Dahle v. Pope

• Court: Court of Chancery of Delaware
• Decided: October 17, 2019
• Docket: CA No. 2019-0136-SG
• Status: Published

Opinion

COURT OF CHANCERY OF THE SAM GLASSCOCK III STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE VICE CHANCELLOR 34 THE CIRCLE GEORGETOWN, DELAWARE 19947

October 17, 2019

Blake A. Bennett, Esq. Edward B. Micheletti, Esq. Cooch and Taylor, P.A. Lilianna Anh P. Townsend, Esq. The Brandywine Building Mary T. Reale, Esq. 1000 West Street, 10th Floor Skadden, Arps, Slate, Meagher & Flom LLP Wilmington, DE 19899 One Rodney Square Wilmington, DE 19899

RE: Dahle v. Pope, C.A. No. 2019-0136-SG, Supplemental Briefing

Dear Counsel:

This matter is before me on the Defendants’ Motion to Dismiss a derivative

complaint under Rules 23.1 and 12(b)(6). As the parties are aware, the

Defendants’ motion turns in part on whether a communication by the Plaintiff

stockholder requesting action by the board of directors should be considered a

demand on the board, in which case the Plaintiff has implicitly conceded that the

board is capable of exercising business judgement in the matter. The

communication at issue has some of the features of a typical demand under Rule

23.1, but explicitly states that it is not a demand under that Rule; to refute the allegation that he has made a demand, the Plaintiff relies in part on what might be

termed the Magritte defense.1

At oral argument yesterday, counsel made me aware that the same counsel

are litigating a Motion to Dismiss on the same grounds, featuring a similar letter

but different parties, before Vice Chancellor McCormick, Solak ex rel. Ultragenyx

Pharmaceutical Inc. v. Welch, C.A. No. 2018-0810-KSJM. Decision in that matter

is pending. After consulting with the Vice Chancellor, it appears to me that

litigants’ and judicial economy is best served by my deferring consideration of the

instant motion pending decision in Ultragenyx, and then allowing the parties to

supplement the briefing to incorporate the Court’s ruling in that case. The parties

should confer on a schedule for supplemental memoranda.

To the extent the foregoing requires an order to take effect, it is SO

ORDERED.

Sincerely,

/s/ Sam Glasscock III

Sam Glasscock III

1 See René Magritte, La Trahison des images, 1929, oil on canvas, 23.75 by 31.94 in., Los Angeles, Los Angeles County Museum of Art. 2