Schneider National Carriers, Inc. v. Kuntz

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
SCHNEIDER NATIONAL CARRIERS, INC., )
)
Plaintiff/Counterclaim Defendant, )
)
v. ) C.A. No. N21C-10-157-PAF
)
RAYMOND J. KUNTZ, as Sellers’ )
Representative for RAYMOND J. KUNTZ and )
STEVE B. WILLIAMSON, )
)
Defendant/Counterclaim Plaintiff. )
MEMORANDUM OPINION
Date Submitted: February 16, 2022
Date Decided: April 25, 2022
Michael A. Pittenger, Kelly L. Henry, POTTER ANDERSON & CORROON LLP,
Wilmington, Delaware; Locke Beatty, MCGUIREWOODS LLP, Charlotte, North
Carolina; Attorneys for Plaintiff and Counterclaim Defendant Schneider National
Carriers, Inc.
John M. Seaman, Matthew L. Miller, ABRAMS & BAYLISS LLP, Wilmington,
Delaware; Anthony S. Fiotto, MORRISON & FOERSTER LLP, Boston,
Massachusetts; Attorneys for Defendant and Counterclaim Plaintiff Raymond J.
Kuntz, in his capacity as Sellers’ Representative for Raymond J. Kuntz and Steve B.
Williamson.
FIORAVANTI, Vice Chancellor*
*
Sitting by designation pursuant to Del. Const. art. IV, § 13(2).
This breach of contract case involves the purchase of a group of trucking
companies. The contract contained covenants governing the buyer’s operation of
the acquired companies after the closing of the transaction. The buyer’s breach of
any one of those covenants would require the buyer to pay $40 million to the sellers.
One of those covenants, and the main focus of disagreement, required the buyer to
“cause one or more of the Acquired Companies to acquire, in the aggregate, not less
than sixty (60) class 8 tractors” every year for three years after the acquisition. The
buyer contends this covenant only required the buyer to acquire at least 60 tractors
per year across all of the acquired companies, which the buyer undisputedly did.
The sellers contend the covenant required the buyer to expand the acquired
companies’ fleet of tractors by at least 60 tractors per year, which the buyer
undisputedly did not do.
This case was originally filed in the Court of Chancery, where the court
previously denied the parties’ cross-motions for judgment on the pleadings and later
for summary judgment, having determined that the covenants at issue are
ambiguous. Following trial, but before decision, the Court of Chancery questioned
whether it had subject matter jurisdiction over this case. The case was then
transferred to the Superior Court and the undersigned was designated to sit on the
Superior Court for the purpose of deciding all issues in the case.
In this post-trial opinion, the court agrees with the sellers that the stock
purchase agreement required the buyer to grow the fleet by 60 class 8 tractors per
year. Therefore, the sellers have established their claim for breach of contract and
are entitled to contract damages of $40 million. The sellers have not satisfied their
burden of proof on their remaining claims for breach of contract as to the other
remaining operating covenants or breach of the implied covenant of good faith and
fair dealing. The sellers are also entitled to their reasonable attorneys’ fees and
expenses under the indemnification provision of the stock purchase agreement.
I. BACKGROUND
The following recitation reflects the facts as the court finds them after trial.1
A. The Stock Purchase Agreement
Plaintiff and Counterclaim Defendant Schneider National Carriers, Inc.
(“Schneider”) is a transportation company headquartered in Green Bay, Wisconsin.2
Watkins & Shepard, LLC (“W&S”) was a Montana-based trucking company
1
The trial testimony is cited as “Tr.”; deposition testimony is cited as “Dep.”; trial exhibits
are cited as “JX”; and stipulated facts in the pre-trial order are cited as “PTO,” with each
followed by the relevant section, page, paragraph, or exhibit number. Documents filed on
the Court of Chancery docket (C.A. No. 2017-0711-PAF) for this case are cited as “Ct. Ch.
Dkt.” followed by their docket number. Documents filed on the Superior Court docket
(C.A. No. N21C-10-157-PAF) are cited as “Super. Ct. Dkt.” followed by their docket
number.
2
PTO, III ¶ 1.
2
established in 1974.3 Raymond J. Kuntz and Steve B. Williamson (the “Sellers”)
are the former principal stockholders of W&S. 4 Kuntz served as the Chief Executive
Officer of W&S. 5
On June 1, 2016, Schneider acquired W&S and its subsidiaries, Watkins &
Shepard Leasing, LLC, and Lodeso, Inc. (collectively, the “Acquired Companies”),
from the Sellers pursuant to a Stock Purchase Agreement (the “SPA”). For tax and
liability reasons, Watkins & Shepard Leasing, LLC owned W&S’s fleet of tractors
and leased the tractors to W&S. 6 Lodeso, Inc. was a Michigan-based logistics
company engaged in the business of contracting with agents or independent
contractors to arrange for final-mile delivery, and did not itself own any trucks.7
Defendant and Counterclaim Plaintiff Kuntz is the designated Sellers’
Representative in the SPA. Kuntz was to remain with W&S after the closing of the
transaction, consulting with Schneider on integrating W&S and applying his
3
Id. At the time of the transaction, Schneider was a Nevada corporation, and W&S was a
Montana corporation. JX 108.00006.
4
PTO, III ¶ 2.
5
Tr. 9:18–22 (Kuntz).
6
Id. at 45:12–24 (Kuntz).
7
Id. at 41:8–42:5 (Kuntz).
3
expertise to Schneider’s business. 8 Kuntz eventually resigned from his role
following Schneider’s purchase of the Acquired Companies.9
Under the SPA, the aggregate purchase price for W&S was set between
$128,750,000 and $168,750,000. The purchase price contained three elements.
First, the parties agreed to a non-contingent closing payment of $68,750,000 (less
certain specified sums) to be made at closing on June 1, 2016. Second, the parties
agreed to three, non-contingent, deferred consideration payments totaling
$60,000,000, payable in three increments of $20,000,000 (less certain specified
sums) with each payment being due following each of the first three anniversaries
of the closing date. Third, and central to this dispute, the parties agreed to the
possibility of three additional payments totaling a maximum of $40,000,000 (the
“Earnout Payments”). The Earnout Payments would be payable in three increments
of up to $13,333,333.33, if the Acquired Companies generated enough earnings
before interest, taxes, depreciation, and amortization or “EBITDA” (the “EBITDA
Targets”) during three successive periods (each being a “Measurement Period”).10
The first Measurement Period ran from July 1, 2016 to June 30, 2017, with an
EBITDA Target of $36,000,000.11 The second Measurement Period ran from July
8
Id. at 99, 169–70 (Kuntz); id. at 650–53 (Rourke); id. at 988–89 (Elkins); see JX 173.
9
Tr. 653:4–7 (Rourke).
10
PTO, III ¶ 5.
11
Id. ¶ 7.
4
1, 2017 to June 30, 2018, with an EBITDA Target of $46,000,000.12 The third
Measurement Period ran from July 1, 2018 to June 30, 2019, with an EBITDA Target
of $59,000,000.13 The EBITDA Targets were set based on Sellers’ pre-acquisition
financial projections.14
As to be expected, the Sellers wanted to maximize the prospects of achieving
the Earnout Payments. Schneider, on the other hand, wanted flexibility in operating
its newly Acquired Companies and integrating them into Schneider’s overall
business. To that end, Section 2.4(e) of the SPA provides that, after the transaction,
Schneider, the Acquired Companies, and their affiliates would have the right to
operate the businesses “as they see fit,” subject to certain operating covenants in
Exhibit E to the SPA. Section 2.4(e) states that “there is no guarantee of any
[Earnout Payment]” and that Schneider “is not making nor has it made any
12
Id. ¶ 8.
13
Id. ¶ 9.
14
Id. ¶ 6.
5
representation or warranty to such Seller . . . as to the value to such Seller of the
potential right to receive any [Earnout Payment].”15
Sellers negotiated limitations on Schneider’s operational freedom, which are
reflected in four operating covenants (the “Operating Covenants”). The Operating
Covenants are contained in Exhibit E to the SPA. Paragraph 1 to Exhibit E states
that Schneider must, during each Measurement Period, “cause one or more of the
Acquired Companies to acquire, in the aggregate, not less than sixty (60) class 8
tractors” (the “Tractor Acquisition Covenant”). 16
15
JX 108 (“SPA”) § 2.4(e). Section 2.4(e) states:
During each Measurement Period, the Buyer shall operate the Acquired
Companies and Lodeso in the manner provided for on Exhibit E. Each Seller
acknowledges and agrees that (i) so long as the Buyer operates the Acquired
Companies and Lodeso in such manner, the Buyer, the Acquired Companies
and each of their respective Affiliates will have the right to otherwise operate
their business as they see fit and will have no obligation (fiduciary or
otherwise) to act in any manner in an attempt to protect or maximize any
payments under this Section 2.4, (ii) any [Earnout Payment] is contingent on
the performance of the business of the Acquired Companies, and there is no
guarantee of any [Earnout Payment] . . . under this Agreement or otherwise;
and (iii) the Buyer is not making nor has it made any representation or
warranty to such Seller, and the Buyer expresses no opinion, as to the value
to such Seller of the potential right to receive any [Earnout Payment].
16
SPA, Ex. E. A class 8 tractor is considered a truck that is regularly seen hauling a 53-
foot trailer on an interstate highway, whereas a class 7 tractor is smaller, and is normally
used for what is called the “final mile” delivery. Tr. 43:2–16 (Kuntz). At trial, the parties
used the terms “class 8 tractor” and “truck” interchangeably. Unless otherwise stated, the
reference to “trucks” and “tractors” in this opinion refers to class 8 tractors.
6
Paragraph 2 to Exhibit E requires Schneider, during each Measurement
Period, to “work in good faith . . . to seek to capture synergies available to the
Acquired Companies” (the “Synergy Covenant”).17 The final paragraph in Exhibit
E contains two covenants requiring Schneider to refrain from (1) transferring any
material portion of the Acquired Companies’ assets outside of the Acquired
Companies (the “Material Asset Covenant”); and (2) materially changing the “type
or nature” of any Acquired Company’s business until the Measurement Periods
ended (the “Business Continuity Covenant”). 18
In the event that Schneider violated any of the Operating Covenants, the
Earnout Payments were to be collectively accelerated and due in full within five
17
SPA, Ex. E. The Synergy Covenant, in full, requires Schneider to:
work in good faith with the Acquired Companies to seek to capture synergies
available to the Acquired Companies as a result of becoming a subsidiary of
the Buyer and its Affiliates, such as, by way of representative example, fuel
cost savings, tire cost savings, equipment cost savings, insurance savings and
access to the Buyer’s and its Affiliates’ driver recruiting and management
capabilities, safety initiatives and purchasing power.
18
Id. In full, the final paragraph to Exhibit E states:
In addition, except as the Buyer and Sellers’ Representative may otherwise
agree in writing, from the Closing Date through and including the last day of
the final Measurement Period, the Buyer shall not, and shall not permit any
of the Acquired Companies to reorganize, consolidate or otherwise take steps
to sell, dispose or otherwise transfer any material portion of the assets of the
Acquired Companies to an entity other than an Acquired Company or to
materially alter or change the type or nature of any Acquired Company’s
business from the business conducted by the Acquired Companies
immediately prior to the Closing.
7
business days of the failure to operate pursuant to any of the Operating Covenants
(the “Acceleration Payment”). 19
B. The Negotiation of the SPA
1. W&S Seeks a Strategic Partner.
In 2013, W&S began expanding its service into delivering freight from stores
engaged in e-commerce, including Costco.com.20 W&S grew to become the largest
specialized carrier of furniture and the second largest specialized carrier of carpet in
the United States.21 To accommodate the increased growth and achieve increased
efficiencies, W&S built a truck terminal in Fontana, California, located closer to
furniture shippers and manufacturers.22
Kuntz explained that trucking companies engaged in delivering freight for e-
commerce customers have less time to conform their trucking fleet to the needs of
those customers than for customers in other industries. Traditionally, once a
trucking company signs a contract to haul freight, there is sufficient lag time before
the first delivery so as to enable the trucking company to acquire the necessary
tractors and to hire drivers.23 According to Kuntz, e-commerce businesses, on the
19
Id. § 2.4(f).
20
Tr. 20:12–24 (Kuntz).
21
Id. at 14:14–23 (Kuntz).
22
Id. at 38:4–39:2 (Kuntz).
23
Id. at 78:21–79:1 (Kuntz).
8
other hand, require companies like W&S to begin hauling their freight the day after
a contract’s signing. 24 Additionally, freight arriving from e-commerce businesses
often arrives in variable quantities.25 Therefore, it is imperative for trucking
companies to have an appropriately sized tractor fleet immediately upon signing a
contract with an e-commerce business.26 W&S struggled to acquire trucks and hire
drivers to keep up with the expansion and increasing demands of its e-commerce
clients.27 Kuntz, Kelly Darlington, W&S’s operations manager, 28 and Richard
Schenk, W&S’s director of truckload operations, 29 each testified that W&S had
difficulty purchasing enough trucks to accommodate the increased growth.30
In June 2015, W&S engaged a private equity firm, Cascadia Capital
(“Cascadia”), to help W&S sell its business.31 Schneider demonstrated interest in
acquiring W&S, and Kuntz began negotiating with Schneider over the terms of that
transaction. At the time, Schneider did not have any experience in handling the
24
Id. at 79:1–11 (Kuntz).
25
Id.
26
Id.
27
Id. at 20:10–24 (Kuntz) (“[W]e were constantly struggling to . . . get enough trucks. And
so we could see, with the tremendous opportunity of e-commerce freight that we had in
front of us, that we didn’t have the capital to invest in enough equipment to keep up with
it.”).
28
Id. at 347:2–5 (Darlington).
29
Id. at 425:14–17 (Schenk).
30
Id. at 350:18–351:21 (Darlington); id. at 429:8–23 (Schenk).
31
Id. at 526:23–527:3 (Schiller).
9
delivery of furniture and carpeting. 32 Kuntz told Schneider’s then-CEO, Chris
Lofgren, that W&S “needed a capital partner to go forward” as a result of W&S’s
growth in e-commerce. 33
2. Schneider and W&S Negotiate the Transaction and Discuss
Acquiring Additional Equipment for W&S.
Cascadia prepared and delivered to Schneider a Confidential Information
Memorandum (the “CIM”) and Supplemental Financial Package (“SFP”). In
December 2016, three Schneider executives—George Grossardt, Bob Elkins, and
Michael Gasick held a conference call with Kuntz to discuss both documents.34
Grossardt, Schneider’s then-Senior Vice President of Corporate, led Schneider’s
deal team.35 The SFP contained a slide entitled “Capital Expenditures Analysis,”
projecting that W&S would acquire 45 growth tractors (i.e., new tractors to be added
to grow the fleet, not to replace retired tractors) in 2016, 60 growth tractors in 2017,
and 60 growth tractors in 2018. 36 Kuntz discussed with the Schneider executives on
the December 2016 call the purchase of growth tractors, as described in the CIM.37
32
Id. at 19:2–6 (Kuntz).
33
Id. at 63:17–22 (Kuntz).
34
Id. at 64:5–65:20 (Kuntz); see JX 9 (CIM); JX 16 (SFP).
35
Tr. 756:12–24 (Gasick); id. at 612:2–7 (Rourke); id. at 534:20–22 (Schiller).
36
JX 16.00005.
37
Tr. 65:5–13 (Kuntz).
10
The CIM and the SFP projected that capital expenditures would be used both to
replace existing tractors and to increase the overall fleet size.38
In January 2016, Kuntz discussed the prospective transaction with Grossardt,
Gasick, and Elkins. Grossardt represented to Kuntz that Schneider could “provide
[W&S] as many trucks as [Kuntz] wanted,” and Grossardt and Elkins allayed
Kuntz’s fears that it would be difficult to find enough drivers. 39 In a follow-up email,
Kuntz explained that “adding an additional 12 trucks per month after a transaction”
would cause a “large increase in EBITA.” 40 Grossardt responded to Kuntz,
indicating that Schneider’s “equipment life cycle” would require replacement of
“about 200 tractors and 900 trailers immediately,” which would be “over and above
growth equipment that is already in your plan.” 41
W&S and Cascadia provided financial projections for W&S during the due
diligence process. 42 Their projections assumed that W&S would acquire 60 growth
tractors per year. 43 Schneider’s internal documents consistently incorporated that
38
JX 239; Tr. 61:3–62:4 (Kuntz).
39
Tr. 70:14–71:10 (Kuntz).
40
JX 22.
41
Id.
42
Tr. 734:13–21 (Gasick).
43
JX 239 at Tab 2016 Budget p.3., Tab 2017 Projection p.3, Tab 2018 Projection p.3
(showing a 60 tractor per year increase: 630 tractors at the beginning of 2016, 690 at the
beginning of 2017, 750 at the beginning of 2018, and 810 at the end of 2018).
11
assumption into its own analyses of the prospective transaction. Schneider’s internal
projections assumed that W&S would acquire 60 growth tractors per year.44 A
presentation to Schneider’s board of directors in February 2016 states that “[g]rowth
capex is assumed to be 60 tractors and 180 trailers per year” and that “60 growth
tractors provides . . . $5M of EBITDA.”45 The assumption that W&S would acquire
60 growth tractors annually was then used in Schneider’s own valuation calculations
based on W&S’s projections, even after those calculations were “modified for more
reasonable assumptions.”46 Indeed, although he was unwilling to concede the issue,
Mark Rourke, Schneider’s then-COO and eventual CEO, testified that every
projection that Schneider and W&S created relied on the assumption that W&S
would acquire 60 growth tractors annually after the transaction. 47
44
JX 102.00040.
45
JX 27.00002.
46
JX 27.00003; Tr. 817:4–24 (Gasick).
47
Tr. 670:7–672:13 (Rourke):
Q. And you saw from reviewing [the CIM] that the plan that [W&S] had for
obtaining its EBITDA targets was to grow the fleet. Correct?
A. As well as a number of other items on that income statement. But yes.
Q. And you understand that the strategy was to grow the fleet by 60 Class 8
tractors a year to attain those EBITDA targets. Correct?
A. As well as the revenue that supports that, yes.
...
Q. The internal Schneider projections included a plan to grow the fleet by
60 additional Class 8 tractors; yes, sir?
12
3. The Letters of Intent
On March 7, 2016, Schneider sent W&S a non-binding letter of intent.
Schneider proposed a purchase price of $145 million in guaranteed consideration
and up to $30 million of Earnout Payments contingent upon W&S reaching certain
EBITDA Targets. 48 The initial letter of intent contained EBITDA Targets of $36
million for one year after closing, $46 million for two years after closing, and $59
million for three years after closing.49 The EBITDA Targets in the first letter of
intent originated from W&S’s projections. 50
On March 14, 2016, Schneider sent W&S a revised letter of intent that
contained certain “assumptions,” including “[s]ufficient tractor and trailer capital to
support profitable growth; a minimum of 60 tractors and sufficient trailers for each
12 month EBITDA Measurement Period.” 51 In a subsequent draft of the letter of
A. We had a projection to grow the business, yes, 60 tractors.
Q. . . . [E]very single projection that Schneider received from [W&S] had
the 60 tractor—or 60 Class 8 tractor growth a year plan, did it not?
A. . . . Yes.
Q. And, in fact, every projection and valuation document that Schneider did
included that 60-tractor growth a year, did it not?
A. . . . [Y]es.
48
JX 38.
49
JX 38.00004.
50
Tr. 762:21–763:6 (Gasick); PTO, III ¶ 6.
51
JX 43.00004.
13
intent, Sellers’ counsel added language indicating that the “Definitive Agreement
will contain mutually agreeable operational covenants with the goal of optimizing
the achievement of the EBITDA Targets,” and requiring “[s]ufficient tractor and
trailer capital to support profitable growth, including a minimum of 60 tractors and
sufficient trailers for each 12 month EBITDA Measurement Period.” 52
On March 18, 2016, the parties executed a final letter of intent. 53 The final
letter of intent provided for total consideration of $175 million, consisting of: (1)
$85 million at closing, (2) three guaranteed payments of $20 million each year for
three years after closing, and (3) three contingent payments of up to $10 million for
achieving at least 80% of EBITDA targets of $36 million within 12 months after
closing, $46 million within 24 months after closing, and $59 million within 36
months of closing.54 The final letter of intent largely preserved the language
regarding the acquisition of 60 growth tractors annually, stating that the “Definitive
Agreement will contain mutually agreeable operational covenants, including but not
limited to . . . . Sufficient tractor and trailer capital to support profitable growth; a
minimum of 60 tractors and sufficient trailers for each 12 month EBITDA
Measurement Period.” 55 No one from Schneider informed W&S that the 60 tractors
52
JX 45.00005.
53
See JX 47.
54
Id. at 47.00002.
55
Id. at 47.00005.
14
referenced in the letter of intent were intended to be replacement tractors (i.e., new
tractors to be added to the fleet to replace retiring tractors).56 In fact, Rourke testified
that the reference to a “minimum of 60 tractors” in this letter of intent meant “60
additional growth capex tractors.”57
Internal Schneider documents postdating the final letter of intent demonstrate
that Schneider understood the agreement would require purchasing 60 growth
tractors per year for W&S after the acquisition. A presentation in April 2016 to
Schneider’s board of directors stated that W&S’s “[g]rowth opportunities are being
hampered by [its] capability to acquire growth capital,” and assessed the return on
capital from an acquisition of W&S based on “60 tractors/180 trailers of growth
assumed annually.” 58 Schneider management also submitted a Hart-Scott-Rodino
filing to the Federal Trade Commission, which included slides projecting future
EBITDA based on the assumption that Schneider would add 60 growth tractors per
year after the transaction. 59
56
Tr. 694:5–20 (Rourke).
57
Id. at 679:10–18 (Rourke) (“Q. You understood when you signed this [letter of intent]
that 60 tractors related to the 60 additional growth capex tractors, did you not? A. At the
time, yes. Q. So that’s the commitment in the [letter of intent]. Correct? A. At that
portion of the process.”).
58
JX 64.00018, .00026.
59
JX 286.00199; see also Kardish Sept. 27, 2019 Dep. 98:7–101:18. Kardish did not testify
at trial.
15
4. The Parties Exchange the First Drafts of the SPA.
On April 8, 2016, Schneider sent the first draft of the SPA to the Sellers, which
contained the same price terms as the final letter of intent. 60 The first draft of the
SPA did not include any operating covenants or any provision obligating Schneider
to purchase tractors.61 The initial draft of the SPA permitted Schneider to operate
the business “as [it saw] fit,” without any “obligation (fiduciary or otherwise) to act
in any manner in an attempt to protect or maximize” the Earnout Payments.62
On April 21, 2016, Sellers’ counsel circulated a second draft of the SPA.63
The Sellers’ second draft requested that Schneider propose “post-closing operational
covenants,” including a covenant “to continue to operate the business on a stand-
alone, independent basis” and a “covenant to provide appropriate equipment
purchase support.”64 Kuntz’s attorney, Jamie Hutchinson, testified that the request
for a covenant to provide “appropriate equipment purchase support” was a reference
to the provision in the letter of intent to increase the fleet size by 60 tractors every
year.65
60
See JX 56.
61
Id. §§ 2.1–2.4.
62
Id. § 2.4(e).
63
See JX 65.
64
JX 65.00026.
65
Tr. 264:22–265:9 (Hutchinson).
16
5. The Parties Meet to Negotiate the Terms of the SPA.
On May 3, 2016, Rourke, Elkins, Grossardt, Kuntz, and Cascadia met in
Green Bay, Wisconsin to discuss the transaction. The parties memorialized the
meeting in a set of meeting notes. 66 According to the notes, the goal of the meeting
was to “come away with a comprehensive understanding of all of the key deal points
and issues and design an action plan/strategy to completing these open items.”67
After discussing various matters, including an environmental review of W&S’s
facilities, key employee agreements, and changes to accounting methods as a result
of the acquisition, the parties turned to W&S’s recent performance. In the first
quarter of 2016, W&S missed its target EBITDA by almost 30%. 68 The Sellers,
though, declined to offer revised projections. Christian Schiller, a managing director
at Cascadia, believed the earnings miss was primarily attributable to “just a timing
issue” along with hedge positions relating to fuel costs. 69 The contemporaneous
notes of the Green Bay meeting state that Sellers concluded that they would “hold
[their] position on valuation and there will be no retrade or valuation changes.” 70
66
See JX 78.
67
Id. at 78.00003.
68
JX 68; Tr. 193:22–194:10 (Kuntz).
69
Tr. 881:3–884:2 (Schiller).
70
JX 78.00007.
17
The parties then negotiated the Earnout Payments. Under a heading entitled
“Define and Simplify Earn Out,” the notes state: “Ray [Kuntz] began this point with
a statement . . . . We will start adding trucks.” 71 Kuntz explained at trial that, at this
time, W&S could not wait to begin purchasing growth tractors in order to meet its
EBITDA Targets, “particularly before the fall e-commerce season really lit up.”72
The parties also discussed integration efforts, including that Schneider “would be
worried about underutilization of the assets. I.E. adding assets before the revenue is
there,” because Schneider would “want to make sure there is good return on the
assets.”73 Rourke testified that this statement was an expression of Schneider’s
business philosophy, because Schneider is not “capital constrained, and we have
access to capital to place into the business to the degree that we’re successful . . . .
Not in advance of being successful, but as we’re being successful.” 74
On May 10, 2016, Kuntz and Rourke continued to negotiate. Kuntz and
Rourke agreed to reallocate money from the non-contingent closing payment into
the Earnout Payments to account for risk associated with W&S’s recent earnings
misses. 75 Kuntz and Rourke’s testimony differ regarding whether Kuntz discussed
71
Id. at 78.00008.
72
Tr. 114:9–19 (Kuntz).
73
JX 78.00008.
74
Tr. 625:3–626:5 (Rourke).
75
JX 86; Tr. 118:3–22 (Kuntz); id. at 628:10–629:1 (Rourke).
18
the need for 60 additional tractors and drivers on this call. According to Kuntz, he
told Rourke that he needed Rourke’s “assurance” that the 60 tractors “in the LOI”
would be provided to him.76 Kuntz testified that Rourke responded by telling him,
“We’re an operations company. We hire drivers. That’s what we do. We will
provide you the drivers.”77 Rourke, on the other hand, testified that he did not recall
agreeing to increase the fleet by 60 trucks each year during that call. 78
Late that evening, Gasick sent Rourke, Grossardt, and Lori Lutey (Schneider’s
then-CFO) “a draft overview of the changes to the Buffalo deal from the original
LoI terms.” 79 The overview described three “changes to valuation and deal
structure” that Rourke and Kuntz discussed, including shifting $10 million from the
closing payment into the Earnout Payments. 80 The following morning, Rourke sent
an email to Kuntz to follow up on their discussion.81 The summary email detailed
revised price terms, with a closing payment of $68.75 million and total compensation
of $168.75 million, listing certain outstanding items and a target closing date. Kuntz
76
Tr. 118:19–22 (Kuntz).
77
Id. at 118:3–119:2 (Kuntz).
78
Id. at 629:22–24 (Rourke) (“No. I don’t recall doing that at all.”). Rourke did recall
discussing other issues during that call. Id. at 627:14–628:9, 629:2–17 (Rourke).
79
JX 281.
80
Id. at 281.00004.
81
JX 86; Tr. 628:18–631:1 (Rourke).
19
agreed, stating that he “just brief[ed the] crew to get it done.”82 Neither the overview
nor the summary email addressed any operating covenants, including the purchase
of 60 growth tractors annually.
On May 11, 2016, the parties held an “all hands” call involving many
representatives from the parties and their counsel. 83 Kuntz testified that he and
Hutchinson “were adamant that we needed operational cover that would protect us
[so] that we got the 60 additional trucks that Mark Rourke alluded to,” and that Kuntz
and Hutchinson were “adamant that [they] needed protection that [Schneider] just
couldn’t randomly pull assets . . . out of our operation, material assets that would
keep us from making our EBITDA.”84 Hutchinson specifically recalled the
discussions about the Earnout Payments from the call and stated that, from Kuntz’s
perspective, “one of the most important points was the increase in the aggregate fleet
size. And in particular, that was the adding an additional 60 trucks per measurement
period.”85 Hutchinson testified that he “raised the issue” that an operating covenant
would be necessary to prevent Schneider from transferring material assets out of
W&S after the transaction. 86 Hutchinson recalled that they discussed the transfer of
82
JX 86.
83
JX 84.
84
Tr. 130:8–15 (Kuntz).
85
Id. at 270:1–15 (Hutchinson).
86
Id. at 270:16–271:12 (Hutchinson).
20
assets “sort of in a general way,” but that “we also did discuss the trucks,
specifically,” because the additional trucks were “one of the key components for the
ability to meet the earn-out target” considering the revenue was “based on having an
increase in the overall fleet size.”87 Hutchinson testified that there was “agreement
. . . on a bunch of the major points, including . . . the increase in fleet size, and that
there would be operational covenants as part of the transaction.” 88
Schneider’s witnesses contradicted Kuntz and Hutchinson’s testimony about
the May 11, 2016 call. David Whelpley, counsel for Schneider, did not recall that
Kuntz “said that the only way to make the earn-out was via trucks.” 89 In addition to
testimony from Whelpley, Schneider cites testimony from Schiller, who did not
recollect “any call involving [Schneider’s counsel] or Schneider representatives . . .
requiring Schneider to provide a net increase of 60 tractors each year for three years
as a term of the stock purchase agreement.” 90
6. The Parties Finalize the Terms of the SPA.
On May 13, 2016, Schneider provided a revised draft of the SPA to the
Sellers.91 In that draft, Schneider replaced language indicating that it would “operate
87
Id. at 271:22–272:7 (Hutchinson).
88
Id. at 271:4–12 (Hutchinson).
89
Id. at 1092:4–7 (Whelpley).
90
Id. at 885:17–24 (Schiller).
91
JX 88.
21
the Acquired Companies in the manner provided for on Exhibit A,” with language
providing that it would “have the right to operate their business as they see fit and
will have no obligation (fiduciary or otherwise) to act in any manner in an attempt
to protect or maximize any [Earnout Payments].”92 Schneider included new
proposed language in Exhibit A, which contains principles and assumptions for
calculating EBITDA based on the parties’ financial projections. The assumptions
were: “[c]apital expenditure equivalent to 60 class 8 tractors” and “[a]ssets
includ[ing] 760 tractors for the first Measurement Period, 820 tractors for the second
Measurement Period, and 880 tractors for the third Measurement Period.”93
Whelpley testified that Exhibit A was intended solely as an accounting assumption
and was not an operating covenant. 94
On May 17, 2016, Sellers responded with a list of remaining material issues,
noting that the “Post-Closing earn-out covenants remain limited and Buyer
favorable.” 95 Schneider responded with a comment on the material issues list that
Schneider would be “willing to agree that any of the following actions will accelerate
the unpaid earn-out: (1) failure by the Acquired Companies to acquire sixty (60)
tractors during each Measurement Period and (2) any transfer, sale or disposition
92
Id. at 88.00027.
93
Id. at 88.00087.
94
Tr. 1093:11–1094:15 (Whelpley).
95
JX 91.00004.
22
during any Measurement Period of a material portion of the Acquired Companies’
assets (determined on a consolidated basis).” 96
On May 20, 2016, Schneider circulated a revised draft of the SPA
incorporating the latest exchange of comments between the parties.97 Schneider
deleted the assumption that, for measuring EBITDA, there would be “[c]apital
expenditure equivalent to 60 class 8 tractors” and that assets would “include 760
tractors for the first Measurement Period, 820 tractors for the second Measurement
Period and 880 tractors for the third Measurement Period.”98 At the same time,
Schneider added two operating covenants, which were located in Exhibit D to that
draft. 99 The first covenant required Schneider to “cause one or more of the Acquired
Companies to acquire, in the aggregate, sixty (60) class 8 tractors” during each
Measurement Period. 100 The second covenant required Schneider to “cause the
Acquired Companies to not sell, dispose of, or otherwise transfer to any other Person
a material portion of the assets of the Acquired Companies” without consent by the
Sellers.101 Hutchinson understood that the change from the accounting assumption
96
JX 92.00005.
97
JX 94.00001.
98
Id. at 94.00083.
99
Id. at 94.00090.
100
Id.
101
Id.
23
to the operating covenant was a “simplification of the prior draft,” and that he did
not understand that Schneider was “unwilling to provide 60 tractors to increase the
size of the fleet” as a result of the changes from the May 13 to the May 20 draft of
the SPA.102 Kuntz testified that, like Hutchinson, his understanding of the deal had
not changed between the May 13 and May 20 draft. 103
On May 25, 2016, Sellers proposed a revision to the operating covenants.
Sellers sought to impose an obligation on Schneider to “cause one or more of the
Acquired Companies to acquire, in the aggregate, not less than sixty (60) class 8
tractors (the “Tractors”) and such greater number of Tractors and other equipment
necessary to the accommodate the Acquired Companies’ operations, including any
growth related thereto.” 104 Sellers also included eight separately numbered
paragraphs containing additional operating covenants for the Acquired Companies,
covering matters including employee compensation, reassignment of personnel,
cutting staff, and closing a key terminal.105 Schneider struck the language in the next
turn of the SPA that would have required Schneider to acquire “such greater number
of Tractors and other equipment necessary to accommodate the Acquired
Companies’ operations, including any growth related thereto,” as well as seven of
102
Tr. 285:15–286:1, 292:3–7 (Hutchinson).
103
Id. at 140:9–141:7 (Kuntz).
104
JX 98.00009.
105
Id. at 98.00009–10.
24
the eight newly proposed operating covenants. Those proposed covenants were not
included in the final version of the SPA.106
At this time, Schneider continued to create projections for W&S which
assumed the purchase of 60 growth tractors annually after the W&S acquisition.
Schneider’s “3YP Capital Expenditure Summary” dated May 25, 2016 indicated that
Schneider intended to purchase 60 growth tractors in 2017, 2018, and 2019, in
addition to purchasing replacement tractors for those years.107 Schneider’s internal
valuation model dated May 26, 2016 also assumed that Schneider would add 60
tractors annually, for a total of 820 tractors in 2016, 880 tractors in 2017, and 940
tractors in 2018. 108
The parties executed the SPA on June 1, 2016, and closed the transaction that
same day.109 According to Rourke, Schneider executive Bob Elkins was responsible
for ensuring that Schneider complied with the SPA after the acquisition. 110 Elkins
admitted that he had never reviewed any drafts of the SPA prior to the acquisition,
that he never saw the final SPA while he was the head of the division that included
W&S, and that he had never seen a copy of Exhibit E to the SPA, which contained
106
JX 103.00079–80.
107
JX 100.0004.
108
JX 102.00035, .00040.
109
PTO, III ¶ 3.
110
Tr. 661:13–662:19 (Rourke).
25
all of the Operating Covenants for the post-closing operation of W&S. 111 Elkins
testified that he had never been briefed regarding the terms of the SPA, and that he
was not aware of the Tractor Acquisition Covenant, the Material Asset Covenant, or
the Business Continuity Covenant.112 He agreed that it would have been helpful to
know about the obligations created by the covenants as the head of W&S after the
acquisition.113
On June 10, 2016, after the SPA closed, Aaron Cousineau, the controller for
the division of Schneider that included W&S, sent Elkins a draft of a
“Capital/Release/Expenditure Request” (a “CLER”) for 26 tractors.114 Cousineau
wrote that the CLER included “verbiage calling out this will be 26 of the 60 growth
tractors.”115 The CLER stated that the request was for “New Business Tractors for
W&S Growth (26 tractors),” that “Tractors will be used to fund 26 of total 60 tractors
per agreement,” and that “Funds will be reconciled against W&S growth capital for
first 12 months per agreement (26 of 60 growth tractors).” 116 The CLER further
stated that the funds for the tractors had been “committed to dealers prior to close.”117
111
Id. at 973:19–974:10 (Elkins).
112
Id. at 974:11–975:13 (Elkins).
113
Id. at 975:14–24 (Elkins).
114
JX 118.
115
Id. at 118.00001.
116
Id. at 118.00004.
117
Id. at 118.00005.
26
On direct examination, Cousineau testified that he did not participate in negotiations
regarding the SPA, did not review drafts of the SPA, and did not “see[] or gain[]
visibility to that document until assisting in some of the earn-out documents.” 118 On
cross-examination, Cousineau testified that the language in the CLER regarding
purchasing tractors “pursuant to the agreement” was based on his understanding that
the SPA required purchasing 60 growth tractors.119
After the acquisition, like Cousineau, Schneider executive Michael Gasick
acted as if the SPA contractually required Schneider to purchase 60 growth tractors
in each of the next three years. On January 30, 2017, Gasick emailed Elkins stating:
We need to prepare you to have a conversation with Ray [Kuntz] about
the contractual 60 class 8 tractors that were part of the SPA. We will
likely need a waiver from him that he agrees he does not need the 60
tractors. . . . The SPA is clear that we need to provide the 60 class 8
tractors in each of the three years of the earn out. We all know he does
not need them, so he needs to waive this requirement for the first 12
month period. The waiver needs to happen no later than June. 120
118
Tr. 1044:1–1045:5 (Cousineau). The record reflects that Cousineau did receive at least
one email from Schneider’s counsel regarding the “Earn-Out Principles,” though the
substance of that email is redacted on the grounds of attorney-client privilege. JX 288.
Although Cousineau received this email, he testified on cross-examination that he did not
“communicate with counsel regarding the stock purchase agreement” during the SPA
negotiations. Tr. 1073:1–6 (Cousineau).
119
Tr. 1074:17–1076:19 (Cousineau).
120
JX 164.
27
At this time, Schneider had already purchased 71 replacement tractors.121 At trial,
Gasick “did not know exactly” if he was aware of how many tractors Schneider had
purchased at the time of this email, but he testified that he communicated “regularly”
regarding “tracking . . . 60 tractors.”122 Kuntz did not waive the Tractor Acquisition
Covenant.
C. Schneider’s Operation of W&S Post-Closing
The parties agree that, for each Measurement Period, W&S acquired more
than 60 tractors—but not 60 growth tractors—and that Schneider informed the
Sellers that W&S’s EBITDA fell short of the EBITDA Targets. During the first
Measurement Period, Schneider caused W&S to acquire 71 class 8 tractors and
eliminated or sold 108 class 8 tractors. 123 On July 21, 2017, Schneider provided the
Sellers’ Representative with an Annual Contingent Payment Statement (“ACPS”)
which represented that the Acquired Companies’ EBITDA for the first Measurement
Period was $18.7 million, as compared to the EBITDA Target of $36 million.124
During the second Measurement Period, Schneider caused W&S to acquire 102 class
8 tractors and eliminated or sold 104 class 8 tractors.125 On July 27, 2018, Schneider
121
JX 255.
122
Tr. 781:4–17, 777:22–778:4 (Gasick).
123
PTO, III ¶ 12.
124
Id. ¶ 13.
125
Id. ¶ 12.
28
provided the Sellers’ Representative with an ACPS representing that the Acquired
Companies’ EBITDA for the second Measurement Period was $837,000, as
compared to the EBITDA Target of $46 million.126 During the third Measurement
Period, Schneider caused W&S to acquire 137 class 8 tractors and eliminated or sold
199 class 8 tractors. 127 On July 25, 2019, Schneider provided the Sellers’
Representative with an ACPS which represented that the Acquired Companies’
EBITDA for the third Measurement Period was negative $26.3 million, as compared
to the EBITDA Target of $59 million. 128 Schneider thus did not make any of the
Earnout Payments to the Sellers. 129
The parties’ explanations differ as to the cause of W&S’s failure to hit the
EBITDA Targets. Sellers argue that Schneider shrank the size of W&S’s fleet every
Measurement Period, leased 70 W&S tractors to another of Schneider’s divisions in
February 2017 (the “Tractor Lease”), 130 and reallocated approximately half of
W&S’s space at what was its largest terminal in Fontana, California (the “Fontana
Terminal”). 131 Sellers also contend that Schneider stopped recruiting drivers for
126
Id. ¶ 14.
127
Id. ¶ 12.
128
Id. ¶ 15.
129
Id. ¶ 16.
130
JX 175; Tr. 995:12–23 (Elkins).
131
Tr. 457:1–21 (Schenk).
29
W&S. 132 Sellers point out that, in June 2017, Schneider issued an order “to minimize
the new accounts we were going after” to “slow[] the pipeline of when business
starts to be implemented” because W&S had fallen behind in servicing its existing
business. 133
Schneider attributes W&S’s failure to hit the EBITDA Targets to other
factors. Schneider argues that Sellers’ projections were too aggressive, 134 customers
failed to materialize as committed, 135 and existing customer relationships were
marginal.136 In its post-trial briefing, Schneider explained that integrating W&S, a
trucking company, and Lodeso, a company that provided final mile distribution
services, proved to be challenging. 137 Schneider also pointed to a driver shortage
across the trucking industry.138
Schneider’s attempt to create a consolidated first-to-final-mile trucking
network through acquiring W&S ultimately ended in failure, costing Schneider
132
JX 203; Tr. 172:16–174:19, 182:3–184:11 (Kuntz); id. at 437:22–440:24, 462:19–463:4
(Schenk); id. at 945:22–949:11 (Elkins).
133
JX 202.00001; Tr. 180:22–183:5, 186:11–187:10 (Kuntz); id. at 386:1–6 (Darlington).
134
Tr. 924:11–925:19 (Elkins).
135
JX 124.
136
JX 203.0001.
137
Plaintiff/Counterclaim Defendant’s Opening Post-Trial Brief (“Pl.’s Op. Br.”) 27–28.
138
Id. at 28–29.
30
nearly $180 million. 139 On July 29, 2019, Schneider’s board of directors approved
a structured shutdown of its first-to-final mile services. 140
D. Procedural History
On October 4, 2017, Schneider initiated this litigation in the Court of
Chancery, seeking a declaratory judgment that it was not obligated to pay the
Earnout Payments and that it had complied with the Tractor Acquisition Covenant
(Compl. Count I).141 The Sellers counterclaimed, contending that Schneider
breached the SPA (Countercl. Count I) or breached the implied covenant of good
faith and fair dealing inherent in the SPA (Countercl. Count II). 142
In 2018, the parties filed cross-motions for judgment on the pleadings. In their
motions, the parties disputed whether Schneider breached the Tractor Acquisition
and Business Continuity Covenants.143 The parties also disputed whether Schneider
operated W&S so as to prevent it from achieving the EBITDA Targets in violation
of the implied covenant of good faith and fair dealing. 144 Justice, then-Vice
Chancellor, Montgomery-Reeves denied the cross-motions for judgment on the
139
Tr. 660:10–661:1 (Rourke).
140
JX 229.00003.
141
Ct. Ch. Dkt. 1 ¶¶ 14–15.
142
Ct. Ch. Dkt. 3 ¶¶ 56–71.
143
Ct. Ch. Dkt. 74 at 2–3.
144
Id. at 3.
31
pleadings and held that the parties had “advance[d] reasonable but conflicting
interpretations of the contractual provisions at issue in the pending cross-
motions.”145 The court concluded that both interpretations were “commercially
reasonable,” and that, “[t]o the extent some issues ultimately may be decided as a
matter of law, a fuller development of the facts should serve to clarify the law or
help the Court determine its application to this dispute.”146 The court further held
that, “[b]ecause both parties assert reasonable interpretations of the express terms of
the contract, the holes that the implied covenant may or may not fill cannot be
determined at this stage.”147
Following discovery, the parties filed cross-motions for summary judgment.
In a July 16, 2020 opinion, the undersigned denied the motions, concluding that there
were disputed issues of material fact that needed to be resolved through trial.148 The
court held a four-day trial in January 2021. There were 296 trial exhibits submitted
into evidence, and ten witnesses testified.149
145
Id. ¶ 5; see also id. ¶ 8 (“Schneider and Kuntz each offers a reasonable interpretation of
the contract language.”).
146
Ct. Ch. Dkt. 74 ¶¶ 8, 14.
147
Id. ¶ 13.
148
See Ct. Ch. Dkt. 197.
149
Trial was held remotely via Zoom technology.
32
After post-trial argument, the court questioned whether the Court of Chancery
had subject matter jurisdiction over this case.150 The parties had initially asserted
that the Court of Chancery had subject matter jurisdiction under 8 Del. C. § 111.151
That provision gives the Court of Chancery jurisdiction over civil actions “to
interpret, apply, enforce or determine the validity of the provisions of . . . [a]ny
instrument, document or agreement . . . to which a corporation and 1 or more holders
of its stock are parties, and pursuant to which any such holder or holders sell or offer
to sell any of such stock.” 8 Del. C. § 111(a)(2). The court questioned its jurisdiction
over this matter because neither of the corporations subject to the SPA are Delaware
corporations. See Darby Emerging Markets Fund, L.P. v. Ryan, 2013 WL 6401131,
at *7 (Del. Ch. Nov. 27, 2013) (“To the extent Section 111 is ambiguous with respect
to its application to foreign entities, the synopsis appears to resolve that ambiguity
by limiting Section 111’s application to Delaware corporations.”). 152
150
The issue of subject matter jurisdiction can be raised at any time, including by the court.
See Ct. Ch. R. 12(h)(3); IBM Corp. v. Comdisco, Inc., 602 A.2d 74, 77 n.5 (Del. Ch. 1991)
(“[U]nlike many jurisdictions, judges in the Delaware Court of Chancery are obligated to
decide whether a matter comes within the equitable jurisdiction of this Court regardless of
whether the issue has been raised by the parties.”).
151
Compl. ¶ 10; Countercl. at 6.
152
The court in Darby was referring to the synopsis of a 2003 amendment to § 111. See
2003 Delaware Laws Ch. 84 (S.B. 127) (“This amendment expands the jurisdiction of the
Court of Chancery with respect to a variety of matters pertaining to Delaware
corporations.” (emphasis added)); see also 1 ROBERT S. SAUNDERS ET AL., FOLK ON THE
DELAWARE GENERAL CORPORATION LAW § 111.01 (7th ed. 2021) (“The application of
section 111 is limited to Delaware corporations.”).
33
The parties maintained that the Court of Chancery had jurisdiction over this
action, but “to avoid any doubt,” they moved to transfer this case to the Superior
Court under 10 Del. C. § 1902.153 The motion was granted on September 3, 2021.154
On September 1, 2021, while that motion was pending, the Chief Justice of the
Delaware Supreme Court designated the undersigned “to sit as a Judge on the
Superior Court for the purpose of hearing and deciding all issues” in this case
pursuant to Del. Const. art. IV, § 13(2), upon the case’s transfer.155 Schneider filed
its complaint in the Superior Court on October 20, 2021.156
In January and February 2022, the parties filed supplemental letters on the
issue of fee shifting, citing the recent decision in LPPAS Representative, LLC v. ATH
Holding Co., LLC, 2022 WL 94610 (Del. Ch. Jan. 10, 2022).157 The court
considered this case submitted for decision on the date of Kuntz’s final letter on
February 16, 2022.158
153
Ct. Ch. Dkt. 263.
154
Ct. Ch. Dkt. 267.
155
Super. Ct. Dkt. 2, Ex. C.
156
See Super. Ct. Dkt. 1.
157
Super. Ct. Dkt. 4–6.
158
See infra note 308.
34
II. ANALYSIS
This opinion first addresses whether Schneider breached any of the four
Operating Covenants in the SPA. After that, the opinion considers whether
Schneider breached the implied covenant of good faith and fair dealing. Lastly, the
opinion addresses Kuntz’s claim for attorneys’ fees under the indemnification
provision in the SPA.
A. The Breach of Contract Claim
“Under Delaware law, the elements of a breach of contract claim are: 1) a
contractual obligation; 2) a breach of that obligation by the defendant; and 3) a
resulting damage to the plaintiff.” H-M Wexford LLC v. Encorp, Inc., 832 A.2d 129,
140 (Del. Ch. 2003). A party asserting a breach of contract claim bears the burden
of proving a breach by a preponderance of the evidence. Base Optics Inc. v. Liu,
2015 WL 3491495, at *13 (Del. Ch. May 29, 2015). “Proof by a preponderance of
the evidence means proof that something is more likely than not. It means that
certain evidence, when compared to the evidence opposed to it, has the more
convincing force and makes you believe that something is more likely true than not.”
Del. Exp. Shuttle, Inc. v. Older, 2002 WL 31458243, at *17 (Del. Ch. Oct. 23, 2002).
Delaware adheres to the objective theory of contracts. The objective theory
of contracts requires the court to construe a contract as it would be “‘understood by
an objective, reasonable third party.’” Osborn v. Kemp, 991 A.2d 1153, 1159 (Del.
35
2010) (quoting NBC Universal v. Paxson Commc’ns Corp., 2005 WL 1038997, at
*5 (Del. Ch. Apr. 29, 2005)); accord Salamone v. Gorman, 106 A.3d 354, 367–68
(Del. 2014). If a contract’s language is clear and unambiguous, the court will give
effect to the plain meaning of the contract’s terms and provisions. Osborn, 991 A.2d
at 1159–60. A contract is ambiguous if the court is able to “reasonably ascribe
multiple and different interpretations to a contract.” Id. at 1160. The “determination
of ambiguity lies within the sole province of the court.” Id. “The primary
consideration in the construction of contract language is to fulfill, to the extent
possible, the reasonable expectations of the parties at the time they contracted.” Bell
Atl. Meridian Sys. v. Octel Commc’ns Corp., 1995 WL 707916, at *5 (Del. Ch. Nov.
28, 1995).
1. The Tractor Acquisition Covenant
The Tractor Acquisition Covenant required Schneider to “cause one or more
of the Acquired Companies to acquire, in the aggregate, not less than sixty (60) class
8 tractors” each Measurement Period. 159 The Court of Chancery previously
determined that both parties’ competing interpretations were reasonable when
denying the parties’ cross-motions for judgment on the pleadings160 and, later, cross-
159
SPA, Ex. E.
160
Ct. Ch. Dkt. 74 ¶ 8 (“Schneider and Kuntz each offers a reasonable interpretation of the
contract language.”).
36
motions for summary judgment.161 Schneider maintains, as it has throughout this
litigation, that the plain meaning of the Tractor Acquisition Covenant mandates
judgment in its favor. 162 Schneider argues that the contract only requires it to
purchase 60 tractors during each Measurement Period. Kuntz argues that the SPA
requires Schneider to grow the fleet by 60 tractors during each Measurement Period.
The court’s prior determinations that the Tractor Acquisition Covenant is
susceptible to multiple reasonable interpretations—and is therefore ambiguous—is
the law of the case. 163 The law of the case doctrine usually “requires that matters
previously ruled upon by the same court be put to rest.” Frank G.W. v. Carol M.W.,
457 A.2d 715, 718 (Del. 1983). The rule is not absolute. Until a final judgment is
entered, interlocutory rulings “remain[] within the control of the court.” Id. (quoting
46 AM. JUR. 2D Judgments § 700 at 851 (1969)). Nevertheless, adherence to the law
of the case is particularly important when, as here, a successor judge inherits a case.
In those circumstances, the general rule of the law of the case should be maintained
except in “extraordinary circumstances.” Id.; accord Miller v. Wolstenholme, 540
161
Ct. Ch. Dkt. 197 at 28 (“Both parties have offered contested evidence as to the proper
interpretation of the Tractor Acquisition Covenant. . . . Thus, summary judgment cannot
be granted.”).
162
Pl.’s Op. Br. 33–34.
163
Taylor v. Jones, 2006 WL 1510437, at *5 (Del. Ch. May 25, 2006) (“‘[O]nce a matter
has been addressed in a procedurally appropriate way by a court, it is generally held to be
the law of that case and will not be disturbed by that court unless compelling reason to do
so appears.’”) (quoting May v. Bigmar, Inc., 838 A.2d 285, 288 n.8 (Del. Ch. 2003)).
37
A.2d 1088 (Del. 1988) (TABLE). To be sure, the Delaware Supreme Court “take[s]
a dim view of a successor judge in a single case overruling a decision of his
predecessor.” Frank G.W., 457 A.2d at 718.
Schneider has not established extraordinary circumstances warranting
departure from the determination of Justice, then-Vice Chancellor, Montgomery-
Reeves that the Tractor Acquisition Covenant is ambiguous. Then, as now,
Schneider’s and Kuntz’s conflicting positions are each reasonable interpretations,
and a “reasonable third person reading the [Tractor Acquisition Covenant] would be
uncertain” as to whether the Tractor Acquisition Covenant required the purchase of
60 tractors in total or 60 growth tractors during each Measurement Period. Eagle
Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1232 (Del. 1997); see Ct.
Ch. Dkt. 74 ¶¶ 3–8 (discussing the reasonableness of the parties’ respective positions
regarding the Tractor Acquisition Covenant). Accordingly, the court’s prior ruling
is the law of the case. The court did not depart from that ruling in denying cross-
motions for summary judgment and does not do so here.
Because the Tractor Acquisition Covenant is ambiguous, the court must
consider extrinsic evidence to determine its meaning. “When contractual language
is reasonably susceptible to more than one meaning, all objective extrinsic evidence
is considered: the overt statements and acts of the parties, the business context, prior
dealings between the parties, and the business customs and usage in the industry.”
38
Bell Atl. Meridian Sys., 1995 WL 707916, at *6. A “party seeking judicial
enforcement of their interpretation of the ambiguous language” may prevail by
“show[ing] by a preponderance of the evidence that the other party knew or had
reason to know of the meaning they attached to the language.” Id. (citing
Restatement (Second) of Contracts § 201 (1981) and Corbin on Contracts § 543
(1960)); see also Kabakoff v. Zeneca, Inc., 2020 WL 6781240, at *20 (Del. Ch. Nov.
18, 2020) (observing that the court must “discern the intended meaning” of the
contract “from the preponderance of the extrinsic evidence” (internal citations
omitted)).
Kuntz has established by a preponderance of the evidence that Schneider
knew that the Tractor Acquisition Covenant required it to purchase 60 growth
tractors every Measurement Period. The documentary evidence establishes that the
deal between Schneider and the Sellers required Schneider to purchase 60 growth
tractors every Measurement Period. From the outset of their negotiations, the parties
assumed that W&S would acquire 60 growth tractors annually. Cascadia marketed
W&S based on the assumption that it would acquire 60 growth tractors in 2017 and
2018, as shown in the SFP.164 The projections W&S and Cascadia provided to
Schneider assumed that W&S would acquire 60 growth tractors in 2016, 2017, and
164
See JX 239.
39
2018. 165 In analyzing the deal, Schneider incorporated those same assumptions into
its internal projections 166 and its board presentations. 167
The assumption that W&S would acquire 60 growth tractors annually formed
part of the parties’ understanding of the business deal. All of the letters of intent that
the parties exchanged assumed Schneider would purchase “a minimum of 60 tractors
and sufficient trailers for each 12 month EBITDA Measurement Period.”168 There
is no dispute that when the parties executed the final, nonbinding letter of intent the
parties understood the deal to require Schneider to purchase 60 growth tractors per
year after the acquisition. Rourke understood the reference to 60 tractors in the final
letter of intent to refer to “60 additional growth capex tractors.”169
The SPA’s drafting history also supports Kuntz’s interpretation of the Tractor
Acquisition Covenant. The Sellers’ first draft requested that Schneider add a
covenant obligating it to provide “appropriate equipment purchase support,”170
which Sellers’ negotiator said was a specific reference to the 60 growth tractors per
165
JX 239 at Tab 2016 Budget p.3., Tab 2017 Projection p.3, Tab 2018 Projection p.3
(showing a 60 tractor per year increase: 630 tractors at the beginning of 2016, 690 at the
beginning of 2017, 750 at the beginning of 2018, and 810 at the end of 2018).
166
JX 102.00040.
167
JX 27.00002–3; JX 64.00018, .00026.
168
JX 43.00005, 45.00006, 47.00005.
169
Tr. 679:10–18 (Rourke).
170
JX 65.00026; see Tr. 264:22–265:9 (Hutchinson).
40
Measurement Period referenced in the letter of intent. The May 13 draft that
Schneider circulated specifically contemplated that the Acquired Companies’ fleet
would grow by 60 tractors per Measurement Period through the use of an example.171
Schneider then replaced this example on May 20 with the language: “to acquire, in
the aggregate, sixty (60) class 8 tractors.”172
The documentary record and witness testimony show that the principal
negotiators on both sides struck a deal with the understanding that Schneider would
be required to purchase 60 growth tractors during each Measurement Period. In the
final drafting of the SPA, the lawyers for Schneider sought to water down all of the
operational covenants so as to provide Schneider with maximum autonomy in
operating the business, post-close. But the evidence clearly and conclusively shows
that Schneider and its counsel never expressed any view, either internally or to
Sellers, that the 60 growth tractor term, upon which the parties had previously
agreed, was subject to further negotiation or that Schneider changed its mind on that
term at the end of the process of documenting the deal. 173
Schneider’s conduct in performing its obligations under the SPA underscores
this conclusion. As this court has observed, “in giving effect to the parties’
171
See JX 88.00087.
172
JX 94.00090.
173
Tr. 292:3–7 (Hutchinson).
41
intentions, it is generally accepted that the parties’ conduct in the performance of the
contract before any controversy has arisen should be given great weight.” S’holder
Rep. Servs. LLC v. Gilead Scis., Inc., 2017 WL 1015621, at *16 (Del. Ch. Mar. 15,
2017), aff’d, 177 A.3d 610 (Del. 2017) (internal quotations and citations omitted).
Aaron Cousineau, the controller for the division of Schneider that included W&S,
testified that the draft of the CLER he sent to Schneider executive Bob Elkins
reflected his understanding that Schneider was required to purchase 60 growth
tractors as was required under the SPA. 174 In addition, Gasick was prepared to have
Elkins ask Kuntz for a waiver so that Schneider could avoid purchasing all 60 growth
tractors as was required under the Tractor Acquisition Covenant. 175
The business realities of the deal also reinforce Kuntz’s position. Kuntz
pursued the deal with Schneider to grow W&S. 176 The SPA and the history
surrounding its formation evince an agreement that was designed to foster W&S’s
growth as well.177 Meanwhile, there is scant extrinsic evidence in support of
Schneider’s position that it was only required to purchase 60 gross tractors per
Measurement Period.
174
Tr. 1074:17–1076:19 (Cousineau); see JX 118.
175
See JX 164.
176
Tr. 63:17–22 (Kuntz).
177
See, e.g., JX 239, 27.00002–3, 45.00005, 88.00087.
42
Schneider argues that, despite all of the foregoing evidence, the Sellers
ultimately “failed to secure” their prior deal to acquire 60 growth tractors every
Measurement Period. Schneider points to Sellers’ proposed revisions in a May 25,
2016 draft of the SPA, and Sellers’ rejection of that language as evidence that
Schneider considered and rejected the concept of growth tractors.178 The following
paragraph reflects the Sellers’ proposed additional language to the Tractor
Acquisition Covenant in bold, and Schneider’s rejection in strikethrough text. It
states that, during each Measurement Period, the Buyer shall:
cause one or more of the Acquired Companies to acquire, in the
aggregate, not less than sixty (60) class 8 tractors (the “Tractors”) and
such greater number of Tractors and other equipment necessary to
accommodate the Acquired Companies’ operations, including any
growth related thereto;179
Schneider argues that its rejection of Sellers’ language, including the term
“growth,” demonstrates that Schneider “expressly reject[ed] Sellers’ attempt to tie
Schneider’s obligation to provide tractors to the growth of the Acquired
Companies.”180 When considered in the overall context of negotiations, including
the Sellers’ May 25, 2016 turn of the SPA containing additions to the operational
covenants, however, Schneider’s argument is unpersuasive.
178
Pl.’s Op. Br. 35–37.
179
Compare JX 98.00009, with JX 103.00079.
180
Pl.’s Op. Br. 36.
43
Sellers’ May 25, 2016 revisions included numerous additional operational
covenants that could rightfully be interpreted as severely encroaching upon
Schneider’s ability to operate the Acquired Companies post-close, tying all of them
one way or another to achieving the EBITDA Targets.181 Schneider’s May 27, 2016
draft struck nearly all of them. 182 But Schneider did not materially alter the original
language requiring Schneider to purchase 60 tractors in the aggregate. Sellers’ lead
negotiator, Hutchinson, credibly testified that prior to receiving Schneider’s
revisions and at no time thereafter was he every told that Schneider was unwilling
to provide 60 growth tractors. 183 Indeed, Schneider points to no evidence that it
communicated to Sellers that the deal struck with Kuntz over adding 60 tractors to
the overall fleet during each Measurement Period was no longer operative. Nor does
Schneider point to any internal communications to support this argument.
Schneider’s argument is also unconvincing in light of the Forthright
Negotiator Principle. The court may employ this principle when it is engaged in the
interpretation of an ambiguous contract and “a review of the extrinsic evidence does
not lead the court to an ‘obvious’ conclusion” regarding the “‘shared intent’ of the
181
JX 99.00007–08. For example, Sellers proposed covenants pertaining to compensation
and benefits of employees, reassignment of personnel, cutting staff and expenses, and
altering the ability to obtain financing at the Acquired Companies.
182
JX 103.00079–80.
183
Tr. 292:3–7 (Hutchinson).
44
parties.” Comrie v. Enterasys Networks, Inc., 837 A.2d 1, 13 (Del. Ch. 2003). Under
the Forthright Negotiator Principle,
[o]nly an objectively reasonable interpretation that is in fact held by one
side of a negotiation and which the other side knew or had reason to
know that the first party held can be enforced as a contractual duty.
This principle is capable of resolving disputes arising from ambiguous
contract language because it is logically impossible for a contracting
party, operating in good faith, both to have a subjective interpretation
of ambiguous language different from that of her counterparty and to
know of her counterparty's differing interpretation.
Id. (quoting U.S. W., Inc. v. Time Warner Inc., 1996 WL 307445, at *10 (Del. Ch.
June 6, 1996)) (emphasis in original). As of the May 13 draft, the parties mutually
understood that Schneider was to ensure that W&S’s fleet would grow by 60 net
tractors in each Measurement Period, given that there was an example in that draft
describing assets to include 760 tractors in the first Measurement Period, 820 tractors
in the second Measurement Period, and 880 tractors in the third Measurement
Period.184 In the May 20 draft, Schneider replaced the text “Capital expenditure
equivalent to 60 class 8 tractors” and the accompanying example with the sentence:
“The Buyer shall cause one or more of the Acquired Companies to acquire, in the
aggregate, sixty (60) class 8 tractors.”185 There is no indication that Schneider’s
edits were meant to alter the meaning of the Tractor Acquisition Covenant in the
184
JX 88.00087.
185
Compare id., with JX 94.00090.
45
May 13 draft. Hutchinson and Kuntz testified that Sellers understood the May 20
draft to reflect the “same understanding” between the parties in the prior draft and
that the May 20 draft was merely a “simplification” of this understanding.186 Both
sides agree that no one from Schneider informed Sellers that the meaning in the May
20 draft, or any draft circulated thereafter, was meant to differ from the draft that
had been disseminated on May 13.187 Indeed, there is no persuasive evidence that at
186
Tr. 140:9–18 (Kuntz); id. at 285:23 (Hutchinson).
187
Id. 140:19–141:7 (Kuntz):
Q. Did anyone tell you, between—at any time, did anyone tell you at any
time before you signed this agreement that the 60 Class 8 tractors were not
the tractors that had been discussed you needed to make the EBITDA targets,
the additional growth?
A. No one ever did.
Q. Did anyone ever tell you, prior to you signing this from [W&S]—from
Schneider or McGuireWoods, that they could use or—they could replace a
tractor and that would count as one of the 60 tractors?
A. No one ever said that.
Tr. 292:3–7 (Hutchinson) (“Q. Did anyone ever tell you, up until this point or at any time,
that by striking this language, Schneider was unwilling to provide 60 tractors to increase
the size of the fleet? A. No. Never.”); id. at 694:5–13 (Rourke):
Q. . . . Isn't it true that at no point up until the execution of the SPA did you
or anyone on the Schneider team tell anyone at Watkins & Shepard or their
representatives that the 60 tractors referred to in the LOI were actually
replacement tractors?
A. I don't have any knowledge of that, no.
Tr. 1106:18–22 (Whelpley) (“Q. Did you ever tell [W&S’] lawyers that the provision
concerning 60 tractors didn’t mean growing the fleet by 60 tractors? A. No, I did not have
that discussion with them.”); id. at 1124:16–24 (Whelpley):
Q. Well, let me straightly ask you this: Did you have any conversations
between—after sending over the May 13th draft with Watkins & Shepard or
46
the time of the May 20 draft, Schneider’s own representatives had adopted
Schneider’s current interpretation of the Tractor Acquisition Covenant. Schneider
had reason to know that Sellers maintained their understanding of the Tractor
Acquisition Covenant from the May 13 draft. Due to the ambiguity of the
subsequent drafts, it was Schneider’s burden to indicate that its understanding of the
covenant had changed, considering Sellers’ silence on the matter. Schneider’s
failure to do so thus further supports Sellers’ interpretation of the Tractor Acquisition
Covenant.
In considering all of the evidence, the court is persuaded that the parties
intended the Tractor Acquisition Covenant to require Schneider to grow the fleet by
at least 60 tractors during each Measurement Period for the Acquired Companies.
There is no dispute that Schneider did not do so in the First Measurement Period.
Sellers have therefore established that Schneider breached the SPA.
2. The Material Asset Covenant
Under the Material Asset Covenant, Schneider could not “reorganize,
consolidate or otherwise take steps to sell, dispose or otherwise transfer any material
portion of the assets of the Acquired Companies to an entity other than an Acquired
their lawyers or Cascadia about the change from the May 13 language that
we just looked at to the May 20 new Exhibit D? Did you have any
conversations with anybody on the other side about the change in meaning?
A. I don't recall that, no.
47
Company” from the close of the transaction to the end of the final Measurement
Period.188 A key term of this covenant is the word “material.” Although it is
undefined in the SPA as a freestanding term, Kuntz contends that the SPA “has a
low threshold for what qualifies as ‘material.’” 189 To support that proposition, he
points to the SPA’s definition of a “Material Contract,” which includes, in pertinent
part:
(b) each Contract pursuant to which any third party is indebted or owes
money to an Acquired Company and the remaining unpaid balance of
which is in excess of $50,000 and (c) each Contract providing for the
purchase, maintenance or acquisition, or the sale or furnishing, of
materials, supplies, merchandise, equipment or services . . . that would
reasonably be expected to result in payments in excess of $50,000
within any 12-month period . . . . 190
Schneider counters that Kuntz’s reliance on one of the SPA’s defined terms
does not provide the court with a “generally applicable definition” of the word
“material.”191 Schneider also focuses on other defined terms in the SPA using the
word “material” that Kuntz ignores, such as “Material Customers” and “Material
Suppliers.”192 Neither of these defined terms offers the support for Kuntz’s
188
SPA, Ex. E.
189
Defendant and Counterclaim Plaintiff’s Post-Trial Opening Brief (“Def.’s Op. Br.”) 67.
190
JX 108.00014.
191
Plaintiff/Counterclaim Defendant’s Post-Trial Answering Brief (“Pl.’s Ans. Br.”) 52.
192
See SPA § 4.19(a), (b).
48
definition of “material” that he draws from “Material Contract.”193 The SPA’s
definition of “Material Contract” does not carry the interpretive heft that Kuntz seeks
to ascribe to the Material Asset Covenant. Indeed, at post-trial oral argument, Kuntz
retreated from the position he took in his briefs, acknowledging that Schneider
would not be in breach of the Material Asset Covenant if it transferred $50,000 worth
of assets outside of W&S, arguing instead that the “level of materiality” is based on
the “facts and circumstances of every case.” 194
For its part, Schneider argues that a material asset transfer must be considered
within the specific context of the contract language. The Material Asset Covenant
states that Schneider shall not “reorganize, consolidate or otherwise take steps to
sell, dispose or otherwise transfer any material portion of the [acquired] assets.”
Schneider insists that the Material Asset Covenant “expressly ties the types of
transfers it covers to changes that would fundamentally alter the structure of the
Acquired Companies—such as through a reorganization or consolidation—not
routine tractor management.”195 Kuntz counters that Schneider’s position ignores
the negotiations surrounding the provision. Kuntz notes that it was Sellers, not
Schneider, who added the words “reorganize, consolidate, or otherwise” to the May
193
Pl.’s Ans. Br. 52–53.
194
Ct. Ch. Dkt. 251 at 129:4–16.
195
Pl.’s Op. Br. 62–63.
49
25, 2016 draft of the SPA. Kuntz argues the Sellers added this language so as to
increase, not reduce, the covenant’s protection to the Sellers. 196
The parties have devoted very little of their briefing to what the parties
intended when drafting the Material Asset Covenant. Thus, because the parties have
not defined a contractual term, the court may turn to a dictionary as a reliable source
to determine what the parties intended. Lorillard Tobacco Co. v. Am. Legacy
Found., 903 A.2d 728, 738 (Del. 2006) (“[D]ictionaries are the customary reference
source that a reasonable person in the position of a party to a contract would use to
ascertain the ordinary meaning of words not defined in the contract.”); accord
Tetragon Fin. Grp. Ltd. v. Ripple Labs Inc., 2021 WL 1053835, at *4 (Del. Ch. Mar.
19, 2021); see also Wenske v. Blue Bell Creameries, Inc., 2018 WL 3337531, at *10
(Del. Ch. July 6, 2018) (“in the case of an undefined term [in a contract], the
interpreting court may consult the dictionary, if that is deemed useful, when
determining the term’s plain meaning”). Dictionary definitions of “material”
include: “having real importance or great consequences”;197 “[o]f such a nature that
knowledge of the item would affect a person’s decision-making; significant;
196
Defendant and Counterclaim Plaintiff’s Post-Trial Answering Brief (“Def.’s Ans. Br.”)
46; JX 98.00009.
197
Material, MERRIAM-WEBSTER.COM, https://www.merriam-
webster.com/dictionary/material (last visited Feb. 7, 2022).
50
essential”;198 and “[b]eing both relevant and consequential; crucial.” 199 See Metro
Storage Int’l LLC v. Harron, 2019 WL 3282613, at *8 n.5 (Del. Ch. July 19, 2019)
(citing same dictionaries when defining “materially”).200
Materiality is a context-specific determination. See SphereCommerce, LLC
v. Caulfield, 2022 WL 325952, at *7 n.64 (Del. Ch. Feb. 3, 2022) (observing that
whether a contract breach is material “‘is necessarily imprecise and flexible’”
(quoting Restatement (Second) of Contracts § 241, cmt. a (1981))); Constantini v.
GJP Developers, Inc., 2015 WL 5122992, at *8 n.93 (Del. Ch. Aug. 24, 2015)
(“Whether a breach [of contract] is material is a context-specific analysis . . . .”); In
re Massey Energy Co., 2011 WL 2176479, at *29 (Del. Ch. May 31, 2011)
(analyzing whether derivative claims were “material in relation to the value of [the
company] as an entity”); Rosser v. New Valley Corp., 2005 WL 1364624, at *8 (Del.
Ch. May 27, 2005) (noting that the valuation of the company’s major assets would
198
Material, BLACK’S LAW DICTIONARY (11th ed. 2019).
199
Material, THE AM. HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE,
https://ahdictionary.com/word/search.html?q=Material (last visited Feb. 7, 2022).
200
In one sentence, Schneider argues that Kuntz failed to plead a breach of the Material
Asset Covenant in his Counterclaim. Pl.’s Op. Br. 58. In the Joint Pre-Trial Stipulation,
however, the parties jointly asked the court to rule on this issue. PTO, IV ¶ 6. Therefore,
Schneider consented to trying this issue. See Ct. Ch. R. 15(b) (“When issues not raised by
the pleadings are tried by express or implied consent of the parties, they shall be treated in
all respects as if they had been raised in the pleadings.”); Jackson's Ridge Homeowners
Ass’n v. May, 2007 WL 2214500, at *1 (Del. Ch. Aug. 1, 2007); see also 5 CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1219 (4th ed.)
(“[C]larification as to a legal theory may be achieved through the use of pretrial
conferences and pretrial orders . . . .”).
51
be material in one context, but not in another); see also Bandera Master Fund LP v.
Boardwalk Pipeline P’rs, LP, 2021 WL 5267734, at *68 (Del. Ch. Nov. 12, 2021)
(observing that determining the existence of a “material adverse effect” for contract
purposes is “one of the most difficult issues under Delaware law”).
Turning to the application of the Material Asset Covenant, Kuntz argues that
Schneider violated the covenant in two ways. First, Kuntz contends that Schneider
breached the covenant when it executed the Tractor Lease. 201 Second, Kuntz asserts
that Schneider breached the Material Asset Covenant by reallocating approximately
half of the space in W&S’s Fontana terminal to Schneider’s dedicated automotive
parts delivery business. 202
a. The Tractor Lease
In February 2017, Schneider caused W&S to enter into the Tractor Lease.203
Under the Tractor Lease’s terms, W&S leased 70 of its tractors to Schneider from
February 22, 2017 through the end of that calendar year.204 The monthly lease
payment was calculated in an attached schedule for each of the respective 70 tractors
and fluctuated between $330.19 and $2,691.07 per month.205 Each of the 70 tractors
201
Def.’s Op. Br. 66; see JX 175.
202
Def.’s Op. Br. 70.
203
See JX 175.
204
Id. ¶ 2.
205
Id., Schedule A.
52
was one of three different models and had a model year ranging from 2014 through
2017. 206
Kuntz argues that the 70 tractors were material assets because they made up
approximately 10% of W&S’s assets, 207 8.5% of W&S’s tractor capacity, 208 and
could generate significant revenue and EBITDA.209 Kuntz also points to lost profits
that he attributes to the Tractor Lease. Specifically, Kuntz asserts that just one month
after the execution of the Tractor Lease, one of W&S’s largest customers, Wayfair,
increased its orders more than three-fold from approximately $45,000 to $150,000
per day.210 Kuntz argues that the increased business from Wayfair required the use
of more tractors, which were no longer available due to the Tractor Lease.211 Thus,
W&S was required to hire third-party carriers to accommodate the surge in demand,
which Kuntz alleges was more costly than if W&S had, instead, used its own tractors.
Additionally, Kuntz contends that W&S was unable to accommodate the increased
demand through the use of third-party carriers alone, leading to delays and damage
206
Id.
207
Def.’s Op. Br. 68 (citing JX 9.00040, 110).
208
Def.’s Ans. Br. 45 (citing JX 254).
209
See Def.’s Op. Br. 68.
210
Id. at 69; see JX 178.00007.
211
Def.’s Op. Br. 69.
53
to W&S’s reputation. 212 Kuntz argues that Wayfair eventually pulled business from
W&S once it realized that W&S could not handle its additional freight. 213
Schneider counters that the 70 tractors subject to the Tractor Lease were not
a material portion of W&S’s assets. According to Schneider, the 70 tractors
represented less than 10% of W&S’s assets. 214
Schneider also disagrees with Kuntz’s recounting of W&S’s falling out with
Wayfair. Schneider asserts that between the time of executing the SPA and the
signing of the Tractor Lease, W&S’s monthly average of “open tractors” grew from
approximately 20 to between 60 and 80. 215 Those tractors were sitting idle without
drivers and were thus generating costs, but no revenue.216 According to Schneider,
W&S could not fill the tractors “due to a lack of freight volume, a rapid influx of
new tractors due to purchase commitments W&S had made prior to the acquisition,
and challenges in hiring and retaining a sufficient number of drivers.” 217 Schneider
contends that the Tractor Lease made sense for both Schneider and W&S.
Schneider’s expert, Donald Orr, opined that “mov[ing] . . . open tractors to other
212
Id.
213
Id. at 69–70; see JX 188.
214
See Pl.’s Op. Br. 62 (citing JX 1.00009).
215
Id. at 59 (citing JX 147, DDX 7); see also JX 148.
216
See Tr. 472:1–10 (Schenk); id. at 941:10–22 (Elkins); Clowdis June 5, 2020 Dep.
249:11–250:11.
217
Pl.’s Op. Br. 59.
54
operations where tractors could be used” is a “common, practical solution, given that
the industry has such a significant problem keeping drivers in tractors.”218 Moving
tractors from one division to another division that can use them “is a practical
approach for both divisions.” 219
Schneider argues that even if those 70 tractors had been available for the
increased business from Wayfair, they would not have been operational when
needed due to the time it would have taken to hire and train drivers.220 The use of
third-party carriers was therefore more practical because their drivers and tractors
would be ready to work immediately upon being hired. 221 Schneider also contends
that it was “common” for W&S to use third-party carriers when it did not have
enough tractors to accommodate demand and that this is a practice accepted in the
broader industry.222 In addition, Schneider disputes that the 70 tractors would have
been suitable for the consumer deliveries that Wayfair required.223
218
JX 232.00023.
219
Id. According to Richard Schenk, the former director of truckload operations at W&S,
if W&S needed to contract for Schneider trucks or outside carriers to haul freight, W&S
would receive revenue credit for the freight hauled by those carriers. Tr. 490:11–23
(Schenk).
220
Pl.’s Ans. Br. 56–57.
221
See id.
222
Pl.’s Op. Br. at 61–62.
223
Pl.’s Ans. Br. 57.
55
The parties presented industry expert opinions on this issue, but not valuation
expert opinion. 224 Having considered the evidence as presented, the court concludes
that Kuntz has not carried his burden. First, Kuntz has failed to prove that the 70
tractors made up approximately 10% of W&S’s assets at the time of the Tractor
Lease. Kuntz uses a Tangible Personal Property spreadsheet dated June 1, 2016 to
determine the value of the 70 tractors, but calculates the value of W&S’s total assets
based on a fiscal year 2014 audit.225 A subsequent audit values W&S’s total assets
in 2014 about 8% higher than the number Kuntz uses, which would further decrease
the asset share of the 70 tractors. 226 Between 2014 and 2015, W&S’s total assets
increased by over 13%. 227 Between 2013 and 2014, total assets increased by over
40%, and by over 14% within the prior one-year period. 228 The parties have not
presented direct evidence of the value of W&S’s total assets in 2016. The changes
in W&S’s total asset values from 2012 through 2015 show that the value of W&S
224
Both parties submitted expert opinion testimony from trucking industry experts.
Schneider’s expert, Donald Orr, worked in the trucking industry from the early 1970s until
retiring in 2019. JX 232.00004–05. Kuntz’s expert, Charles Clowdis, Jr., is the Managing
Director of Trans-Logistics Group, Inc., a transportation and logistics firm created in 2018.
JX 244.00003. Clowdis has nearly five decades of experience in the field of motor-carrier
transportation, fleet operations, and supply chain management. Id. Both experts were
deposed and submitted reports, but neither testified live at trial.
225
See JX 9.00040, 110.
226
Compare JX 9.00040 ($88,771,000 based on 2015 audit), with JX 242.00006
($95,864,234 based on 2016 audit).
227
See JX 242.00006.
228
See JX 9.00040, 242.00006.
56
total assets could change significantly in any given year. Furthermore, the data
available to the court show that the value of W&S’s total assets was trending upward.
Even assuming that the 70 transferred tractors were worth approximately $8.4
million as Kuntz asserts—which, as discussed below, the court does not accept—
these amount to just over 9% of W&S’s total assets at the end of 2015.
Kuntz’s per-tractor EBITDA calculation is similarly suspect. Kuntz asserts
that each of the 70 tractors could generate an average of $83,333 of EBITDA per
year.229 But he makes this calculation based on a 2016 presentation that values the
EBITDA generated by 60 new tractors at $5 million (or $83,333 per tractor) per
year.230 Only two of the 70 leased tractors had a 2017 model year, the year the
Tractor Lease was signed. 231 And the per-tractor monthly rent amount ranged from
$330.19 to $2,691.07. 232 It is thus apparent that these 70 tractors differed
significantly from the 60 new tractors that were considered in the 2016 presentation.
The court cannot, therefore, ascribe comparable EBITDA generating value to them
on this record.
The Tractor Lease did not cause W&S’s business relationship with Wayfair
to fail. Schneider worked in good faith to recruit more drivers for W&S, and
229
Def.’s Ans. Br. 46.
230
JX 286.00199.
231
See JX 175.
232
See id.
57
Schneider was under no obligation to transfer drivers from its other affiliates to
W&S when its recruiting efforts failed.233 Indeed, Schneider also counters that: (1)
even if Schneider had not executed the Tractor Lease, those 70 tractors would not
have been operational by the time Wayfair’s increased freight began to arrive, 234 and
(2) the 70 tractors implicated by the Tractor Lease were not suitable for Wayfair’s
business. 235 Kuntz has not meaningfully addressed those points. Kuntz has failed
233
According to Schenk, drivers could not freely move from Schneider to W&S due to
regulatory requirements and other training and logistical issues. Tr. 491:2–492:18
(Schenk) (“So you couldn’t just willy-nilly move a driver over.”); see also infra II.A.4.
234
Tr. 1060:10–1061:4 (Elkins):
Q. Do you believe that the leasing of those open tractors was a significant
contributing factor to the increase in purchased transportation costs from
February to March?
A. No, I do not.
Q. And why is that?
A. So trucks themselves aren’t . . . —they don’t drive themselves. This
would have been more driver-focused, meaning— . . . that big of a spike,
though it’s only $2 1/2 million, but you look at it on a percent base, that’s
really hard and tough to service in a period of time of 30 days or even, say,
60 days to get drivers in, trained on the equipment to be able to service that
kind of a revenue increase.
235
Id. at 1013:14–1014:7 (Elkins):
Q. And straight trucks do a lot of consumer deliveries. Is that fair?
A. Yes, consumer deliveries and setups, yes.
Q. Did the Wayfair freight involve a lot of consumer deliveries?
A. Yes.
Q. . . . Would you believe, then, that the purchased transportation costs in
March 2017 that my colleague showed you would partly be made of
increases from straight truck purchased transportation?
58
to demonstrate that W&S would have kept Wayfair’s business but for the Tractor
Lease. Based upon the evidence, Kuntz has not shown that the leasing of 70 tractors
pursuant to the Tractor Lease constituted a transfer or disposition of a material
portion of W&S’s assets in violation of the Material Asset Covenant.
b. Reallocating Space Within the Fontana Terminal
Prior to the sale of the Acquired Companies, W&S built a new terminal
facility in Fontana, California. W&S constructed the Fontana Terminal to
accommodate growth, and chose the location because of its proximity to the
Southern California ports, which receive freight being shipped from China and
Vietnam—countries from where a large percentage of furniture manufacturers ship
their goods.236 W&S sought to maximize efficiencies at the new terminal, such as
minimizing the frequency with which freight was handled, thus reducing the risk of
damage.237 Incoming freight was unloaded from manufacturers’ inbound trailers on
A. That’s a fair assessment, yes.
Q. And you would not have been able to use those open truck tractors
without drivers to cover the Wayfair freight, would you?
A. No, sir, would not be able to.
None of the trucks that were part of the Tractor Lease included straight trucks that would
have been suitable for Wayfair deliveries. Compare JX 175.00003–.00005 (schedule of
trucks part of Tractor Lease, consisting of three models: Volvo D13, Volvo Cummins, and
Freightliner Cascadia), with JX 256.00002–.00006 (list of W&S leased trucks where no
straight trucks are the models included in the Tractor Lease).
236
Tr. 34:6–19, 38:19–39:2 (Kuntz).
237
Darlington Aug. 22, 2019 Dep. 21:17–21.
59
one side of the terminal and then directly loaded onto outbound trailers on the other
side of the terminal.238 This process was most efficient when all of the doors at the
Fontana Terminal were available to W&S.239
Schneider also had a nearby terminal in Rancho Cucamonga for its automotive
parts division. 240 The lease at that terminal was close to its expiration.241 Following
the closing of the W&S acquisition, Schneider consolidated the operations of the
two terminals into Fontana.242 After the consolidation, W&S lost approximately 21
of its 49 dock doors and 120,000 square feet of warehouse space. 243
Kuntz argues that the space W&S lost at the Fontana Terminal materially and
negatively affected its cost-cutting operations, 244 and constituted a transfer of a
material asset. Once Schneider reduced the number of terminal doors dedicated to
W&S, W&S was no longer able to benefit from its operational efficiencies, which
consequently slowed down the time it took to unload and load its tractors.245
238
Tr. 363:21–364:12 (Darlington).
239
Darlington Aug. 22, 2019 Dep. 21:21–23:11
240
Tr. 509:10–22 (Schenk), 955:3–22 (Elkins).
241
Id. at 395:22–396:2 (Darlington).
242
Id. at 152:3–11 (Kuntz).
243
DDX 8. Kuntz asserts that it was unable to use 22 dock doors after the consolidation,
but does not cite to any evidence when making this assertion. See Def.’s Op. Br. 70; Def.’s
Ans. Br. 49. DDX 8 shows that 21 terminal doors were transferred to Schneider’s
automotive division.
244
Def.’s Op. Br. 70–71.
245
Tr. 369:6–371:7 (Darlington).
60
According to Kuntz, this increased handling of freight also raised the risk that it
would be damaged in transport.246 Kuntz also asserts that the Fontana Terminal was
particularly valuable to W&S’s operations, and due to the fewer available terminal
doors, W&S was more frequently required to process freight that arrived in Fontana
elsewhere, further raising costs.247 Ultimately, Schneider provided W&S with
additional terminal space in Myrtle, Mississippi, which Kuntz contends added
thousands of miles to its delivery routes and increased handling costs. 248
Schneider contests Kuntz’s claim as a matter of law and fact. Schneider
maintains that it had “sound business reasons” for consolidating its operations into
the Fontana Terminal. 249 According to Schneider, it did not make sense to operate
two terminals within about ten miles of each other in an expensive real estate
market.250 Schneider also argues that W&S’s use of the Fontana Terminal was not
efficient.251 W&S was running only two shifts of dock labor, rather than three.252
Schneider presented evidence that, even before the consolidation, the Fontana
246
Def.’s Ans. Br. 50; see Vinci Oct. 2, 2019 Dep. 89:16–90:15.
247
Shenck Aug. 23, 2019 Dep. 29:12–31:13; Tr. 34:20–36:16, 154:13–157:6 (Kuntz).
248
JX 189.00001; Def.’s Op. Br. 50; Tr. 153:1–17, 156:2–157:6 (Kuntz).
249
Pl.’s Op. Br. 66–68.
250
See Tr. 955:23–956:12 (Elkins).
251
Pl.’s Op. Br. 67–68.
252
Tr. 396:15–17 (Darlington); id. at 957:13–22 (Elkins); see Pl.’s Op. Br. 68; JX
236.00021–23.
61
Terminal experienced freight backups, had challenges with staffing, and experienced
parking problems around the facility. 253 Schneider observes that the consolidation
of facilities was among the synergies that the parties had contemplated before the
transaction.254 Schneider also notes that W&S was provided with additional space
at a terminal in Dallas, Texas. 255
Schneider’s legal argument turns on the language of the Operating Covenants
and the parties’ negotiations. Schneider argues that during the give-and-take over
the terms of the Operating Covenants, it had struck Sellers’ proposed language that
would have prohibited Schneider from closing “a key terminal.”256 Thus, Schneider
contends that closing terminals was a right that it expressly reserved, and Sellers
cannot now seek to renegotiate that right through litigation. See GRT, Inc. v.
Marathon GTF Tech., Ltd., 2012 WL 2356489, at *7 (Del. Ch. June 21, 2012) (“a
party may not come to court to enforce a contractual right that it did not obtain for
itself at the negotiating table”). Essentially, Schneider contends that preserving its
greater right to close a key terminal included the lesser right to reduce W&S’s
dedicated space at a key terminal.
253
Tr. 390:15–391:10, 396:18–397:11, 398:2–22 (Darlington); id. at 954:21–955:2
(Elkins); see JX 236.00020–21.
254
Tr. 510:4–11 (Schenk).
255
Pl.’s Op. Br. 68; Tr. 959:11–18 (Elkins).
256
Pl.’s Op. Br. 65; see JX 98.00010, 103.00079.
62
Schneider’s argument has persuasive force with respect to Kuntz’s claim that
the consolidation of the Fontana Terminal violated the Material Asset Covenant.257
As in GRT, reading the Material Asset Covenant as preventing Schneider from
consolidating the Fontana Terminal operations would effectively read into that
provision an obligation that Schneider expressly rejected. GRT, 2012 WL 2356489,
at *8.
In addition, Kuntz has not satisfied his evidentiary burden to establish that the
consolidation of the Rancho Cucamonga and Fontana terminals effected a transfer
of a material asset in violation of the Material Asset Covenant.
Schneider’s consolidation of the Fontana Terminal was an example of the
failure to integrate the W&S operations into Schneider’s business. The result surely
made W&S less efficient and more costly to operate. But Kuntz has not specifically
quantified the magnitude of the Fontana Terminal consolidation on W&S. In
alleging the damage that Schneider’s actions caused, Kuntz contends that “[a]
257
Kuntz argues that this case is distinguishable from GRT. There, the parties (Marathon
and GRT) expressly discussed the text that Marathon struck in a draft term sheet following
that draft’s circulation. GRT, 2012 WL 2356489, at *7. “Following this exchange with
Marathon, GRT gave up that point. . . . Even GRT’s principal negotiator of the term sheet
acknowledged that fact.” Id. Kuntz’s brief attempts to distinguish GRT, but only as to the
Tractor Acquisition Covenant. See Def.’s Ans. Br. 50–51. Kuntz is correct that GRT is
inapplicable as to the Tractor Acquisition Covenant, as there is no evidence that anyone on
the Sellers’ side understood that they were giving up their bargained-for agreement
requiring Schneider to acquire 60 growth tractors during each Measurement Period. Kuntz
did not distinguish GRT, however, as to the Material Asset Covenant and, specifically, the
consolidation of the Fontana Terminal operations.
63
trucking company’s terminals . . . are critical to its operations and profitability” and
that rearranging the Fontana Terminal increased W&S’s costs.258 But Kuntz does
not attempt to quantify those specific costs. Because those costs remain
unquantified, Kuntz cannot compare them to any collection of assets or financial
metrics to assert that those costs were indeed material. The gravamen of Kuntz’s
evidence consists of testimony making general statements regarding the
inefficiencies caused by the rearrangement of the Fontana Terminal; none of this
testimony quantifies the costs of this change. 259 This evidence does not satisfy
258
Def.’s Op. Br .70–71; Def.’s Ans. Br. 48–50.
259
See e.g., Vinci Oct. 2, 2019 Dep. 89:12–90:18:
We would be able to load more trailers without having to double handle any
freight. So we can go straight from a pickup trailer without hitting the floor
first. That would, you know, reduce opportunity for damage, and speed up
transit time. So having more doors is a big thing in our industry. . . . [T]he
more you handle freight, the more opportunity for damage there is. And by
having less doors, you’re going to have to hit the floor, as we call it, more
often than just swinging it into another trailer. . . .
Q. Can having less doors impact transit time?
A. It can, yeah.
See Darlington Aug. 22, 2019 Dep. 25:7–23:
Q. Did [the rearrangement of the Fontana Terminal] impact profitability of
[a trucking] division?
A. Well, it impacted service. So when you impact service, generally
anything in transportation, you’re subject to losing revenue if you don’t react
to it quick enough.
Q. How did it impact service?
A. Took longer to unload trailers. Instead of picking something up today
and unloading it the same day . . . we would then be unloading some of that
64
Kuntz’s burden to prove by a preponderance of the evidence that the consolidation
of the Fontana Terminal effected a transfer of a material W&S asset. Therefore, I
find that Schneider did not breach the Material Asset Covenant.
3. The Business Continuity Covenant
The Business Continuity Covenant prohibited Schneider from materially
changing the “type or nature” of any Acquired Company’s business until the
conclusion of all the Measurement Periods. 260 Kuntz contends that Schneider
breached this covenant, too, and relies heavily on Schneider’s consolidation of
operations at the Fontana Terminal and the Tractor Lease. According to Kuntz,
Schneider “materially altered W&S’s operations by transferring dock doors and
tractors, and by failing to acquire seated tractors to keep up with demand.” 261 This
argument, however, fails to consider the difference between W&S’s business and its
operations.
As discussed above, the Tractor Lease and consolidation of operations at the
Fontana Terminal affected W&S’s operations. 262 Kuntz has not shown, however,
freight the second and third day before we got it shipped out. . . . [W]e added
a third shift down there because of it, and that was hard to fill, too, at the
same time—all at the same time. So trying to hire and bring that all in
together was challenging.
260
SPA, Ex. E.
261
Def.’s Op. Br. 71.
262
See supra II.B.2.
65
that this resulting change in W&S’s operations altered the type or nature of its
business. 263 Nor has Kuntz argued how broad the scope of a business should be and
how significantly the business must change to materially alter its type or nature. At
trial, Hutchinson—Sellers’ counsel and principal negotiator—testified that when he
proposed the Business Continuity Covenant, he understood “type” to be “a broad
concept”: “So they had to stay in the trucking business. They couldn’t move to the
restaurant business, for example.”264 And he understood “nature” to mean “the
character of the business”: “So in this instance, we had a smaller business that was
in a discrete portion . . . of the trucking industry, supporting e-commerce companies,
moving furniture, et cetera.”265 Neither party disagrees with Hutchinson’s
interpretation of this covenant, which reflects a reasonable reading of the text.266
Kuntz does not suggest that W&S’s business was so significantly affected that
it no longer resembles a trucking business. Therefore, in order for Schneider to have
violated the Business Continuity Covenant, Schneider’s actions must have
materially altered the character of W&S’s business so that it was not serving the
same discrete segment of the trucking industry that it previously had i.e., supporting
e-commerce, moving furniture, etc. Kuntz has not presented evidence that W&S
263
See SPA, Ex. E.
264
Tr. 290:6–13 (Hutchinson).
265
Id. at 290:14–21 (Hutchinson).
266
See Pl.’s Op. Br. 55 (relying on Hutchinson’s interpretation).
66
began serving a different segment of the trucking industry. Rather, he argues that
because of Schneider, W&S lost business within the segment that it had historically
served.267 Kuntz has persuasively shown that Schneider failed on many levels to
integrate W&S into its existing business model. But proving an integration failure
is not enough to sustain Kuntz’s burden on this claim. Kuntz has not proven that
these integration failures resulted in a change in the nature of W&S’s business so as
to constitute a breach of the Business Continuity Covenant.
267
See Def.’s Op. Br. 45–46 (“The decline in W&S’s overall tractor capacity exacerbated
truck shortages, leading to the higher costs, lower profitability, delays, and customer
defections.”); id. at 50 (“W&S was forced to reroute freight . . . despite the fact that it added
thousands of miles and significant additional handling costs. This lead [sic] to serious
shipping issues. The Fontana dock doors and space that Schneider transferred was material
to W&S’s business, and its disposition negatively impacted W&S’s performance.”).
Kuntz also points to Schneider’s order to slow the opening of new W&S accounts as proof
that Schneider was intentionally impeding W&S’s growth. See id. at 53, 72; JX 202.00001;
Tr. 180:22–183:5, 186:11–187:10 (Kuntz). The consequence of that action would have
been a change in the amount of business that W&S was doing, not a pivot in the type or
nature of W&S’s business. Furthermore, Kuntz mischaracterizes the extent of Schneider’s
order. Kuntz refers to this order as a “Stop Sell Order,” which “prohibit[ed] W&S from
taking on new customers.” Def.’s Op. Br. 72. Schneider only ordered W&S to temporarily
cease taking on new customers until it could catch up on processing its outstanding orders.
When Elkins asked Sheri Gerondale of Schneider if W&S was being ordered to “not go
after new accounts,” she responded that this was incorrect: “No not stopping selling. But
absolutely slowing the pipeline of when business starts to be implemented and hits the
terminal and first mile network. We did not eliminate anyone but held out on final decision
criteria pending profitability analysis data.” JX 202. Kuntz himself admitted at trial that
Schneider’s order was only temporary. Tr. 181:14–18 (Kuntz); see also id. at 386:1–6
(Darlington) (“There was a pause in [taking on new customers] for . . . 90 days . . . is what
period of time that we were to use that to try to get ourselves caught up.”).
67
4. The Synergy Covenant
The Synergy Covenant required Schneider to “work in good faith . . . to seek
to capture synergies available to the Acquired Companies.”268 Schneider cannot be
found to have breached the Synergy Covenant if it “[w]ork[ed] in good faith” to help
W&S capture synergies as a result of the acquisition.269 The Synergy Covenant
provides examples of the synergies that Schneider might pursue, such as cost savings
through its purchasing power, i.e., savings on fuel, tires, equipment, and insurance,
and assisting W&S in its driver recruiting efforts and safety initiatives. 270
The evidence shows that Schneider made efforts to capture synergies under
the Synergy Covenant. Soon after the acquisition, Schneider formulated a plan to
track and achieve expected cost synergies related to fuel, tires, tractors, equipment,
insurance, facilities, and labor.271 Less than a year later, Schneider realized cost-
saving synergies that exceeded those expectations.272 As part of its initial plan,
Schneider introduced “safety and performance objectives to improve
productivity.” 273 Schneider undertook efforts to improve W&S’s driver recruiting,
268
SPA, Ex. E.
269
See id.
270
See id.
271
See JX 128.00012–15.
272
JX 157.00003; Tr. 646:11–22 (Rourke).
273
JX 128.00013.
68
utilizing the resources and strategies that it had devised to recruit its own drivers.
First, Schneider combined its recruiting department with those of W&S. 274 Next,
Schneider extended to W&S’s prospective driver pool the same incentives that
Schneider offered to its own prospective drivers (e.g., tuition reimbursement, sign-
on bonuses, referral program)275 in addition to those it had already added before
consolidating its recruiting departments. 276 After Schneider recognized that it was
struggling to hire enough W&S drivers, it planned recruiting events solely dedicated
to recruiting for W&S. 277
Kuntz does not refute these examples of Schneider’s good faith attempts to
capture, and sometimes achieve, synergies. Instead, he recycles many of his
previous arguments. Kuntz asserts that Schneider should have purchased more
tractors for W&S rather than increasing costs by leasing tractors from third-party
carriers, should not have consolidated space at the Fontana Terminal and leased
tractors from W&S, and should have transferred drivers from its other affiliates to
W&S when its recruiting efforts were not achieving their desired results.278 Again,
these shortcomings reflect a failed integration of W&S into Schneider’s operations
274
JX 176; Tr. 931:10–932:13 (Elkins).
275
JX 179.
276
See JX 150.00001.
277
See JX 195; Tr. 498:4–501:22 (Schenk).
278
Def.’s Op. Br. 71–72.
69
and perhaps poor planning and decision-making, not bad faith. Purchasing new
tractors for W&S’s exclusive use would not capture any synergy relating to
Schneider’s existing resources. Maintaining the status quo at the Fontana Terminal
was likewise immaterial from a synergistic perspective. Nor did the Synergy
Covenant obligate Schneider to transfer drivers to W&S from other affiliates. Driver
recruitment was just one example suggested by the Synergy Covenant. Even if
Schneider chose to pursue this synergy, Schneider was not required to achieve it
through transferring drivers rather than attempting to recruit new ones.
From the transaction’s closing, Schneider stated that its “key guiding
principles for the integration plan” were to “support W&S and Lodeso revenue and
earnings growth,” detailing a plan to accomplish this through realizing synergies.279
Schneider’s inability to execute the integration plan is attributable to several factors,
but there is no credible evidence that it was due to a lack of the good faith that the
Synergy Covenant required. Schneider did not breach the Synergy Covenant.
B. The Implied Covenant of Good Faith and Fair Dealing Claim
Kuntz argues that, to the extent the court does not find that Schneider breached
the Operating Covenants, it should nevertheless find that Schneider’s actions
breached the contractual implied covenant of good faith and fair dealing.280
279
See JX 128.00012–15.
280
Def.’s Op. Br. 73.
70
Specifically, Kuntz alleges the following post-acquisition conduct establishes
Schneider’s breach: (1) failing to acquire 60 growth tractors during each
Measurement Period; (2) the ordering of W&S to slow down and temporarily halt
taking on new customers; (3) consolidating its operations within the Fontana
Terminal resulting in fewer terminal doors for W&S; (4) the insufficient hiring of
drivers for W&S; and (5) the execution of the Tractor Lease. Kuntz contends that
these actions, or failures, are not merely due to a failure to integrate W&S with
Schneider’s business, or even incompetence, but, instead, bad faith.
Every contract governed by Delaware law is subject to the implied covenant
of good faith and fair dealing. Dunlap v. State Farm Fire & Cas. Co., 878 A.2d 434,
441–42 (Del. 2005). The implied covenant of good faith and fair dealing “requires
a party in a contractual relationship to refrain from arbitrary or unreasonable conduct
which has the effect of preventing the other party to the contract from receiving the
fruits of the bargain.” Id. at 442 (internal quotations omitted). The implied covenant
is used to “infer contract terms to handle developments or contractual gaps that . . .
neither party anticipated.” Dieckman v. Regency GP LP, 155 A.3d 358, 367 (Del.
2017) (internal quotations omitted). It applies only where a contract “lacks specific
language governing an issue and the obligation the court is asked to imply advances,
and does not contradict, the purposes reflected in the express language of the
contract.” All. Data Sys. Corp. v. Blackstone Cap. P’rs V L.P., 963 A.2d 746, 770
71
(Del. Ch. 2009), aff’d, 976 A.2d 170 (Del. 2009). Thus, the doctrine “ensures that
the parties deal honestly and fairly with each other when addressing gaps in their
agreement.” Glaxo Grp. Ltd. v. DRIT LP, 248 A.3d 911, 919 (Del. 2021). To prevail
on this claim, Kuntz must prove “‘a specific implied contractual obligation, a breach
of that obligation by the defendant, and resulting damage to the plaintiff.’” Buckeye
P’rs, L.P. v. GT USA Wilmington, LLC, 2022 WL 906521, at *21 (Del. Ch. Mar. 29,
2022) (quoting Fitzgerald v. Cantor, 1998 WL 842316, at *1 (Del. Ch. Nov. 10,
1998)).
The implied covenant is a “limited and extraordinary legal remedy and not an
equitable remedy for rebalancing economic interests that could have been
anticipated.” Glaxo Grp., 248 A.3d at 920 (internal quotations and citations
omitted). The implied covenant “cannot be used to circumvent the parties’ bargain,”
and “[i]t must be clear from what was expressly agreed upon that the parties who
negotiated the express terms of the contract would have agreed to proscribe the act
later complained of . . . had they thought to negotiate with respect to that matter.”
Lonergan v. EPE Hldgs. LLC, 5 A.3d 1008, 1017–18 (Del. Ch. 2010) (internal
quotations and citations omitted). Therefore, this doctrine should only be utilized
when “developments that could not be anticipated” by the parties occur, “not
developments that the parties simply failed to consider.” Nemec v. Shrader, 991
A.2d 1120, 1126 (Del. 2010). “Even where the contract is silent, an interpreting
72
court cannot use an implied covenant to re-write the agreement between the parties,
and should be most chary about implying a contractual protection when the contract
could easily have been drafted to expressly provide for it.” Oxbow Carbon &
Minerals Hldgs., Inc. v. Crestview-Oxbow Acq., LLC, 202 A.3d 482, 507 (Del. 2019)
(internal quotations and bracketing omitted). The implied covenant is thus only
applied to a narrow set of circumstances: “where the contract as a whole speaks
sufficiently to suggest an obligation and point to a result, but does not speak directly
enough to provide an explicit answer.” Airborne Health, Inc. v. Squid Soap, LP, 984
A.2d 126, 146 (Del. Ch. 2009); see also Nemec 991 A.2d at 1128 (“the covenant is
a limited and extraordinary legal remedy”). As the Delaware Supreme Court
recently observed:
It is one thing to imply a good faith obligation when the parties have
expressly agreed that a certain act is within a party’s discretion. It is
another matter to imply discretion to restrict actions expressly
permitted by the parties’ agreement. The implied covenant imposes a
good faith and fair dealing obligation when a contract confers discretion
on a party. It should not be used to imply terms that modify or negate
an unrestricted contractual right authorized by an agreement.
Glaxo Grp., 248 A.3d at 920–21(citations omitted).
“Despite the appearance in its name of the terms ‘good faith’ and ‘fair
dealing,’ the covenant does not establish a free-floating requirement that a party act
in some morally commendable sense. Nor does satisfying the implied covenant
necessarily require that a party have acted in subjective good faith.” Allen v. El Paso
73
Pipeline GP Co., 113 A.3d 167, 182–83 (Del. Ch. 2014), aff’d, 2015 WL 803053(Del. Feb. 26, 2015) (TABLE); NAMA Hldgs., LLC v. Related WMC LLC, 2014 WL
6436647, at *17 (Del. Ch. Nov. 17, 2014) (“A breach of the implied covenant also
does not necessarily require that a party have acted in bad faith.”). Rather, these
terms connote that a party take actions that are consistent with the agreement and its
purpose. MHS Cap. LLC v. Goggin, 2018 WL 2149718, at *11 (Del. Ch. May 10,
2018). Thus, “[w]hen exercising a discretionary right, a party to the contract must
exercise its discretion reasonably.” Gerber v. Enter. Prods. Hldgs., LLC, 67 A.3d
400, 419 (Del. 2013) (quoting and adopting the reasoning in ASB Allegiance Real
Est. Fund v. Scion Breckenridge Managing Member, LLC, 50 A.3d 434, 440–42
(Del. Ch. 2012), rev’d on other grounds, 68 A.3d 665 (Del. 2013)), overruled on
other grounds by Winshall v. Viacom Int’l, Inc., 76 A.3d 808 (Del. 2013).
The first inquiry in an implied covenant claim is “whether there is a gap that
needs to be filled.” Allen, 113 A.3d at 183. If the contract expressly addresses a
particular issue, there is no gap to fill and the implied covenant does not apply.
Buckeye, 2022 WL 906521, at *21 (citing Fisk Ventures, LLC v. Segal, 2008 WL
1961156, at *10 (Del. Ch. May 7, 2008), aff’d, 984 A.2d 124 (Del. 2009)). Kuntz
contends that the implied covenant is applicable because “the parties never
contemplated that Schneider would or could affirmatively interfere with W&S’s
74
ability to conduct its business in the ordinary course.”281 Kuntz’s argument ignores
the contract and the parties’ negotiations.
The SPA expressly provides that:
During each Measurement Period, the Buyer shall operate the Acquired
Companies and Lodeso in the manner provided for on Exhibit E. Each
Seller acknowledges and agrees that (i) so long as the Buyer operates
the Acquired Companies and Lodeso in such manner, the Buyer, the
Acquired Companies and each of their respective Affiliates will have
the right to otherwise operate their business as they see fit and will have
no obligation (fiduciary or otherwise) to act in any manner in an attempt
to protect or maximize any payments under this [contingent payment
provision].282
Exhibit E (i.e., the Operating Covenants) are limited to the Tractor Acquisition
Covenant, the Synergy Covenant, the Material Asset Covenant, and the Business
Continuity Covenant. Only the Synergy Covenant contains a “good faith”
requirement.
The SPA expressly addresses the Tractor Acquisition Covenant, and thus that
covenant cannot serve as the basis for an implied covenant claim over the acquisition
of tractors. 283 Similarly, the Synergy Covenant also addresses driver recruitment
281
Def.’s Op. Br. 73.
282
SPA § 2.4 (e) (emphasis in original).
283
Although Kuntz suggests that Schneider’s “failing to grow W&S’s fleet by 60 class 8
tractors during each Measurement Period” might have been a breach of the implied
covenant, he concedes that the other four grounds for this claim are more tenable. See
Def.’s Op. Br. 73. I agree. Although the Tractor Acquisition Covenant was ambiguous, it
did not merely “suggest an obligation and point to a result,” which would be fitting for an
implied covenant analysis. See Airborne Health, 984 A.2d at 146. Both parties agree that
75
and contains its own good faith requirement. Thus, there is no gap for the implied
covenant to fill there either. 284 The SPA does not expressly address the acts or
omissions that serve as the basis for the remaining three alleged violations of the
implied covenant, but that does not mean that the implied covenant applies. “The
implied covenant should not be used to fill the gap left by a rejected term because
doing so would grant a contractual right or protection that the party ‘failed to secure
. . . at the bargaining table.’” Buckeye, 2022 WL 906521, at *21 (quoting Aspen
Advisors LLC v. United Artists Theatre Co., 843 A.2d 697, 707 (Del. Ch. 2004),
aff’d, 861 A.2d 1251 (Del. 2004)).
“[A]ny argument by a party that another party breached an implied term
invites consideration of evidence of the parties’ bargaining history.” Nationwide
Emerging Managers, LLC v. Northpointe Hldgs., LLC, 112 A.3d 878, 897–98 (Del.
2015). The bargaining history is fatal to Kuntz’s implied covenant claim. It
demonstrates that the parties did contemplate Schneider’s rights in conducting
W&S’s business post-acquisition. Sellers’ lead negotiator, Hutchinson, testified that
the Tractor Acquisition Covenant obligated Schneider to purchase 60 new tractors during
each Measurement Period. Their disagreement is confined to whether Schneider should
have also replenished any tractors that W&S lost during those Measurement Periods. And
that disagreement is centered on a matter of contractual ambiguity, i.e., growth vs. gross
tractors—not gap filling. See supra II.A.1; Nemec, 991 A.2d at 1126.
284
Kuntz merely disputes the effectiveness of Schneider’s hiring methods. As explained
earlier in the discussion of the Synergy Covenant, Schneider took extensive efforts to
recruit and hire W&S drivers. Kuntz has not presented credible evidence that Schneider’s
efforts lacked good faith. See supra II.A.4.
76
the parties discussed during the contract negotiations “how the business would be
operated to help ensure [W&S] had the ability to meet those earn-out targets.”285 He
also stated that the Sellers placed particular importance on the “transfer of major
assets out of [W&S]” and an “increase in the aggregate fleet size.”286 In the first
markup of the SPA that W&S sent to Schneider, W&S added a footnote addressed
to Schneider asking it to “propose additional post-closing operational covenants
(e.g., covenant to continue to operate the business on a stand-alone, independent
basis; covenant to provide appropriate equipment purchase support; etc.)” under the
section that formulated the Earnout Payments.287 W&S was aware that how
Schneider operated W&S post-closing could be critical to achieving the Earnout
Payments’ EBITDA Targets. Thus, W&S negotiated what eventually became the
Operating Covenants to constrain Schneider’s freedom in operating the Acquired
Companies during each Measurement Period.
During their negotiations, the parties exchanged drafts of the SPA that
specifically addressed Schneider’s operation of W&S’s business post-closing.
Sellers’ May 25, 2016 draft of the SPA proposed the following additional covenants
(the “Rejected Covenants”):
285
Tr. 270:11–14 (Hutchinson).
286
See id. at 270:1–271:3 (Hutchinson).
287
JX 65.00026.
77
Buyer shall not, and shall not permit any of the Acquired Companies or
any of the Buyer’s Affiliates to:
...
4. Unreasonably require any Acquired Company to cut staff, capital
expenditures or general and administrative expenses, close a key
terminal, or take other actions that are not commercially reasonable . .
. and/or a prudent business practice;
5. Require or allow any Acquired Company to engage in any activity
for the purpose of increasing the long-term growth of the business of
any Acquired Company, the Buyer or any of their respective Affiliates
at the expense of maximizing the contingent payments that may be
made to the Sellers’ Representative . . . under [the section of the SPA
governing the earnout payments]; or
6. Materially change, modify or alter any Acquired Company’s pricing,
marketing, sales, financing or operations in such as manner as would
reasonably be expected to hinder or impair in any material respect its
achievement of the EBITDA Targets or the maximization of the
contingent payments that may be made to the Sellers’ Representative .
. . under [the section of the SPA governing the earnout payments]. 288
Schneider struck all of these covenants,289 several of which correspond to the
arguments underlying Kuntz’s implied covenant claim.
The SPA expressly permitted Schneider to operate the Acquired Companies
as it saw fit. Sellers proposed, and Schneider rejected, covenants expressly designed
to limit Schneider’s decision-making so as not to materially “hinder or impair”
achievement of the Earnout Payments, including sacrificing the Earnout Payments
288
JX 98.00009–10 (formatting).
289
JX 103.00079–80.
78
for long-term growth. Schneider ordered W&S to temporarily slow down W&S’s
customer acquisitions due to the “stress [its] network was under” and to ensure that
any new customer accounts would be profitable.290 Because the parties
contemplated, but ultimately decided against, including language restricting
Schneider’s ability to make operational changes that would prioritize long-term
growth and potentially risk achievement of the Earnout Payments, the implied
covenant is inapplicable here.
The Rejected Covenants also contemplated restrictions on conduct that Kuntz
asserts as the basis for the remaining alleged breaches of the implied covenant.
Covenant four would have prohibited Schneider from causing W&S to make certain
business decisions, such as “[u]nreasonably” closing a key terminal, cutting staff, or
failing to make capital expenditures. The parties considered and rejected restricting
Schneider’s ability to make these types of operational decisions for W&S. Thus,
“the drafting history resolves any uncertainty about whether the parties would have
agreed to be bound by contractual language” placing limitations on Schneider’s
ability to make decisions regarding W&S’s operations i.e., allocating terminal doors,
leasing trucks, and staffing. Nationwide, 112 A.3d at 898. Therefore, the implied
covenant of good faith and fair dealing is inapplicable.
290
JX 202; see Tr. 965:5–967:22 (Elkins).
79
Kuntz argues that the court should find that Schneider breached the implied
covenant based on the holdings in American Capital Acquisition Partners, LLC v.
LPL Holdings, Inc., 2014 WL 354496 (Del. Ch. Feb. 3, 2014), and Keating v.
Applus+ Technologies, Inc., 2009 WL 261091 (E.D. Pa. Feb. 4, 2009). In American
Capital, the court concluded that the plaintiff stated an implied covenant claim with
allegations that the acquirer “pivoted” sales from the acquired company, discouraged
clients from using the acquired company’s services, and transferred employees from
the acquired company to a different subsidiary of the acquirer, all in an effort to
avoid triggering earnout payments as part of a stock purchase agreement. 2014 WL
354496, at *6–7. The court reasoned that “had the parties contemplated that the
[acquirer] might affirmatively act to gut [the acquired entity] to minimize
[contingent] payments . . . , the parties would have contracted to prevent [the
acquirer] from shifting revenue from [the acquired company]” so as to avoid making
the contingent payments. Id. at *7.
In Keating, a stock purchase agreement entitled the sellers to earnout
payments derived from contracts entered during a six-year period after closing.
Keating, 2009 WL 261091, at *1. Sellers alleged that the acquirer breached the
implied covenant by purposefully delaying its (ultimately successful) bid for a
government contract near the expiration of the six-year period so as to avoid making
the earnout payments. Id. The court, applying Delaware law, observed that the stock
80
purchase agreement granted the acquirer “unqualified discretion in deciding which
contracts to pursue and when to pursue them.” Id. at *4. The court held that the
acquirer “had a duty to exercise its discretion reasonably,” and could not avoid its
contractual obligations “by creating, in bad faith, an outcome that technically
satisfies the express terms of the [stock purchase agreement], but deprives [the
sellers] of their legitimate expectations.” Id. Whether the acquirer did so “require[d]
a fact-intensive inquiry not appropriate in deciding a motion to dismiss.” Id.
American Capital and Keating do not support Kuntz’s implied covenant
claims. First, both opinions involved a motion to dismiss, not a trial on the merits.
Second, unlike in those cases, all of Kuntz’s implied covenant claims arise from the
Operating Covenants that Kuntz heavily negotiated. Third, Kuntz did not prove that
Schneider affirmatively acted to gut the W&S business or purposefully acted in bad
faith to avoid making the Earnout Payments.
The misconduct that Kuntz alleges Schneider engaged in under his implied
covenant theory is identical to that which he alleges under the Operating
Covenants.291 In this instance, though, Kuntz also asserts that Schneider’s
291
Compare Def.’s Ans. Br. 59–62, with Def.’s Op. Br. 42–54, 66–72.
81
misconduct was carried out with “subjective bad-faith.”292 Kuntz has fallen well
short of establishing his evidentiary burden. 293
Kuntz’s continued assertion that Schneider stopped accepting new orders for
W&S business is factually flawed and does not establish an implied covenant claim.
First, Kuntz mischaracterizes what he refers to as the “Stop Sell Order.” The record
showed that Schneider only temporarily halted W&S’s customer acquisitions and
never sabotaged W&S’s ability to enlarge its business. 294 Nor does Kuntz explain
how Schneider’s consolidation of operations at the Fontana Terminal and execution
of the Tractor Lease were decisions lacking in good faith. 295 Instead, as discussed
in detail above, these decisions reflected a poorly executed integration of the
292
See Def.’s Ans. Br. 57.
293
In his answering brief, Kuntz raises for the first time the theory that Schneider’s
acquisition of W&S enabled it to funnel dividends to the Schneider family and facilitated
Schneiders’ initial public offering. Def.’s Ans. Br. 57–58. Kuntz appears to offer this
theory as a retort to Schneider’s argument that it would be implausible to think that
Schneider would pay $125 million to acquire W&S, spend millions more to integrate the
business, intentionally operate the business at a loss, only to then shut it down just to avoid
making Earnout Payments. Pl.’s Op. Br. 72. Kuntz did not connect the factual dots in any
persuasive way to prove his new theory. Furthermore, since it was raised for the first time
in the answering brief, it was not fairly presented. See Zhou v. Deng, 2022 WL 1024809,
at *17 (Del. Ch. Apr. 6, 2022) (deeming an argument raised for the first time in a post-trial
reply brief waived); In re IBP, Inc. S’holder Litigation, 789 A.2d 14, 62 (Del. Ch. 2001)
(deeming an argument not raised in the opening post-trial brief waived).
294
See supra note 267.
295
See Def.’s Ans. Br. 59–60.
82
Acquired Companies into the larger Schneider business. Kuntz has not satisfied his
burden to establish a breach of the implied covenant. 296
C. Kuntz Is Entitled to an Award of Attorneys’ Fees and Expenses
Delaware law generally follows the American Rule that litigants must pay
their own attorney’s fees. Johnston v. Arbitrium (Cayman Islands) Handels AG, 720
A.2d 542, 545 (Del. 1998). An exception to the general rule arises when parties
agree to fee shifting in a contract. Mahani v. Edix Media Grp., Inc., 935 A.2d 242,
245 (Del. 2007). Kuntz invokes that exception.
Kuntz argues that Section 7.1 of the SPA obligates Schneider to compensate
him for his attorneys’ fees for a breach of any of the Operating Covenants. 297 Section
7.1 is an indemnification provision. Kuntz relies on Section 7.1(c), which states, in
pertinent part:
the buyer will indemnify and hold harmless the Sellers . . . from and
against any and all Losses incurred or suffered by any Seller
Indemnified Party based upon, arising out of, or otherwise in respect of
any . . . breach of any covenant (including making any Deferred
Consideration Payment, or any required Annual Contingent Payment
[Earnout Payment] or Annual Contingent True-Up Payment).298
296
Because Kuntz has failed to prove conduct that would demonstrate breach of the implied
covenant of good faith and fair dealing, the court need not reach Schneider’s argument that
Kuntz has failed to prove damages from any such breach.
297
See Def.’s Op. Br. 80–81.
298
SPA § 7.1(c).
83
“Losses” is defined to include “reasonable fees and disbursements of legal
counsel.” 299 Kuntz argues that his attorneys’ fees and expenses are Losses that
Schneider must pay as a result of its breach of the Tractor Acquisition Covenant.
Schneider insists, however, that Section 7.1 is a standard indemnity clause
that does not qualify as a contractual fee-shifting provision. Schneider relies on a
line of cases, starting with TranSched Systems Ltd. v. Versyss Transit Solutions,
LLC, 2012 WL 1415466 (Del. Super. Mar. 29, 2012), holding that a general
indemnity clause in a contract does not act as a fee-shifting provision for litigation
between the contracting parties (frequently referred to as “first-party claims”) unless
the language unequivocally so states. Under these cases, “indemnity agreements are
presumed not to require reimbursement for attorneys’ fees incurred as a result of
substantive litigation between the parties to the agreement absent a clear and
unequivocal articulation of that intent.” Id. at *2; accord Deere & Co. v. Exelon
Generation Acquisitions, LLC, 2016 WL 6879525, at *1 (Del. Super. Nov. 22, 2016)
(“Standard indemnity clauses are not presumed to apply to first-party claims.
Otherwise, a typical indemnification provision would swallow the American Rule.”
(internal quotations omitted)); Data Centers, LLC v. 1743 Hldgs. LLC, 2015 WL
9464503, at *6 (Del. Super. Nov. 20, 2015) (“Absent specific language showing
299
Id. at 8.
84
intent to extend the protections of an indemnity provision to claims brought against
parties to the contract, the Court will interpret the indemnity provision as applying
to third party claims only.”); SARN Energy LLC v. Tatra Defence Vehicle A.S., 2019
WL 6525256, at *1 (Del. Super. Oct. 31, 2019) (concluding the indemnity provision
was not a valid fee-shifting provision because it was not “a clear and unequivocal
agreement in connection with a dispute between parties involving a failure to fulfill
obligations under the contract”); Winshall v. Viacom Int’l Inc., 2019 WL 5787989,
at *5 (Del. Super. Nov. 6, 2019) (“[T]here is no explicit language that [the indemnity
provision] applies to the reimbursement of attorneys’ fees and expenses on first-
party claims between the parties. Instead, [the provision] applies to third-party
claims brought against the parties relating to indemnifiable Losses.”), aff’d on other
grounds, 237 A.3d 67 (Del. 2020) (TABLE); In re Bracket Hldg. Corp. Litigation,
2020 WL 764148, at *16 (Del. Super. Feb. 7, 2020) (“Without precise language
setting forth an intent to shift fees, counsel should not expect the Court to deviate
from the American Rule if care has not been taken in drafting a contract’s language.”
(internal quotations and bracketing omitted)); Ashland LLC v. Samuel J. Heyman
1981 Continuing Tr. for Heyman, 2020 WL 6582958, at *6 (Del. Super. Nov. 10,
2020) (“[A] party is not entitled to attorneys’ fees under an indemnification
provision when there is no specific language in the indemnification provision . . .
that covers fee-shifting.” (internal quotations omitted)); see Great Hill Eq. Partners
85
IV, LP v. SIG Growth Eq. Fund I, LLLP, 2020 WL 7861336, at *5 (Del. Ch. Dec.
31, 2020) (“purely contractual indemnification provisions only shift first-party
claims if the contract explicitly so provides”); Nasdi Hldgs., LLC v. N. Am. Leasing,
Inc., 2020 WL 1865747, at *5–6 (Del. Ch. Apr. 13, 2020) (ORDER) (noting the only
fee-shifting specific language in the agreement was in the definition of “Losses,”
which was insufficient to warrant fee shifting under the indemnity provision); Senior
Housing Cap., LLC v. SHP Senior Housing Fund, LLC, 2013 WL 1955012, at *45
(Del. Ch. May 13, 2013) (“Here, there is no specific language in the indemnification
provision of the Management Agreements that covers fee-shifting. Therefore, I will
not interpret the provision in an expansive way that would be inconsistent with the
American Rule.”); see also Int’l Rail P’rs LLC v. Am. Rail P’rs, LLC, 2020 WL
6882105, at *5–6 (Del. Ch. Nov. 24, 2020) (discussing cases and distinguishing
indemnity provision contained in a limited liability company agreement), appeal
refused, 245 A.3d 517 (Del. 2021).
The Delaware Supreme Court has not decided this issue. In Winshall v.
Viacom International, Inc., the Delaware Supreme Court was presented with the
issue, but the Court did not need to reach it in deciding the appeal. 237 A.3d 67(Del. 2020) (TABLE) (holding the claim for fees under the indemnity clause was
“barred by a limitation on indemnification contained in the merger agreement”).
Thus, TranSched and its progeny are binding precedent. See Gatz Props., LLC v.
86
Auriga Cap. Corp., 59 A.3d 1206, 1219 (Del. 2012) (“It is axiomatic . . . that once a
trial judge decides an issue, other trial judges on that court are entitled to rely on that
decision as stare decisis.”); Leonard Loventhal Acct. v. Hilton Hotels Corp., 2000
WL 1528909, at *4 (Del. Ch. Oct. 10, 2000) (observing that the doctrine of stare
decisis is applicable to “a decision of a court higher in rank, or of the same rank”
(quoting 20 Am. Jur. Courts § 201 (1965)), aff’d, 780 A.2d 245 (Del. 2001).
Although TranSched requires a “clear and unequivocal articulation of . . .
intent” that an indemnity provision also cover first-party claims, “there is no
definitive language that must be used.” 2012 WL 1415466, at *2. “Each provision
is unique and must be decided under the facts of that particular case.” Id. Kuntz
contends that Section 7.1(c) demonstrates the “clear and unequivocal articulation”
of the SPA’s drafters to indemnify first-party disputes.300 Section 7.1(c) contains no
express reference to litigation between the parties. Section 7.1(c) also lacks any
mention of “prevailing parties”—“a hallmark term of fee-shifting provisions.” See
TranSched, 2012 WL 1415466, at *3.
On the other hand, the language of the indemnity provision in the SPA is
different from that considered in other cases in a few material respects. First, Section
7.1(c) does not merely require indemnity for breach of any covenant, but expressly
300
Def.’s Op. Br. 81.
87
“includ[es] making any Deferred Consideration Payment, or any required Annual
Contingent Payment or Annual Contingent True-Up Payment.” The Deferred
Consideration Payment, Annual Contingent Payment, and Annual Contingent True-
Up Payment are payments that are made from Schneider to Kuntz.301 None of those
payments would arise from a third-party claim.
Second, the definition of “Losses” states
in no event shall Losses include, and no Party shall be liable to any
other Party or Person in respect of (a) punitive or exemplary damages
or (b) any other damages that are not the reasonably foreseeable result
of the event that gave rise thereto or the matter for which
indemnification is sought hereunder, except in each case of the
foregoing clauses (a) and (b), to the extent any such damages are being
sought in a Third-Party Claim for which a Person is entitled to
indemnification under this Agreement. 302
“Third-Party Claim” is defined as “any event or condition that could reasonably be
expected to result in a Loss” that is brought by a third party. 303 Thus, the definition
of “Losses” makes an express distinction between indemnifiable damages arising
from third-party claims and non-third-party claims.
Third, unlike in TranSched, the existence of a notice-of-claim provision in the
SPA does not undermine Kuntz’s position. In TranSched, the court found that the
301
SPA §§ 2.3(a) (Deferred Consideration Payment), 2.4(b) (Annual Contingent Payment),
2.4(c) (Annual Contingent True-Up Payment).
302
Id. at 8.
303
Id. §§ 7.1(a), (b).
88
requirement that a party seeking indemnity provide notice of the claim “makes no
sense in the context of a first-party action unless used as a threat by one party to
enforce its will against another.” 2012 WL 1415466, at *3. In this case, however,
the notice provision in the SPA specifically requires a claim notice for “any event or
condition that could reasonably be expected to result in a Loss,” 304 but then addresses
rights and obligations in the event that the claim notice “identifies” a third-party
claim. 305 This distinction reflects that the parties understood that claims within the
scope of the indemnity clause were not limited to third-party claims.
Fourth, the SPA does not provide for fee shifting elsewhere in the agreement.
This distinguishes the SPA from several of the precedents, which concluded that the
existence of a fee-shifting clause elsewhere in the contract, “further demonstrate[d]
that the parties did not intend for Losses to encompass fee-shifting on first-party
claims.” Ashland, 2020 WL 6582958, at *7; see also Deere, 2016 WL 6879525, at
*2 (“[T]he parties’ use of specific fee-shifting language in [other sections of the
agreement], and their failure to include such language in [the indemnification
provision], indicates a lack of intent to create a clear and unequivocal agreement to
shit fees in first-party actions.”); Paul Elton, LLC v. Rommel Delaware, LLC, 2022
WL 793126, at *3 (Del. Ch. Mar. 16, 2022) (“Section 44 of the Lease Agreement
304
Id. § 7.2(a).
305
Id. § 7.2(b).
89
contains an arbitration clause that specifically awards attorneys’ fees to the
prevailing party in arbitration between the two, demonstrating that the parties were
capable of drafting the sort of clear and unequivocal language required to shift fees
when they so intended.”); Great Hill, 2020 WL 7861336, at *6 (“Underscoring this
point [that the indemnity clause did not cover first-party claims] is the fact that the
parties did include a clear and unequivocal articulation of an intent to shift fees
elsewhere in the agreement . . . .” (emphasis in original)).
The indemnification provision in the SPA does not expressly state that it
covers first-party claims. But TranSched and its progeny do not require that an
indemnity clause expressly state that it covers first-party claims. They create a
presumption that an indemnity clause does not apply to first-party claims. The
presumption is rebutted if the language of the agreement reveals a “clear and
unequivocal articulation” of the parties’ intent that it applies to first-party claims.
TranSched, 2012 WL 1415466, at *2. The language embodying that intent must be
“explicit.” Winshall, 2019 WL 5787989, at *5; accord Great Hill, 2020 WL
7861336, at *5. Explicit means “[e]xpressed without ambiguity or vagueness.”306
Applying the well-established principles of contract construction to the specific facts
of this case, and reading the SPA as a whole, Section 7.1(c) clearly and
306
Explicit, BLACK’S LAW DICTIONARY (11th ed. 2019).
90
unambiguously reflects the parties’ intent that it applies to first-party claims. Section
7.1(c)’s specific inclusion of Deferred Consideration Payments, Annual
Contribution Payments, and Annual Contingent True-Up Payments is a clear
indication that the parties intended Section 7.1(c) to cover claims between the
contracting parties. The distinction between third-party claims in the definition of
“Losses” and the notice provision, along with the absence of a fee-shifting provision
elsewhere in the SPA confirm this conclusion. Therefore, Kuntz is entitled to
recover his “reasonable fees and disbursements of legal counsel”307 for prevailing
on his claim for breach of the Tractor Acquisition Covenant. 308
D. Damages and Interest
The Sellers are entitled to the $40,000,000 Acceleration Payment (minus
bonuses, incentive payments, and fees and expenses due to Cascadia, none of which
materialized) for Schneider’s breach of the Tractor Acquisition Covenant.309 Under
307
SPA at 8 (definition of “Losses”).
308
Following oral argument, Kuntz submitted to the court to a recent order issued in LPPAS
Representative, LLC v. ATH Holding Co., LLC, 2022 WL 94610 (Del. Ch. Jan. 10, 2022),
where the court was asked to enforce an indemnification provision. See Super. Ct. Dkt. 4.
The court ultimately awarded the plaintiff its attorneys’ fees under the indemnification
provision for reasons unrelated to the issues relevant to this opinion. See 2022 WL 94610at *7. The LPPAS decision did not address the TranSched line of cases or their applicability
to that dispute. Therefore, LPPAS does not factor into the analysis here. See 250 Exec.,
LLC v. Christina Sch. Dist., 2022 WL 588078, at *5 (Del. Ch. Feb. 28, 2022) (“a decision
does not provide authority for a subject if the court did not address it at all”).
309
See SPA § 2.4(f).
91
the SPA, Schneider was required to make the Acceleration Payment within five
business days of the breach.310
Under the Tractor Acquisition Covenant, Schneider was required to provide
W&S with 60 growth tractors by the end of each Measurement Period. The first
Measurement Period ended on June 30, 2017. 311 Schneider failed to deliver 60
growth tractors by that date. The Acceleration Payment was due five business days
later: July 10, 2017. That is also the date upon which pre-judgment interest began
to accrue. See Watkins v. Beatrice Companies, Inc., 560 A.2d 1016, 1020 (Del.
1989) (“[t]he general rule is that interest starts on the date when payment should
have been made” (internal quotations omitted)); Beard Research, Inc. v. Kates, 8
A.3d 573, 620 (Del. Ch.) (“interest is to be awarded from the date payment is due”),
aff’d sub nom. ASDI, Inc. v. Beard Research, Inc., 11 A.3d 749 (Del. 2010).
Kuntz has requested, and is entitled to, prejudgment interest.312 “In Delaware,
prejudgment interest is awarded as a matter of right.” Citadel Holding Corp. v.
Roven, 603 A.2d 818, 826 (Del. 1992). Interest begins to accrue from the date
payment is due. Id. The court has “broad discretion, subject to principles of fairness,
in fixing the interest rate to be applied.” Levey v. Browstone Asset Mgt., LP, 2014
310
Id.311
See PTO, III ¶ 7.
312
PTO, V.B.4; Def.’s Op. Br. 79–80.
92
WL 4290192, at *1 (Del. Ch. Aug. 29, 2014) (internal quotations and bracketing
omitted). “Unless the parties have specified another rate by contract or the court
determines that a different rate is warranted by the equities, the statutory rate of
interest governs.” BTG Int’l, Inc. v. Wellstat Therapeutics Corp., 2017 WL
4151172, at *21 (Del. Ch. Sept. 19, 2017). The SPA is silent as to any pre- or post-
judgment interest rate. The legal rate is 5% above the Federal Reserve discount rate.
6 Del. C. § 2301(a). Under the circumstances of this case, interest should be
calculated “at the legal rate, compounded quarterly,” running from July 10, 2017 to
the date of payment, “with the rate of interest fluctuating with changes in the legal
rate.” Basho Techs. Holdco B, LLC v. Georgetown Basho Inv’rs, LLC, 2018 WL
3326693, at *45 (Del. Ch. July 6, 2018), aff’d sub nom. Davenport v. Basho Techs.
Holdco B, LLC, 221 A.3d 100 (Del. 2019). 313 Kuntz is also entitled to post-judgment
interest at the legal rate. Noranda Aluminum Hldg. Corp. v. XL Ins. Am., Inc., 2021
WL 5961628, at *7 (Del. Dec. 16, 2021); 6 Del. C. § 2301(a).
III. CONCLUSION
For the foregoing reasons, judgment is entered for Kuntz for breach of
contract in the amount of $40,000,000. Prejudgment interest is awarded beginning
July 10, 2017, at the legal rate, compounded quarterly. Post-judgment interest is
313
See Levey, 2014 WL 4290192, at *1 (“A fluctuating interest rate adequately reimburses
a plaintiff for the loss of use of its capital by replicating the economic circumstances that
existed during the litigation.”).
93
awarded at the legal rate, compounded quarterly. Kuntz is also entitled to an award
of his legal fees and expenses. As the prevailing party, Kuntz is awarded his costs.
Ct. Ch. R. 54(d); 10 Del. C. § 5106.
Pursuant to Court of Chancery Rule 88, Kuntz shall submit an affidavit in
support of his fee and expense award within ten business days of this opinion.
IT IS SO ORDERED.
94