado, the plaintiff submitted a final, complete set of exhibits on December 15.
The matter was taken under advisement at that time.
II. LEGAL ANALYSIS
Summary judgment should be granted only if “there is no genuine issue as to
any material fact and . . . the moving party is entitled to judgment as a matter of
law.”114 The movants “have the initial burden of ‘demonstrating the absence of a
material factual dispute.’”115 If the movants meet their burden, “the burden shifts to
the nonmovant to present some specific, admissible evidence that there is a genuine
issue of fact for a trial.”116 “Summary judgment is ‘inappropriate’ if a rational trier
of fact could find any determinative fact in favor of the non-moving party.”117 But
the “mere existence of a scintilla of evidence in support of the [nonmovant’s]
position is not sufficient.”118
113
Dkts. 269-75.
114
Ct. Ch. R. 56(c).
115
In re BGC P’rs, Inc. Deriv. Litig., 2021 WL 4271788, at *5 (Del. Ch. Sept. 20, 2021)
(quoting In re Transkaryotic Therapies, Inc., 954 A.2d 346, 356 (Del. Ch. 2008)).
116
Transkaryotic, 954 A.2d at 356.
BGC P’rs, 2021 WL 4271788, at *5 (quoting Cerberus Int’l, Ltd. v. Apollo Mgmt., L.P.,
117
794 A.2d 1141, 1150 (Del. 2002)).
118
Haft v. Haft, 671 A.2d 413, 419 (Del. Ch. 1995) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986)).
22
At the summary judgment stage, “the court will not weigh evidence” or
resolve competing inferences.119 Still, the nonmovant cannot defeat a motion for
summary judgment by asking the court to draw inferences “based on surmise,
speculation, conjecture, or guess, or on imagination or supposition.”120 The non-
movant also cannot “use mere assertions or denials to create inferences against the
movant.”121 “[I]f the moving party supports its summary judgment motion with
sufficient undisputed evidence and points to the absence of proof corroborating the
nonmoving party’s claims, the court properly grants the summary judgment
motion.”122
Guided by these standards, I begin by considering the remaining claims
against Bodie and Oak View Group. I conclude that their motion for summary
judgment should be granted. I next consider the summary judgment motion brought
by Bloom and Kaufman. Because genuine issues of material fact remain, their
motion is denied.
119
BGC P’rs, 2021 WL 4271788, at *5 (citing Cerberus Int’l, 794 A.2d at 1150).
120
In re Asbestos Litig., 155 A.3d 1284, 2017 WL 510463, at *1 n.2 (Del. 2017) (TABLE).
121
In re Answers Corp. S’holders Litig., 2014 WL 463163, at *10 (Del. Ch. Feb. 3, 2014).
122
In re W. Nat’l Corp. S’holders Litig., 2000 WL 710192, at *6 (Del. Ch. May 22, 2000).
23
A. Claims Against Bodie and Oak View Group
Two claims remain against each of Bodie and Oak View Group. Bodie faces
a breach of fiduciary duty claim (Count IV),123 and Oak View Group is alleged to
have acted as an aider and abettor (Count V).124 Both Bodie and Oak View Group
are named in a civil conspiracy claim (Count VI).125 Judgment is granted in Bodie
and Oak View Group’s favor on all.
1. Breach of Fiduciary Duty
For a breach of fiduciary duty claim to survive a motion for summary
judgment, there must be a genuine issue of material fact as to whether the defendant
director faces a non-exculpated claim.126 If a director faces only an exculpated claim
for breach of fiduciary duty, summary judgment is appropriately granted.127
8 Del. C. § 102(b)(7) “permit[s] stockholders to adopt a provision in the
certificate of incorporation to free directors of personal liability for damages for due
care violations, but not duty of loyalty violations, bad faith claims and certain other
123
Second Am. Compl. ¶¶ 155-61.
124
Id. ¶¶ 162-76.
125
Id. ¶¶ 177-85.
126
See BGC P’rs, 2021 WL 4271788, at *9.
127
In re Cornerstone Therapeutics Inc. S’holder Litig., 115 A.3d 1173, 1176 (Del. 2015)
(explaining that “[w]hen the independent directors are protected by an exculpatory charter
provision and the plaintiffs are unable to plead a non-exculpated claim against them, those
directors are entitled to have the claims against them dismissed”).
24
conduct.”128 SportTechie’s certificate of incorporation includes a provision that
exculpates directors “[t]o the fullest extent permitted by law.”129 Thus, to the extent
Bodie breached a duty of care—that is, by acting negligently or even with gross
negligence—she cannot be held liable.130
Ogus initially alleged that Bodie breached her fiduciary duties by:
(1) withholding information from Ogus; (2) signing the consent ending Ogus’s
employment; and (3) repurchasing Ogus’s stock.131 This claim was dismissed to the
extent it was based on allegations that Bodie withheld information from Ogus or
authorized SportTechie’s repurchase at less than fair value.132 Only the second
aspect of the claim is left for adjudication. Thus, the issue before this court is
whether Bodie faces a non-exculpated claim for breaching her fiduciary duties by
signing the written consent that removed Ogus as an officer and authorized his
termination.
Ogus strives to broaden that claim to include the repurchase of Ogus’s stock
in May 2017, which he calls a “freeze out” or a “squeeze out.”133 But his effort to
128
Malpiede v. Townson, 780 A.2d 1075, 1095 (Del. 2001).
129
See DX 3 Arts. IX & XII.
130
See McPadden v. Sidhu, 964 A.2d 1262, 1273 (Del. Ch. 2008).
131
Am. Compl. ¶¶ 156-58; Second Am. Compl. ¶¶ 157-59.
132
MTD Mem. Op. 25, 29-30.
133
Pl. Simon Ogus’s Br. in Opp’n to Defs.’ Mots. for Summ. J. (Dkt. 244) (“Pl.’s
Answering Br.”) 1, 5, 30, 33-34; see also id. at 43 (arguing that “the termination of Ogus
25
bootstrap allegations about the stock repurchase into the narrow remaining claim
fails. Chancellor Bouchard dismissed the repurchase-related aspects of Ogus’s
claims because they were “squarely addressed” by the Shareholders Agreement.134
In doing so, he expressly held that the Shareholders Agreement foreclosed a breach
of fiduciary duty claim against Bodie based on “whether Ogus received fair value
for his shares.”135 That is the law of the case.
Ogus argues that the termination of his employment and repurchase of his
stock are an “[i]ntegrat[ed] [t]ransaction.”136 Even if the law of the case doctrine
did not preclude relitigating Ogus’s contention,137 these occurrences must be
considered individually. Under Delaware law, discrete actions can be viewed as a
single transaction in limited cases where the evidence shows that they were planned
and carried out in unison, suggesting “a conscious plan to achieve a particular
and the buyout of his stock should be viewed as one transaction”); infra note 211
(addressing this argument by Ogus).
134
MTD Mem. Op. 29; see MTD Order ¶ 5.
135
MTD Mem. Op. 29. As discussed below, the repurchase remains relevant as a potential
motivation for Ogus’s firing. But that theory is wholly unsupported by the record as to
Bodie. See infra notes 171-73 and accompanying text.
136
Pl.’s Answering Br. 42.
137
See Del. Dept. of Nat. Res. and Env’t Control v. Food & Water Watch, 246 A.3d 1134,
1139 (Del. 2021) (explaining that the law of the case doctrine “applies to decisions
rendered by a court that arise again later in the same court, in the same proceeding”
(quoting Frederick-Conaway v. Baird, 159 A.3d 285, 296 (Del. 2017))).
26
endpoint.”138 The record here, however, demonstrates that the termination and
repurchase were two distinct acts, taken months apart by different actors.
The SportTechie Board—including Bodie—decided to remove Ogus and
terminate his employment in March 2017.139 Two months later, Bloom caused
SportTechie to exercise the right to repurchase Ogus’s stock under the Shareholders
Agreement.140 There is no evidence that Bodie participated in a Board decision to
cause SportTechie to exercise its repurchase right.141 Further, the repurchase price
was based on the work of Derivatas, which was indisputably retained by Bloom and
Kaufman without Bodie’s knowledge or involvement.142
Ogus further argues that “[t]he fact that the breach of fiduciary duty claim as
to Bodie was dismissed based on a breach of a provision to the Shareholders
Agreement does not eliminate the claim based on the termination of Ogus or under
the common law.”143 But at the pleading stage, the court dismissed Ogus’s breach
138
Liberty Media Corp. v. Bank of N.Y. Mellon Tr. Co., 2011 WL 1632333, at *18 (Del.
Ch. Apr. 29, 2011), aff’d, 29 A.3d 225 (Del. 2011).
139
DX 22.
140
DX 25.
141
Bodie was not required to authorize SportTechie’s decision to repurchase Ogus’s shares.
See In re The Walt Disney Co. Deriv. Litig., 907 A.2d 693, 773 (Del. Ch. 2005) (“[I]f the
directors [are] under no duty to act, then they c[an] not have acted in bad faith by not
acting.”), aff’d, 906 A.2d 27 (Del. 2006).
142
See Bodie Dep. Tr. 123.
143
Pl.’s Answering Br. 5.
27
of fiduciary duty claim against Bodie concerning SportTechie’s repurchase of his
stock.144 That claim is the common law breach of fiduciary duty on which Ogus
now seeks a trial.
Ogus could have pursued his breach of contract claim based on the repurchase
against SportTechie after the automatic stay in connection with the bankruptcy
proceeding ended. He opted not to and stipulated to SportTechie’s dismissal with
prejudice. He cannot now attempt to revive a claim based on SportTechie’s exercise
of a contractual right to repurchase Ogus’s stock in the event of his termination—a
right that existed before Bodie joined the Board. Instead, Ogus is limited to
proceeding on his theory relating to Bodie’s approval of his termination and
removal.
a. Bodie Is Presumed to Have Acted in Good Faith.
Delaware’s default standard of review is the business judgment rule, which
“is a presumption that in making a business decision, the board of directors ‘acted
on an informed basis, in good faith and in the honest belief that the action was taken
in the best interests of the company.’”145 This principle “reflects and promotes the
role of the board of directors as the proper body to manage the business and affairs
144
See MTD Mem. Op. 30.
145
Solomon v. Armstrong, 747 A.2d 1098, 1111 (Del. Ch. 1999) (quoting Aronson v. Lewis,
473 A.2d 805, 812 (Del. 1984)), aff’d, 746 A.2d 277 (Del. 2000) (TABLE); see also Walt
Disney Co., 906 A.2d at 52.
28
of the corporation.”146 If the presumption attaches, “the court merely looks to see
whether the business decision made was rational in the sense of being one logical
approach to advancing the corporation’s objectives.”147
Bodie’s decision to sign the written consent approving the removal of Ogus
as a SportTechie officer and authorizing the termination of his employment was a
classic exercise of business judgment.148 The presumption that Bodie acted in good
faith attaches to this decision.149 The Board’s authority to remove and terminate
Ogus derived from SportTechie’s certificate of incorporation and bylaws, along with
its general authority to manage the business and affairs of SportTechie.150
Bodie’s agreement to support Ogus’s removal was “one logical approach to
advancing [SportTechie]’s objectives.”151 The record demonstrates that Bodie
146
In re Trados Inc. S’holder Litig., 2009 WL 2225958, at *6 (Del. Ch. July 24, 2009).
147
In re Dollar Thrifty S’holder Litig., 14 A.3d 573, 598 (Del. Ch. 2010).
148
See generally Walt Disney Co., 907 A.2d at 760-80 (discussing the hiring and
termination of a corporate officer as a matter of business judgment when conducted in good
faith); Shabbouei v. Potdevin, 2020 WL 1609177, at *12 (Del. Ch. Apr. 2, 2020)
(explaining that a board operated “well-within the bounds of proper business judgment” in
deciding to settle with an executive rather than terminating him “for cause”).
149
See Carlson v. Hallinan, 925 A.2d 506, 540 (Del. Ch. 2006) (“The decision to remove
an officer is a business judgment to which the presumptions of the business judgment rule
attach.”).
150
See MTD Mem. Op. 15.
151
Dollar Thrifty, 14 A.3d 573, 598 (Del. Ch. 2010) (citing Sinclair Oil Corp. v. Levien,
280 A.2d 717, 720 (Del. 1971) (“A board of directors enjoys a presumption of sound
business judgment, and its decisions will not be disturbed if they can be attributed to any
rational business purpose.”)).
29
signed the written consent terminating Ogus after Bloom reported that Ogus’s
removal was a “top priority” for SportTechie.152 Bloom told Bodie that Ogus had
been a “weak link[] . . . for some time” and was “an unreliable team member” who
had “failed to scale with SportTechie’s growing needs.”153 In response, Bodie told
Bloom that she was “totally supportive of [his] judgment and call” on the matter.154
Ogus attempts to upend the application of the business judgment rule by
contending that entire fairness—Delaware’s most stringent standard of review—
applies to this claim.155 The court’s motion to dismiss decision did not conclude that
entire fairness would apply. In fact, Ogus failed to raise this argument until summary
judgment.156
Regardless, Ogus’s position is meritless. Oak View Group was not (as Ogus
argues) a controlling stockholder of SportTechie; Bloom was SportTechie’s majority
152
DX 21.
153
Id.; see Bodie Dep. Tr. 114, 123.
154
DX 21; see Bodie Dep. Tr. 114; see also DX 37 ¶ 55 (Ogus noting: “I never spoke to
[Bodie] in any setting besides one 7-person conference call. [Bodie] based her decision to
terminate solely based on discussions with [Bloom] and [Kaufman]”).
155
Ogus never specifies the transaction to which he believes entire fairness applies—that
is, the termination, the repurchase, or some combination of the two. Given that only the
termination remains relevant for the claim against Bodie, I assume in this section that Ogus
is arguing that entire fairness applies to the termination decision. See infra note 211 and
accompanying text (discussing this argument as to Bloom).
156
A significant portion of Ogus’s answering brief details his view that the Derivatas report
is flawed, creating an issue of fact about fair price under an entire fairness analysis. See
Pl.’s Answering Br. 43-61.
30
stockholder.157 Neither Oak View Group nor Bodie held SportTechie shares. 158 If
that were not enough, there is no evidence that Oak View Group or Bodie dominated
SportTechie’s Board.159 Oak View Group had one seat out of three. Further, Oak
View Group did not “stand on both sides of the transaction.”160 Nothing in the record
suggests that Oak View Group (or Bodie) exerted control over or even benefitted
from the repurchase.
b. There Is No Evidence That Bodie Acted in Bad Faith.
The business judgment rule’s presumption may be rebutted with evidence that
Bodie acted in bad faith.161 “Bad faith is ‘not simply bad judgment or negligence,’
157
Id. at 32-37.
158
According to Ogus, Oak View Group’s note entitled it to about 14.4% of the equity.
See id. at 33. That conversion right was never triggered. See supra note 29.
159
See Sciabacucchi v. Liberty Broadband Corp., 2017 WL 2352152, at *16 (Del. Ch. May
31, 2017) (explaining that the “actual control test is ‘not an easy one to satisfy’” and the
plaintiff must show evidence that stockholders “have such formidable voting and
managerial power that they are, as a practical matter, no differently situated than if they
had majority control” (quoting In re PNB Hldg. Co. S’holders Litig., 2006 WL 2403999,
at *9 (Del. Ch. Aug. 18, 2006))).
160
Pl.’s Answering Br. 32-37.
161
See Walt Disney Co., 906 A.2d at 62-64 (explaining that the presumption of good faith
can be rebutted with evidence that a director was “motivated by an actual intent to cause
harm” or evidence of an “intentional dereliction of duty”). There is no indication that
Bodie “acted to advance the self-interest of an interested party from whom [she] could not
be presumed to act independently.” BGC P’rs, 2021 WL 4271788, at *9 (quoting
Cornerstone, 115 A.3d at 1179-80). Ogus’s brief makes a broad statement that Bodie and
Bloom “each were self-interested or were not independent of others who were self-
interested.” Pl.’s Answering Br. 30. Who Bodie purportedly lacked independence from,
however, is not addressed. There is no argument—much less evidence—suggesting that
Bodie lacked independence from Bloom. To the extent that Ogus is attempting to argue
31
but rather ‘implies the conscious doing of a wrong because of dishonest purpose or
moral obliquity.’”162 “[I]t contemplates a state of mind affirmatively operating with
furtive design or ill will.”163
Chancellor Bouchard held that it was reasonable to infer at the pleadings stage
that Bodie agreed to “terminate[] Ogus’s employment in bad faith simply to
eliminate his ownership position in the company for unfair value.”164 Now, at the
summary judgment stage, Ogus must adduce evidence demonstrating the existence
of a genuine issue of material fact as to whether Bodie’s vote to remove Ogus as an
officer and terminate his employment was made in bad faith.165 He has not.
The record lacks any evidence supporting a rational inference that Bodie’s
support of Bloom’s decision to terminate Ogus was “egregious” or “irrational.”166
Nor is there any evidence that Bodie acted with an intent to cause Ogus harm.167
that Bodie was self-interested, that argument is also without support in the record. See
infra notes 171-73 and accompanying text.
162
McGowan v. Ferro, 859 A.2d 1012, 1036 (Del. Ch. 2004) (quoting Desert Equities, Inc.
v. Morgan Stanley Leveraged Fund, II, L.P., 624 A.2d 1199, 1208 n.16 (Del. 1993)).
163
Id.164
MTD Mem. Op. 27-28.
165
See In re Gaylord Container Corp. S’holders Litig., 753 A.2d 462, 487-88 (Del. Ch.
2000).
166
See White v. Panic, 783 A.2d 543, 554 n.36 (Del. 2001).
167
See McGowan, 859 A.2d at 1036; Walt Disney Co., 906 A.2d at 62-64 (describing that
the presumption of good faith may be rebutted with evidence that a director was “motivated
by an actual intent to cause harm”).
32
Bodie never met Ogus and spoke to him just once during a group call. 168 In fact,
Ogus testified in his deposition that he does not know why Bodie authorized his
removal and termination.169 The only relevant evidence indicates that Bodie acted
out of deference to Bloom’s judgment by signing the written consent terminating
and removing Ogus.170
Ogus argues that Bodie was motivated to terminate him because she stood to
benefit from SportTechie’s subsequent repurchase of his shares under the
Shareholders Agreement.171 He cannot, however, point to any evidence that Bodie
(or Oak View Group) was motivated out of a desire to repurchase his equity. Bodie
testified otherwise.172 SportTechie—not Oak View Group—purchased Ogus’s
stock. Neither Oak View Group nor Bodie received any consideration in the
repurchase. Counterfactual speculation about Oak View Group’s ability to obtain
168
See supra note 84 and accompanying text.
169
Ogus Dep. Tr. 322, 326-27.
170
DX 21; see Bodie Dep. Tr. 56-57, 107-09, 114.
See Pl.’s Answering Br. 33. The specific allegation that survived a motion to dismiss
171
was that Bodie acted in bad faith when she signed the consent removing and terminating
Ogus. I consider Bodie’s potential conflict for the sake of completeness.
172
See Bodie Dep. Tr. 125-26. Ogus testified that he believes Bodie failed in her “fiduciary
duty to buy [his] shares at fair market value.” Ogus Dep. Tr. 327. This belief is without
evidentiary or legal support. It is also irrelevant, as the repurchase-related claim was
dismissed.
33
Ogus’s shares cannot sustain a breach of fiduciary duty claim at the summary
judgment stage.173
Lacking evidence of bad faith or self-interest, Ogus avers that Bodie
“abdicate[d] [her] duty to manage the corporation” in connection with the
termination decision.174 It is not apparent that this theory of liability was pleaded.175
If it were, it lacks factual support. Rather, the record shows that Bodie—who had
been on the Board for one month—accepted Bloom’s recommendation after she was
told that Ogus was an “unreliable team member.”176 A “failure to be informed of all
facts material to [a] decision” does not amount to bad faith.177
173
Chen v. Howard-Anderson, 87 A.3d 648, 685 (Del. Ch. 2014) (explaining that
“speculation about motives” is insufficient grounds to support a breach of fiduciary duty
claim at the summary judgment stage); see In re Novell, Inc. S’holder Litig., 2014 WL
6686785, at *9 (Del. Ch. Nov. 25, 2014) (granting summary judgment where the “plaintiffs
ha[d] not supplied a factual basis for concluding that the Board acted with improper
motives”).
174
Pl.’s Answering Br. 64-65.
175
Cf. Second Am. Compl. ¶¶ 4, 6, 10, 43, 44, 221. Ogus did not plead a duty of care claim
against Bodie. Only the loyalty claim regarding the termination of Ogus survived the
motion to dismiss the Amended Complaint.
176
DX 21; see Bodie Dep. Tr. 114 (“As [Bloom] [w]as CEO, I trusted his judgment to lead
the company and if that was his . . . interpretation of personnel issues, then I supported
him.”).
177
See Walt Disney Co., 906 A.2d at 66; see also Chen, 87 A.3d at 683 (“As long as a
board attempts to meet its duties, no matter how incompetently, the directors did not
consciously disregard their obligations.”). Setting aside the lack of a care claim in the
Complaint and the exculpatory provision in SportTechie’s charter, the record does not
indicate that Bodie was grossly negligent. The only relevant evidence demonstrates that
Bodie received and reviewed information from Bloom—who was much closer to
SportTechie’s personnel issues as CEO—and made a reasonable decision to support his
recommendation. See supra note 170 and accompanying text. See also Albert v. Alex
34
At bottom, Ogus disagrees with Bodie’s decision to remove him from
SportTechie.178 But “mere disagreement” does not rebut the presumption that Bodie
made the decision to terminate Ogus in good faith and it “cannot serve as grounds
for imposing liability based on alleged breaches of fiduciary duty.”179 Summary
judgment is therefore granted in Bodie’s favor on Count IV.
2. Aiding and Abetting
To succeed on a claim for aiding and abetting a breach of fiduciary duty, a
plaintiff must demonstrate “(1) the existence of a fiduciary relationship; (2) a breach
of the fiduciary’s duty; (3) knowing participation in that breach by the defendants;
and (4) damages proximately caused by the breach.”180 An aiding and abetting claim
Brown Mgmt. Servs., Inc., 2005 WL 2130607, at *4 (Del. Ch. Aug. 26, 2005) (“Gross
negligence has a stringent meaning under Delaware corporate . . . law, one ‘which involves
a devil-may-care attitude or indifference amounting to recklessness.’” (internal citation
omitted)).
178
There is a more troubling undercurrent in the record regarding Ogus’s decision to sue
Bodie and Oak View Group. After his termination, Ogus researched Bodie and her family,
discussing Bodie’s personal information with his own friends and family. For example,
Ogus and a friend celebrated locating Bodie’s home address. Ogus emailed: “BOOM!”
and considered the details of its ownership. DX 27 (Ogus: “Damn its [sic] owned by some
company that Francesca owns. Wonder how that could change things.”). Ogus essentially
acknowledged as much in his answering brief. See Pl.’s Answering Br. 24 (explaining that
“it became apparent to Ogus that OVG had to become involved [if] they were going to
settle”).
179
Brehm v. Eisner, 746 A.2d 244, 266 (Del. 2000).
180
Dent v. Ramtron Int’l Corp., 2014 WL 2931180, at *17 (Del. Ch. June 30, 2014).
35
“may be summarily dismissed based upon the failure of the breach of fiduciary duty
claims.”181
At the pleading stage, the court determined that Ogus adequately alleged that
Bodie’s knowledge of and participation in Ogus’s termination could be imputed to
Oak View Group.182 As explained above, however, there is no genuine issue of
material fact precluding summary judgment in Bodie’s favor on the breach of
fiduciary duty claim. Without a predicate breach, the aiding and abetting claim
fails.183
Moreover, Ogus did not address the aiding and abetting claim in his answering
brief.184 He makes a single statement in the introduction to his brief that “Bodie can
still be found responsible for breaching her duty of care and, as noted in Chancellor
Bouchard’s [motion to dismiss decision], OVG would be liable for Bodie’s
breach.”185 But the motion to dismiss decision says no such thing, which is
unsurprising since Ogus did not plead a duty of care claim against Bodie.
In re KKR Fin. Hldgs. LLC S’holder Litig., 101 A.3d 980, 1003 (Del. Ch. 2014) (quoting
181
Meyer v. Alco Health Servs. Corp., 1991 WL 5000, at *2 (Del. Ch. Jan. 17, 1991)).
182
MTD Mem. Op. 32.
183
See Transkaryotic, 954 A.2d. at 371; Zimmerman v. Crothall, 2012 WL 707238, at *19
(Del. Ch. Mar. 5, 2012).
184
See Emerald P’rs v. Berlin, 726 A.2d 1215, 1224 (Del. 1999) (“Issues not briefed are
deemed waived.”).
185
Pl.’s Answering Br. 3.
36
3. Civil Conspiracy
“Civil conspiracy is not an independent cause of action; it must be predicated
on an underlying wrong.”186 A plaintiff alleging civil conspiracy must also prove
“knowing participation” among the conspiring partners “for an unlawful purpose, or
. . . by unlawful means.”187 This requires a “meeting of the minds” about the object
or purpose of the conspiracy.188
Ogus’s civil conspiracy claim is based on allegations of a plan by the
defendants “to cause [Ogus] . . . to be terminated and forced to sell his equity interest
at a price far below fair market value.”189 The motion to dismiss opinion noted that
Ogus had “satisfied the hurdle” of pleading the elements of a conspiracy based on
the procedural posture of the motion, “albeit not overwhelmingly.”190 Now, as to
Bodie and Oak View Group, he has come up short. Because summary judgment is
186
Kuroda v. SPJS Hldgs., L.L.C., 971 A.2d 872, 892 (Del. Ch. 2009); see McKenna v.
Singer, 2017 WL 3500241, at *20 (Del. Ch. July 31, 2017) (“To prove civil conspiracy,
the following elements are required, ‘(1) the existence of a confederation or combination
of two or more persons; (2) that an unlawful act was done in furtherance of the conspiracy;
and (3) that the conspirators caused actual damage to the plaintiff.’” (quoting Allied Cap.
Corp. v. GC-Sun Hldgs., L.P., 910 A.2d 1020, 1036 (Del. Ch. 2006))).
187
Binks v. DSL.net, Inc., 2010 WL 1713629, at *11 (Del. Ch. Apr. 29, 2010) (internal
quotation omitted).
188
See Matthew v. Laudamiel, 2012 WL 605589, at *13 (Del. Ch. Feb. 21, 2012).
189
Second Am. Compl. ¶¶ 2, 180-85; see Ogus Dep. Tr. 340 (observing that the purpose
of the conspiracy was “to . . . undergo a number of company events and eventually purchase
my shares”).
190
MTD Mem. Op. 34-35 n.109.
37
granted on the underlying breach of fiduciary duty claim against Bodie and the
dependent aiding and abetting claim against Oak View Group, these defendants are
also entitled to judgment in their favor on the civil conspiracy claim.191
In addition, there is no genuine issue of material fact as to whether Bodie or
Oak View Group conspired with another defendant to “force [Ogus] to sell his equity
interest at a price far below fair market value.”192 There is no evidence that Bodie
or Oak View Group: (1) played a role in retaining Derivatas; (2) received or
reviewed the Derivatas valuation report before the termination decision or
repurchase; (3) knew the repurchase price before the termination decision; (4) were
191
See Naples v. New Castle Cnty., 2015 WL 1478206, at *15 (Del. Super. Ct. Mar. 30,
2015) (granting summary judgment because the claims underlying a civil conspiracy claim
“lack[ed] evidentiary support”); see also Wright v. Experian Info. Sols., 2016 WL 6634864,
at *2 (D. Del. Nov. 7, 2016) (granting summary judgment because the plaintiff “[could
not] establish the underlying conduct necessary to prove civil conspiracy”). Summary
judgment is appropriate even though—as discussed below—predicate claims against
Bloom and Kaufman will proceed to trial. “To maintain a civil conspiracy claim, the
plaintiff must allege an underlying actionable tort by each defendant.” Abbott v. Gordon,
2008 WL 821522, at *17 (Del. Super. Ct. Mar. 27, 2008), aff’d, 957 A.2d 1 (Del. 2008);
see RBATHDSR, LLC v. Project 64 LLC, 2020 WL 2748027, at *7 (D. Del. May 27, 2020)
(same); Smiley v. Daimler Chrysler, 538 F. Supp. 2d 711, 718 (D. Del. 2008) (same); see
also AJZN, Inc. v. Yu, 2015 WL 331937, at *11 (D. Del. Jan. 26, 2015) (dismissing a civil
conspiracy claim because the underlying wrong could “only be alleged against a single
defendant”).
192
Second Am. Compl. ¶ 2. The court previously sustained Ogus’s conspiracy claim
against Bodie and Oak View Group based on allegations that they participated in a complex
plan culminating with the repurchase. MTD Mem. Op. 34. The unrefuted evidence,
however, shows that Oak View Group did not invest in SportTechie with an intent to
acquire it. Discovery from Oak View Group turned up zero internal discussions about
acquiring SportTechie. And Oak View Group never became a SportTechie stockholder.
See Bodie Dep. Tr. 121.
38
aware that the repurchase had been effected until after the fact; or (5) had an
understanding or view of the fair market value of Ogus’s SportTechie stock at the
time of the termination decision or repurchase.193 Ogus concedes that Bodie and
Oak View Group were not involved in the conversion of SportTechie LLC to a
corporation, did not exclude Ogus from the Board, did not have any input in the
Shareholders Agreement, and did not cause SportTechie to repurchase Ogus’s
stock.194
Ogus contends that a conspiracy is apparent because emails between Oak
View Group and SportTechie personnel excluded him.195 That Ogus was not copied
on all email correspondence with Oak View Group does not support a reasonable
193
See Bodie Dep. Tr. 86-87, 95-96, 107, 123-24; Kaufman Dep. Tr. 162, 164; Ogus Dep.
Tr. 335; Bloom Dep. Tr. 506, 508.
194
See Pl.’s Answering Br. 84. Bloom authorized the corporate conversion before Bodie
was appointed to the Board. See DX 3; DX 17. Other than negotiating a contractual right
to a Board seat, Oak View Group and Bodie were not involved in creating SportTechie’s
Board. Rather, Ogus and Bloom appointed Sato and Bodie to the Board. See DX 17. Ogus
admitted that neither Bodie nor Oak View Group ever promised him a Board seat or even
spoke to him about joining the Board. See Ogus Dep. Tr. 351. There is also no evidence
that Bodie or anyone from Oak View Group played a role in the Shareholders Agreement.
See Ogus Dep. Tr. 355; Kaufman Dep. Tr. 162; Bodie Dep. Tr. 87.
195
Pl.’s Answering Br. 81 (“This is not an accident. When people write emails they make
a conscious decision of who it is addressed to and who is copied.”).
39
inference that the alleged conspirators “all agreed that [Ogus] should not be copied
on any communications to and from OVG prior to his termination.”196
The only other evidence Ogus cites concerns Bodie’s general “aware[ness]”
of a potential repurchase of Ogus’s equity before his employment was terminated.
Bodie’s knowledge that SportTechie had a preexisting contractual right to
repurchase Ogus’s equity upon his termination does not, however, indicate that she
voted to end Ogus’s employment to “forc[e] [Ogus] to sell his equity interest”—let
alone “at a price far below fair market value.”197
Thus, insofar as the alleged conspiracy includes Bodie or Oak View Group,
they are entitled to judgment as matter of law. The lack of a predicate claim alone
is dispositive. Ogus also failed to offer any evidence of an issue of material fact
regarding a conspiracy involving these defendants.
B. Claims Against Bloom and Kaufman
Three claims remain against each of Bloom and Kaufman. Both defendants
are named in a pending fraud claim (Count I), breach of fiduciary duty claims
(Count III as to Kaufman and Count IV as to Bloom), and a civil conspiracy claim
(Count VI). Like the claims against Bodie and Oak View Group, the fraud and
Id. at 82; see Asbestos Litig., 155 A.3d at 1284, 2017 WL 510463, at *1 n.2 (“The Court
196
must decline to draw an inference for the non-moving party if the record is devoid of facts
upon which the inference reasonably can be based.” (internal quotations omitted)).
197
Second Am. Compl. ¶ 2.
40
fiduciary duty claims against Bloom and Kaufman based on the Shareholders
Agreement were previously dismissed.198
The similarities among the two defendant groups end there. Bloom and
Kaufman—in stark contrast to Bodie and Oak View Group—were deeply involved
in the relevant events that give rise to this litigation. Had only Kaufman and Bloom
sought leave to move for summary judgment, their request would have been denied.
“There is no ‘right’ to a summary judgment.”199
198
See supra note 137 (explaining that the law of the case doctrine bars the relitigation of
these claims); see also MTD Mem. Op. 11, 15, 21, 28-30. That does not make the
Shareholders Agreement entirely irrelevant to the remaining claims. The court explained
in its motion to dismiss decision that Ogus had pleaded with particularity that Bloom and
Kaufman could gain from their alleged fraudulent statements by “terminat[ing] Ogus’s
employment with the Company and, assuming Ogus later would sign the Shareholders
Agreement, [forcing] him ‘to sell his equity interest at a price far below fair market value.’”
Id. at 13 (citing Am. Compl. ¶ 2). Regarding the breach of fiduciary duty claim, the court
held that it was reasonably conceivable that Bloom “terminated Ogus’s employment in bad
faith simply to eliminate his ownership position in the Company for unfair value.” Id. at
27-28. The question of whether Ogus had received fair value for his shares, however, could
not “form the basis of a fiduciary duty claim” because it was “squarely addressed by the
terms of the Shareholders Agreement.” Id. at 29. Accordingly, the execution of the
Shareholders Agreement—and the attendant circumstances surrounding it—is relevant to
the defendants’ alleged motivations in withholding information from and terminating
Ogus. But whether Ogus ultimately received fair value for his shares is no longer before
the court. See id. at 29-30 (“Insofar as the question is whether Ogus received fair value for
his shares, however, that dispute is squarely addressed by the terms of the Shareholders
Agreement—which has a built in requirement that the directors determine fair value in
good faith—and cannot form the basis of a separate fiduciary duty claim under the
reasoning of Nemec.”). Ogus’s recourse was to sue SportTechie for breach of the
Shareholders Agreement. That claim was abandoned.
199
Telxon Corp. v. Meyerson, 802 A.2d 257, 262 (Del. 2002).
41
Ogus argues that Bloom and Kaufman committed fraud by making
“misrepresentations and omissions of material facts” that induced Ogus to “agree to
converting SportTechie from an LLC to a corporation” and “agree to a five-person
Board, initially comprised of Bloom, Sato, and Bodie.”200 He believes that Bloom
and Kaufman “fraudulently concealed the true reasons” motivating the conversion
and exclusion of Ogus from the Board: the desire to terminate Ogus and repurchase
his shares at a purportedly unfair price.201
Ogus’s fiduciary duty claims are based on the same factual predicate. Ogus
alleges that Kaufman breached his fiduciary duties as a SportTechie officer by
“pressur[ing] and threaten[ing] [Ogus] to cause [Ogus] to execute conversion and
other key documents” and by misrepresenting material information about the
200
Second Am. Compl. ¶ 108. To establish a claim for fraud, a plaintiff must show “(i) a
false representation, (ii) the defendant’s knowledge of or belief in its falsity or the
defendant’s reckless indifference to its truth, (iii) the defendant’s intention to induce action
based on the representation, (iv) reasonable reliance by the plaintiff on the representation,
and (v) causally related damages.” Prairie Cap. III, L.P. v. Double E Hldg. Corp., 132
A.3d 35, 49 (Del. Ch. 2015) (citing Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1074
(Del. 1983)).
201
Second Am. Compl. ¶ 109. Ogus argues that the restricted stock agreement Kaufman
entered into the day after executing the Shareholders Agreement incentivized Kaufman to
support Bloom’s scheme. Id. ¶ 70. The court previously held that it was “reasonably
conceivable that Kaufman, motivated by obtaining a personal benefit if the alleged plan to
eliminate Ogus was consummated, breached his fiduciary duty of loyalty by making threats
against and bringing undue pressure on Ogus so that he would sign the documents to
implement the critical first step of that plan.” MTD Mem. Op. 22. Resolving this matter
requires a credibility assessment and an examination of the defendant’s state of mind at
trial.
42
conversion and Board composition.202 Ogus alleges that Bloom breached his
fiduciary duties by withholding critical information from Ogus about the conversion
and by improperly terminating Ogus in bad faith while scheming to repurchase
Ogus’s equity at less than fair market value.203
Ogus’s civil conspiracy claim against Bloom and Kaufman concerns these
underlying acts.204 Ogus maintains that Kaufman and Bloom acted in concert to
deprive him of his job and SportTechie stock.
A factual record developed at trial is necessary to resolve the remaining claims
against Bloom and Kaufman.205 Ogus insists that he was promised a Board seat and
was led to understand that he would retain post-conversion the level of influence he
had over SportTechie LLC.206 Ogus asked Bloom and Kaufman whether Bloom
receiving a Board seat to Ogus’s exclusion “[a]ffect[ed] [Ogus’s] standing in any
202
Second Am. Compl. ¶¶ 150-51.
203
Id. ¶ 157.
204
Id. ¶¶ 182-83.
205
See In re El Paso Pipeline P’rs, L.P. Deriv. Litig., 2014 WL 2768782, at *9 (Del. Ch.
June 12, 2014) (“When confronted with a Rule 56 motion, the court may, in its discretion,
deny summary judgment if it decides upon a preliminary examination of the facts presented
that it is desirable to inquire into and develop the facts more thoroughly at trial in order to
clarify the law or its application.”).
206
See Ogus Dep. Tr. 197-98 (describing that he “believed that [he] was going to be added
to the board” and “believe[d] that that was discussed with [both Bloom and Kaufman]”),
202-203 (stating his understanding that he would be retaining rights and his interest in the
company but that he does not “recall specifically what [Kaufman] said to [him]”); DX 55
¶ 32.
43
way” or created “potential vulnerabilities” and “expos[ure] for Ogus.207 Although
Ogus chose to sign documents that were unfavorable to him, he was given some
assurance by Bloom and Kaufman that he would be protected.208 Yet Ogus was
never given a Board seat and was later stripped of his roles as an officer, employee,
and stockholder at the company he founded.209 A more thorough examination of the
facts is needed to determine whether Ogus was simply naïve or was hoodwinked.
Bloom and Kaufman further aver that they are entitled to summary judgment
on the fiduciary duty claims because there is no suggestion in the record that the
purported plot to rid SportTechie of Ogus would have benefitted them.210 Given
that, they believe that their actions are protected by the business judgment rule.211
At present, however, I cannot conclude that these defendants were not motivated by
self-interest or “by an actual intent to do harm.”212
207
DX 11 (Ogus to Bloom and Kaufman: “[D]oes your name on the board over me or both
of us taking 1 seat effect my standing in any way or potential vulnerabilities?”).
208
See PX 32.
209
See supra notes 67-70 and accompanying text.
210
Dkt. 240 at 24-25.
211
Id. at 27. Once again, Ogus insists that the entire fairness standard of review applies to
an unspecified transaction. No such pleading stage determination was made. Bloom was
just one member of a three-member Board, and there is no genuine issue of material fact
calling into question the independence and disinterestedness of Bodie and Sato. Again,
Ogus’s argument that this is a controller squeeze-out is misplaced. There was no merger
and there are no allegations of a forced redemption by Bloom. Bloom was SportTechie’s
controlling stockholder, but he held the same 55.5% interest and status as CEO before and
after SportTechie’s repurchase. See DX 62 at -189; LLC Agreement Ex. A.
212
Walt Disney Co., 906 A.2d at 64.
44
Although Ogus’s success after trial is far from assured, genuine issues of
material fact remain that preclude an entry of summary judgment in Bloom and
Kaufman’s favor. Bloom and Kaufman’s depiction of the relevant events is
inconsistent with the story told by Ogus. “If the matter depends to any material
extent upon a determination of credibility, summary judgment is inappropriate.”213
III. CONCLUSION
For the reasons described above, Bodie and Oak View Group’s motion for
summary judgment is granted. Judgment is entered in Bodie’s favor on Counts IV
and VI. Judgment is entered in Oak View’s favor on Counts V and VI. Kaufman
and Bloom’s motion for summary judgment is denied. Within ten business days,
Ogus, Kaufman, and Bloom shall submit a proposed scheduling stipulation
providing for a prompt trial.
213
Cerberus Int’l, 794 A.2d at 1150; Amirsaleh v. Bd. of Trade of the City of New York,
Inc., 2009 WL 3756700, at *4 (Del. Ch. Nov. 9, 2009) (“Where intent or state of mind is
material to the claim at issue—as is the case here—summary judgment is not
appropriate.”).
45