This post was prepared by Frank Reynolds, who has been following Delaware corporate law, and writing about it for various legal publications, for over 30 years.

The Delaware Court of Chancery recently ruled that Stimwave Technologies Inc. need not advance legal costs for its suit against its ex-CEO because she apparently doctored her indemnification agreement to falsely pre-date a charter amendment requiring officers to get a major investor group’s approval of their advancement rights in Perryman et al. v. Stimwave Technologies Inc., No. 2020-0079-SG, memorandum opinion issued (Del. Ch. Dec. 9, 2020).

Vice Chancellor Sam Glasscock’s December 9 opinion declined to order advancement for ex-CEO Laura Perryman based on his credibility issues with her testimony and documents, but he endorsed the advancement rights of her husband, director Garry Perryman, whom he found likely lacked skill to manipulate the truth or the metadata that identified his indemnification agreement.

The decision turned on the novel issue of whether the ex-CEO and director had complied with an STI charter change that purportedly gave investors in the company’s Series D Preferred stock, voting as a separate stock class, power to nullify a director or officer’s transactions, including indemnification pacts and advancement for their actions.

“Neither the bylaws nor the charter precludes the company from granting to an investor a veto right over extension of advancement benefits to its directors and officers,” the vice chancellor ruled.  Therefore, “whether Laura’s IA is valid accordingly turns on when that document was executed, which in turn determines whether such document required approval from the Series D stockholders to be valid.”

Background

Laura Perryman was a founder and CE0 of the Tucson-based marketer of wireless micro size injectable medical devices from when it was chartered in Delaware in 2010 until November 2019 when she was asked to step down amid a Department of Justice investigation.

According to the opinion, Laura sent the STI board an email the next day with an attachment that she identified as her indemnification agreement dated January 1, 2018 and based on that document, the board agreed to pay for her attorney bills for the investigation.

But the next month, STI filed its own complaint against its ex-CEO claiming she breached her fiduciary duties by directing employees to alter bills to falsely make it appear they had been paid and later added a charge that she misused company funds to pay her son’s apartment rent and bonuses to favored employees.

STI also included in the complaint what the vice chancellor found to be a “weak allegation” of breach of duty against Gary for “acting in concert” with his wife.

At a December 20 board meeting, a majority of the board concluded that the January 1, 2018 IA Laura submitted was not valid because it was actually created on November 11, 2019 —“after the DoJ’s civil investigative demand,” the opinion said.

The advancement action

Laura and Gary filed a February complaint and a petition for judgment on the pleadings to compel STI to provide indemnification and advancement.  In opposition, STI argued that both of them filed their indemnification agreements after the 2018 charter change that required Series D stockholder approval but doctored the documents to make it appear that they were signed before the amendment, so they were void ab initio under that amendment.

Gary’s advancement right

As to Gary’s right to advancement, Vice Chancellor Glasscock noted that Gary was not an executive and thus did not need to get Series D approval.  He found that even though the indemnification agreement that Gary submitted carried a date that did not jibe with his testimony, Gary had no motive for deception and was not very “engaged” in the discovery process or his role as a director.

The court found it most likely that Gary’s original IA was created before the amendment and is therefore valid.

Laura’s advancement right

STI’s document experts claimed they discovered Laura had merged her indemnification agreement with an earlier signature page and purported that its identification metadata applied to the agreement, but they said in truth, there was no metadata for her false agreement.

Vice Chancellor Glasscock found that Laura:

Has indemnification rights under the Charter, “but those may prove pyrrhic absent [advancement] funds to vindicate her legal rights”

Whether she was or was not a CEO when she signed her agreement, could not have a valid agreement if she lacked proof that it was signed before Stimwave’s July 17, 2018 charter amendment requiring Series D investor approval of benefit extension – which she did not seek.

Cannot argue that other parts of the charter always require indemnification and advancement.

“Came across as someone who had created a story to fit the facts, adjusted it as it became apparent that it would be advantageous to do so, and who was attempting to buttress that story by concocting details.”

Has failed to successfully challenge the contractual right of the company to give the Series D shareholders veto power over the extension of advancement

A time-will-tell-take-away?

Could the opinion be seen as diverging from a long trend of Chancery Court decisions that have cast a skeptical eye on any firm’s attempt to add disqualifying conditions to the indemnification/advancement rights its charter had granted?  Might the opinion encourage corporate law specialists to research more ways to attract investor groups by offering them expanded power to control executive transactions?  And might the Chancery Court of the future be asked to rule on a new species of advancement disputes as a result?

 

 

This post was prepared by Frank Reynolds, who has been following Delaware corporate law, and writing about it for various legal publications, for over 30 years.

The Court of Chancery recently found Delaware’s Limited Liability Company Act requires American Rail Partners LLC to reimburse the legal bills a managing member and its directors and CEO incur in defense of ARP’s unjust enrichment and mismanagement charges — even if such “first party claims” are not specifically covered, in International Rail Partners LLC et al. v. American Rail Partners LLC, No. 2020-0177-PAF, memorandum opinion issued, (Del. Ch. Nov. 24, 2020).

Vice Chancellor Paul Fioravanti, Jr.’s Nov. 24, 2020 memorandum opinion on a novel advancement issue rejected ARP’s contention that two-member limited liability company agreements, like two-party commercial contracts, provide fee-shifting in some situations but not advancement and indemnification for the company’s suit against a member.

Ruling on dueling summary judgment motions, he sided with the plaintiffs seeking advancement, finding that unlike commercial contracts, the Delaware Limited Liability Company Act Section 18-108 was designed to encourage LLC officers, directors and members to serve without worry about suits over their actions on behalf of the company.

The underlying action

ARP filed an underlying action in February in the Delaware Superior Court, spurred by non-party member Newco SBS Holdings, LLC’s complaint that the management of the other member, International Rail Partners LLC, and ARP CEO and Chairman-of-the-Board Gary Marino unjustly profited at ARP’s expense. American Rail Partners, LLC et al. v. International Rail Partners LLC et al., C.A. No. N20C-02-283 EMD complaint filed (Del. Super. Feb. 28, 2020).

When IRP, Marino and their corporate allies sought advancement, ARP claimed the type of claims in the Superior Court suit could never be indemnified despite the broad scope of Section 10.02(c)(i) of the LLC Agreement, contending that an indemnification or advancement provision may only cover first-party claims if it expressly says so.

The court said that argument is grounded in a line of decisions which established a presumption that a standard indemnification provision in a bilateral commercial contract would not automatically be presumed to provide for fee-shifting in the indemnity section of a contract. TranSched Sys. Ltd. v. Versyss Transit Solutions, LLC, 2012 WL 1415466 (Del. Super. Mar. 29, 2012).

Not like a commercial contract

That decision spawned others that barred fee shifting in a commercial contract unless specifically spelled out, and the only Chancery Court ruling on the issue, Senior Housing Capital, LLC v. SHP Senior Housing Fund, LLC, 2013 WL 1955012 (Del. Ch. May 13, 2013), followed TranSched in holding that the indemnity provision in a management agreement was not a valid fee-shifting provision between the parties because it did not contain language indicating an intent to cover first-party claims.

But Vice Chancellor Fioravanti said the parties here were unable to locate any case applying the first-party/third party distinction to an indemnification or advancement provision in a certificate of incorporation, corporate bylaws, limited partnership agreement, or limited liability company agreement.

Defendant ARP argued that there was no significant difference between those agreements and a commercial contract, but the court said, “Unlike typical commercial contracts, indemnification and advancement provisions in LLC agreements are derived from clear statutory authority and apply much more broadly.”

The LLC Act statute, 6 Del. C. § 18-108, prescribes that an LLC contract “may indemnify any person to the fullest extent possible by contract. The only restrictions are those expressly set forth in the contract,” the opinion says. Therefore, “the clarity of the provision regarding power to indemnify, located in Section 18-108, underscores an effort to avoid any uncertainty or negative implication that might exist if the statute were silent on this important point.”

Not like TranSched

Even though “alternative entity agreements are a type of contract” the broad language of the LLC Agreement’s indemnification provision, and the strong public policy in favor of indemnification and advancement,” caused the vice chancellor to conclude that the first-party/third-party claim distinction applied in the TranSched line of cases is inapplicable here.

Even if there is a fee-shifting provision in the parties’ LLC agreement, it expressly applies only to members so it does not eviscerate the indemnification and advancement rights found elsewhere in the pact, the court ruled.

Defendant argued that ARP’s management agreement is the only possible source of indemnification because the claims in the Superior Court Action arise from IRP providing services to the company, but the vice chancellor held that, “because the company has asserted non-contract claims in the Superior Court Action, the court cannot determine at this stage whether the company’s claims asserted against the defendants in that action (i.e., Plaintiffs here) are exclusively governed by the management agreement.”

In granting summary judgment for plaintiffs and denying judgment to defendants, the court ruled that because the plaintiffs are entitled to advancement, they are also entitled to reasonable attorney fees and expenses to pursue advancement, commonly referred to as “fees-on-fees.”

The Court of Chancery recently refused to reconsider its decision that, pending resolution of a challenge to the validity of their indemnification agreements, Stimwave Technologies Inc. must advance defense costs to a CEO and a director in actions by the company and the U.S. Department of Justice.

Vice Chancellor Sam Glasscock’s May 13 letter-to-counsel opinion denied Stimwave’s motion to reargue his April 1 bench ruling after rejecting the medical device developer’s contention that his order to advance expenses effectively granted mandatory relief without a trial when key facts were in dispute.

The Vice Chancellor said he granted preliminary injunctive relief because of “the summary nature of, and the public policy undergirding, advancement actions” where the Court “has long recognized that a delay in recognizing advancement rights may ultimately render those rights illusory.”

The short decision is yet another example of the Court’s reluctance to let companies inject novel objections to established advancement provisions to hold up reimbursement of defense funds to eligible officers and directors in actions relating to their corporate positions.

According to its website, Stimwave is a Delaware-chartered medical technology company founded by former CEO Laura Perryman in Pompano Beach, Florida, that markets an electronic pain relief device.  In April 2018, its board adopted, and the stockholders ratified, an indemnification agreement that she would supposedly be able to immediately offer to the directors and officers.

But one year later, Stimwave had undergone management changes and filed suit against Laura and Gary Perryman in an underlying action in Chancery. When she and fellow director Gary Perryman sought legal fee reimbursement for that suit and an investigation by the U.S. Department of Justice, the request was denied.  Stimwave Technologies Incorporated v. Laura Tyler Perryman, et al., C.A. No. 2019-1003-SG, complaint filed (Del. Ch. Feb. 11, 2020).

They filed a complaint for advancement, with a motion to expedite and request for temporary restraining order February 11, 2020, claiming Stimwave violated their valid agreements.

The Vice Chancellor on February 20 granted their motion to expedite, but denied their TRO motion, and instructed the parties to proceed to a judgment on the pleadings.  Then on April 1, from the bench, he denied their motion for judgment on the pleadings but converted it into a motion for interim relief, which he granted.

When Stimwave sought reargument — arguing that the decision violated the fundamental precept that mandatory injunctive relief be ordered only after trial or on facts not legitimately in dispute, citing C & J Energy Servs., Inc. v. City of Miami Gen. Emps.’ & Sanitation Emps.’ Ret. Tr., 107 A.3d 1049, 1071–73 (Del. 2014).  But the Court said it appeared that Stimwave’s board validly adopted the indemnification bylaw in April 2018 and the shareholders ratified it days later.

That, coupled with (a) the Perrymans’ apparent promise to repay the advanced funds if the court found them not to be entitled to advancement and (b) the bylaw’s wording that, the court found, likely referred to current officials that included the Perrymans, seemed on its face, to favor the petitioners here, the court said.

But Stimwave maintained that the wording actually only applied to an earlier designated director and not the Perryman petitioners apparently due to a problem with the timing of the board’s adoption, the stockholder ratification and when the CEO conferred the indemnification.

The vice chancellor said on its face, the indemnification more likely applied to the then-current officers and directors.  He found that under the circumstances, since the Perrymans had apparently made the required commitment to repay the advance funds if they were for any reason not entitled to them, the court’s practice was to require payment until the validity of the pacts was resolved.

“Litigating a defense attacking the validity of a contract for advancement before providing advancement might leave the petitioners unable to effectively vindicate their contractual advancement rights, assuming they exist, as well as to defend the underlying substantive action and investigation, threatening imminent irreparable harm,” the opinion said

However, he limited the advancement order to legal costs incurred from the date of the opinion forward, excluding legal fees the Perrymans had already incurred in responding to the DOJ’s investigation.

The vice chancellor reasoned in support of his holding that: “the unusual procedural posture of this matter, the nature of the respondent’s defense that the indemnification agreements are void, and the fact that the forgoing defense will be addressed promptly,” and because the petitioners could seek to recover those amounts once the validity of the indemnification agreements is resolved.

 

A recent letter ruling from the Court of Chancery on a nuance of the law of advancement deserves to be remembered. The Court’s decision in Day v. Diligence, Inc., C.A. No. 2020-0076-SG (Del. Ch. May 7, 2020), is short but important due to its clarification of a finer point regarding the duty of a company to advance fees prior to the date of the undertaking required under DGCL Section 145(e).  The Court reasoned that an advancement obligation may cover fees incurred prior to the receipt of a requisite undertaking.

The multitude of highlights of advancement decisions that have appeared on these pages over the last 15 years provide extensive details about the intricacies of Section 145(e), as do the several book chapters I have written on the topic. This cursory post assumes a basic understanding of the Delaware law of advancement of fees for directors and officers pursuant to Section 145(e), and based on that assumption this pithy post provides the following quote from the Day case, that should be in the toolbox of every corporate litigator.

The Court held, after reciting DGCL Section 145(e), that:

Nothing in the language of the statute, or the policy implicit therein, limits advancement to sums incurred post-undertaking, to my mind. The Defendant, I note, has pointed to none. Nor has it cited to precedent….

In a rare example of the Court of Chancery denying a a former corporate officer’s advancement claim–after an initial decision granting it–the court changed its prior opinion, after a complaint in the underlying case was amended to limit the underlying claims at issue to post-employment breach of contract claims, and based on that amendment the court determined that the challenged actions, as amended, were not taken by the claimant as a former officer or former director, and therefore the duty for advancement was not triggered. See Carr v. Global Payments, Inc., C.A. No. 2018-0565-SG (Del. Ch. Dec. 11, 2019), in which the Court also noted that confidential information was not alleged to have been misused after the role as former officer ended.

The focus of the amended complaint was an alleged violation of a non-compete agreement, which this and other cases have viewed as primarily an employer/employee dispute–not an advancement matter. Also noteworthy was the court’s analysis of the provisions of the LLC agreement granting advancement–which relied on different wording than that contained in DGCL Section 145. The court expressed initial skepticism, as have other cases, when an attempt is made to amend an underlying complaint solely for purposes of evading an otherwise valid advancement obligation. This case proved different.

This case should be compared with the recent decision highlighted on these pages styled Ephrat v. medCPU, Inc., which provided a comprehensive analysis of Delaware case law involving advancement claims related to confidential data taken by a former officer and director–but primarily misused after the role of director and officer ended. See also Charney case highlighted on these pages, with a similar denial for post-employment activity.

Notably, the Carr case involved an acknowledgement that, despite this ruling, advancement was still required for underlying claims for breach of fiduciary duty.

A  more comprehensive review of this case, prepared by veteran corporate law writer Frank Reynolds, appears on these pages.

 

This post was prepared by Frank Reynolds, who has been following Delaware corporate law, and writing about it for various legal publications, for over 30 years.

A recent Court of Chancery opinion reversed an earlier advancement decision in favor of Heartland Payment System LLC ex-CEO Robert Carr after finding buyer Global Payments Inc.’s amended complaint narrowed its underlying suit against him to post-employment breach of non-compete contract claims, in Carr v. Global Payments Inc., et al., C.A. No. 2018-0565-SG, memorandum opinion (Del. Ch. Dec. 11, 2019).

Vice Chancellor Sam Glasscock III’s December 11 memorandum opinion granted Global’s motion to modify his October 31, ruling, which, he acknowledged, wrongly ordered the electronic payment processer to pay Carr’s legal bills based on his “substantial error of fact,” about the amended charges.

No longer pertains

After withdrawing that ruling on November 5 and agreeing to hear re-argument, he said in the December opinion that the amended complaint no longer “pertains” to Carr’s corporate officer status regarding the breach-of-contract charges and is now strictly an employer/employee matter.

He said the new complaint is not the result of “artful re-pleading” of the same alleged wrongs and now clearly sets out a new basis for breach-of-contract charges that steer clear of misuse of confidential information and actions taken before stepping down as CEO.

The advancement ruling is noteworthy because instead of focusing on the application of Section 145 of the Delaware General Corporation Law, it interpreted an advancement agreement patterned on Section 145 that was part of a limited liability company’s merger pact.

After Global bought Heartland in 2015 it had its new subsidiary file suit in federal court in New Jersey claiming Carr breached his fiduciary duty by giving his girlfriend inside information about the merger and used business secrets to form a competing company shortly after leaving.

Initially entitled

When Carr sued in the Delaware Chancery Court in July 2018 to force Heartland to pay for his defense of those charges, the vice chancellor initially found he was entitled to advancement under the merger pact, but the underlying New Jersey action was stayed during a criminal investigation in Connecticut.

When the stay was lifted in May 2019, Heartland and Global filed an amended complaint in New Jersey that dropped the initial misuse of confidential information charge and focused on breach of the non-compete and non-solicitation aspects of Carr’s conduct after he left Heartland.

One month later, they moved to modify the vice chancellor’s advancement order with regard to the breach-of-contract charge, arguing that that claim arose solely from Carr’s actions when he was no longer a Heartland officer and director and thus ineligible for advancement.

Vice Chancellor Glasscock initially found in favor of Carr but after agreeing to hear re-argument, he said a re-examination of the amended charges caused him to find that they “moot the advancement dispute by removing any claims that would trigger an advancement right.”

Not mere relabeling

He said he came to that conclusion despite being “wary of artful attempts at…mere relabeling of claims” and keeping in mind that “any ambiguities in advancement cases are required to be resolved in favor of enforcing the advancement right.”

He noted that the merger agreement’s drafters promised advancement rights for litigation that “arises out of or pertains to” Carr’s corporate officer status; he decided that “arises out of” and “pertains” were equally broad in scope, but “pertains” had the force of “part of” or “related to”.

Therefore, the suit’s remaining breach of duty and fraud charges warrant advancement because they pertain to his CEO duties the parties agreed, but Global argued  that claims for breach of a non-compete agreement are by nature an employer/employee dispute and thus not indemnifiable.

The vice chancellor said Delaware case law says such litigation involving post-separation use of confidential information gained while still in a corporate position “pertains” to his officer status and qualifies for advancement–but he said without that misuse, it would not, citing Brown v. LiveOps, 903 A.2d 324 (Del. Ch. 2006).

The first amended complaint clearly does not qualify for advancement because it “effectively erases all mention of confidentiality from the breach of contract claim…and focuses solely on his post-employment competition and solicitation activity,” he said, granting the motion to modify the advancement order.

 

For those readers who follow the many Chancery decisions highlighted on these pages regarding advancement for corporate officers and directors, the recent Court of Chancery decision in Nielsen v. EBTH Inc., C.A. No. 2019-0164-MTZ (Del. Ch. Sept. 30, 2019), can be added to the long line of cases that reject an argument that the requirement for advancement–that the underlying litigation was brought “by reason of the fact” of the claimant’s role as a director or officer–was not satisfied. As the court described it: “Few cases present facts that fall short of Delaware’s standard favoring advancement. This case follows the common pattern.”

An article co-authored by the undersigned, and Chauna Abner, provides a more complete overview of this case and appeared in The Delaware Business Court Insider.

The recent Delaware Chancery Court opinion in Ephrat v. medCPU, Inc., C.A. No. 2018-0052-MTZ (Del. Ch. June 26, 2019), remains noteworthy for two reasons, notwithstanding the large number of advancement decisions interpreting DGCL Section 145 appearing on these pages over the last 14 years:

(1)        It provides an anthology of prior Delaware decisions granting advancement to former directors or officers to defend claims regarding the use of confidential information acquired in their prior corporate capacity; and,

(2)        The opinion adds nuance to the existing abundant case law interpreting the threshold phrase “by reason of the fact”, which is one of the statutory prerequisites that must be satisfied for advancement claims to prevail.

Key Takeaways:

  • Despite the conduct at issue taking place post-termination, the “by reason of the fact” requirement of § 145 was satisfied because the underlying case involved the use of “Confidential Information” acquired while the former D&O was acting in his corporate capacity. (Although some conduct did not qualify and, thus, only partial advancement was granted).
  • This opinion compiles and discusses all the reported Delaware decisions that address the above circumstances in the § 145 context, and distinguishes one case, Lieberman, that does not grant advancement. See footnotes 42, 52, 56 and 69. See also page 19 which explains why Lieberman should be distinguished and why it is contrary to the great weight of authority on this issue.
  • The court also contrasts disputes relating to covenants-not-to-compete, and explains why those employer v. employee disputes typically involve personal disputes not in one’s corporate capacity–citing cases so holding. See footnote 74.

Adding to the multitude of Delaware decisions featured on these pages involving the right of corporate directors and officers to advancement of their fees incurred to defend claims against them, pursuant to DGCL Section 145, or by agreement, we offer highlights of Sider v. Hertz Global Holdings, C.A. No. 2019-0237-KSJM, Order (Del. Ch. June 17, 2019), a recent Delaware Court of Chancery ruling. Our highlights appear in the form of an article published in the current edition of The Delaware Business Court Insider, co-authored by yours truly and my colleague Chauna Abner. This decision comes in the form of an Order, but regular readers know that Orders and transcript rulings from the bench may be cited in Delaware briefs as authority.

In Sider, the Court denied a motion for interlocutory appeal of a decision granting advancement, reasoning that one of the requirements for such an appeal was not met: “that there is no just reason for denying the appeal.” Other basic but important advancement principles, and nuances, are recited by the court, with copious citations in robust footnotes.

A recent Delaware Court of Chancery bench ruling granted advancement in connection with defensive counterclaims against a former officer and director.  In Dodelson v. AC Hold Co., Inc., C.A. No. 2019-0029-SG (transcript) (Del. Ch. May 21, 2019), the court interpreted the provisions of a charter with advancement provisions, and reasoned that advancement was warranted.

An issue arose about whether or not the advancement provision in the charter expressly covered former officers and directors.

The court reasoned that the advancement provision referred to coverage for “indemnified parties”, and the definition of “indemnified parties” was incorporated by reference in the court’s interpretation. The court reasoned that the definition applied to former officers and directors as well.  The court also distinguished the Chancery decision in Charney v. American Apparel, Inc., which was highlighted on these pages, and which the court found was based on language different from that present in this matter.

Brief Commentary: 

Many advancement decisions have been highlighted on these pages over the last 14 years, and this 13-page transcript ruling can be generally categorized as representing the overwhelming body of case law that grants advancement when it’s a “close call.” See, e.g., recent advancement decision highlighted.

 The court reasoned that at best for the corporation, the provision was ambiguous–and ambiguous provisions are construed against the drafter, which in this case is the corporation. That was a second reason to grant advancement in addition to the court’s interpretation of the applicable language.

Postscript Thanks to Kurt Heyman of Heyman Enerio Gattuso Hirzel LLP, the winning attorney in this case, for forwarding the transcript ruling.