Irving Firemen's Relief and Retirement Fund v. Lawrence E. Page

• Court: Court of Chancery of Delaware
• Decided: July 1, 2019
• Docket: CA 2019-0355-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

Date Submitted: June 27, 2019 Date Decided: July 1, 2019

Blake A. Bennett, Esquire Lori W. Will, Esquire Cooch and Taylor P.A. Jessica A. Hartwell, Esquire The Brandywine Building Johanna Peuscher-Funk, Esquire 1000 West Street, 10th Floor Wilson Sonsini Goodrich & Rosati, P.C. Wilmington, DE 19899 222 Delaware Avenue, Suite 800 Wilmington, DE 19801

Elena C. Norman, Esquire Kevin Rickert, Esquire Young Conaway Stargatt & Taylor, LLP 1000 North King Street Wilmington, DE 19801

Re: Irving Firemen’s Relief and Retirement Fund v. Lawrence E. Page, et al., C.A. No. 2019-0355-SG

Dear Counsel:

This matter is before me on a Motion to Stay or Dismiss in favor of a

consolidated California State action that raises substantially similar issues. Those

issues involve derivative allegations of breach of fiduciary duty and failure of

oversight on behalf of directors of Alphabet, Inc. (“Alphabet”), which is a Delaware corporation.1 The Defendants’ Motion2 sought a stay or dismissal on ground of

forum non conveniens and under the McWane 3 doctrine.

I heard Oral Argument on June 27, 2019. In a partial Bench Decision, I denied

the portion of the Motion to Stay or Dismiss that pertained to forum non conveniens.

Put simply, it is difficult to imagine a derivative litigation involving a Delaware

corporation, and alleging breaches of fiduciary duty by corporate directors or

officers of that Delaware corporation, that is nonetheless subject to dismissal on

forum non conveniens grounds; if such an animal exists, it is absent from the

menagerie before me here. I turn then to the McWane analysis. 4 As this Court has

noted many times, the principles underlying McWane, which include

accommodating a plaintiff’s choice of forum as well as ideals of efficiency and

1 The Plaintiff has brought additional counts, including against certain officers of Alphabet. 2 The Motion was brought by Nominal Defendant Alphabet and the individual Defendants, except for Andrew E. Rubin and Amit Singhal. 3 McWane Cast Iron Pipe Corporation v. McDowell-Wellman Engineering Company, 263 A.3d 281 (Del. 1970). 4 The McWane analysis is applicable where there is “a second-filed Delaware case with another first-filed case pending elsewhere.” Aranda v. Philip Morris USA Inc., 183 A.3d 1245, 1250 (Del. 2018). As explained in McWane: [A] Delaware action will not be stayed as a matter of right by reason of a prior action pending in another jurisdiction involving the same parties and the same issues; that such stay may be warranted, however, by facts and circumstances sufficient to move the discretion of the Court; that such discretion should be exercised freely in favor of the stay when there is a prior action pending elsewhere, in a court capable of doing prompt and complete justice, involving the same parties and the same issues . . . . McWane, 263 A.3d at 283. 2 comity, 5 while not absent in a class or derivative case, are of substantially reduced

importance.6 That is because the interest of the class or entity is at issue, not merely

the interest of an individual plaintiff.

In addition, the incentives for derivative actions that would be created by a

rule of primacy are perverse. A rule of primacy would promote the filing of quick-

and-dirty class complaints and would discourage the type of thorough lawyering that

our Supreme Court and this Court have urged. Our Courts have advised litigants to

employ the tools at hand to create a complaint most likely to advance the interests

of the class or entity. 7

This case, however, involves something of a twist. The first filed Delaware

action8 on this matter was brought by four institutional investors (the “NYC Funds”)

of Alphabet. The NYC Funds did use a Section 220 demand to create a well-crafted

complaint. Nonetheless, the plaintiffs there voluntarily dismissed their action and

joined the consolidated action in California, which was first filed. Subsequently, the

5 McWane, 263 A.3d at 283 (“[T]hese concepts are impelled by considerations of comity and the necessities of an orderly and efficient administration of justice.”). 6 See, e.g., Ryan v. Gifford, 918 A.2d 341, 349 (Del. Ch. 2007) (“A shareholder plaintiff does not sue for his direct benefit. Instead, he alleges injury to and seeks redress on behalf of the corporation. Further, the board or any shareholder with standing may represent the injured party. Thus, this Court places less emphasis on the celerity of such plaintiffs and grants less deference to the speedy plaintiff’s choice of forum.”). 7 See, e.g., id. (“[T]his Court has recognized that the adequacy of the complaint is a more important factor than time of filing in a McWane analysis of shareholder derivative actions, so much so that this Court will, in certain instances, grant or deny a stay based on this factor alone.”). 8 That is, the first action filed in Delaware, but filed later than one or more California complaints. 3 Plaintiff here filed another well-crafted Delaware complaint, also using Section 220

documents. Under McWane, the prior action is favored where both actions involve

similar parties and issues and the foreign court can provide prompt and complete

justice.9 Such is the case here with the consolidated action in California. The

question is whether the McWane rationale is convincing in light of the derivative

nature of this litigation. This Court has recognized that when considering how to

proceed in such derivative actions, “the Court gives less weight to the first filed

status of a lawsuit, and instead ‘will examine more closely the relevant factors

bearing on where the case should best proceed, using something akin to a forum non

conveniens analysis.’” 10

As the Defendants argue, a significant amount of litigation has occurred in

California. However, that litigation effort does not concern the substantive issues in

the case. Instead, it is meta-litigation concerning the consolidation of cases and the

appointment of lead counsel. My understanding of the state of the litigation in

California is that a consolidated complaint is yet to be crafted; obviously, until that

is done, motion practice cannot proceed. This yet-to-be filed consolidated complaint

will, presumably, incorporate the pleading improvements of the NYC Funds’

complaint, including information gleaned under Section 220. In light of the state of

9 McWane, 263 A.3d at 283. 10 In re Citigroup Inc. S’holder Deriv. Litig., 964 A.2d 106, 117 (Del. Ch. 2009) (quoting Biondi v. Scrushy, 802 A.2d 1148, 1159 (Del. Ch. 2003)). 4 the California litigation, and despite the first filing of an initial—presumably

inferior—complaint in California State Court, principles of comity (that is, respect

for the work done by the court in California) do not, in these circumstances, weigh

heavily in the balance when considering a stay. Having set that issue aside, the

fundamental question is which state’s court has a higher interest in applying the

common law of corporations and fiduciary duty to the rather novel issues raised in

the Delaware and California actions.11 The issues here will be decided entirely under

Delaware law. While I have the utmost respect for the courts of California and the

very well-regarded judge in Santa Clara County before whom the consolidated

complaint will be filed, it is Delaware that has a strong interest here, not California.

After weighing the issues appropriate to McWane in this situation, I exercise

my discretion to deny a stay or dismissal of this action in favor of the California

action. The Defendants’ Motion to Stay or Dismiss is DENIED. To the extent that

the foregoing requires an Order to take effect, IT IS SO ORDERED.

Sincerely,

/s/ Sam Glasscock III

Sam Glasscock III

11 See Gifford, 918 A.2d at 349–50 (“[W]hile the application of Delaware law in most cases is not determinative, more weight must be accorded to this factor where the law is novel.”). 5