AlixPartners, LLP v. Giacomo Mori

• Court: Court of Chancery of Delaware
• Decided: November 26, 2019
• Docket: C.A. No. 2019-0392-KSJM
• Status: Published

Opinion

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

ALIXPARTNERS, LLP, ) ALIXPARTNERS HOLDINGS, LLP, ) and ALIXPARTNERS S.R.L., ) ) Plaintiffs, ) ) v. ) C.A. No. 2019-0392-KSJM ) GIACOMO MORI, ) ) Defendant. )

MEMORANDUM OPINION Date Submitted: August 28, 2019 Date Decided: November 26, 2019 Bradley R. Aronstam, Eric D. Selden, ROSS ARONSTAM & MORITZ LLP, Wilmington, Delaware; Nicholas J. Pappas, Robert S. Berezin, Justin Michael DiGennaro, WEIL, GOTSHAL & MANGES LLP, New York, New York; Counsel for Plaintiffs AlixPartners, LLP, AlixPartners Holdings, LLP, and AlixPartners S.r.l. John A. Sensing, Clarissa R. Chenoweth, Jesse L. Noa, POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; Counsel for Defendant Giacomo Mori.

McCORMICK, V.C. The plaintiffs operate a global business advisory firm known as AlixPartners.

The defendant was the managing director of the plaintiffs’ office in Milan, Italy.

Over the course of his employment, the defendant received compensation in the form

of equity interests in two New York-based AlixPartners affiliates formed under

Delaware law, Plaintiffs AlixPartners, LLP (“Alix”) and AlixPartners Holdings,

LLP (“Alix Holdings”). Two agreements with the Delaware entities governed the

defendant’s equity awards: a limited liability partnership agreement and an

equityholders’ agreement. Those agreements contain Delaware choice of law and

forum selection provisions. A separate agreement with the defendant’s Italian

employer, Plaintiff AlixPartners S.r.l. (“Alix S.r.l.”), governed the defendant’s

employment. The employment agreement contains an Italian choice of law

provision but no forum selection clause.

In 2018, Alix S.r.l. raised concerns regarding the defendant’s alleged

violations of firm policy. Anticipating his termination, the defendant connected a

personal external data storage device to his work-issued computer and downloaded

files alleged to be the confidential and proprietary information of all three plaintiffs.

When the defendant refused to return or destroy the information, the plaintiffs

commenced this litigation, claiming that the defendant breached a host of

confidentiality and other contractual obligations under the limited liability

partnership agreement, equityholders’ agreement, and employment agreement. The

1 plaintiffs also asserted claims for misappropriation of trade secrets, conversion, and

declaratory relief.

The defendant has moved to dismiss the complaint on several grounds,

including lack of subject matter jurisdiction, lack of personal jurisdiction, improper

venue, and failure to state a claim. The defendant’s primary argument is that a

European Union regulation and an Italian procedural law require Italian employers

to bring proceedings concerning all employment-related disputes exclusively in

Italian courts, thus divesting this Court of subject matter jurisdiction. This decision

rejects that argument in light of the transitory nature of the plaintiffs’ claims. This

decision further rejects the defendant’s arguments that Delaware forum selection

provisions in the limited liability partnership and equityholders’ agreements are

unenforceable and concludes that these provisions are sufficient to establish personal

jurisdiction over the defendant. This decision further concludes that the complaint

adequately states multiple claims. Under the forum non conveniens doctrine,

however, this decision stays certain of the plaintiffs’ claims that arise exclusively

from the employment agreement and are governed by Italian law.

I. FACTUAL BACKGROUND These facts are drawn from the Verified Complaint (“Complaint”) and the

documents it incorporates by reference.1

1 C.A. No. 2019-0392-KSJM, Docket (“Dkt.”) 1, Verified Compl. (“Compl.”).

2 A. The Parties Alix and Alix Holdings are Delaware limited liability partnerships with

principal places of business in New York. Alix S.r.l. is an Italian subsidiary of Alix

(with Alix and Alix Holdings, “AlixPartners”). AlixPartners is a leading global

business advisory firm that specializes in turnaround and restructuring and provides

consulting services ranging from enterprise improvement to information

management.

Defendant Giacomo Mori (“Defendant”) joined the Milan office of Alix S.r.l.

as a director in September 2003. In January 2014, Alix S.r.l. promoted Defendant

to managing director. In March 2017, Defendant was made a partner in Alix

Holdings. In his various positions, Defendant was responsible for building and

maintaining client relationships, leading complex engagements, recruiting, and

developing intellectual property for the firm. In carrying out these responsibilities,

Defendant had access to AlixPartners’ confidential and proprietary information.

B. The Governing Agreements Over the course of his employment, Defendant entered into various

agreements with the AlixPartners entities. In January 2014, upon his promotion to

managing director, Defendant entered into an employment agreement (the

“Employment Agreement”) with Alix S.r.l. 2 In March 2017, upon his promotion to

2 Id. Ex. C.

3 partner, defendant executed a joinder adopting and approving Alix Holdings’ then-

operative LLP Agreement (the “LLP Agreement”).3

As part of his compensation package, Defendant received equity awards

governed by a series of option award agreements (collectively, the “Award

Agreements”). 4 In 2014 and 2016, he entered into two Award Agreements with Alix

Holdings (the “2014 Agreement” and the “2016 Agreement,” respectively).5

According to the Complaint, those agreements are governed by an equityholders’

agreement (the “Equityholders’ Agreement”).6 In February 2017, April 2017, and

April 2018, Defendant entered into four more Award Agreements with Alix

Holdings (the “February 2017 Agreements,” the “April 2017 Agreement,” and the

“April 2018 Agreement,” respectively). 7 According to the Complaint, those

agreements are governed by the Alix Holdings’ 2017 LLP Interest and Option Plan

(the “2017 Plan”).8

3 Id. Ex. A; id. ¶ 23 n.1. 4 Id. ¶¶ 46–47, 52–54. 5 Id. Exs. D, E. 6 Id. ¶ 48; id. Ex. B. The 2014 Agreement and 2016 Agreement state that they are governed by the AlixPartners Holdings, LLP 2012 LLP Interest and Option Plan, which is neither referenced in nor included as an exhibit to the Complaint. Id. Exs. D, E, at 1. Nonetheless, Plaintiffs allege that the 2014 Agreement and 2016 Agreement are ultimately subject to the Equityholders’ Agreement—and Defendant does not refute this point. 7 Id. Exs. F, G, H, I. 8 Id. ¶ 48; id. Ex. J. In their request for declaratory judgment, Plaintiffs state that Defendant also disputes that the 2017 Plan governs the February 2017, April 2017, and April 2018 Agreements. Id. ¶ 95. However, Defendant again does not offer a competing interpretation 4 Certain of the governing agreements contain contractual provisions that form

the bases for the claims in this litigation. The Employment Agreement and the LLP

Agreement contain provisions restricting Defendant’s use of confidential

information.9 The Employment Agreement contains a provision requiring the return

of confidential materials upon termination (the “Return of Property Provision”)10

and a provision requiring Defendant to use his “best efforts” to promote Alix S.r.l.’s

services, business, and affairs (the “Best Efforts Provision”).11

The Employment Agreement and Award Agreements contain nearly identical

provisions restricting Defendant’s ability to solicit AlixPartners’ business or

managing directors post-termination. The Employment Agreement contains a one-

year non-solicitation provision,12 and each of the Award Agreements contains a two-

year non-solicitation provision.13

in his briefs. Plaintiffs’ interpretation is at least reasonably conceivable, because each of the February 2017, April 2017, and April 2018 Agreements contains a provision subjecting the option awards they grant “to the terms and conditions of the Plan [defined as the 2017 Plan].” Id. Exs. F, G, H, I §§ 1. The Court accepts this conclusion for purposes of its analysis. 9 Employment Agreement at 5–6; LLP Agreement § 15.3. 10 Employment Agreement at 7. 11 Id. at 1. 12 Id. at 4–5. 13 Compl. Exs. D, E, F, G, H, I §§ 8(b). This is a slight oversimplification, in light of the complex contractual scheme involved in this case. As discussed below, the non-solicitation provisions in certain of the Award Agreements may be arguably open-ended in duration. See infra notes 171–72 and accompanying text.

5 All of the agreements entered into by the parties—except the Employment

Agreement—either contain or are subject to Delaware forum selection and Delaware

choice of law provisions. The LLP Agreement and Equityholders’ Agreement each

contain Delaware forum selection 14 and Delaware choice of law15 provisions. The

Equityholders’ Agreement’s Delaware forum selection and Delaware choice of law

provisions apply to the 2014 and 2016 Agreements.16 The Award Agreements

executed pursuant to the 2017 Plan—the February 2017, April 2017, and April 2018

Agreements—are subject to the LLP Agreement’s Delaware forum selection

provision,17 and each contains its own Delaware choice of law provision.18 The

Employment Agreement does not contain a forum selection clause, but it contains

an Italian choice of law provision. 19

C. AlixPartners S.r.l. Terminates Defendant’s Employment. On April 2, 2019, Alix S.r.l. notified Defendant by letter that he allegedly

violated numerous firm policies. Ten days later, Defendant responded by letter

14 LLP Agreement § 15.9; Equityholders’ Agreement § 5.8. 15 LLP Agreement § 15.8; Equityholders’ Agreement § 5.7. 16 Compl. ¶ 48; id. Exs. D, E §§ 15; see supra note 6 and accompanying text. 17 Compl. ¶ 55. The 2017 Plan does not contain a Delaware forum selection clause, but equity awards granted thereunder are subject to the terms and conditions of the LLP Agreement, the Equityholders’ Agreement, and the applicable Award Agreement. 2017 Plan § 6(a). 18 Compl. Exs. F, G, H, I §§ 15. The 2017 Plan also has its own Delaware choice of law provision. 2017 Plan § 13(a). 19 Employment Agreement at 8.

6 explaining his position. On May 10, 2019, Alix S.r.l. replied that it had confirmed

Defendant’s alleged failure to follow relevant procedures and explained that such

failure constituted a breach of trust requiring his termination. Defendant’s

employment was terminated that same day.

D. Defendant Accesses AlixPartners’ Confidential Information. On May 9, 2019—one day before the termination—Defendant connected a

personal external data storage device to his work-issued computer and copied to that

device more than 3,000 documents designated “Confidential” or “High Risk” by the

AlixPartners U.S.-based data loss prevention system. 20 These documents included

a directory containing at least 1,500 user-created files whose paths contained client

names. AlixPartners’ additional U.S.-based data protection system revealed that at

least 22,000 items—including email, Excel documents, Word documents,

PowerPoint presentations, and PDFs—were copied to the same external device on

the same date. Based on the file names, the majority of these items “appear to be

AlixPartners data.”21 The documents Defendant copied to the external device

included presentations related to Defendant’s work on behalf of AlixPartners,

reports, revenue assessments, studies prepared by AlixPartners, notes from

meetings, pricing analyses, and other strategic documents appearing to contain

20 Compl. ¶¶ 26, 27, 30–31. 21 Id. ¶ 36.

7 “confidential and sensitive” information and “valuable trade secrets” relating to the

company’s methods, techniques, and processes for conducting and marketing its

consulting business.22

On May 13, 2019, AlixPartners sent a letter to Defendant notifying him that

the company was aware that he had downloaded a large number of files onto an

external storage device. The letter directed Defendant to return, delete, or destroy

those files. On May 14, 2019, Defendant returned certain AlixPartners’ property,

including his work-issued laptop, to the company’s Milan office. Defendant did not

produce the external storage device. Defendant represented at that time that he had

copied only personal files from his work-issued laptop.

On May 19, 2019, Defendant explained to a senior AlixPartners executive that

he had in fact downloaded personal files, old files for references, and files regarding

an AlixPartners client engagement. The Complaint describes this explanation as an

admission that Defendant had “downloaded a number of confidential files from his

AlixPartners’ laptop.” 23 At no point did Defendant return to AlixPartners the

external storage device or the information he copied to that device. Defendant has

also declined to certify that he has returned, deleted, or destroyed the documents.

22 Id. ¶¶ 38–39. 23 Id. ¶ 44.

8 E. Alix Holdings Determines Defendant’s Leaver Status. Defendant’s termination under the Employment Agreement had potential

knock-on effects under the agreements governing his equity awards.

Under the Equityholders’ Agreement, Alix Holdings has the right to

repurchase a separating managing director’s equity interests depending on the

managing director’s leaver status. If the Alix Holdings board determines that the

managing director is a “Bad Leaver,” 24 then Alix Holdings may repurchase the

managing director’s equity interests at a price equal to the lesser of (i) their fair

market value at the time they were granted, or (ii) their fair market value at the time

of the repurchase. 25 Upon Defendant’s termination, the Alix Holdings board

determined that Defendant was a “Bad Leaver” and decided to repurchase his equity

interests under the 2014 Agreement and the 2016 Agreement.

Under the 2017 Plan, a separating managing director’s equity interests

automatically terminate depending on the managing director’s leaver status. If the

Alix Holdings board determines that the managing director is a “Non-Qualified

Leaver,”26 then the managing director’s options “shall immediately terminate as of

24 The Equityholders’ Agreement defines the term “Bad Leaver” in § 1.1(a). 25 Equityholders’ Agreement § 4.1(c). 26 The 2017 Plan provides that the AlixPartners Equity Exchange (the “APEX”) defines “Non-Qualified” Leaver. Id. § 2(y). The APEX is attached to the Complaint as Exhibit K and defines “Non-Qualified Leaver” in § 2(w). Compl. Ex. K § 2(w).

9 the date such [managing director] becomes a Non-Qualified Leaver.”27 Upon

Defendant’s termination, the Alix Holdings board determined that Defendant was a

“Non-Qualified Leaver” within the meaning of the 2017 Plan. Defendant’s options

under the February 2017 Agreements, the April 2017 Agreement, and the April 2018

Agreement thus immediately terminated as of the date of Defendant’s termination.

F. This Litigation Plaintiffs commenced this litigation on May 28, 2019. The Verified

Complaint asserts six counts:

• Count I for breach of the Employment Agreement’s confidentiality provision, Return of Property Provision, and Best Efforts Provision brought by Alix S.r.l.; 28

• Count II for breach of the LLP Agreement’s confidentiality provision brought by Alix Holdings;29

• Count III for misappropriation of trade secrets brought by all three Plaintiffs;

• Count IV for conversion brought by all three Plaintiffs;

• Count V for a declaratory judgment as to AlixPartners’ contractual right to repurchase or terminate Defendant’s equity brought by all three Plaintiffs; and

27 Compl. ¶ 56; 2017 Plan § 5(e). 28 Plaintiffs clarified in briefing that although AlixPartners pled Count I for breach of the Employment Agreement broadly on behalf of all three Plaintiffs, only Alix S.r.l asserts that Count. Dkt. 15, Pls.’ Answering Br. in Opp’n to Def.’s Mot. to Dismiss and to Vacate Stipulation and Order for Status Quo (“Pls.’ Answering Br.”) at 14. 29 Plaintiffs also clarified in briefing that although AlixPartners pled Count II for breach of the LLP Agreement broadly on behalf of all three Plaintiffs, only Alix Holdings asserts that Count. Id. at 14 n.6.

10 • Count VI for a declaratory judgment concerning Defendant’s contractual non-solicitation obligations brought by all three Plaintiffs.

Defendant moved to dismiss the Complaint. The parties fully briefed the

motion,30 and the Court heard oral arguments on August 28, 2019. 31

II. LEGAL ANALYSIS Defendants have moved to dismiss the Complaint under Court of Chancery

Rules 12(b)(1) for lack of subject matter jurisdiction and lack of standing, 12(b)(2)

for lack of personal jurisdiction, 12(b)(3) for improper venue, and 12(b)(6) for

failure to state a claim.

A. The Court Has Subject Matter Jurisdiction. Defendant’s first argument is that the Court lacks subject matter jurisdiction

over this dispute.32 Defendant does not dispute that certain of the claims in this case

30 Dkt. 9, Def.’s Mot. to Dismiss and to Vacate Stipulation and Order for Status Quo (“Def.’s Opening Br.”); Pls.’ Answering Br.; Dkt. 19, Def.’s Reply Br. in Supp. of Mot. to Dismiss and to Vacate Stipulation and Order for Status Quo (“Def.’s Reply Br.”). 31 Contemporaneously with the Complaint, Plaintiffs filed a motion for a temporary restraining order. Dkt. 1, Mot. for a TRO. To resolve that motion, the parties negotiated a Stipulation and Proposed Status Quo Order, which the Court entered on June 5, 2019 (the “Status Quo Order”). Dkt. 8, Stipulation and Order for Status Quo. In the Status Quo Order, Defendant agreed to relinquish custody of the external storage device to his counsel, who would then arrange for forensic imaging of the device and deliver the forensic image to Plaintiffs’ counsel. Id. ¶¶ 2–5. With the motion to dismiss, Defendant also moved to vacate the Status Quo Order, which the Court addresses separately. Def.’s Opening Br. at 43–44. 32 Def.’s Opening Br. at 8–16.

11 fall within the Court’s traditional subject matter jurisdiction; 33 nor could he.34

Rather, Defendant argues that two foreign laws divest the Court of subject matter

jurisdiction: a European Union (“EU”) regulation enforceable as law in all EU

member states including Italy and a provision of the Italian Civil and Labour

Procedure Code. 35

The EU regulation on which Defendant relies, referred to as the “Brussels

Regulation,” is a jurisdictional rule promulgated by the EU in order to ensure

“judicial cooperation in civil matters which are necessary for the sound operation of

the internal market.” 36 It resolves “certain differences between national rules

governing jurisdiction and recognition of judgments” by “unify[ing]” those rules

“with a view to rapid and simple recognition and enforcement of judgments from

33 “As Delaware’s Constitutional court of equity, the Court of Chancery can acquire subject matter jurisdiction over a cause in only three ways, namely, if: (1) one or more of the plaintiff’s claims for relief is equitable in character, (2) the plaintiff requests relief that is equitable in nature, or (3) subject matter jurisdiction is conferred by statute.” Candlewood Timber Gp., LLC v. Pan Am. Energy, LLC, 859 A.2d 989, 997 (Del. 2004) (citing 10 Del. C. §§ 341, 342). 34 Among other things, Plaintiffs seek equitable relief by asking this Court to enjoin Defendant from a variety of conduct related to the confidential and proprietary information in his possession and order the return of such information. Compl. Prayer for Relief ¶¶ b, c, d, f. As to the remaining claims and requests for relief, the Court may exercise equitable “clean-up” jurisdiction. See Donald J. Wolfe, Jr. & Michael A. Pittenger, Corporate and Commercial Practice in the Delaware Court of Chancery § 2.04 (2d ed. 2018) (providing an overview of equitable “clean-up” jurisdiction). 35 Def.’s Opening Br. at 9–16. 36 Dkt. 9, Transmittal Aff. of John A. Sensing in Supp. of Def.’s Mot. to Dismiss Ex. 4, at 1.

12 Member States.”37 It requires employers, “[i]n matters relating to individual

contracts of employment,” to “bring proceedings only in the courts of the Member

State in which the employee is domiciled.”38

The Italian law on which Defendant relies is Article 413 of the Italian Civil

and Labor Procedure Code (“Article 413”). According to Defendant’s expert,

Article 413 provides that disputes involving an Italian citizen’s employment and

employment relationship belong solely to the jurisdiction of the Italian Labour

Judge. 39

The laws of a foreign country cannot unilaterally deprive an American court

of the power to hear a dispute.40 Delaware courts are “capable of adjudicating

37 Id. 38 Id. at ch. 2 § 5, arts. 18, 20. 39 Dkt. 9, Decl. of Luca Failla Pursuant to 10 Del. C. § 3927 ¶ 11 (“Failla Decl.”). Throughout briefing, Defendant also refers Article 414 of the Italian Civil and Labor Procedure Code (“Article 414”). Defendant does not assert that Article 414 divests the Court of subject matter jurisdiction; instead, he argues that it works in tandem with a provision of the Italian Constitution to invalidate the confidentiality provisions of the various agreements involved in this case. The Court addresses this argument below in the analysis of whether Plaintiffs have stated a claim under Rule 12(b)(6). See infra note 147 and accompanying text. 40 See Randall v. Arabian Am. Oil Co., 778 F.2d 1146, 1150 (5th Cir. 1985) (“We reject outright the notion that the law of a foreign country can unilaterally curtail the power of our federal courts to hear a dispute even though the dispute involves rights fixed by the laws of another nation.”); see also Reservoir 2020, Inc. v. Paulsson, 785 F.3d 330, 335 (9th Cir. 2015) (quoting Randall, 778 F.2d at 1150); Flame S.A. v. Freight Bulk Pte., Ltd., 762 F.3d 352, 366 (4th Cir. 2014) (“[F]oreign law . . . cannot determine the subject matter jurisdiction of an American court.”) (Wilkinson, J., concurring).

13 [equitable] rights and remedies under the laws of foreign jurisdictions.”41 There are

only “limited circumstances” in which Delaware courts “will not exercise subject

matter jurisdiction over a dispute that is predicated on foreign law where the foreign

state has vested jurisdiction exclusively in its own courts.” 42 Defendant bears the

burden of persuading the Court that foreign law divests this Court of an otherwise

appropriate exercise of subject matter jurisdiction.43

Two decisions of the Delaware Supreme Court establish the limited

circumstances in which a foreign country’s exclusive jurisdiction statute will divest

a Delaware court of subject matter jurisdiction: Taylor 44 and Candlewood. 45

In Taylor, a Canadian company’s minority stockholder sought to enjoin

preliminarily the majority stockholder, a Delaware entity, from acquiring the

minority interest. 46 The plaintiff’s claim derived solely from the so-called

“oppression remedy” conferred by the Canada Business Corporations Act. 47 The

defendant moved to dismiss, arguing that the Canada Business Corporations Act

41 de Adler v. Upper N.Y. Inv. Co., 2013 WL 5874645, at *8 (Del. Ch. Oct. 31, 2013). 42 Candlewood, 859 A.2d at 1004 (emphasis added). 43 Id. (“On the question of whether exclusive jurisdiction has been vested in [another country’s] courts . . . the proponent of that contention[] has the burden of persuasion.”). 44 Taylor v. LSI Logic Corp., 715 A.2d 837 (Del. 1998), overruled on other grounds by Martinez v. E.I. du Pont de Nemours & Co., 86 A.3d 1102 (Del. 2014). 45 Candlewood Timber Gp., LLC v. Pan Am. Energy, LLC, 859 A.2d 989 (Del. 2004). 46 715 A.2d at 838. 47 Id. at 839.

14 required the plaintiff to file suit in the courts of Canada. 48 After considering relevant

legislative intent,49 the Delaware Supreme Court held that the plaintiff’s “exclusive

equitable remedy under . . . the Canada Business Corporations Act for oppressive

corporate acts lies in the courts of Canada.”50 The Delaware Court of Chancery thus

lacked subject matter jurisdiction over the dispute.51

Six years after Taylor, the Delaware Supreme Court again considered the

effect of a foreign nation’s exclusive jurisdiction statute in Candlewood. In that

case, a Delaware entity’s wholly owned Argentine subsidiary purchased a large plot

of forested land in Argentina for purposes of manufacturing and selling wood

products.52 The Delaware entity, Candlewood, agreed through its subsidiary to

allow the defendant—a Delaware LLC—to extract the oil and gas from the forested

land.53 Thereafter, the defendant’s drilling program caused “massive” property

damage, and Candlewood filed a lawsuit in this Court alleging breach of contract,

negligence, fraud, tortious infringement of property rights, and tortious interference

with business relations.54 The defendant moved to dismiss the complaint, arguing

48 Id. 49 Id. at 840. 50 Id. at 841. 51 Id. 52 Candlewood, 859 A.2d at 991. 53 Id. at 991–92. 54 Id. at 992.

15 among other things that Argentine law vested jurisdiction exclusively in Argentine

courts. 55

On appeal, the Delaware Supreme Court affirmed the Court of Chancery’s

decision rejecting the defendant’s argument. The Court found that the plaintiffs’

claims were transitory in nature and thus subject to the jurisdiction of the Delaware

courts. In its analysis, the Candlewood Court adopted the test set forth by the

Supreme Court of the United States in Tennessee Coal, Iron & R.R. Co. v. George.56

In Tennessee Coal, a locomotive engineer suffered an injury while repairing brakes

in Alabama. 57 The engineer sued his employer in a Georgia state court, asserting

claims under an Alabama statute.58 That Alabama statute provided for employer

liability, but it also required the plaintiffs to seek relief in Alabama courts. 59 The

Court found that the plaintiff’s claims were transitory in nature because “the place

of bringing suit [was] not part of the cause of action[]—the right and the remedy

[were] not so inseparably united as to make the right dependent upon its being

enforced in a particular tribunal.”60 The Court reasoned:

55 Id. at 1004. 56 Id. at 1006 (citing Tenn. Coal, Iron & R.R. Co. v. George, 233 U.S. 354 (1914)). 57 Tenn. Coal, 233 U.S. at 358. 58 Id. at 358. 59 Id. 60 Id. at 359.

16 [A] state cannot create a transitory cause of action and at the same time destroy the right to sue on that transitory cause of action in any court having jurisdiction. That jurisdiction is to be determined by the law of the court’s creation and cannot be defeated by the extraterritorial operation of a statute of another State, even though it created the right of action.61

Although Tennessee Coal involved the application of another U.S. state’s law and

thus was rooted in the Full Faith and Credit Clause, federal courts have since applied

Tennessee Coal’s reasoning in order to determine the extraterritorial operation of the

law of a foreign nation. 62

The Delaware Supreme Court followed suit in Candlewood, applying the

Tennessee Coal test to determine the extraterritorial operation of Argentine law. The

Court observed that Candlewood’s contract and tort claims were transitory in nature,

and that they were thus properly brought in Delaware under Tennessee Coal.63 The

Candlewood Court distinguished Taylor, reasoning that in that case, “the general

rule of Tennessee Coal did not apply, because ‘the oppression remedy in [the Canada

Business Corporations Act] [was] purely a legislatively created statutory remedy,’

and ‘it was the intent of the [Canadian] Parliament that actions brought under . . . the

61 Id. at 360. 62 See, e.g., Randall, 778 F.2d at 1153 (“[I]f the Full Faith and Credit Clause of the United States Constitution, which is the Supreme Law of land, does not compel one state from recognizing the exclusive jurisdiction provisions of a sister state, then we see little or no reason why in a transnational case such as this, where no higher positive law binds us, we should be compelled to give effect to a foreign state’s exclusive jurisdiction provision.”). 63 Candlewood, 859 A.2d at 1006–07.

17 Canada Business Corporations Act be brought only in the courts of Canada.’” 64 By

contrast, the plaintiffs in Candlewood were “asserting claims arising under common

law, not under an Argentine statute that purports to localize those claims exclusively

within the Argentine court system.” 65 And in Candlewood “the plaintiffs’ causes of

action [were] not (as was found to be the case in Taylor) so inseparably intertwined

with a statutorily-created remedy that the right [could] be enforced only in the

statutorily-mandated tribunal.”66

In its analysis, the Candlewood Court also discussed with approval the Fifth

Circuit’s holding in Randall. 67 In that case, the former employee of a Delaware

corporation whose tenure took place in Saudi Arabia filed suit in a federal court

challenging his termination.68 The defendant moved to dismiss on the ground that a

Saudi Arabian labor law gave exclusive jurisdiction over labor disputes to a Saudi

Arabian labor commission.69 The Fifth Circuit rejected the defendant’s argument,

describing the plaintiff’s claim as “a classic example of a transitory cause of action

64 Id. at 1007 (quoting Taylor, 715 A.2d at 840 n.13, 841). 65 Id. 66 Id. 67 Randall v. Arabian Am. Oil Co., 778 F.2d 1146 (5th Cir. 1985). 68 Id. at 1148. 69 Id. at 1149.

18 that may be enforced in any foreign court having subject matter and in personam

jurisdiction.” 70

Applying Candlewood’s analytical framework to this case, Defendant’s

subject matter jurisdiction arguments fail because the rights and remedies at issue

are transitory in nature in that they “are not so inseparably united as to make the

right[s] dependent upon [their] being enforced in a particular tribunal.” 71 A

comparison of this case with Candlewood and its progenitor decisions reinforces this

conclusion.

Unlike Taylor, where a Canadian statute was the only source for the plaintiff’s

recovery, neither the Brussels Regulation nor Article 413 creates the rights or the

remedies at issue in this case. As Defendant explains, the Brussels Regulation did

not create enforceable substantive rights; it merely “codified the jurisdictional rules

for the EU.” 72 Similarly, Article 413 serves a procedural function rather than a

substantive one in that it vests jurisdiction over employment disputes in the Italian

Labour Judge.73 Defendant does not argue that the Brussels Regulation or

Article 413 creates the substantive rights or remedies that form the basis for the

Complaint.

70 Id. at 1151. 71 Tenn. Coal, 233 U.S. at 359. 72 Def.’s Opening Br. at 9. 73 Id. at 10.

19 Like in Candlewood and Randall, Plaintiffs assert “claims arising under

common law,” not under an EU or Italian law that “purports to localize those claims

exclusively within the [Italian] court system.” 74 Plaintiffs assert two counts for

breach of contract, one count for misappropriation of trade secrets, and one count

for conversion. 75 As Candlewood explains, “[n]o contemporary legal order’s law of

contract or tort seeks to localize . . . actions sounding in tort or contract.”76 And as

a general matter, “[m]ost types of actions are considered transitory.” 77 The common

law rights Plaintiffs seek to enforce are not the sort of statutorily-created rights so

“inseparably united” with statutorily-created remedies that they must be enforced in

a “particular tribunal.” 78 The Brussels Regulation and Article 413 thus do not divest

this Court of subject matter jurisdiction.

This conclusion is particularly appropriate given that the claims in this case

relate to the internal affairs of Alix Holdings, a Delaware limited liability

partnership.79 Plaintiffs’ claims that Defendant violated confidentiality obligations

to his employer under the Employment Agreement overlap significantly with claims

74 Candlewood, 859 A.2d at 1007; see Randall, 778 F.2d at 1151. 75 Compl. Counts I, II, III, IV. 76 Candlewood, 859 A.2d at 1006 (citation omitted). 77 Id. (quoting Moore’s Federal Practice ¶ 110.20[2] (3d ed. 2002)). 78 Tenn. Coal, 233 U.S. at 359. 79 Compl. ¶ 5.

20 arising out of the LLP Agreement. “[T]he logic of the internal affairs doctrine,

developed in regard to corporations, applies with equal force in the context of a

partnership.”80 That doctrine “is a long-standing choice of law principle which

recognizes that only one state should have the authority to regulate corporation’s

internal affairs—the state of incorporation.” 81 Plaintiffs’ claims involve matters

peculiar to Alix Holdings that pertain to the relationship between that entity and one

of its partners—Defendant. 82 Delaware thus has a vested policy interest in providing

a forum for the adjudication of claims under the LLP Agreement.

B. Alix and Alix Holdings Have Standing to Pursue Their Claims. Defendant next argues that Alix and AlixHoldings lack standing to pursue

Plaintiffs’ claims for breach of the confidentiality provisions of the LLP Agreement,

misappropriation, and conversion. 83 To establish standing under Delaware law, a

plaintiff bears the burden of pleading each of the elements of standing, including

80 Total Hldgs. USA, Inc. v. Curran Composites, Inc., 999 A.2d 873, 884 (Del. Ch. 2009). 81 VantagePoint Venture P’rs 1996 v. Examen, Inc., 871 A.2d 1108, 1112 (Del. 2005). 82 See VantagePoint, 871 A.2d at 1113 (“The internal affairs doctrine applies to those matters that pertain to the relationships among or between the corporation and its officers, directors, and shareholders.” (citing McDermott Inc. v. Lewis, 531 A.2d 206, 214 (Del. 1987))). 83 Def.’s Opening Br. at 16–19. Defendant also argues that Alix and Alix Holdings lack standing to pursue the claim for breach of the Employment Agreement. Id. at 16. In response, Plaintiffs clarified that only Alix S.r.l. brings that claim. See supra note 28.

21 that the plaintiff suffered an injury in fact.84 An injury in fact is “an invasion of a

legally protected interest which is (a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical.”85 “At the pleading stage, general

allegations of injury are sufficient to withstand a motion to dismiss because it is

‘presume[d] that general allegations embrace those specific facts that are necessary

to support the claim.’” 86

Defendant argues that Alix and Alix Holdings have not suffered an injury in

fact because the information Defendant downloaded belongs exclusively to Alix

S.r.l. 87 But it is a reasonable inference from the facts alleged in the Complaint that

Defendant accessed the confidential and proprietary information of all three

AlixPartners entities.

In the Complaint, Plaintiffs define “AlixPartners” to include Alix, Alix

Holdings, and Alix S.r.l. 88 Nothing in Plaintiffs’ allegations limit the ownership of

the misappropriated materials to Alix S.r.l. They allege that the information

Defendant downloaded includes “numerous PowerPoint presentations related to

84 Dover Historical Soc’y v. City of Dover Planning Comm’n, 838 A.2d 1103, 1110 (Del. 2003). 85 Id. (quoting Soc’y Hill Towers Owners’ Ass’n v. Rendell, 210 F.3d 168, 175–76 (3d Cir. 2000)). 86 Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). 87 Def.’s Opening Br. at 18. 88 Compl. at 1.

22 Defendant’s work on behalf of AlixPartners, reports, revenue assessments, studies

prepared by AlixPartners, notes from meetings, pricing analyses, and other strategic

documents.” 89 “[T]he majority of th[ose] documents contain confidential and

sensitive AlixPartners’ and AlixPartners’ clients’ information.”90 At the pleading

stage, the Court may presume that these general allegations as to AlixPartners

“embrace those specific facts that are necessary to support the claim[s]” as to Alix

and Alix Holdings.91 This inference is buttressed by the allegation that both of

AlixPartners’ data protection systems that detected the purported breaches are hosted

within the United States—the country where Alix and Alix Holdings are organized

and located.92 Those U.S.-based data protection systems revealed that Defendant

downloaded thousands of confidential documents and that a majority of the 22,000

items that Defendant copied, created, or wrote to his external storage device “appear

to be AlixPartners data.” 93

Defendant cites a federal case, Acrisure Holdings, Inc. v. Frey,94 to argue that

the information Defendant downloaded belongs exclusively to Alix S.r.l. because

89 Id. ¶ 38. 90 Id. 91 Dover Historical Soc’y, 838 A.2d at 1110 (quoting Lujan, 504 U.S. at 561). 92 Compl. ¶¶ 4–5, 27, 33. 93 Id. ¶¶ 2, 35–36. 94 2019 WL 1324943 (D. Del. Mar. 25, 2019).

23 Defendant was in Alix S.r.l.’s direct employ. 95 In Acrisure, a subsidiary’s parent

and its holding company sued the subsidiary’s former employee. 96 The plaintiffs

alleged that the defendant misappropriated a client list exclusively from the

subsidiary as “his employer,” rather than from all three entities.97 In addition, the

employment agreement at issue in Acrisure stated: “All business [the defendant]

develops and secures . . . and all business [he] services during the term of this

Agreement shall be the exclusive property of [the subsidiary].” 98 The court thus

found that the plaintiffs lacked standing to pursue their misappropriation claims. 99

Acrisure is inapposite. In this case, Plaintiffs have alleged that defendant

downloaded documents that belong to all three AlixPartners entities. 100 The

Complaint contains no allegation that the allegedly misappropriated information

belongs solely to Alix S.r.l. In addition, the Employment Agreement does not

contain a provision similar to that in Acrisure designating the information at issue as

the exclusive property of Alix S.r.l. In fact, the Employment Agreement

contemplates the opposite: that Defendant would have access to the confidential

95 Pls.’ Answering Br. at 19. 96 Acrisure, 2019 WL 1324943, at *1, 3. 97 Id. at *7. 98 Id. at *7 n.108 (emphasis added). 99 Id. at *8–11. 100 Compl. ¶¶ 31–32, 36–38.

24 information of not only Alix S.r.l. as his direct employer, but also of Alix and Alix

Holdings as related entities. 101 Thus, Defendant’s argument that the data belongs

solely to Alix S.r.l. is unavailing. The Complaint adequately alleges an injury in fact

such that the inference of standing as to Alix and Alix Holdings is appropriate at this

stage.

C. The Court Has Personal Jurisdiction Over Defendant. Defendant also moves to dismiss pursuant to Rule 12(b)(2) for lack of

personal jurisdiction. 102 Delaware courts resolve questions of personal jurisdiction

using a two-step analysis. 103 First, the court must “determine that service of process

is authorized by statute.” 104 Second, the defendant must have certain minimum

contacts with Delaware such that the exercise of personal jurisdiction “does not

offend traditional notions of fair play and substantial justice.”105 However, “[w]hen

a party is bound by a forum selection clause, the party is considered to have expressly

101 The Employment Agreement prohibits Defendant from disclosing or using “any confidential or proprietary information of the Group . . . relating to the property, business and affairs of the Group.” Employment Agreement at 5. The term “Group” includes not only Alix S.r.l. and any other subsidiary of Alix, but also “all companies controlling, controlled by or under common control within the meaning of article 2359 of the Italian Civil Code.” Id. at 4, 5. This definition encompasses Alix and Alix Holdings. Dkt. 15, Decl. of Giovanni Gaudio Pursuant to 10 Del. C. § 5351, et seq. ¶ 13 n.4. 102 Def.’s Opening Br. at 20. 103 Ryan v. Gifford, 935 A.2d 258, 265 (Del. Ch. 2007). 104 Id. 105 Matthew v. Fläkt Woods Gp. SA, 56 A.3d 1023, 1027 (Del. 2012) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

25 consented to personal jurisdiction.” 106 “An express consent to jurisdiction, in and of

itself, satisfies the requirements of Due Process,” eliminating the need to undertake

a minimum contacts analysis. 107 Forum selection clauses are “‘presumptively valid’

and should be ‘specifically’ enforced unless the resisting party ‘clearly show[s] that

enforcement would be unreasonable and unjust, or that the clause [is] invalid for

such reasons as fraud and overreaching.’” 108

Two agreements at issue in this case contain Delaware forum selection

clauses—the LLP Agreement and the Equityholders’ Agreement. 109 On their faces,

those agreements apply to claims asserted in the Complaint,110 and Defendant does

106 Solae, LLC v. Hershey Can., Inc., 557 F. Supp. 2d 452, 456 (D. Del. 2008) (citing Res. Ventures, Inc. v. Res. Mgmt. Int’l, Inc., 42 F. Supp. 2d 423, 431 (D. Del. 1999)). 107 Id. (citing Sternberg v. O’Neil, 550 A.2d 1105, 1116 (Del. 1988), abrogated on other grounds by Genuine Parts Co. v. Cepec, 137 A.3d 123 (Del. 2016)). 108 Ingres Corp. v. CA, Inc., 8 A.3d 1143, 1146 (Del. 2010) (quoting Capital Gp. Cos. v. Armour, 2004 WL 2521295, at *3 (Del. Ch. Nov. 3, 2004)). 109 LLP Agreement § 15.9 (“In any judicial proceeding involving any dispute, controversy or claim arising out of or relating to this Agreement or [Alix Holdings] or its operations, each of the Partners and [Alix Holdings] unconditionally accepts the non-exclusive jurisdiction and venue of any United States District Court located in the State of Delaware, or of the Court of Chancery of the State of Delaware . . . .”); Equityholders’ Agreement § 5.8 (“In any judicial proceeding involving any dispute, controversy or claim arising out of or relating to this Agreement, each party hereto unconditionally accepts jurisdiction and venue of any United States District Court located in the State of Delaware, or of the Court of Chancery of the State of Delaware . . . .”). 110 Compl. Counts II, V, VI.

26 not contend otherwise. Defendant also does not contend that the forum selection

clauses are invalid because they were the product of “fraud or overreaching.” 111

Instead, Defendant argues that the Delaware forum selection clauses are

unenforceable as to him because he “merely joined the agreements” and had “no

ability to negotiate their terms.” 112 This argument fails to rebut the presumed

validity of the forum selection clauses. Individuals often become parties to

agreements by signing joinders to those agreements, as the case law Defendant cites

illustrates.113 This Court declines to hold that forum selection clauses in every such

agreement are categorically invalid and unenforceable for want of free negotiation.

Further, Defendant’s emphasis on the purportedly “inequitable” nature of an

exercise of personal jurisdiction in this case is deeply misguided, especially in light

of the equitable principles announced in the very case law on which he relies.114

Defendant cites to Capital Group as support for the proposition that a “freely

negotiated” agreement is one that “contemplate[s] the claimed inconvenience,”115

but he ignores its discussion of equitable estoppel. In Capital Group, this Court

111 Ingres Corp., 8 A.3d at 1146. 112 Def.’s Opening Br. at 22. 113 See Capital Gp., 2004 WL 2521295, at *2 (considering trustees’ execution of a “Joinder Agreement” by which they agreed to be bound by a stock restriction agreement and finding that the forum selection clause in the stock restriction agreement was valid). 114 Def.’s Opening Br. at 22 (“[I]t would be inequitable to permit Plaintiffs to manufacture personal jurisdiction via a non-negotiated jurisdictional consent provision . . . .”). 115 Id. at 21 (citing Capital Gp., 2004 WL 2521295, at *6); Def.’s Reply Br. at 18 (same).

27 bound a non-signatory to a Delaware forum selection clause when it found that the

non-signatory received a direct benefit from and was thus “closely related” to the

agreement at issue. 116 The closely-related test is an application of equitable

estoppel, which—as the Court in Capital Group explained—“prevents a non-

signatory to a contract from embracing the contract, and then turning her back on

the portions of the contract, such as a forum selection clause, that she finds

distasteful.”117

In this case, even if Defendant had not “joined” the LLP or Equityholders’

Agreements, he received a direct benefit from those agreements in the form of

partnership rights and interests in Alix Holdings.118 In view of these rights, he is

“closely related” to—and thus bound by—their forum selection provisions. 119 This

Court will not allow Defendant to accept the benefits of the agreements while

simultaneously escaping his obligation under those agreements to litigate in

Delaware.

116 Capital Gp., 2004 WL 2521295 at *6–7. 117 Id. at *6. 118 LLP Agreement art. IV; Compl. Exs. D, E, F, G, H, I, at 1 (“[A]s a condition to the grant of this Option, the Participant shall . . . be required to execute the omnibus joinder . . . to the Partnership Agreement and the Equityholders’ Agreement . . . .”). 119 See Neurvana Med., LLC v. Balt USA, LLC, 2019 WL 4464268, at *4 (Del. Ch. Sept. 18, 2019) (collecting cases finding that non-signatories were bound by the relevant agreements’ forum selection clauses because they received direct benefits—“both pecuniary and non-pecuniary”—from those agreements).

28 D. Venue in This Court Is Proper, but Practical Considerations Warrant a Stay of Claims Under the Employment Agreement. Defendant next moves for dismissal of the entire Complaint under

Rule 12(b)(3) for improper venue on forum non conveniens grounds.120 As

discussed above, however, Defendant bound himself to the Delaware forum

selection provisions in the LLP Agreement and Equityholders’ Agreement. 121 In so

doing, Defendant “unconditionally accept[ed]” the “jurisdiction and venue” of the

Delaware Court of Chancery with respect to claims arising out of those

agreements. 122 Defendant may not renege on this promise by now claiming that this

Court is an inappropriate forum.

The Delaware Supreme Court’s decision in Ingres is instructive. That case

involved a forum selection clause designating either Delaware or New York as the

appropriate forum. 123 The Supreme Court affirmed this Court’s refusal to stay the

Delaware action in favor of a first-filed California action under McWane in light of

the parties’ “agreed upon forum selection clauses.”124 The Ingres Court then

120 Def.’s Opening Br. at 24–30. 121 LLP Agreement § 15.9; Equityholders’ Agreement § 5.8. 122 LLP Agreement § 15.9; Equityholders’ Agreement § 5.8. 123 Ingres, 8 A.3d at 1145 & n.1. 124 Id. at 1145. “In McWane, [the Delaware Supreme Court] held that Delaware courts should exercise discretion in favor of a stay where a prior action, involving the same parties and issues, is pending elsewhere in a court capable of doing prompt and complete justice.” Id. (citing McWane Cast Iron Pipe Corp. v. McDowell–Wellman Eng’g Co., 263 A.2d 281 (Del. 1970)).

29 clarified that, “where contracting parties have expressly agreed upon a legally

enforceable forum selection clause, a court should honor the parties’ contract and

enforce the clause, even if, absent any forum selection clause, the McWane principle

might otherwise require a different result.” 125 This was so because “the McWane

principle is a default rule of common law, which the parties to the litigation are free

to displace by a valid contractual agreement.” 126

Like the McWane doctrine, the forum non conveniens doctrine is a rule of

common law that parties are free to displace by a valid contractual agreement. The

plain language of the forum selection clauses in the LLP Agreement and

Equityholders’ Agreement preclude Defendant’s forum non conveniens argument as

a basis for dismissal.127

125 Id. 126 Id. at 1146. 127 Defendant alternatively suggests that principles of international comity warrant deference to the Italian courts. Def.’s Opening Br. at 15 n.16; Def.’s Reply Br. at 11–14. “International comity is an ‘abstention doctrine,’ under which a court that has jurisdiction over a person or dispute . . . may abstain from exercising jurisdiction and defer to a foreign court.” Nat’l Indus. Gp. (Hldg.) v. Carlyle Inv. Mgmt. L.L.C., 67 A.3d 373, 387 (Del. 2013) (quoting Ungaro–Benages v. Dresdner Bank AG, 379 F.3d 1227, 1237 (11th Cir. 2004)). But “[t]he enforcement of an international forum selection clause is not an issue of comity.” Id. Rather, “[i]t is a matter of contract enforcement and giving effect to substantive rights that the parties have agreed upon.” Id. The Delaware forum selection clauses in the LLP Agreement and Equityholders’ Agreement thus “supersede[]” the “application of the doctrine of international comity,” just as they supersede Defendant’s forum non conveniens argument. Id.

30 The same cannot be said of the claims arising exclusively from the

Employment Agreement—Count I for breach of the Employment Agreement’s

confidentiality, Return of Property, and Best Efforts provisions, and the portion of

Count VI seeking relief under the non-solicitation provision in the Employment

Agreement. Unlike the LLP Agreement and Equityholders’ Agreement, the

Employment Agreement does not contain a Delaware forum selection provision. As

a result, Defendant’s forum non conveniens argument is not foreclosed with respect

to the claims arising exclusively out of the Employment Agreement.

Under the doctrine of forum non conveniens, a court may decline to hear a

case “whenever considerations of convenience, expense, and the interests of justice

dictate that litigation in the forum selected by the plaintiffs would be unduly

inconvenient, expensive or otherwise inappropriate.”128 The doctrine operates even

“[w]here there is no issue of prior pendency of the same action in another

jurisdiction.” 129 Delaware courts consider six factors when determining whether an

action should be dismissed on forum non conveniens grounds:

(1) the relative ease of access to proof; (2) the availability of compulsory process for witnesses; (3) the possibility of the view of the premises; (4) whether the controversy is dependent on the application of Delaware law which the 128 Summer Sports, Inc. v. Remington Arms Co., 1993 WL 67202, at *7 (Del. Ch. Mar. 4, 1993) (quoting Monsanto Co. v. Aetna Cas. & Sur. Co., 559 A.2d 1301, 1304 (Del. Super. Ct. 1988)). 129 Martinez, 86 A.3d at 1104 (citing Taylor v. LSI Logic Corp., 689 A.2d 1196, 198–99 (Del. 1997)).

31 courts of this State more properly should decide than those of another jurisdiction; (5) the pendency or nonpendency of a similar action or actions in another jurisdiction; and (6) all other practical problems that would make the trial of the case easy, expeditious and inexpensive. 130

To obtain dismissal of a first-filed or only-filed action in Delaware, “[t]he

defendant must show ‘with particularity’ that one or more of these

factors . . . imposes an ‘overwhelming hardship’ on the defendant.” 131 Unlike

dismissal, a stay of proceedings under the doctrine of forum non conveniens does

not require a showing of “overwhelming hardship”—rather, “the burden . . . is a

lesser one.”132 “Given the profound distinction between those two remedies, that is

hardly surprising.”133 Thus, when considering whether to stay proceedings under

the doctrine of forum non conveniens, the defendant need only show that, “on

balance,” the relevant factors “preponderate in favor of granting a stay.” 134

130 Id. (citing Gen. Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681, 684 (Del. 1964)). 131 Mar-Land Indus. Contractors, Inc. v. Caribbean Petroleum Ref., L.P., 777 A.2d 774, 778 (Del. 2001) (quoting Ison v. E.I. du Pont de Nemours & Co., 729 A.2d 832, 838 (Del. 1999)); see Lisa, S.A. v. Mayorga, 993 A.2d 1042, 1047 (Del. 2010) (“overwhelming hardship” standard only applies where “the Delaware action [is] either the first filed or the only filed action”). 132 HFTP Invs., L.L.C. v. ARIAD Pharm., Inc., 752 A.2d 115, 121 (Del. Ch. 1999) (quoting Life Assurance Co. of Penn. v. Associated Inv’rs Int’l Corp., 312 A.2d 337, 340 (Del. Ch. 1973)). 133 Id. 134 Id.

32 Defendant has sufficiently demonstrated that, on balance, the relevant factors

warrant a stay of Count I and the portion of Count VI pertaining to the non-

solicitation provision in the Employment Agreement. The Employment Agreement

contains an Italian choice of law provision and is thus governed by Italian law.135

The underlying facts of this case may ultimately involve a “right of defense” that is

peculiar to the Italian legal regime and thus more properly litigated in an Italian

court.136 They may also involve a determination of whether the non-solicitation

provision in the Employment Agreement is subject to certain restrictive covenant

requirements or to general principles of freedom of contract. 137

In the same vein, trial in Italy as to claims under the Employment Agreement

might very well be easier, more expeditious, and less expensive. Defendant’s tenure

with AlixPartners took place in Italy, and the witnesses who may have information

about his termination from that tenure are located in Italy. Those witnesses might

135 Employment Agreement at 8 (“This agreement and its performance will be construed and interpreted in accordance with the laws of Italy.”). “Delaware courts will recognize a choice of law provision if the jurisdiction selected bears some material relationship to the transaction.” Annan v. Wilm. Tr. Co., 559 A.2d 1289, 1293 (Del. 1989) (citing Wilm. Tr. Co. v. Wilm. Tr. Co., 24 A.2d 309, 315 (1942)). Italy bears some material relationship to Defendant’s employment because his direct employer is an Italian entity located in Italy and because his tenure took place entirely in Italy. 136 Def.’s Opening Br. at 35–37. For a discussion of the “right of defense,” see infra note 147 and accompanying text. 137 Def.’s Opening Br. at 39; Pls.’ Answering Br. at 49–50.

33 not be subject to compulsory process, thus disabling the Court from compelling their

appearance in Delaware.

Taken collectively, while these facts may not demonstrate an “overwhelming

hardship” to Defendant sufficient to warrant dismissal of any claims, the Court is

satisfied that they satisfy the lesser burden of a stay. Thus, Count I and the portion

of Count VI pertaining to the non-solicitation provisions in the Employment

Agreement are stayed. 138

E. Plaintiffs Have Sufficiently Stated Their Claims. Defendant moves to dismiss Counts II, III, IV, and VI for failure to state a

claim. 139 Under Rule 12(b)(6), the Court may grant a motion to dismiss for failure

to state a claim if a complaint does not allege facts that, if proven, would entitle the

plaintiff to relief.140 “[T]he governing pleading standard in Delaware to survive a

motion to dismiss is reasonable ‘conceivability.’” 141 When considering such a

motion, the Court must “accept all well-pleaded factual allegations in the

138 It might be appropriate to stay aspects of Count V, which Defendant describes as “interwoven” with Plaintiffs’ claims under the Employment Agreement. Def.’s Opening Br. at 37. As instructed in the conclusion of this decision, the parties shall confer to determine whether there is a way to stay proceedings in Delaware or in Italy to avoid having both courts determine overlapping issues. 139 Def.’s Opening Br. at 31–43. Defendant also moved to dismiss Count I for failure to state a claim, but for the reasons detailed above, that Count is stayed. 140 Ct. Ch. R. 12(b)(6). 141 Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531, 537 (Del. 2011).

34 [c]omplaint as true . . . , draw all reasonable inferences in favor of the plaintiff, and

deny the motion unless the plaintiff could not recover under any reasonably

conceivable set of circumstances susceptible of proof.”142 The reasonable

conceivability standard asks whether there is a possibility of recovery. 143 The Court,

however, need not “accept conclusory allegations unsupported by specific facts

or . . . draw unreasonable inferences in favor of the non-moving party.” 144

Defendant first argues that this Court should dismiss Counts II, III, and IV

because the relevant choice of law provisions are unenforceable in light of Italian

public policy. He further argues that Count VI should be dismissed because the non-

solicitation provisions in the Employment Agreement and various option award

agreements are unenforceable under Italian and Delaware law.

1. Claims for Breach of Contractual Confidentiality Obligations, Misappropriation, and Conversion Defendant argues that the Delaware choice of law provisions in the LLP

Agreement and Equityholders’ Agreement are unenforceable and that Italian law

applies to Plaintiffs’ claims for breach of his contractual confidentiality obligations,

misappropriation, and conversion. 145 Defendant submits a declaration in support of

142 Id. at 536 (citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002)). 143 Id. at 537 n.13. 144 Price v. E.I. du Pont de Nemours & Co., Inc., 26 A.3d 162, 166 (Del. 2011) (citing Clinton v. Enter. Rent-A-Car Co., 977 A.2d 892, 895 (Del. 2009)). 145 Def.’s Opening Br. at 31–34.

35 this argument, stating that he in fact “downloaded . . . data in order to preserve [his]

right of defense, guaranteed by the Italian Constitution and several pronouncements

of the Italian Supreme Court.”146 That constitutional “right of defense,” according

to Defendant, allows employees to retain information concerning the employment

relationship for use in an employment action as a form of self-help discovery.147

Defendant argues that this Italian “right of defense” supersedes his contractual

confidentiality obligations, and that as a result, Plaintiffs’ claims fail as a matter of

law. 148

At this stage, the Court need not reach the question of whether Italian

substantive law governs Plaintiffs’ claims because the Complaint adequately states

a claim even if Italian law governs and operates as Defendant describes. “As a

general rule, the law of the forum governs procedural matters.” 149 Under Delaware

law, “[t]he complaint generally defines the universe of facts that the trial court may

146 Dkt. 9, Decl. of Giacomo Mori Pursuant to 10 Del. C. § 3927 ¶ 7. 147 Def.’s Opening Br. at 35–37. According to Defendant, Article 414 requires plaintiffs bringing employment actions to prove their facts at the outset of their case without the benefit of discovery. Failla Decl. ¶ 18; see supra note 39. Defendant’s expert explains that this burden of proof has led Italian courts to interpret Article 24 of the Italian Constitution as affording Italian employees the substantive right to “take and retain documents and information concerning the employer and/or employment relationship for the purpose of asserting a legal defense or challenge to an employment action.” Id. ¶ 16. 148 Id. at 36–37. 149 Chaplake Hldgs., LTD v. Chrysler Corp., 766 A.2d 1, 5 (Del. 2001) (citations omitted).

36 consider in ruling on a 12(b)(6) motion to dismiss.” 150 “Matters extrinsic to a

complaint generally may not be considered in a ruling on a motion to dismiss.”151

In this case, the Complaint does not allege that Defendant’s intent in downloading

the information was to launch a legal challenge to his termination in Italy. Rather,

it alleges that he “misappropriated AlixPartners’ trade secrets and other confidential

and proprietary information for his own benefit.”152 On a motion to dismiss, this

Court may not venture beyond the pleadings and consider facts Defendant offers

through an affidavit in his own defense. 153 This aspect of Defendant’s motion is

therefore denied.

2. Claims as to the Non-Solicitation Provisions in the February 2017, April 2017, and April 2018 Agreements Count VI of the Complaint seeks declarations concerning Defendant’s

obligations under the non-solicitation provisions of the Award Agreements, 154 which

150 In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 168 (Del. 2006) (collecting cases). 151 Gentili v. L.O.M. Med. Int’l, Inc., 2012 WL 3552685, at *2 (Del. Ch. Aug. 17, 2012) (quoting Zucker v. Andreessen, 2012 WL 2366448, at *2 (Del. Ch. June 21, 2012)). 152 Compl. ¶ 25. 153 See Allen v. Encore Energy P’rs, L.P., 72 A.3d 93, 96 n.2 (Del. 2013) (“Generally, a judge should not consider matters outside of the pleadings when he rules on a Court of Chancery Rule 12(b)(6) motion.” (citing Vanderbilt Income & Growth Assocs., L.L.C. v. Arvida/JMP Managers, Inc., 691 A.2d 609, 612 (Del. 1996))). 154 The portion of Count VI seeking declaratory judgment as to the non-solicitation provisions in the Employment Agreement is stayed on forum non conveniens grounds, as previously discussed.

37 prevent Defendant from “directly or indirectly engag[ing] in the solicitation of any

business from, or attempt[ing] to influence, any of the Group’s clients, prospective

clients, or Lead Sources . . . .” 155 Plaintiffs specifically ask the Court to “[d]eclare

that, during the non-solicitation periods applicable to each of his non-solicitation

obligations to AlixPartners, Defendant may not be employed by or perform services

for any client, prospective client, or Lead Source of [Alix Holdings] or any of its

affiliates or subsidiaries.”156

In support of dismissal, Defendant first argues that the plain language of the

non-solicitation provisions do not support the declaration Plaintiffs seek, which

would restrict Defendant’s ability to work for certain employers. Defendant

interprets the non-solicitation provisions as restricting Defendant’s ability to solicit

business only from AlixPartners clients, prospective clients, or lead sources. 157 In

contrast, Plaintiffs interpret the non-solicitation provisions more broadly to prohibit

Defendant from being employed by or performing services for an AlixPartners

client, prospective client, or lead source. Plaintiffs reason that by virtue of such

employment, Defendant would necessarily “attempt to influence” the relevant actor,

including with respect to any engagement that actor has with AlixPartners.158

155 Compl. ¶ 101; id. Exs. D, E, F, G, H, I §§ 8(b). 156 Compl. Prayer for Relief ¶ k; Def.’s Opening Br. at 38–43. 157 Def.’s Opening Br. at 41–42. 158 Pls.’ Answering Br. at 54.

38 “When interpreting a contract, the role of a court is to effectuate the parties’

intent.”159 “Absent ambiguity, the court ‘will give priority to the parties’ intentions

as reflected in the four corners of the agreement, construing the agreement as a whole

and giving effect to all its provisions.’” 160 Ambiguity arises when a contractual term

is “fairly or reasonably susceptible to more than one meaning.” 161 If a term is

ambiguous, dismissal under Rule 12(b)(6) is improper unless “the defendant[’s]

interpretation is the only reasonable construction as a matter of law.” 162 At this stage,

“the trial court cannot choose between two differing reasonable interpretations of

ambiguous provisions.” 163

In this case, the “attempt to influence” language of the non-solicitation

provisions is reasonably susceptible to more than one meaning. On the one hand, it

is at least reasonably conceivable that the phrase “attempt to influence” prohibits

only affirmative attempts to influence certain persons such that merely being in the

employment of a client, prospective client, or lead source is permissible. On the

other hand, the prohibition on any “attempt to influence” could be construed as broad

159 Lorillard Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 739 (Del. 2006). 160 Williams Field Servs. Gp., LLC v. Caiman Energy II, LLC, 2019 WL 4668350, at *16 (Del. Ch. Sept. 25, 2019) (quoting In re Viking Pump, Inc., 148 A.3d 633, 648 (Del. 2016)). 161 Alta Berkeley VI C.V. v. Omneon, Inc., 41 A.3d 381, 385 (Del. 2012). 162 VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 615 (Del. 2003) (citing Vanderbilt Income, 691 A.2d at 613). 163 Id. (citing Vanderbilt Income, 691 A.2d at 613).

39 enough to prohibit working or performing services for a client, prospective client, or

lead source. Because the relevant language is susceptible to multiple reasonable

interpretations, it is ambiguous. 164 At the pleading stage, the Court must construe it

“in the light most favorable to the non-moving party.” 165 Thus, the Court declines

to dismiss Count VI on the ground that it seeks relief impermissible under the non-

solicitation provisions in the Award Agreements.

Defendant next argues that the non-solicitation provisions in the Award

Agreements are unenforceable under Delaware law because of their open-ended

temporal scope.166 As Defendant observes, the Award Agreements impose non-

solicitation obligations while his equity remains outstanding and for two years

thereafter, but the Equityholders’ Agreement gives Alix Holdings “the right, but not

164 Id. (citing Vanderbilt Income, 691 A.2d at 613). 165 Id. (citing Savor, Inc. v. FMR Corp., 812 A.2d 894 (Del. 2002); McMullin v. Beran, 765 A.2d 910, 916 (Del. 2000)). 166 Def.’s Opening Br. at 42–43. The Equityholders’ Agreement and 2017 Plan, which Plaintiffs allege govern the various Award Agreements, both contain Delaware choice of law provisions. See supra notes 6 & 8 and accompanying text; see also Equityholders’ Agreement § 5.7 (“This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware.”); 2017 Plan § 13(a) (“This Plan and the Awards granted hereunder shall be governed by and construed in accordance with the law of the State of Delaware, without regard to conflicts of laws principles thereof.”). And again, “Delaware courts will recognize a choice of law provision if the jurisdiction selected bears some material relationship to the transaction.” Annan, 559 A.2d at 1293 (citing Wilm. Tr. Co., 24 A.2d at 315). Delaware bears some material relationship to the Award Agreements, as those agreements govern awards of equity in a Delaware entity—Alix Holdings. Defendant’s argument that Italian law should apply thus fails.

40 the obligation,” to repurchase those equity interests.167 Thus, the argument goes,

Defendant’s non-solicitation obligation would extend until Alix Holdings exercises

its right to repurchase his equity—which could potentially be never.168

Defendant’s argument fails, at least with respect to the February 2017, April

2017, and April 2018 Agreements. The 2017 Plan arguably governs those

agreements. 169 Under the 2017 Plan, Defendant’s options under the February 2017,

April 2017, and April 2018 Agreements stopped vesting and were subject to

reacquisition automatically upon Defendant’s termination. 170 Thus, the two-year

clock on Defendant’s non-solicitation obligations under those agreements

immediately began ticking as of the date he was terminated.

Defendant’s argument is more persuasive with respect to the 2014 and 2016

Agreements, which are not subject to the 2017 Plan’s automatic reacquisition or

termination provisions and are thus arguably open-ended. 171 Defendant, however,

167 Def.’s Opening Br. at 42–43; see Equityholders’ Agreement §§ 4.1(a), (b), (c). 168 Def.’s Opening Br. at 42–43. 169 See supra note 8. 170 Compl. ¶ 59; 2017 Plan § 5(e) (“[I]n the event of a Participant’s termination of Employment for any reason prior to the time that such Participant’s LLP Interests have vested, all vesting with respect to such Participant’s LLP Interests shall cease, and all unvested LLP Interests shall be reacquired by the Partnership . . . .”). 171 Plaintiffs read Section 4.1(c) of the Equityholders’ Agreement as requiring Alix Holdings to exercise its right to repurchase Defendant’s equity under the 2014 and 2016 Agreements within two years of his termination. Pls.’ Answering Br. at 57. This, Plaintiffs argue, sets a four-year duration for the non-solicitation provisions in the 2014 and 2016 Agreements. However, the Equityholders’ Agreement provides Alix Holdings a 41 fails to point to legal authority for the proposition that the arguably open-ended

nature of those provisions renders them wholly unenforceable as a matter of law.172

This aspect of Defendant’s motion is therefore denied.

III. CONCLUSION For the foregoing reasons, Defendant’s motion to dismiss is DENIED.

Count I and the portion of Count VI pertaining to the non-solicitation provisions in

the Employment Agreement are STAYED.

As the dust settles from this decision, it becomes clear that there is significant

overlap between the stayed claims, which will presumably move forward in Italy at

some point, and aspects of the sustained claims pending in this Court. The parties

shall confer to determine whether there is a practical way to stage proceedings in a

manner that promotes efficiency in both fora. Within twenty days of the entry of

repurchase right, not a repurchase obligation. And this right includes the right to repurchase only some—and not all—of Defendant’s equity. Ultimately, the Equityholders’ Agreement provides no requirement that Alix Holdings or any of its stakeholders repurchase Defendant’s vested interests in the partnership. While Section 4.1(g) of the Equityholders’ Agreement provides a process whereby other partners may repurchase Defendant’s equity in the event Alix Holdings chooses not to, that process is also optional. The effect of this contractual scheme is that the non-solicitation provisions in the 2014 and 2016 Agreements are potentially infinite in duration. 172 Defendant cites to no Delaware authority rendering non-solicitation provisions unenforceable on this basis, which does not mean that none exists; Defendant might be able to support its argument as a matter of law at a later stage. In any event, the issue is largely academic, given that the non-solicitation issues to be litigated in connection with the February 2017, April 2017, and April 2018 Agreements overlap with those to be litigated under the 2014 and 2016 Agreements.

42 this decision, the parties shall jointly submit a stipulation reflecting any agreement

that arises from this meet and confer or jointly submit a letter reflecting their

competing positions. If the parties are unable to agree upon a mode of staging the

potentially competing cases so as to avoid a collision course, the Court reserves the

right to revisit the balancing analysis called for by the forum non conveniens

doctrine, including the scope of the discretionary stay granted by this decision.