Edward D. Meehan, Jr. v. Tiger Analytics, Inc.

• Court: Court of Chancery of Delaware
• Decided: September 18, 2023
• Docket: C.A. No. 2023-0720-BWD
• Status: Published

Opinion

COURT OF CHANCERY OF THE STATE OF DELAWARE BONNIE W. DAVID COURT OF CHANCERY COURTHOUSE MAGISTRATE IN CHANCERY 34 THE CIRCLE GEORGETOWN, DE 19947

Date Submitted: September 14, 2023 Final Report: September 18, 2023

Jason C. Jowers, Esquire Andrew L. Cole, Esquire Sarah T. Andrade, Esquire Nathaniel J. Klepser, Esquire Emily L. Skaug, Esquire Cole Shotz P.C. Bayard, P.A. 500 Delaware Avenue, Suite 1410 600 North King Street, Suite 400 Wilmington, Delaware 190801 Wilmington, Delaware 19801

RE: Edward D. Meehan, Jr. v. Tiger Analytics, Inc., C.A. No. 2023-0720-BWD

Dear Counsel:

The parties in this action have resolved all but one issue concerning the

plaintiff’s books and records demand. The remaining issue is the plaintiff’s request

to shift attorneys’ fees under the bad faith exception to the American Rule. For the

following reasons, I recommend that the request be denied.

I. BACKGROUND

Tiger Analytics, Inc. (“Tiger Analytics” or the “Company”) is a Delaware

corporation that provides marketing analytics, customer analytics, operations and

planning services, and risk analytics. Dkt. 1 ¶ 9. Edward D. Meehan, Jr. (“Plaintiff”)

is a Tiger Analytics stockholder. Id. Ex. A at 1. On March 8, 2022, Plaintiff served

a demand for books and records on the Company pursuant to 8 Del. C. § 220 for the Edward D. Meehan, Jr. v. Tiger Analytics, Inc., C.A. No. 2023-0720-BWD September 18, 2023 Page 2 of 12

purpose of determining Plaintiff’s percentage ownership in the Company and his

resulting tax liabilities (the “First Demand”). JX 6.1

The Company failed to respond to the First Demand, and Plaintiff did not

press the issue for eight months, until he served a renewed demand through new

counsel on November 9, 2022 (the “Demand”). JX 8. The Demand sought expanded

categories of documents in order to, among other purposes, value Plaintiff’s shares

and investigate possible wrongdoing in connection with transactions through which

Plaintiff’s equity interests purportedly were diluted. Id.

On December 2, 2022, the Company’s counsel responded to the Demand,

producing six documents, including the Company’s bylaws, stock ledgers, and

compensation plans pursuant to which equity interests were issued. JX 9 at 1. The

December 2 response letter noted that although the scope of documents sought in

the Demand was “broader than what is permitted under Delaware law,” the

Company expected that its “willingness to provide [Plaintiff] with a wide range of

company documents will moot any dispute over his Section 220 demand.” Id. at 2.

On December 23, 2022, the Company produced annual financial statements

for the two years prior, a May 2022 409A valuation, and a form of stock option grant

1 Joint trial exhibits are cited as “JX __”. Edward D. Meehan, Jr. v. Tiger Analytics, Inc., C.A. No. 2023-0720-BWD September 18, 2023 Page 3 of 12

agreement used in connection with the Company’s equity incentive plan. JX 11. On

December 29, 2022, Plaintiff’s counsel pressed for additional documents requested

in the Demand. JX 12 at 8-11. On January 17, 2023, the Company’s counsel

responded that it would be producing “board resolutions, director and shareholder

consents, and tax documents” the first week of February, but that certain other

documents requested by Plaintiff did not exist. Id. at 6-7. The parties then engaged,

unsuccessfully, in settlement negotiations. Id. at 6.

Between March 10 and May 24, 2023, the parties did not communicate about

the Demand. On May 24, Plaintiff’s counsel emailed a copy of a draft Section 220

complaint, noting that “[s]hould [Plaintiff] be forced to file an action, you can expect

a fee application after the Court directs Tiger to produce.” Id. at 2. On May 30, the

Company’s counsel responded that the Company “would like until June 16, 2023, to

make a final production of documents” that it “(1) has and (2) does not object to

providing in response to [Plaintiff’s] Section 220 request.” Id. at 1-2.

On June 15, 2023, the Company retained new counsel, who informed

Plaintiff’s counsel that it would “be doing a detailed diligence investigation of the

company’s records with the objective of cleaning up its records and any or all

deficiencies therein,” “[o]ne of the results of [those] efforts w[ould] be to end up

with a complete and accurate data room, and once our initial investigation is Edward D. Meehan, Jr. v. Tiger Analytics, Inc., C.A. No. 2023-0720-BWD September 18, 2023 Page 4 of 12

complete, I have the Company’s permission to voluntarily work with you to provide

full and transparent disclosure to you so that [Plaintiff]’s lawsuit (and the associated

expense of it) will not be required.” JX 13 at 5.

Plaintiff followed up with the Company several times over the next month.

On June 23, the Company’s counsel reported that:

We have been actively communicating with the Company regarding its corporate records and have received (as recently as yesterday) additional documents that may be responsive to [Plaintiff]’s requests, which we are still reviewing and will provide as soon as we have verified their completeness. We have sent additional requests to the Company that we believe will clarify some of the issues we have noted in the Company’s corporate records, but given the complexity, this process is still ongoing. While we cannot produce additional documents today, I am giving you my personal assurance that we are committed to this process, we have complete cooperation from our client at this time, and believe that additional documents can be produced over the course of the next two weeks.

JX 13 at 3.

On July 7, the Company’s counsel provided an update, explaining that counsel

“ha[d] spent a great deal of time understanding and tracking the various equity

transactions of Tiger Analytics, Inc.” and “the majority owners of the business were

not meticulous in their record keeping and did not always observe strict corporate

formalities.” JX 15 at 1. At that time, counsel produced “a historical stock ledger

showing a complete chain of custody of all shares that are currently issued, and a Edward D. Meehan, Jr. v. Tiger Analytics, Inc., C.A. No. 2023-0720-BWD September 18, 2023 Page 5 of 12

corporate timeline summary that [counsel] created as a result of working through

and understanding the many equity transactions of the Company.” Id.

On July 17, Plaintiff filed a Verified Complaint for Inspection of Books and

Records. Dkt 1. On July 30, the Company made a data room available to Plaintiff

on an attorneys’-eyes-only basis pending the execution of a confidentiality

stipulation. JX 17. On August 8, the Company confirmed that it had uploaded all

documents responsive to the Demand. JX 20.

Documents in the data room included a July 26, 2023 “Joint Written Consent

of the Sole Director and the Stockholders of Tiger Analytics, Inc.” (the “Written

Consent”), purporting to ratify certain transactions and other acts described in an

attached “Affidavit” (the “Transactions”).2 JX 16. On August 14, Plaintiff served

interrogatories on the Company instructing it to “[i]dentify any documents,

including but not limited to any non-board level documents, that exist that back up,

support, or relate to the [T]ransactions set forth and described in the [Written

Consent],” and “[i]dentify the location and custodian of any of the documents that

are identified in response . . . .” JX 22 at 11. The Company objected to those

2 The Written Consent was produced in response to requests in the Demand for documents “sufficient to identify” stock issuances. Edward D. Meehan, Jr. v. Tiger Analytics, Inc., C.A. No. 2023-0720-BWD September 18, 2023 Page 6 of 12

interrogatories on the grounds that it “ha[d] not interposed defenses relating to

Plaintiff’s status as a stockholder, propriety of purpose, or scope of inspection, ha[d]

agreed to make (and indeed ha[d] made) the requested documents available, and the

only issue remaining for potential determination [wa]s the scope of confidentiality

protection afforded such documents . . . .” JX 26 at 3.

On August 24, 2023, Plaintiff filed its Pre-Trial Opening Brief identifying

three issues for trial: (1) whether a confidentiality order should restrict Plaintiff from

sharing documents produced in response to the Demand with other Tiger Analytics

stockholders; (2) whether the Court should order the Company to identify the

location of documents supporting the Transactions identified in the Written Consent;

and (3) whether the Company should bear Plaintiff’s attorneys’ fees. Dkt. 19.

On August 30, the Company agreed to supplement its interrogatory responses.

On August 31, the parties agreed to a confidentiality stipulation, mooting the first

issue for trial. Dkt. 28. On September 5, Plaintiff confirmed that the Company had

mooted the second issue for trial by supplementing its interrogatory responses and

producing additional documents concerning the Transactions. Dkt. 34; see also JX

58. Edward D. Meehan, Jr. v. Tiger Analytics, Inc., C.A. No. 2023-0720-BWD September 18, 2023 Page 7 of 12

On September 6, the Company filed its Pre-Trial Answering Brief addressing

the final issue for trial—Plaintiff’s fee request. Dkt. 35. On September 11, Plaintiff

filed its Pre-Trial Reply Brief in further support of its fee request. Dkt. 39. On

September 15, a trial on a paper record was held to address that issue.

II. ANALYSIS

“Delaware courts follow the American Rule that ‘each party is generally

expected to pay its own attorneys’ fees regardless of the outcome of the litigation.’”

Pettry v. Gilead Scis., Inc., 2020 WL 6870461, at *29 (Del. Ch. Nov. 24, 2020

(quoting Shawe v. Elting, 157 A.3d 142, 149 (Del. 2017)). An exception exists in

equity, however, when a party litigates in bad faith. Rice v. Herrigan-Ferro, 2004

WL 1587563, at *1 (Del. Ch. July 12, 2004). This Court has recognized that in

“extraordinary circumstances,” “overly aggressive litigation strategies” employed to

improperly resist a books and records demand may warrant fee-shifting. Pettry,

2020 WL 6870461, at *30.

A party seeking to shift fees must satisfy “the stringent evidentiary burden of

producing ‘clear evidence’ of bad-faith.” Dearing v. Mixmax, Inc., 2023 WL

2632476, at *5 (Del. Ch. Mar. 23, 2023) (ORDER) (quoting Beck v. Atl. Coast PLC,

868 A.2d 840, 851 (Del. Ch. 2005)). To warrant fees, a litigant’s conduct must be

“glaring[ly] egregious[].” Seidman v. Blue Foundry Bancorp, 2023 WL 4503948, Edward D. Meehan, Jr. v. Tiger Analytics, Inc., C.A. No. 2023-0720-BWD September 18, 2023 Page 8 of 12

at *6 (Del. Ch. July 7, 2023). “Bad faith is not something this court takes lightly,

and it should not be alleged lightly.” Donnelly v. Keryx Biopharmaceuticals, Inc.,

2019 WL 5446015, at *6 (Del. Ch. Oct. 24, 2019).

Here, Plaintiff asserts that the Company engaged in bad faith conduct

supporting a fee award by (i) forcing Plaintiff to file this action to enforce a clearly

defined and established right; (ii) taking unreasonable positions over the

confidentiality stipulation; and (iii) wrongfully refusing to supplement its

interrogatory responses and produce documents concerning the Transactions. Dkt.

39 at 2-4. These arguments do not demonstrate “clear evidence” of bad faith

warranting a fee shift.

Plaintiff’s primary argument is that he was forced to file suit to enforce a clear

right to inspect books and records. According to Plaintiff, the Company improperly

“delay[ed] [Plaintiff]’s access to the documents and increase[d] the expense of

[Plaintiff] obtaining them, even as Defendant claimed to have no defenses.” Dkt. 39

at 13. Although “fees may be awarded if it is shown that the defendant’s conduct

forced the plaintiff to file suit to secure a clearly defined and established right,” 3 I

3 Dearing, 2023 WL 2632476, at *5 (citing McGowan v. Empress Entm’t Inc., 791 A.2d 1, 5 (Del. Ch. 2000). Edward D. Meehan, Jr. v. Tiger Analytics, Inc., C.A. No. 2023-0720-BWD September 18, 2023 Page 9 of 12

am not convinced that the Company’s conduct here amounts to bad faith. Plaintiff

is right to complain that a complete response to the Demand should not have taken

nine months.4 But the timing alone does not give the full picture. The Company did

not follow corporate formalities in its record keeping and, according to its counsel,

“things were a mess.”5 In the months leading up to the litigation, the Company

produced what it had, and ultimately engaged outside counsel to undertake an

“audit” to locate additional responsive documents. When litigation was filed, rather

than stand on its earlier objections to scope, the Company waived all defenses and

kept its resources focused on finalizing and producing the necessary documents. The

Company’s initial efforts to respond to the Demand were dilatory, but on the whole,

its conduct was not “glaringly egregious.”

Aside from the Company’s initial delay, Plaintiff’s claims of bad faith are a

stretch. Plaintiff seeks fees over the Company’s positions on the confidentiality

stipulation, pointing out that the Company did not request a confidentiality

4 The Demand was served on November 9, 2022, and the Company confirmed that all documents responsive to the Demand had been uploaded to the data room on August 8, 2023. JX 8. At Plaintiff’s request, the Company supplemented its production with additional documents concerning the Transactions by September 5, 2023. 5 See also JX 15 at 1 (acknowledging that “it is absolutely clear that the majority owners of the business were not meticulous in their record keeping and did not always observe strict corporate formalities”). Edward D. Meehan, Jr. v. Tiger Analytics, Inc., C.A. No. 2023-0720-BWD September 18, 2023 Page 10 of 12

stipulation until after the litigation was filed; proposed a two-tiered stipulation when,

according to Plaintiff, “attorneys’ eyes only provisions are disfavored”; and then

belatedly added language restricting consultants or experts that compete with the

Company from accessing confidential material. Dkt. 39 at 15-16. Plaintiff

complains that it was “forced to go to the expense of” negotiating the stipulation,

but these issues were quickly and easily resolved. Id. at 16. The Company did not

delay producing documents under the guise of negotiating the confidentiality

stipulation, and nothing about the Company’s positions on confidentiality indicate

bad faith.6

Finally, Plaintiff asserts that the Company wrongfully resisted its

interrogatories and supplemental document requests concerning the Transactions.

Again, the Company’s actions in this regard do not approach bad faith. Given the

Company’s agreement to produce all responsive documents regardless of location,

its discovery objections were not totally unfounded. But rather than litigating the

6 See JX 101 ¶ 3 (“All documents in the Data Room were provisionally marked AEO so that the Data Room could be made available to Plaintiff’s counsel even as the parties continued to negotiate the terms of a confidentiality stipulation governing the use of the documents produced by the Company.”). Edward D. Meehan, Jr. v. Tiger Analytics, Inc., C.A. No. 2023-0720-BWD September 18, 2023 Page 11 of 12

issue, the Company moved quickly to moot it by amending its discovery responses

and producing the documents in question. Dkt. 34; see also JX 58.

In the aggregate, the Company’s conduct does not, to my mind, reflect an

“abuse of process that is manifestly incompatible with justice” or “an attempt to

game the system.” Donnelly, 2019 WL 5446015, at *6. The facts here are a far cry

from Gilead, where the defendant “block[ed] legitimate discovery, misrepresent[ed]

the record, and t[ook] positions for no apparent purpose other than obstructing the

exercise of Plaintiffs’ statutory rights.” Pettry, 2020 WL 6870461, at *30. This case

is not Seidman, where the defendant “declined to produce a single document to

Plaintiff” and “took a series of litigation positions that, when viewed collectively,

were glaringly egregious.” Seidman, 2023 WL 4503948, at *6. And, while perhaps

a bit closer, the Company’s conduct here also does not rise to the level of bad faith

in McGowan, where the company “acted in subjective bad faith” by “falsely

promising to produce corporate records that [a director] was clearly entitled to

inspect” over a period of 16 months, then retracting that promise and raising defenses

to resist the demand in litigation. McGowan, 791 A.2d at 5. The Company should

have moved faster when it first received the Demand, but it did try in good faith to

resolve the outstanding issues. Like the company in Dearing, the Company’s Edward D. Meehan, Jr. v. Tiger Analytics, Inc., C.A. No. 2023-0720-BWD September 18, 2023 Page 12 of 12

conduct here, “viewed in its totality, does not reflect bad faith.” Dearing, 2023 WL

2632476, at *7.

III. CONCLUSION

I recommend that Plaintiff’s request for an award of attorneys’ fees be denied.

This is a final report pursuant to Court of Chancery Rule 144. The stay of exceptions

entered under the Chancellor’s assignment letter is hereby lifted.

Sincerely,

/s/ Bonnie W. David

Bonnie W. David Magistrate in Chancery

cc: All counsel of record (by File & ServeXpress)