ATG Capital Opportunities Fund LP v. Ryan Lane

Opinion

COURT OF CHANCERY OF THE STATE OF DELAWARE

LORI W. WILL LEONARD L. WILLIAMS JUSTICE CENTER VICE CHANCELLOR 500 N. KING STREET, SUITE 11400 WILMINGTON, DELAWARE 19801-3734

August 4, 2026

A. Thompson Bayliss, Esq. John P. DiTomo, Esq. John M. Seaman, Esquire Jacob M. Perrone, Esquire Caitlin C. Bozman, Esquire Nicholas R. Gottemoller, Esquire Bryan Blaylock, Esquire Morris, Nichols, Arsht & Tunnell LLP Abrams & Bayliss LLP 1201 North Market Street 20 Montchanin Road, Suite 200 Wilmington, Delaware 19801 Wilmington, Delaware 19807

RE: ATG Capital Opportunities Fund LP v. Ryan Lane, et al., C.A. No. 2026-0447-LWW

Dear Counsel:

I have reviewed the parties’ August 3 and August 4 letters concerning

plaintiff ATG Capital Opportunities Fund LP’s assertion of business strategy

immunity over the names of Empery Digital, Inc. stockholders in a specific joint

exhibit (JX 955).1

Delaware recognizes the business strategy immunity as a narrow, qualified

privilege that protects “live strategies and plans” where disclosure would risk non-

litigation injury.2 ATG asserts that because JX 955 reflects its internal assessment

1 Dkts. 241-42.

2 Atl. Rsch. Corp. v. Clabir Corp., 1987 WL 758584, at *2 (Del. Ch. Feb. 10, 1987).

C.A. No. 2026-0447-LWW August 4, 2026 Page 2 of 3

of the electorate, the names of the stockholders it selected must be shielded. I

disagree.

The compilation of these names may have been used by ATG to formulate a

strategy, but that does not immunize the underlying facts from discovery. The

names of stockholders are not, in and of themselves, a business strategy.3 This

court is reluctant to allow parties to withhold such relevant evidence to prevent a

perceived strategic advantage in a proxy contest.4

Finally, ATG’s concern that the defendants might use this information to

target specific stockholders and influence their votes outside of this litigation is

mitigated by the existing confidentiality order.5 That order permits ATG to

designate JX 955 “Highly Confidential,” limiting its use to this litigation and

preventing the harm business strategy immunity is designed to avoid.

3 See Texas Pac. Land Corp. v. Horizon Kinetics LLC, C.A. No. 2022-1066-JTL, ¶ 3(c) (Del. Ch. Apr. 11, 2023) (ORDER) (“The names of stockholders are not a business strategy . . . .”). 4 See Paragon Techs., Inc. v. Cryan, C.A. No. 2023-1013-LWW, at 8 (Del. Ch. Nov. 16, 2023) (TRANSCRIPT); see also Glassman v. Crossfit, Inc., 2012 WL 4859125, at *5 (Del. Ch. Oct. 12, 2012) (“This Court has been reluctant to allow parties to withhold relevant evidence by invoking the business-strategy privilege, even when the disclosure might benefit one of the parties outside of litigation.”). ATG’s reliance on Dedde v. Orrox Corp. is misplaced, as the quoted language in that decision pertained to the appropriate scope of discovery in a Section 220 summary proceeding, not the application of this immunity to trial exhibits. 1981 WL 15121, at *1 (Del. Ch. Apr. 8, 1981). 5 Dkt. 42.

C.A. No. 2026-0447-LWW August 4, 2026 Page 3 of 3

Accordingly, ATG’s request to maintain the challenged redactions is denied.

I am mindful, however, that we are in the middle of an expedited trial, and that

lifting redactions from JX 955—a dense, native spreadsheet—would be

burdensome and disruptive. To alleviate this burden, I adopt the defendants’

practical suggestion that ATG be ordered to produce a standalone list of the

stockholder names that were redacted from JX 955. ATG must do so by midnight

tonight.6 That list may be designated Highly Confidential. IT IS SO ORDERED.

Sincerely yours,

/s/ Lori W. Will

Lori W. Will Vice Chancellor

6 The defendants’ request for an unredacted version of JX 955 comes too late. Had it been made sooner, I would have ordered that an unredacted version of the spreadsheet be produced.