Backer v. Palisades Growth Capital

• Court: Supreme Court of Delaware
• Decided: January 15, 2021
• Docket: 156, 2020
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

ALEX BÄCKER AND RICARDO § BÄCKER, § § No. 156, 2020 Defendants Below, § Appellants, § § Court Below – Court of Chancery v. § of the State of Delaware § PALISADES GROWTH CAPITAL II, § C.A. No. 2019-0931-JRS L.P., § § Plaintiff Below, § Appellee. § §

Submitted: October 21, 2020 Decided: January 15, 2021

Before SEITZ, Chief Justice; VALIHURA, VAUGHN, TRAYNOR, and MONTGOMERY-REEVES, Justices, constituting the Court en Banc.

Upon appeal from the Court of Chancery. AFFIRMED.

Thomas A. Uebler, Esquire (argued), Joseph L. Christensen, Esquire, and Hayley M. Lenahan, Esquire, MCCOLLOM D’EMILIO SMITH UEBLER LLC, Wilmington, Delaware; Attorneys for Appellants Alex Bäcker and Ricardo Bäcker.

Bradley R. Aronstam, Esquire (argued), Roger S. Stronach, Esquire, and Holly E. Newell, Esquire, ROSS ARONSTAM & MORITZ LLP, Wilmington, Delaware; Jon M. Talotta, Esquire, HOGAN LOVELLS US LLP, Tysons, Virginia; Michael C. Hefter, Esquire, HOGAN LOVELLS US LLP, New York, New York; Attorneys for Appellee Palisades Growth Capital II, L.P. MONTGOMERY-REEVES, Justice:

Appellant Alex Bäcker is the co-founder and majority common stockholder of QLess,

Inc. (“QLess” or the “Company”). In June 2019, the Company’s board removed Alex as

CEO following an internal investigation into workplace complaints.1 Alex fought hard to

keep his role as CEO, but eventually relented and expressed support for his successor, Kevin

Grauman.

On November 15, 2019, QLess held a board meeting. In the week leading up to the

meeting, the Company’s outside counsel circulated board resolutions that, among other

things, would appoint Grauman to the board. Alex made a series of statements that

collectively represented support for Grauman’s appointment.

On the eve of the board meeting, the Company’s independent director unexpectedly

resigned, giving Alex a board majority. Alex leapt into action, devising a secret counter

agenda to fire Grauman and lock-in Alex’s control of the Company. Alex caught his fellow

directors by surprise at the meeting, passing his counter agenda over objections and seizing

control of the Company.

Palisades Growth Capital II, L.P., the majority owner of the Company’s Series A

preferred stock, filed a complaint in the Court of Chancery seeking to reverse Alex’s actions.

1 After initially identifying individuals, this Court references surnames without honorifics or regard to formal titles such as “Doctor.” The Court intends no disrespect. The Court also refers to Alex Bäcker and Ricardo Bäcker by their first names to avoid confusion. Again, the Court intends no disrespect and does not mean to suggest familiarity.

1 Following a paper trial, the court held that, even if technically legal, the board’s actions were

invalid as a matter of equity because Alex affirmatively deceived a fellow director to

establish a quorum.

Appellants raise four primary issues on appeal. First, Appellants argue that the Court

of Chancery’s affirmative deception finding relied on clearly erroneous interpretations of the

evidence. Second, Appellants argue that the court erred by imposing an equitable notice

requirement for a regular board meeting, contrary to Delaware precedent. Third, Appellants

argue that the deceived director’s participation in the meeting precludes equitable relief.

Fourth, Appellants argue that the court erred by exercising its equitable powers to grant relief

for a de facto breach of a stockholder voting agreement.

Having reviewed the parties’ briefs and the record on appeal, and after oral argument,

this Court holds that the Court of Chancery’s finding of affirmative deception was not clearly

erroneous. The Court also holds that the Court of Chancery did not impose an equitable

notice requirement for regular board meetings, that Appellants failed to properly raise an

equitable participation defense below, and that the Court of Chancery did not exercise its

equitable powers to grant relief for a de facto breach of contract claim. Accordingly, this

Court affirms the Court of Chancery’s March 26, 2020 Memorandum Opinion.

2 I. BACKGROUND2

A. The Parties and Relevant Non-Parties

QLess is a privately held Delaware corporation headquartered in California.3 QLess

produces and licenses a virtual queue management system that reduces the time that retail

customers must wait in line for services.4

The Company has three primary stockholders: (i) Appellant Alex Bäcker, who owns

the majority of the common stock, (ii) Respondent Palisades Growth Capital II, L.P.

(“Palisades”), which owns the majority of the Series A preferred stock, and (iii) non-party

Altos Hybrid 2 L.P. (“Altos”), which owns the majority of the Series A-1 preferred stock.5

Under the Company’s charter, the common stockholders have the exclusive right as a class

to elect two directors.6 The Series A and Series A-1 preferred stockholders each have the

exclusive right as a class to elect one director.7 The stockholders vote jointly on other board

appointments.8

Alex co-founded QLess in 2009 and served as the Company’s CEO until June 2019.9

Alex, as the majority owner of the Company’s common stock, controls two board seats and

2 The Court takes the essential facts from the Court of Chancery’s Memorandum Opinion. Palisades Growth Cap. II, L.P. v. Backer, 2020 WL 1503218 (Del. Ch. Mar. 26, 2020). 3 Id. at *3. 4 Id. 5 Id. 6 Id. 7 Id. 8 See Appendix to the Opening Br. 47-48 (hereafter “A__”). 9 Palisades, 2020 WL 1503218, at *3.

3 appointed himself as a board member.10 Alex also appointed his father, Appellant Ricardo

Bäcker, to the board in early 2019 to replace Michael Bell.11

Palisades is a private equity firm that first invested in QLess in August 2017.12

Palisades, as the majority owner of the Company’s Series A preferred stock, appointed Jeff

Anderson, a partner of Palisades, to the board in 2017.13

Altos is an investment firm that first invested in QLess in November 2018.14 Altos,

as the majority owner of the Company’s Series A-1 preferred stock, appointed Hodong Nam,

co-founder of Altos, to the board in 2018. Nam resigned from the QLess board in September

2019.15 After resigning, Nam chose Paul D’Addario, a Senior Managing Director of

Palisades, as his replacement on the board.16

Ivan Markman served as the Company’s independent director from November 2018

until he resigned in November 2019.17

Paul Alderton is the Company’s outside counsel.18

10 Id. at *1, *3. 11 Id. at *3. 12 Id. 13 Id. 14 Id. 15 Id. 16 Id. 17 Id. 18 Id. at *4.

4 Patricio Cuestra is the consultant that Alex and Ricardo purported to appoint as a

common director during the November 15, 2019 board meeting.19

Kevin Grauman was hired as the Company’s CEO in September 2019 and

purportedly was terminated during the November 15, 2019 board meeting.20

B. The Board Terminates Alex Bäcker as CEO

In early 2019, QLess employees began reporting to the board that Alex’s leadership

style was creating a toxic work environment.21 According to some senior executives, Alex

was becoming “increasingly withdrawn and unhinged, either totally absent and disconnected

or hyper micromanaging and combative.”22

At that time, the Company’s board was composed of five directors: Alex (common

director), Michael Bell (common director), Anderson (Series A director), Nam (Series A-1

director), and Markman (independent director).23 The board grew concerned that the

Company could suffer a mass employee exodus.24 Those concerns intensified when Alex

terminated the Company’s Vice President of Engineering in March 2019, frustrating

investors.25

19 Id. at *5, *5 n.60. 20 Id. at *3. 21 Id. 22 Id.; see also Appendix to Answering Br. 1 (hereafter “B__”). 23 See Palisades, 2020 WL 1503218, at *3-4. 24 Id. at *3. 25 Id.

5 Anderson thought that the board should terminate Alex as CEO.26 Nam and

Markman were hesitant to remove Alex as CEO and proposed the intermediate step of hiring

outside consultants to provide coaching and counseling.27 At Nam’s request, Alex and the

board met with two outside management consultants. The meeting was not productive,

leading a majority of the directors to conclude that the board should remove Alex as CEO.

Nam told Alex that he should resign.28

Three days later, Nam and Anderson called a special board meeting to discuss Alex’s

status with the company.29 Unwilling to resign, Alex sought to secure his position as CEO

by firing the Company’s President and Corporate Secretary, and by replacing Bell—who

now supported terminating Alex—with Alex’s father, Ricardo.30 Now Anderson and Nam

favored terminating Alex as the CEO; the Bäckers were both opposed; and Markman was

undecided. Thus, efforts to terminate Alex stalled.31

After weeks of increasing employee unrest, the board voted to form a Special

Committee—consisting of Anderson, Nam, and Markman—to investigate the complaints

against Alex. The Special Committee hired an outside law firm to conduct an internal

investigation.32

26 Id. 27 Id. 28 Id. 29 Id. at *4. 30 Id. 31 Id. 32 Id.

6 In May 2019, the outside law firm completed its investigation and sent a report to the

Special Committee.33 The report substantiated many of the employee complaints against

Alex. In response, the Special Committee recommended that the full board terminate Alex.34

On June 8, 2019, the board met and voted to remove Alex as CEO.35 The board’s

decision to terminate Alex triggered provisions in the charter and a stockholder agreement

that could collectively reduce Alex’s control of QLess. Among other things, the stockholders

had agreed that if Alex ceased to be CEO, the stockholders would vote to expand the board

to six seats and appoint the replacement CEO to the board.36

C. The Events Leading up to the November 15 Board Meeting

After terminating Alex, the board launched an extensive search to select a new

CEO.37 The search eventually focused on Grauman, and the board hired Grauman as CEO

on September 7, 2019.38 Alex initially expressed support for Grauman’s appointment as

CEO, but their relationship quickly soured as Grauman sensed that Alex wanted to reclaim

his former role as CEO.

On September 30, 2019, Nam resigned as the Series A-1 director, leaving the seat

vacant.39 At that time, the Company’s five-seat board was composed of four directors: Alex

33 Id. 34 Id. 35 Id. 36 See A67-69. 37 See Palisades, 2020 WL 1503218, at *4. 38 Id. 39 Id. at *5; see also B56.

7 (common director), Ricardo (common director), Anderson (Series A director), and Markman

(independent director).

Anderson reached out to Nam about filling the empty seat, seeking to appoint

D’Addario from Palisades to temporarily serve as the Series A-1 director.40 After

considering some alternatives, Nam agreed and (through counsel) asked Alderton, outside

counsel to QLess, to “draft and circulate the necessary stockholder consent to elect Paul

D’Addario . . . to the QLess Board as the Altos designee[.]”41

Unfortunately, Alderton seems to have misunderstood the charter.42 Although the

charter allows the Series A-1 stockholders to elect a replacement director by unanimous

consent, Alderton told Nam,

Your appointment is contractual, in other words you have the contractual right to designate who the Series A-1 director will be, but that person still needs to be either elected by the stockholders under Delaware law, or in this case since it is filling a vacancy, appointed by the Board.43

Nam responded:

Got it. From a mechanics perspective it’s easier to appoint with board approval. For some strange reason if the board does not approve [the D’Addario appointment] then we can do it the hard way. Why do it the hard way when it’s simple to do with board consent. Is that correct?44

40 Palisades, 2020 WL 1503218, at *4. 41 Id.; A178. 42 Palisades, 2020 WL 1503218, at *4. 43 A179. 44 Id.

8 Thus, Nam and Anderson decided to wait until the next board meeting to formally appoint

D’Addario to the board.45

On October 27, 2019, Alex sent the Company’s directors an email seeking to schedule

the next board meeting.46 Anderson realized that Grauman did not appear to be on the

scheduling email thread and asked why he was left off. In response, Alex sent an email

stating, “Kevin is on the thread, assuming bod now includes him, which I requested it does.

Kevin, can you please confirm you received this?”47 The parties agree that “bod” referred

to the board’s email listserv, a single email address that would automatically distribute

messages to other recipients included on a distribution list.48 The “bod” distribution list

included all of the Company’s directors and Alderton,49 the Company’s outside general

counsel who sometimes acted as the board secretary.50 The directors ultimately agreed to

hold a board meeting on November 15.51

45 Palisades, 2020 WL 1503218, at *4. 46 Id. at *5. 47 Id.; A172. 48 Opening Br. 25-28; Answering Br. 9. 49 A824, at 97:2-98:21. 50 See, e.g., A289 (minutes from the November 15 board meeting noting that “Mr. Alderton served as Secretary of the meeting.”). 51 Palisades, 2020 WL 1503218, at *5.

9 On November 11, 2019, Grauman circulated a high-level agenda for the

November 15 board meeting.52 Alex thanked Grauman for the agenda and requested that he

“circulate any proposed resolutions at least 48 hours before the meeting for review[.]”53

Alderton responded to Alex’s request on November 13, attaching proposed board

resolutions that, among other things, would: (i) appoint D’Addario as the Series A-1 director,

(ii) ratify Grauman’s appointment as CEO, (iii) increase the board to six members, and

(iv) appoint Grauman to the new CEO director seat.54 The Bäckers did not object to the

proposed resolutions, although Alex requested that Alderton add an option grant for Ricardo

that the board had previously discussed.55

The same day, Alex communicated with Nam about appointing someone other than

D’Addario, and not from Palisades, to the vacant Series A-1 board seat.56 Nonetheless, Nam

decided to nominate D’Addario.57

On the morning of November 14, Markman unexpectedly resigned from his position

as independent director, leaving the Company with only three directors: Alex, Ricardo, and

Anderson.58 Markman told Grauman that the “[o]ne liner” explanation for Markman’s

52 Id. 53 B65. 54 Id. 55 See A211; see also Palisades, 2020 WL 1503218, *5. 56 See, e.g., A202-03; see also Palisades, 2020 WL 1503218, at *4 n.46 (“Although Nam did initially discuss other options with Bäcker, he quickly settled on D’Addario as his choice.”). 57 Palisades, 2020 WL 1503218, at *4 n.46 58 Id. at *5.

10 resignation was “not enough time.”59 That was not the full story. Markman decided to resign

after a phone call with Alex led Markman to believe that Alex would try to reinstate himself

as the Company’s CEO.60

Alex recognized that Markman’s resignation—combined with Nam’s earlier

resignation—gave the Bäckers a two-vote majority on a three-member board. Thus, Alex

began working on a secret counter agenda to fire Grauman and seize control of QLess.

Nonetheless, a few hours after Markman’s resignation, Alex emailed the board and asked

Grauman to “distribute the board materials/deck a day in advance of the meeting so that we

may all do our homework and be prepared to spend our time together most productively.”61

Alex did not disclose his intention to fire Grauman and take control of the Company.

Anderson and Alderton appear to have recognized that Alex could use Markman’s

resignation to take aggressive action and that the Bäckers needed Anderson’s attendance to

establish a quorum.62 Nonetheless, Anderson and Alderton concluded that the Bäckers

would not be able to exercise majority control because the voting agreement compelled the

Bäckers to vote in favor of D’Addario’s appointment, which would be the first item on the

board’s agenda, preventing the Bäckers from forcing any other board actions over objections

from Anderson and D’Addario. 63

59 A243; see also Palisades, 2020 WL 1503218, at *5. 60 Palisades, 2020 WL 1503218, at *5. 61 A207. 62 See, e.g., A639, at 161:6-162:7. 63 See, e.g., A627, at 114:10-115:12.

11 D. Alex Seizes Control of the Company

During the early afternoon of November 15, Alex shared a set of alternative board

resolutions with Ricardo and Cuestra, a consultant that Alex intended to appoint to the

board.64 The alternative resolutions differed dramatically from the resolutions Alderton

circulated two days earlier. Among other things, Alex’s alternative resolutions would:

(i) terminate Grauman as CEO, (ii) appoint Alex as CEO and CFO, (iii) expand the board to

six members and appoint Alex to the new CEO-director seat, (iv) appoint Cuestra to the

common director seat that Alex vacated, and (v) amend the bylaws to allow three directors

(e.g., Alex, Ricardo, and Cuestra) to constitute a quorum.65 Taken as a whole, the alternative

resolutions would effectively lock-in Alex’s control of QLess. Alex did not share his

alternative resolutions with Anderson, D’Addario, Alderton, Nam, or Markman.

Several hours later, but still before the board meeting, Alderton emailed the Bäckers

to follow-up on the board resolutions circulated earlier in the week.66 Alderton noted that

the Bäckers had not electronically signed a board consent adopting the resolutions and stated

that “[i]t is my understanding from Jeff [Anderson] that execution of this Consent prior to

the Board meeting is a prerequisite, and that he will not be joining the call if it is not signed

in advance, which would leave us without a quorum and thus unable to conduct business.”67

64 Palisades, 2020 WL 1503218, at *5. 65 Id. 66 See A263. 67 Id.

12 The proposed board resolutions were largely unchanged from the resolutions that Alderton

circulated earlier in the week and would, among other things, ratify Grauman’s employment

and appoint both D’Addario and Grauman to the board.

After coordinating, the Bäckers decided to ignore the ultimatum and did not sign the

consent approving the board resolutions.68 Despite not receiving a response from the

Bäckers, Anderson decided to attend the board meeting.

Later that evening, the board held the planned meeting. Alex called the meeting to

order and asked that Grauman and D’Addario leave the meeting.69 Grauman left the

meeting. D’Addario refused to leave. Alex and Ricardo then unveiled and executed their

counter agenda, firing Grauman as CEO, hiring Alex as CEO and CFO, appointing Alex to

the newly created CEO-director seat, appointing Cuestra to the common director seat that

Alex left vacant, and changing the quorum bylaw. Anderson and D’Addario stayed and

objected to each board action.70

At the end of the meeting, the board was composed of four directors: (i) Cuestra

(common), (ii) Ricardo (common), (iii) Anderson (Series A), and (iv) Alex (CEO), with both

the Series A-1 and independent director seats vacant.71 This board composition effectively

68 See B118-21. 69 Palisades, 2020 WL 1503218, at *5. 70 Id. 71 Id.

13 locked in Alex’s control of QLess by allowing Alex, Ricardo, and Cuestra to establish a

quorum and exercise majority board control.

The Court of Chancery characterized the Bäckers’ actions at the November 15 board

meeting as an “ambush” and a “coup,”72 and the record suggests that the Bäckers caught the

other directors by surprise. For example, three days after the board meeting, Nam sent an

email to Anderson recounting communications that Nam had with Alex leading up to the

board meeting. According to Nam,

[Alex] texted me after Ivan [Markman] resigned and asked me if I heard anything (via text). He claimed to have no idea what happened.

When I did speak to [Alex] about a week ago, I specifically asked him how he thought Kevin [Grauman] was doing. I also asked him how the relationship was between him and Kevin. He said everything was fine. He offered absolutely zero clue to any problems or dissatisfaction he had with Kevin [Grauman] as CEO.73

Thus, Nam and Anderson both appear to have been unaware of Alex’s plan to reclaim his

role as CEO, although it is unclear when the conversation between Alex and Nam occurred.74

72 Id. at *9-10. 73 A301. 74 See, e.g., A738, at 242:21-244:18 (Nam testifying that he recalled having “two conversations with Alex” around November 12th, one of which seems to have been the conversation that Nam recalled in the email quoted above).

14 E. The Court of Chancery Invalidates the November 15 Board Actions

On November 20, 2019, Palisades filed a complaint in the Court of Chancery,

challenging the Bäckers’ actions at the November 15 board meeting.75 The complaint

alleged four counts. Count I sought a declaratory judgment under 8 Del. C. § 225 that the

QLess board consisted of Anderson, D’Addario, Alex, and Ricardo. Count II sought a

similar declaratory judgment under § 225 that Grauman is the Company’s CEO. Count III

sought specific performance of the voting agreement, which would entail electing Grauman

to the CEO director seat. Count IV alleged that the Bäckers breached their fiduciary duties.76

In November 2019, the Court of Chancery agreed to bifurcate the breach of fiduciary duty

claim from the summary § 225 proceeding addressing the first three counts.77

The Court of Chancery held a trial on the papers in January 2020.78 Afterwards, the

court requested two rounds of post-trial briefing on technical issues related to the Company’s

corporate governance documents, such as whether the board’s decision to remove Alex as

CEO in June 2019 automatically trigged an obligation to expand the board to six members

and whether advance notice was required to amend the quorum bylaws.79

75 A304. 76 Palisades, 2020 WL 1503218, at *5. 77 See B122, B126. 78 A1250. 79 B202, A1405.

15 The Court of Chancery issued its memorandum opinion on March 26, 2020.80 The

court held that “D’Addario was never validly appointed to the board,”81 and “while [Alex]

and Ricardo were not forthcoming with Palisades and Altos in advance of the November 15

meeting, they did not take any affirmative action to prevent Altos from exercising its rights”

to appoint D’Addario.82

The court also observed that

it is not at all clear that [Alex] Bäcker breached the Voting Agreement by refusing to recognize Grauman as a duly appointed member of the Board. While the evidence clearly demonstrates that the parties to the Voting Agreement intended that Grauman would take the newly created CEO Board seat in advance of the November 15 meeting, the specific means by which that Board vacancy was to be filed are not at all clear in either the Bylaws or the Voting Agreement itself.83

Nonetheless, the court invalidated the board’s actions at the November 15 meeting

because the Bäckers affirmatively deceived Anderson to establish a quorum.84 The court

explained that

there must be some affirmative deception before equity will intervene; if the Bäckers had simply acted in secret to plot their boardroom coup d'état without any affirmative action to mislead the other members of the Board, Plaintiff’s call to equity would rest on softer ground.

80 Palisades, 2020 WL 1503218, at *1. 81 Id. at *2. 82 Id. 83 Id. 84 Id. at *9-10.

16 But that is not what Defendants did. . . . Altos was the recipient of some erroneous legal advice and [Alex] Bäcker sat silently on the misinformation. If that were the end of the story, there would be no basis to invoke equity. But the Bäckers did not stay silent in all matters related to the November 15 meeting. Instead, [Alex] Bäcker affirmatively misrepresented to Anderson and others that he wanted Grauman on the Board, and that he assumed Grauman had already joined the Board . . . .

. . . After having affirmatively represented to Anderson (and Markman) that Defendants supported Grauman’s appointment to the Board, keeping mum as they planned their ambush was inequitable. If Anderson had known of Defendants’ change of plans, he would have refused to participate in the meeting, defeating a quorum and thwarting the coup. As Anderson’s presence at the meeting was secured under deliberately false pretenses, any action taken at that meeting is void.85

The Court of Chancery relied on six pieces of evidence to find that the Bäckers

affirmatively deceived Anderson. First, the court found that the scheduling email Alex sent

the board in October 2019 “affirmatively misrepresented to Anderson and others that [Alex]

wanted Grauman on the Board, and that [Alex] assumed Grauman had already joined the

Board.”86 The court quoted the relevant portion of that email as follows: “Kevin [Grauman]

is on the thread, assuming [the Board] now includes him, which I requested it does.”87 The

court also noted that Ricardo responded to the scheduling email by writing “[l]ooks good to

me.”88 Although the court does not explicitly state the relevance of this statement, it seems

85 Id. 86 Id. at *10. 87 Id. 88 Id.

17 to have construed Ricardo’s response to endorse Alex’s request that Grauman be added to

“[the Board].”89

Second, the court observed that “[w]hen Grauman circulated a ‘high-level agenda’

for the November 15 meeting, [Alex] Bäcker responded by thanking [Grauman] and asking

him to ‘circulate any proposed resolutions’” for the meeting.90 The court found that this

statement “gav[e] the impression that [Alex] Bäcker had no issue with Grauman joining the

Board.”91

Third, the court noted that “[o]n the day before the contested meeting, [Alex] Bäcker

emailed Grauman, copying the QLess Board, requesting that Grauman circulate board

materials ‘so that we may all do our homework and be prepared to spend our time together

most productively.’” The court found that this message “g[ave] the impression that [Alex]

Bäcker approved of Grauman’s board membership.”92

Fourth, the court recalled that

[w]hen Alderton circulated draft Board resolutions that would formalize Grauman’s appointment to the Board, as requested by Grauman and [Alex] Bäcker, neither Ricardo nor [Alex] gave any indication that their position had changed. After having affirmatively represented to Anderson (and Markman) that Defendants supported Grauman’s appointment to the Board, keeping mum as they planned their ambush was inequitable.93

89 See id. 90 Id. 91 Id. 92 Id. 93 Id.

18 Fifth, the court cited to an email that Nam authored a few days after the November 15

board meeting stating that “[w]hen I did speak to [Alex] [Bäcker] about a week ago, I

specifically asked him how he thought Kevin [Grauman] was doing. I also asked [Alex]

how the relationship was between him and [Grauman]. [Alex] said everything was fine.”94

Sixth, the court found that Grauman “understood” the October 2019 scheduling email

“to mean that he was now a member of the board,” citing the following testimony from

Grauman’s deposition:

Q. If you could direct your attention to Alex Bäcker’s email . . . on October 28th . . . .

A. Yes.

Q. He says: Kevin is on the thread, assuming BOD now includes him, which I requested it does.

A. Correct.

Q. What does that mean?

A. “BOD” is Board of Directors. So Alex is basically saying to the other members of the Board that he’s added me to the thread of communications with the Board members, assuming that I’m now on the Board.

Q. What did that indicate to you, if anything, about your participation at the Board level?

A. It indicated that there was a follow-through in exactly the same way as I was expecting and what had been discussed before, that I would occupy the CEO’s seat on the Board.95

94 Id. at *10 n.116. 95 A812-13, at 52:11-53:5.

19 Relying on the evidence discussed above, the court found that “Anderson’s presence

at the meeting was secured under deliberately false pretenses.”96 “If Anderson had known

of [the Bäckers’] change of plans, he would have refused to participate in the meeting,

defeating a quorum and thwarting the coup.”97

On April 22, 2020, the Bäckers filed a timely notice of appeal. On appeal, the Bäckers

argue that the Court of Chancery erred by relying on clearly erroneous interpretations of

evidence and applying incorrect legal standards to invalidate the actions that the Bäckers

took at the November 15 board meeting.

II. STANDARD OF REVIEW

“This Court reviews questions of law de novo.”98 “[T]he applicable standard by

which the defendants’ conduct is to be judged . . . is a legal question . . . subject to de novo

review by this Court.”99

“We will not overturn the Court of Chancery’s factual findings unless they are clearly

erroneous.”100 The clearly erroneous standard of review is deferential to the trial court. “We

96 Palisades, 2020 WL 1503218, at *10. 97 Id. 98 Klassen v. Allegro Dev. Corp., 106 A.3d 1035, 1043 (Del. 2014) (citing DV Realty Advisors LLC v. Policeman’s Annuity and Benefit Fund of Chi., 75 A.3d 101, 108 (Del. 2013)); see also Brigade Leveraged Cap. Structures Fund Ltd. v. Stillwater Mining Co., 240 A.3d 3, 9 (Del. 2020) (“This Court reviews errors of law de novo.” (citing SmithKline Beecham Pharms. Co. v. Merck & Co., 766 A.2d 442, 447 (Del. 2000))). 99 Nixon v. Blackwell, 626 A.2d 1366, 1375 (Del. 1993) (citing Fiduciary Tr. Co. v. Fiduciary Tr. Co., 445 A.2d 927, 930 (Del. 1982)). 100 Klassen, 106 A.3d at 1043 (citing DV Realty, 75 A.3d at 108).

20 will not set aside a trial court’s factual findings ‘unless they are clearly wrong and the doing

of justice requires their overturn.’”101 Factual findings are not clearly erroneous “if they are

‘sufficiently supported by the record and are the product of an orderly and logical deductive

process.’”102 “The factual findings of a trial judge can be based upon physical evidence,

documentary evidence, testimonial evidence, or inferences from those sources jointly or

severally.”103 “That deferential standard applies not only to historical facts that are based

upon credibility determinations but also to findings of historical fact that are based on

physical or documentary evidence or inferences from other facts .”104 “When there

are two permissible views of the evidence, the factfinder’s choice between them cannot be

clearly erroneous.”105

“‘Whether . . . an equitable remedy exists or is applied using the correct standards is

an issue of law and reviewed de novo,’ but . . . ‘application of those facts to the correct legal

standards . . . are reviewed for an abuse of discretion.’”106

101 DV Realty, 75 A.3d at 108 (quoting Montgomery Cellular Hldg. Co. v. Dobler, 880 A.2d 206, 219 (Del. 2005)). 102 Biolase, Inc. v. Oracle P’rs, 97 A.3d 1029, 1035 (Del. 2014) (quoting Schock v. Nash, 732 A.2d 217, 224 (Del. 1999)). 103 Cede & Co. v. Technicolor, Inc., 758 A.2d 485, 491 (Del. 2000). 104 CDX Hldgs., Inc. v. Fox, 141 A.3d 1037, 1041 (Del. 2016). 105 RBC Cap. Mkts., LLC v. Jervis, 129 A.3d 816, 849 (Del. 2015) (quoting Bank of N.Y. Mellon Tr. Co., N.A. v. Liberty Media Corp., 29 A.3d 225, 236 (Del. 2011)). 106 SIGA Techs., Inc. v. PharmAthene, Inc., 67 A.3d 330, 341 (Del. 2013) (quoting Schock, 732 A.2d at 232).

21 III. ANALYSIS

On appeal, the Bäckers argue that the Court of Chancery’s opinion should be reversed

for four reasons. First, the Bäckers argue that the court’s “finding of affirmative deception

was based on a clearly erroneous rewriting and interpretation of a trial exhibit . . . that even

Palisades did not proffer.”107 Because “Alex and Ricardo’s communications cited by the

Court of Chancery were not deceitful and did not deceive Anderson into attending the

November 15 Meeting, [e]quity . . . cannot invalidate Alex and Ricardo’s votes at the

meeting.”108 Second, the Bäckers argue that the court “imposed an equitable advance-notice

requirement for regular, as opposed to special, Board meetings,” contrary to Delaware

precedent.109 Third, the Bäckers argue that “the affirmative-deception rule” in Koch v. Stearn

does not apply to regular board meetings, and that Anderson’s decision to participate in the

November 15 board meeting and vote against all matters presented forecloses equitable

relief.110 Fourth, the Bäckers argue that “it was reversible error to award extracontractual

relief supplanting the Voting Agreement where the contract was not breached and contains

its own enforcement mechanism.”111

We address each argument in turn.

107 Opening Br. 4. 108 Id. 109 Id. 110 Opening Br. 44 (referring to 1992 WL 181717 (Del. Ch. July 28, 1992), overruled on other grounds by Klassen v. Allegro Dev. Corp., 106 A.3d 1035 (Del. 2014)). 111 Id. at 47.

22 A. The Court of Chancery’s Finding that the Bäckers Deceived Anderson Was Not Clearly Erroneous

The Court of Chancery held that the board’s actions at the November 15 meeting

were invalid as a matter of equity because the Bäckers affirmatively deceived Anderson to

establish a quorum.112 The Bäckers argue that the court’s finding of affirmative deception is

a mixed question of fact and law that we should review de novo.113 The Bäckers next argue

that even if this Court applies the clearly erroneous standard of review, the Court of

Chancery’s finding of affirmative deception was clearly erroneous because the evidence

does not show the Bäckers affirmatively deceived Anderson.114 Finally, the Bäckers

contend that Palisades did not properly raise any theory of affirmative deception as to

Grauman’s appointment, and therefore the court erred by granting equitable relief relating to

Grauman’s appointment.115

1. We review the Court of Chancery’s factual finding of affirmative deception for clear error

We ordinarily review a trial court’s factual findings for clear error.116 Nonetheless,

the Bäckers argue that the Court of Chancery’s determination that they affirmatively

deceived Anderson is a mixed question of fact and law that we review de novo.117 The

112 Palisades, 2020 WL 1503218, at *9-10. 113 Opening Br. 23. 114 Id. at 4. 115 Id. at 35-37. 116 See, e.g., Klassen, 106 A.3d at 1043. 117 Opening Br. 23; Reply Br. 7-8.

23 Bäckers reason that, because the Court of Chancery stated that affirmative deception was a

prerequisite for equitable relief in this case, the court’s finding that the Bäckers affirmatively

deceived Anderson was an application of law to facts presenting a mixed question of fact

and law.118

We disagree with the Bäckers. At bottom, the determination of whether the conduct

was deceptive was a factual one. Unlike the mixed questions of fact and law that the Bäckers

identify, the court did not need to consider legal principles to determine whether the Bäckers

tricked Anderson. Instead, the court had to answer two factual questions. First, what

representations did the Bäckers make? Second, were those representations false or

misleading? The record supplied full answers to both questions. The Court of Chancery’s

use of the words “affirmative” and “deception” simply describe the factual scenario that

justified equitable intervention: directors misleading a fellow director. Thus, the court’s

finding that the Bäckers affirmatively deceived Anderson is a factual finding that we

review for clear error, not a mixed question of fact and law.

2. The Court of Chancery’s finding of affirmative deception was not clearly erroneous

As discussed above, the court held that even if the Bäckers complied with the

technical requirements under the Company’s corporate governance documents, the board’s

118 See Reply Br. 7-8.

24 actions were nonetheless invalid under equitable principles because the Bäckers

affirmatively deceived Anderson to create a quorum. 119

This Court has long recognized that “inequitable action does not become permissible

simply because it is legally possible.”120 Under Delaware law, “director action[s] [are]

‘twice-tested,’ first for legal authorization, and second [for] equity.”121 “Stockholders can

entrust directors with broad legal authority precisely because they know that that authority

must be exercised consistently with equitable principles of fiduciary duty.”122 For this

reason, Delaware courts “review issues that could infect the composition of a company’s ‘de

jure directors and officers’ under Section 225, notwithstanding formal compliance with the

voting procedures and requirements for those offices.”123

Consistent with these principles, Delaware courts have used their equitable powers

on numerous occasions to invalidate otherwise lawful board actions tainted by inequitable

deception. For example, in Koch v. Stearn the court invalidated board actions terminating a

CEO where a fellow director “tricked [the CEO] into attending the meeting” by circulating

a special meeting notice that was “silent as to any possible consideration of” a transaction

119 Palisades, 2020 WL 1503218, at *9-10. 120 Schnell v. Chris-Craft Indus., Inc., 285 A.2d 437, 439 (Del. 1971). 121 In re Invs. Bancorp., Inc. S’holder Litig., 177 A.3d 1208, 1222 (Del. 2017) (quoting Sample v. Morgan, 914 A.2d 647, 672 (Del. Ch. 2007)). 122 Sample, 914 A.2d at 664 (emphasis added). 123 Brown v. Kellar, 2018 WL 6721263, at *6-7 (Del. Ch. Dec. 21, 2018) (quoting Genger v. TR Invs., LLC, 26 A.3d 180, 200 (Del. 2011)).

25 that would cause the board to remove the current CEO.124 Further, the company’s outside

directors intentionally failed to disclose their “agenda, which included removing [the CEO]

from office if he did not cooperate and step down voluntarily.”125 Similarly, in Alderstein

the court invalidated a board vote terminating the CEO and issuing stock “with the

purposeful effect of destroying his voting control” where the other directors “all operated in

secret to negotiate terms” for the dilutive transaction “while keeping [the CEO] deliberately

uninformed about their plan to present [that] proposal.”126

Proof of an outright lie is not necessary to justify equitable remedies. Deceptive

omissions can suffice. For example, in Koch the court held that directors deceived the CEO

by providing the CEO with a meeting agenda that intentionally omitted discussion of the

transaction that led to the CEO’s termination.127 The court also held that the CEO could be

“tricked into attending the meeting” even though he “may have had some reason to suspect

that his removal from office would be discussed.”128

Likewise, in Optimiscorp v. Analog Ventures, despite affirming the Court of

Chancery’s holding on other grounds, this Court observed,

[W]e are reluctant to accept the notion that it vindicates the board’s right to govern the corporation to encourage board

124 Koch v. Stearn, 1992 WL 181717, at *5 (Del. Ch. July 28, 1992), overruled on other grounds by Klassen, 106 A.3d at 1047. 125 Id. 126 Alderstein v. Wetheimer, 2002 WL 205684, at *8-9 (Del. Ch. Jan. 25, 2002) (internal quotation marks omitted). 127 Koch, 1992 WL 181717, at *5. 128 Id.

26 factions to develop Pearl Harbor-like plans to address their concerns about the company’s policy directions or the behavior of management. Rather, it has long been the policy of our law to value the collaboration that comes when the entire board deliberates on corporate action and when all directors are fairly accorded material information.129

The Bäckers argue that the Court of Chancery’s affirmative deception finding was

clearly erroneous because the evidence does not show that the Bäckers falsely represented

support for Grauman’s appointment.130 The Bäckers’ core argument is that the Court of

Chancery adopted “a clearly erroneous rewriting and interpretation” of the scheduling email

that Alex sent the board in October 2019 to find that the Bäckers affirmatively represented

support for Grauman’s appointment.131 In the original email, Alex wrote that “Kevin is on

the thread, assuming bod includes him, which I requested it does.”132 The parties agree,133

and the record reflects,134 that “bod” referred to the board’s email distribution list. The Court

of Chancery replaced “bod” with “[the Board]” when quoting the message.135 The Bäckers

129 Optimiscorp v. Waite, 137 A.3d 970, 2016 WL 2585871, at *3 (Del. Apr. 25, 2016) (Table) (citations omitted). 130 Opening Br. 4. 131 See, e.g., id. at 4, 25-29. 132 A172 (emphasis added). 133 See, e.g., Opening Br. 26-27 (“The reference to ‘bod’ was to Grauman being ‘on the email thread’ by virtue of being on the ‘bod’ email distribution list,” which referred to “‘the Company’s Board listserv.’” (quoting A1224)); Answering Br. 20 (“[T]he Bäckers focus on the Court of Chancery’s interpretation of . . . (A172) , an email in which [Alex] Bäcker states that he ‘requested’ that Grauman be ‘added’ to ‘bod,’ a Board listserv.”). 134 See, e.g., A812, at 52:15-23 (Grauman testified during his deposition that “‘BOD’ is Board of Directors. So Alex is basically saying to the other members of the Board that he’s added me to the thread of communications with the Board members, assuming that I’m now on the Board.”). 135 Palisades, 2020 WL 1503218, at *10 (emphasis added).

27 argue that this “textual alteration . . . made a substantive, material change to the evidence.

The original text of [the scheduling email] had nothing to do with the composition of the

Board . . ., and the reference to ‘bod’ was not a reference to Grauman being a director.”136

Thus, the Bäckers argue that the Court of Chancery misconstrued Alex’s request. In

the original email, Alex referred to a request that Grauman be added to the board’s email

distribution list. Misreading “bod” to refer to “[the Board],” the court wrongly concluded

that Alex referenced a request to add Grauman to the Company’s board of directors. The

court then relied on that incorrect reading to find that the Bäckers made statements that were

deceptively incomplete given Alex’s earlier request to add Grauman to the Company’s board

of directors. The Bäckers also argue that the Court of Chancery relied on this

misinterpretation to find that Ricardo’s represented support for Grauman’s appointment by

responding “[l]ooks good to me” to Alex’s email.137

The Bäckers’ concern has some merit. The court’s replacement of “bod” with the

capitalized term “the Board” suggests that the court construed Alex’s request to refer to the

Company’s board of directors, not the board’s email distribution list.138 Further the court

characterized the scheduling email as “expressing [Alex’s] belief that Grauman had been

added to the Board, per his request.”139

136 Opening Br. 26. 137 Id. at 30. 138 See Palisades, 2020 WL 1503218, at *10. 139 Id. at *9 n.107 (emphasis added).

28 Nonetheless, Alex’s request to add Grauman to the board’s distribution list was

consistent with appointing Grauman to the CEO-director seat. The purpose of the “bod”

listserv appears to have been to facilitate communications among the members of the QLess

board.140 It also appears that the distribution list included only the current members of the

board and Alderton,141 the Company’s outside counsel who sometimes acted as the corporate

secretary during board meetings. 142 Requesting that Grauman be added to the board’s email

distribution list, therefore, is consistent with the intent to add Grauman to the Company’s

board of directors at the November 15 board meeting.

Further, Grauman’s testimony supports this interpretation, as he thought Alex’s

request to add him to the “bod” listserv “indicated that there was a follow-through in exactly

the same way as I was expecting and what had been discussed before, that I would occupy

the CEO’s seat on the Board.”143 The Bäckers try to discount this testimony by citing other

testimony indicating that Grauman “did not believe he was a director before the November

140 See, e.g., A812, at 52:19-23 (testimony from Grauman’s deposition: “‘BOD’ is Board of Directors. So Alex is basically saying that he’s added me to the thread of communications with the Board members, assuming that I’m now on the Board.”). 141 See, e.g., A172 (this email thread sent to the bod listserv shows emails sent by Anderson, Markman, Alderton, Alex, and Ricardo); A824, at 97:18-98:12 (testimony from Grauman’s deposition: “Q. You didn’t infer from this email [A172] that you were a member of the Board of Directors, did you? A. I didn’t infer anything from this email. Q. If you look at the very top, there’s an email address that’s . . . bod@qless.com. Do you see that? . . . Looking at it now, you understand, don’t you, that Alex was referring to a Board distribution list? A. Yeah, I do. But that could have included Scott [Alderton], too. He’s not on the Board of Directors.”). 142 See, e.g., A289 ( “Mr. Alderton served as Secretary of the meeting.”). 143 A813, at 53:2-5.

29 15 Meeting.”144 This argument does not withstand scrutiny, however, because Grauman’s

testimony that he did not think that he was a director before the November 15 board meeting

does not mean that he did not think that he would be named a director at the meeting. Further,

even if the Bäckers cited to contradictory testimony, the court’s “choice” between “two

permissible views of the evidence . . . cannot be clearly erroneous.”145

Nonetheless, if the Court of Chancery relied on its interpretation of the scheduling

email alone to find deception, we might hold that the court’s finding was clearly erroneous.

But that is not so. The court found that the Bäckers made four more misrepresentations

regarding Grauman’s appointment:

• “When Grauman circulated a ‘high-level agenda’ for the November 15 meeting, [Alex] Bäcker responded by thanking [Grauman] and asking him to ‘circulate any proposed resolutions’” for the meeting.146

• “On the day before the contested meeting, [Alex] Bäcker emailed Grauman, copying the QLess Board, requesting that Grauman circulate board materials ‘so that we may all do our homework and be prepared to spend our time together most productively.’”147

• “When Alderton circulated draft Board resolutions that would formalize Grauman’s appointment to the Board, as requested by Grauman and [Alex] Bäcker, neither Ricardo nor [Alex] gave any indication that their position had changed.”148

144 See Opening Br. 28 (citing A835, at 142:5-9). 145 RBC Cap. Mkts., LLC v. Jervis, 129 A.3d 816, 849 (Del. 2015) (quoting Bank of N.Y. Mellon Tr. Co., N.A. v. Liberty Media Corp., 29 A.3d 225, 236 (Del. 2011)). 146 Palisades, 2020 WL 1503218, at *10 (referring to B65). 147 Id. (quoting A207). 148 Id. (quoting A211).

30 • A few days after the November 15 board meeting, Nam sent an email stating that “[w]hen I did speak to [Alex] [Bäcker] about a week ago, I specifically asked him how he thought Kevin [Grauman] was doing. I also asked [Alex] how the relationship was between him and [Grauman]. [Alex] said everything was fine.”149

The Bäckers claim that none of these statements show that the Bäckers represented

support for Grauman’s appointment. Regarding the first misrepresentation, the Bäckers

claim that the high-level agenda Grauman circulated did not “mention . . . Grauman’s

appointment” and “simply referred to Alderton leading a ‘Board hygiene’ discussion

involving ‘various resolutions’ without specifying what was proposed.”150 Further, the

Bäckers argue that “Alex asking the CEO to circulate resolutions was not an affirmative

misrepresentation that Alex and Ricardo wanted Grauman on the Board or assumed

Grauman had already joined the Board.”151

Regarding the second misrepresentation, the Bäckers argue that

Alex’s use of the pronouns ‘we’ and ‘our’ in an email copying the Board and asking the CEO to circulate materials was not an affirmative misrepresentation that Alex and Ricardo wanted Grauman on the Board or assumed Grauman had already joined the Board. Grauman, as the requested distributor of the materials, already had the Board materials and thus was not part of the collective ‘we’ that needed to do ‘our’ homework before the Board meeting.152

149 Id. at *10 n.116 (quoting A301). 150 Opening Br. 31. 151 Id. 152 Id. at 31-32.

31 Regarding the third misrepresentation, the Bäckers argue that “Alex did not expressly

or implicitly request ‘Board resolutions that would formalize Grauman’s appointment to the

board.’” Further, “Alex and Ricardo’s failure to specifically object to a draft proposed

resolution prior to the November 15 Meeting was not an affirmative misrepresentation that

[they] wanted Grauman on the Board or assumed Grauman had already joined the Board.”153

Regarding the fourth misrepresentation, the Bäckers argue that “Alex saying to a

former director no longer subject to confidentiality [that] [Alex’s] relationship with Grauman

was ‘fine’ was not an affirmative misrepresentation that Alex and Ricardo wanted Grauman

on the Board or assumed that Grauman had already joined the Board. Alex’s dissatisfaction

with Grauman was clear enough that Markman believed when he resigned that Alex ‘would

try to reinstate himself as CEO.’”154

On reply, the Bäckers further argue that

[t]he timeline of deception relied upon by the Court of Chancery . . . does not hold up. It was not until after Markman’s resignation . . . that Alex prepared resolutions for the November 15 Meeting. All but one communication the Court of Chancery found to be deceptive preceded Markman’s resignation. . . .

....

The only communication after Markman’s resignation was Alex’s request of Grauman, the CEO, who prepared Board materials, to circulate materials for the meeting ‘so that we may all do our homework and be prepared to spend our time together most productively.’ There is no evidence that this email gave

153 Id. at 32. 154 Id. at 30 (quoting Palisades, 2020 WL 1503218, at *5).

32 Anderson the ‘impression that [Alex] Bäcker approved of Grauman’s Board membership,’ nor could it have reasonably given such an impression.155

The Bäckers’ arguments are unpersuasive because they fail to demonstrate that the

Court of Chancery’s factual findings were wrong, let alone clearly erroneous. For example,

it was not unreasonable to find that Alex’s request that Grauman “circulate any proposed

resolutions” created the impression that Alex “had no issue with Grauman joining the

Board.”156 Asking Grauman to circulate resolutions implied that Grauman would have a

meaningful role at the November 15 board meeting.

Similarly, Alex’s statement to Nam that “everything was fine” between Alex and

Grauman implied—if not outright stated—that Alex continued to support Grauman as the

CEO. If everything was fine, Alex would have had no reason to fire Grauman. Thus, this

statement also implied support for Grauman’s continued status as CEO, even if it did not

outright express support for Grauman’s nomination to the board.

The Bäckers’ timing argument suffers from similar problems. It may be true that the

Bäckers did not begin working on a counter agenda until Markman resigned. But it is also

true that Markman resigned “after a phone call with [Alex] Bäcker that led Markman to

believe [Alex] Bäcker would try to reinstate himself as CEO.”157 Thus, the record suggests

that Alex’s intent to fire Grauman predated and caused Markman’s resignation.

155 Reply Br. 8, 10. 156 See Palisades, 2020 WL 1503218, at * 10. 157 Id. at *5.

33 The bigger problem for the Bäckers, however, is that the Court of Chancery identified

at least one misrepresentation that passes muster under all of the requirements that the

Bäckers suggest. On the day before the contested board meeting—and hours after Markman

resigned—Alex asked Grauman to circulate board materials “so that we may all do our

homework and be prepared to spend our time together most productively.”158

This was an affirmative statement. Alex made the statement after Markman resigned.

And the statement was deceptive and misleading on its face. At that point, Alex knew that

he held a board majority, and Alex had left Markman with the impression that he wanted to

fire Grauman. Therefore, Alex must have known that the draft resolutions Alderton

circulated earlier in the week were now a dead letter. Nonetheless, Alex asked that Grauman

share his draft resolutions with Anderson and others “so that we may all do our

homework.”159 There was no reason for Grauman to prepare for a meeting from which he

would be excluded and at which he would be fired. And there was no reason for Anderson

or Grauman to study resolutions that Alex knew the board would not consider. It is not

erroneous to find that this statement was deceptive.

The Bäckers try to blunt this argument by claiming that Alex’s use of the words “our”

or “we” did not refer to Grauman.160 Even if this reading is plausible, the Bäckers fail to

explain why the Court of Chancery’s interpretation was unreasonable, let alone clearly

158 Id. at *10. 159 Id. 160 Opening Br. 31-32.

34 erroneous. It would not be unreasonable to find that “our” and “we” referred to all of the

recipients who expected to meaningfully participate in the meeting, including Grauman.

We therefore hold that the Court of Chancery’s finding of affirmative deception was

not clearly erroneous.

The Bäckers raise two more arguments that we must address before concluding this

section. First, the Bäckers argue that “[t]he Court of Chancery erred by holding that Alex

caused Anderson’s attendance at the November 15 Meeting.”161 Instead, the Bäckers claim

that it was Alderton’s legal advice that Anderson “and D’Addario held two votes—enough

to block Alex and Ricardo’s votes—that led [Anderson] to attend and remain for the entire

meeting,”162 not misrepresentations from the Bäckers.

At best, the Bäckers raise the possibility that multiple factors contributed to

Anderson’s decision to attend the November 15 meeting. It is possible that Anderson

decided to attend the meeting based on Alderton’s legal advice. But it is also possible that

Alderton’s legal advice and Anderson’s decision to attend the meeting relied on

misrepresentations from the Bäckers that they supported the board’s original agenda, which

included appointing both D’Addario and Grauman to the board. That agenda would have

prevented the Bäckers from taking unilateral action. Because the Court of Chancery’s choice

between two permissible views of the evidence cannot be clearly erroneous,163 we hold that

161 Id. at 38. 162 Id. at 39. 163 See, e.g., RBC Cap. Mkts., LLC v. Jervis, 129 A.3d 816, 849 (Del. 2015).

35 the court’s conclusion that the Bäckers secured a quorum by deceiving Anderson was not

clearly erroneous.

Second, the Bäckers argue that because the Court of Chancery held that “there was

no deceptive action related to the appointment of the Series A-1 director [D’Addario] in

advance of the November 15 meeting,”164 the court erred by finding deception as to

Grauman’s appointment.

We disagree. The Court of Chancery did not commit clear error by finding deceptive

conduct as to Grauman’s appointment but not D’Addario’s appointment. This argument

ignores the distinction between the court’s determination that the Bäckers did not prevent

Altos from exercising its rights and the court’s broader determination that the Bäckers

nonetheless acted inequitably. Further, this argument ignores that the Court of Chancery

identified misrepresentations that treated Grauman’s nomination differently from

D’Addario’s nomination. For example, Alex’s statement to Nam that “everything was fine”

between Alex and Grauman implied support for Grauman’s nomination but was silent with

regards to D’Addario.165 Similarly, the multiple correspondences between Alex and

Grauman ahead of the November 15 meeting created an impression that Grauman would

have a meaningful role at the meeting.166 On the other hand, Alex’s suggestion that Nam

164 Opening Br. 24. 165 See Palisades, 2020 WL 1503218, at *10 n.116. 166 See id. at *10.

36 consider someone other than D’Addario cast some doubt on Alex’s support for D’Addario’s

appointment but was silent with regards to Grauman.167

Thus, the Court of Chancery did not commit clear error by finding that the Bäckers

deceived Anderson by falsely representing support for Grauman’s appointment despite

finding that the Bäckers did not inequitably interfere with Altos’s right to appoint D’Addario

as the replacement Series A-1 director.

3. Palisades raised deception as to Grauman’s appointment

The Bäckers next contend that “Palisades never argued below that Alex and Ricardo

affirmatively deceived Anderson into believing that Grauman would be appointed as the

CEO Director.”168 Instead, the Bäckers claim that Palisades raised below a theory of

deception that focused exclusively on D’Addario’s appointment.169 Thus, the Bäckers argue

that they were denied “a fair opportunity to respond” because the Court of Chancery granted

equitable relief “divorced from any theory advanced by Palisades . . . . Had [the Bäckers]

known that they would be accused of affirmatively deceiving Anderson into believing [the

Bäckers] would support Grauman’s appointment, [the Bäckers] could have tried the case

differently.” 170

167 See, e.g., A202-03. 168 Reply Br. 13. 169 Opening Br. 35-37; Reply Br. 13-15. 170 Opening Br. 37.

37 The Bäckers rely on Verition Partners Master Fund Ltd. v. Aruba Networks, Inc. to

support their waiver argument. In Aruba, this Court rejected the Court of Chancery’s “use

[of] the trading price . . . for determining fair value” after finding that such an approach was

“not grounded in the record” because neither party raised the theory, and the approach was

therefore not “subjected to the crucible of pretrial discovery, expert depositions, cross-expert

rebuttal, expert testimony at trial, and cross examination at trial.”171 In other similar

circumstances, the Court of Chancery has rejected arguments that a party failed to raise

before trial on the basis that the opposing party may have tried the case differently given

notice of the new argument.172

Although the deception theory that Palisades raised below focused on D’Addario’s

appointment, we disagree with the Bäckers’ argument that they were denied a fair

opportunity to respond to a theory of deception as to Grauman’s appointment. Palisades has

consistently argued that the Bäckers deceived their fellow directors by representing support

for the board’s original agenda while concealing a secret counter-agenda to seize control of

the company.173 The board’s original agenda would have appointed Grauman to the CEO-

171 210 A.3d 128, 133-34, 139 n.58, 140 (Del. 2019). 172 See HOMF II Inv. Corp. v. Altenberg, 2020 WL 2529806, at *1, *41 (Del. Ch. May 19, 2020); In re PNB Hldg. Co. S’holders Litig., 2006 WL 2403999, at *22 n.117 (Del. Ch. Aug. 18, 2006). 173 See, e.g., A317 (in its complaint, Palisades alleged that “[h]aving ambushed the meeting and manufactured a false majority, Alex Bäcker then proceeded to purport to ‘pass’ a number of invalid resolutions . . . ”); B131, at 10:9-13 (at a hearing held before the trial, counsel for Palisades argued that “it was everyone’s understanding going into the November 15th meeting that . . . Mr. Grauman would be confirmed as the CEO director . . .”).

38 director seat.174 The Bäckers’ counter agenda hinged on firing Grauman and appointing Alex

to the CEO-director seat.175 Thus, the Bäckers had ample notice that Palisades claimed that

the Bäckers had falsely represented support for an agenda that, among other things, would

have appointed Grauman to the Company’s board.

Further, unlike in Aruba, the Bäckers had the opportunity to explore deception as to

Grauman’s appointment. Grauman’s appointment was the subject of discovery requests176

and deposition testimony.177 Palisades also noted in its pretrial brief that

as recently as November 12, [Alex] Bäcker spoke to Nam and did not raise any issues regarding Mr. D’Addario’s appointment. Neither did Bäcker indicate to Nam in response to his specific questioning that there were any issues with Grauman’s performance as CEO, which has now become Defendants’ pretextual justification for their November 15 actions.

Despite the lack of any previous indication to the contrary, the Bäckers’ actions during the November 15 Meeting deviated

174 See, e.g., A263 (“The Board Consent does the following . . . [r]atifies the appointment of Kevin Grauman as EO [sic], . . . and appoints him to serve as the CEO Director . . . .”). 175 See, e.g., A248-51 (email thread discussing the Bäckers’ secret counter-agenda for the November 15 board meeting). 176 See, e.g., B180 (Palisades requesting “[a]ll documents and communications concerning Kevin Grauman’s performance as the Chief Executive Officer of the Company, and “[a]ll documents and communications concerning Kevin Grauman’s purported termination on November 15, 2019”); B191 (requesting that the Bäckers “[i]dentify all documents and information supporting Your refusal to vote for, consent to, appoint, or otherwise recognize Kevin Grauman as the CEO Director . . . ”); B198 (the Bäckers requesting “[a]ll documents and communications concerning Kevin Grauman”). 177 See, e.g., A739-40, at 248:24-249:10 (Testimony from Nam’s deposition: “Q. Did Alex Bäcker inform you on your November 12th call with him or at any other time in advance of the November 15th meeting that he was contemplating replacing Mr. Grauman as C.E.O. with Himself? A. No. Definitely not. Q. Did Alex Bäcker inform you on your November 12th call with him or at any other time in advance of the November 15th meeting that he was dissatisfied with Mr. Grauman’s performance as C.E.O.? A. No. And on that particular point, now that you mention it, I specifically remember I asked him a very direct question.”).

39 entirely from the circulated board resolutions and agenda. Not only did the Bäckers refuse to recognize D’Addario, they purported to fire Grauman as CEO and appoint Bäcker to that position (and CFO).178

This passage gave the Bäckers notice that Palisades linked its deception theory to

Alex’s false support for Grauman. We therefore hold that the Court of Chancery did not err

by granting equitable relief on the basis that the Bäckers falsely represented support for the

original board resolutions that, among other things, would have appointed Grauman to the

board.

B. The Court of Chancery Did Not Impose an Equitable Notice Requirement for a Regular Board Meeting

The Court of Chancery held that “keeping mum as [Alex and Ricardo] planned their

ambush was inequitable” because “[i]f Anderson had known of Defendants’ change of plans,

he would have refused to participate in the meeting, defeating a quorum and thwarting the

coup.”179 Relying on the assumption that the Bäckers did not deceive Anderson, the Bäckers

reason that the court effectively imposed an equitable notice requirement by faulting the

Bäckers for choosing not to speak and disclose their true agenda to Anderson.180 The

Bäckers also argue that “[a]ll the evidence showed that the November 15 Meeting was a

regular meeting, except for one errant reference to a special meeting in Alderton’s draft

178 A1245-46. 179 Palisades, 2020 WL 1503218, at *10. 180 Opening Br. 41-43.

40 minutes.”181 Combining these premises, the Bäckers contend that the Court of Chancery

erred by imposing an equitable notice requirement on a regular board meeting, contrary to

this Court’s holding in Klassen, which rejected a notice requirement for regular board

meetings.182

Delaware law does not require that board members receive notice of the agenda

related to regular board meetings. For example, in Klassen, this Court held that

[i]t is settled Delaware law that corporate directors are not required to be given notice of regular board meetings. There being no such notice requirement, it follows that there is no default requirement that directors be given advance notice of the specific agenda items to be addressed at a regular board meeting.183

Thus, this Court in Klassen held that the Koch, Adlerstein, and Fogel decisions were

inapposite because “in those cases the disputed board actions occurred at special—not

regular—board meetings.”184 Contrastingly, special meetings often require notice, and

Delaware courts have used false or misleadingly incomplete special meeting notices to

invalidate inequitable board actions.185

As Palisades correctly notes, “the Court of Chancery never decided whether the

November 15 Meeting was a regular meeting or a special one,” and Alderton’s minutes from

181 Id. at 42 (citing A1413-18). 182 Id. at 41-43. 183 106 A.3d at 1043-44 (citations omitted). 184 Id. at 1044-45. 185 See, e.g., Fogel v. U.S. Energy Sys., Inc., 2007 WL 4438978, at *1, *4 (Del. Ch. Dec. 13, 2007); Koch, 1992 WL 181717.

41 the meeting “state[] that the Meeting was a special one.”186 Regardless, the type of meeting

is immaterial because the source of inequity is not the lack of notice, but the Bäckers’

decision to secretly plan an ambush after feigning support for the planned governance items.

Stated differently, contrary to the Bäckers’ suggestion, the Court of Chancery did not impose

an equitable notice requirement by faulting the Bäckers for staying silent. Instead, the court

faulted the Bäckers for choosing to speak and mislead their fellow directors. Most notably,

shortly before the November 15 board meeting Alex asked Grauman to “please distribute

the board materials/deck a day in advance of the meeting so that we may all do our

homework and be prepared to spend our time together most productively[.]”187

This statement was deceptive. There was no reason for the other directors to consider

resolutions that the Bäckers knew that the board would not consider, and there was no reason

for Grauman to prepare for a board meeting at which he would be excluded and fired. Thus,

the court did not impose an equitable notice requirement by faulting the Bäckers for their

silence. The court granted equitable relief because the Bäckers made misrepresentations

designed to deceive their fellow directors.

186 Answering Br. 39 (citing A1413-18) (emphasis removed). 187 Palisades, 2020 WL 1503218, at *10; A207.

42 C. Anderson’s Attendance and Actions at the November 15 Board Meeting Do Not Preclude Equitable Relief

The Bäckers argue that even if they deceived Anderson, the Court of Chancery erred

by invalidating the board actions as a matter of equity for two reasons. First, the Bäckers

argue that the “Koch rule” against deception “applies only to special meetings, not regular

meetings like the November 15 board meeting. . . . A director cannot be deceived into

attending a regular meeting for purposes of voiding action taken at the meeting.”188 The

Bäckers rely on Klassen’s rejection of an advance notice requirement for regular board

meetings to support this argument.189

We disagree with the Bäckers’ suggestion that equity provides no remedy where a

director has the misfortune of being tricked into attending a regular, as opposed to special,

board meeting. Although Koch addressed deception regarding a special board meeting, the

Court of Chancery’s holding relied on the broader principle that where a director “was

tricked or deceived into attending [a board] meeting . . . the general rule is that actions taken

at such a meeting are void.”190 Subsequent opinions invalidating board actions tainted by

deception have taken a similarly broad approach.191 Nothing in these opinions suggests that

188 Opening Br. 44-45. 189 See id. (citing Klassen, 106 A.3d at 1044). 190 1992 WL 181717, at *4 (citing Schroder v. Cotton, Dillon Co., 299 A.2d 431, 436 (Del. Ch. 1972)). 191 See, e.g., OptimisCorp v. Waite, 137 A.3d 970, 2016 WL 2585871, at *3 (Del. Apr. 25, 2016) (Table) (“We are reluctant to accept the notion that it vindicates the board’s right to govern the corporation to encourage board factions to develop Pearl Harbor-like plans to address their concerns . . . . Rather, it has long been the policy of our law to value the collaboration that comes when the entire board deliberates on corporate action and when all directors are fairly accorded material

43 Delaware law tolerates deception related to regular board meetings, and we can think of no

good reason why deception would be allowed for regular board meetings, but forbidden for

special board meetings.

Klassen does not save the Bäckers’ argument. Contrary to the Bäckers’

assertions, Klassen does not hold that equitable relief is unavailable where a director is

tricked into attending a regular board meeting. Instead, the Court held more narrowly that

because “[i]t is settled Delaware law that corporate directors are not required to be given

notice of regular board meetings,” the board’s actions were not automatically invalid where

the CEO-director “received no advance notice that his possible termination would be

considered at that [regular board] meeting.”192 Rejecting an advance notice requirement for

regular board meetings did not grant parties a license to deceive. To the contrary, the Court

was careful to note—in a case regarding a regular board meeting—that “[o]ur courts do not

approve the use of deception as a means by which to conduct a Delaware corporation’s

affairs, and nothing in this Opinion should be read to suggest otherwise.”193

information.”); Fogel v. U.S. Energy Sys., 2007 WL 4438978, at *3 (Del. Ch. Dec. 13, 2007) (“Where a director is tricked or deceived about the true purpose of a board meeting, and where the director subsequently does not participate in that meeting, any action purportedly taken there is invalid and void.” (citing Koch, 1992 WL 181717, at *4)); Alderstein v. Wertheimer, 2002 WL 205684, at *8 (Del. Ch. Jan. 25, 2002) (invalidating a board action where other directors coordinated to keep the CEO-director “deliberately uniformed about their plan to present” a proposal that would dilute the CEO’s ownership stake at a board meeting); Schroder, 299 A.2d 431, 436 (Del. Ch. 1972) (“A quorum obtained by trickery is invalid, and the reasoning which forbids trickery in securing a quorum applies equally well to securing the absence of opposing directors from a meeting by representing that such a meeting will not be held.” (citation omitted)). 192 106 A.3d at 1043 (citation omitted). 193 Id. at 1046.

44 We therefore reject the Bäckers’ argument that directors cannot be tricked into

attending regular board meetings. Regardless of the type of meeting or form of

communications, Delaware law does not countenance deception designed to manufacture a

quorum or otherwise induce director action. As this Court recognized in City of Fort Myers

General Employees’ Pension Fund v. Haley, “[i]t is elementary that under Delaware law the

duty of candor imposes an unremitting duty on fiduciaries, including directors and officers,

to ‘not use superior information or knowledge to mislead others in the performance of their

own fiduciary obligations.’”194 This principle applies with equal force to regular and special

board meetings.

Second, the Bäckers argue that even if equitable relief was appropriate because the

Bäckers deceived Anderson, his “thorough participation precludes invalidation. . . . ‘[W]here

the deceived director remains at the meeting and participated throughout’ the action taken at

the meeting is not void or voidable.’”195 Relying on Koch, which states that

“[n]otwithstanding any deceit that may have been involved in calling a meeting, the actions

taken will not be invalidated where the deceived director remains at the meeting and

participates throughout . . . ,”196 the Bäckers argue that Anderson’s decision to stay at the

194 235 A.3d 702, 718 (Del. 2020) (quoting Mills Acq. Co. v. Macmillan, Inc., 559 A.2d 1261, 1283 (Del. 1989)). 195 Opening Br. 45-46 (quoting Klassen, 2013 WL 5967028, at *8). 196 1992 WL 181717, at *5 (citation omitted).

45 November 15 board meeting and vote against the Bäckers’ actions precludes equitable

relief.197

The trouble with the Bäckers’ argument is that they did not properly raise a

participation defense before the Court of Chancery. The Bäckers point to arguments that

Palisades raised throughout the proceedings below regarding Anderson’s participation,198

but those citations are unavailing. Palisades did not raise any equitable defenses that would

defeat its own claims, and the passages that the Bäckers cite do not address the disputed

issues underlying an equitable participation defense, such as whether the Bäckers’ deception

disabled Anderson from meaningfully participating in the meeting.

The Bäckers also assert that their March 12, 2020 post-trial memorandum raised a

participation defense by arguing that

[e]ach of Palisades’s arguments depends on the November 15 meeting being special and notice therefore being required. None apply to a regular meeting. Each of Klassen, Fogel, Schroder, Alderstein and Kalisman involved special meetings and Palisades simply repeats its arguments that silence is deception. Those arguments fail for the reasons already briefed. Further, Palisades fails to grapple with the next step in its deception argument. “[W]here the deceived director remains at the meeting and participates throughout” the action taken at the

197 Opening Br. 44-46. 198 See, e.g., Reply Br. 18 (“Palisades rested its case below on the premise that Anderson and D’Addario fully participated in the November 15 Meeting and, as a result, the votes were 2-2) (citing A1226, 1231-32 (Palisades arguing in its pretrial brief that the Bäckers’ actions were invalid because they should have recognized D’Addario’s appointment to the board, and both Anderson and D’Addario voted against all of the proposals that the Bäckers purported to pass during the meeting)).

46 meeting is not void or voidable. Anderson remained and participated throughout the meeting.199

But if Anderson’s participation “was the cornerstone of Palisades’s claims below,”200

the Bäckers fail to explain why they waited until the last possible instant—after discovery

had closed, depositions were complete, the parties submitted pre-trial briefs, the court held a

paper trial, and the parties completed their first round of post-trial briefing—to unveil a

participation defense. At that late hour, Palisades did not have an opportunity to respond to

the Bäckers’ participation argument, could not gather new evidence, and could not adjust its

trial strategy to account for a new equitable defense.

It is also unclear that the Bäckers’ passing reference to Anderson’s participation

properly raised a participation defense. The Court of Chancery did not think that the Bäckers

raised any equitable defenses,201 and the Bäckers only mentioned Anderson’s participation

in the context of addressing a separate legal issue: whether a director can be deceived into

attending a regular board meeting. The Bäckers also failed to address the substance of a

participation defense, such as whether Anderson could meaningfully participate given the

Bäckers’ deception.

199 A1416-17 (quoting Klassen, 2013 WL 5967028, at *8); see also Opening Br. 44 (claiming that A1416-17 preserved this issue). 200 Reply Br. 19. 201 Palisades, 2020 WL 1503218, at *10 n.123.

47 Accordingly, we hold that the Bäckers waived their argument that Anderson’s

participation precluded equitable relief. Because we decide this issue on waiver grounds, we

do not reach the merits of a participation defense.

D. The Court of Chancery Did Not Provide Extracontractual Relief under the Voting Agreement

The Bäckers argue that because “it was Alex and Ricardo’s actions related to the

Voting Agreement that led to the Court of Chancery’s equitable invalidation,” the court erred

by using its equitable powers to grant Palisades extracontractual relief not available under

the voting agreement.202 Further, the Bäckers argue that “[t]he Court of Chancery erred by

imposing an equitable remedy despite declining to find a breach of the Voting

Agreement.”203

The Bäckers’ rely on the Court of Chancery’s holding in Nemec v. Shrader that

“where a dispute ‘relate[s] to obligations “expressly treated . . .” by contract[, it] will be

governed by contract principles.’ If the ‘fiduciary claims relate to obligations that are

expressly treated’ by contract[,] then this Court will review those claims as breach of contract

claims and any fiduciary duty claims will be dismissed.”204 Put differently,

202 Opening Br. 47. 203 Reply Br. 23. 204 2009 WL 1204346, at *4 (Del. Ch. Apr. 30, 2009) (quoting Madison Realty Co. v. AG ISA, LLC, 2001 WL 406268, at *6 (Del.Ch. Apr. 17, 2001)), aff’d, 991 A.2d 1120 (Del. 2010) (“It is a well- settled principle that where a dispute arises from obligations that are expressly addressed by contract, that dispute will be treated as a breach of contract claim. In that specific context, any fiduciary claims arising out of the same facts that underlie the contract obligations would be foreclosed as superfluous.” (citations omitted)).

48 the general rule under Delaware law, subject to only narrow exceptions, is that a plaintiff may not ‘bootstrap’ a breach of fiduciary duty claim into a breach of contract claim merely by restating the breach of contract claim as a breach of fiduciary duty. Courts will dismiss the breach of fiduciary [duty] claim where the two claims overlap completely and arise from the same underlying conduct or nucleus of operative facts.205

This bootstrapping case law only requires dismissal where a fiduciary duty claim

wholly overlaps with a concurrent breach of contract claim. For example, in Schuss v.

Penfield Partners, the Court of Chancery refused to dismiss breach of fiduciary duty claims

that “share[d] a common nucleus of operative facts with [the] Plaintiffs’ breach of contract

claim” because the breach of fiduciary duty claims “depend[ed] on additional facts [that

were] . . . broader in scope and involve[d] different considerations in terms of a potential

remedy” than the concurrent breach of contract claims.206 In reaching this conclusion, the

court noted that “this case is distinguishable” from cases applying Delaware’s bootstrapping

doctrine “which dismissed breach of fiduciary duty claims as duplicative of breach of

contract claims that either were substantially identical, such that the fiduciary duty claim

would have been ‘superfluous,’ or involved remedies that were likely to be equivalent.”207

Similarly, in In re Mobilactive Media, LLC, the Court of Chancery “reject[ed] the

205 Grunstein v. Silva, 2009 WL 4698541, at *6 (Del. Ch. Dec. 8, 2009) (citing Schuss v. Penfield P’rs, 2008 WL 2433842, at *10 (Del. Ch. June 13, 2008); Madison Realty, 2001 WL 406268, at *5; Gale v. Bershad, 1998 WL 118022, at *5 (Del. Ch. Mar. 4, 1998)). 206 2008 WL 2433842, at *10. 207 Id. (quoting Gale, 1998 WL 118022, at *5).

49 Defendants’ characterization of [the Plaintiff’s] fiduciary duty claim as duplicative” because

“the remedies for breach of contract and breach of fiduciary duty in this case are different.”208

Contrary to the Bäckers’ arguments, the Court of Chancery did not grant equitable

relief for a breach of the voting agreement. The court granted equitable relief on the basis

that the Bäckers—acting in their capacities as directors—deceived Anderson to create a

quorum for the November 15 board meeting.209 The subject matter of the voting agreement

may have overlapped with the Bäckers’ inequitable conduct, but the court’s equitable award

addressed harm flowing from the Bäckers’ deceptive conduct in their capacities as directors,

not from a breach of contract in their capacities as stockholders and parties to the voting

agreement.

Thus, the Court of Chancery did not err by exercising its equitable powers to grant

relief for a de facto breach of the voting agreement. The court granted equitable relief for the

harm flowing from the Bäckers’ breach of their equitable duties as directors. Because this

claim involved facts separate from a breach of contract claim, and sought a different remedy,

208 2013 WL 297950, at *20 n.219 (Del. Ch. Jan. 25, 2013) (citing Schuss, 2008 WL 2433842, at *10); see also Stone & Paper Invs., LLC v. Blanch, 2019 WL 2374005, at *6 n.57 (May 31, 2019) (“The fiduciary duty claims are grounded in additional distinct facts . . . . Thus, the claims are not duplicative.”); 2009 Caiola Family Tr. v. PWA, LLC, 2014 WL 7232276, at *9 (Del. Ch. Dec. 18, 2014) (“While some of the factual allegations supporting Plaintiffs’ breach of fiduciary duty claims overlap with those related to their breach of contract claims, the potential breaches of fiduciary duty are broader in scope than, and therefore not precluded by, the terms of the Operating Agreement.”). 209 See Palisades, 2020 WL 1503218, at *9-10.

50 Delaware’s bootstrapping case law is inapposite and did not require that the Court of

Chancery dismiss Palisades’s request for equitable relief.

IV. CONCLUSION

Based on the foregoing, the Court of Chancery’s March 26, 2020 Memorandum

Opinion is AFFIRMED.