IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
GREGORY J. PARSEGHIAN as trustee ) of THE GREGORY J. PARSEGHIAN ) REVOCABLE TRUST and ) CHRISTINE M. PARSEGHIAN as ) trustee of THE CHRISTINE M. ) PARSEGHIAN REVOCABLE TRUST, ) ) Plaintiffs, ) ) v. ) C.A. No. 2021-0551-PAF ) FREQUENCY THERAPEUTICS, ) INC., DAVID LUCCHINO, ) COMPUTERSHARE INC., and ) COMPUTERSHARE TRUST ) COMPANY, N.A., ) ) Defendants. )
MEMORANDUM OPINION
Date Submitted: March 23, 2022 Date Decided: June 21, 2022
Samuel T. Hirzel, II, Jamie L. Brown, HEYMAN ENERIO GATTUSO & HIRZEL LLP, Wilmington, Delaware; Adam C. Ford, Matthew A. Ford, FORD O’BRIEN, LLP, New York, New York; Attorneys for Plaintiffs Gregory J. Parseghian as Trustee of The Gregory J. Parseghian Revocable Trust and Christine M. Parseghian as Trustee of The Christine M. Parseghian Revocable Trust.
Elena C. Norman, YOUNG CONAWAY STARGATT & TAYLOR LLP, Wilmington, Delaware; Deborah S. Birnbach, Jennifer Burns Luz, Matthew T. White, GOODWIN PROCTOR LLP, Boston, Massachusetts; Attorneys for Defendants Frequency Therapeutics, Inc. and David Lucchino.
Kevin R. Shannon, Jaclyn C. Levy, Callan R. Jackson, POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; Seth Goldman, Jacob H. Hupart, MINTZ, LEVIN, COHN, FERRIS, GLOVSKY and POPEO, P.C., New York, New York; Attorneys for Defendants Computershare Inc. and Computershare Trust Company, N.A.
FIORAVANTI, Vice Chancellor In early 2021, two related stockholders of Frequency Therapeutics, Inc.
(“Frequency” or the “Company”) decided to sell their shares in the Company amid
a rising stock price. The stockholders and their broker encountered difficulty in
persuading the Company’s stock transfer agent to transfer their shares to their
brokerage account due to what the transfer agent represented as inconsistencies
between the description of the accounts on the transfer agent’s records and those of
the broker. The shares were finally transferred six weeks after the stockholders
initiated their efforts to transfer and sell the stock. Unfortunately for the
stockholders, the Company issued negative news on the day before the shares were
transferred, causing a one-day drop in market price from $36.29 to $7.99 per share.
The plaintiffs have asserted a laundry list of claims and legal theories,
including that the Company’s Chief Executive Officer (“CEO”) breached his
fiduciary duty to the plaintiffs by causing the stock transfer agent to block plaintiffs’
transfer requests so that the CEO could profit from making his own sales in the
market. As the theory goes, the CEO probably knew about the negative corporate
news while he was selling stock during the time that the plaintiffs were unable to
transfer and sell their own shares.
The fiduciary duty claim has all the flavor of an insider trading claim under
Brophy v. Cities Service Co., 70 A.2d 5 (Del. Ch. 1949). But the plaintiffs insist that
is not their claim. Instead, the plaintiffs maintain that they are asserting a direct fiduciary duty claim against the CEO for blocking their stock transfer while profiting
on his own stock sales ahead of announcing bad news. The breach of fiduciary duty
claim fails because it is entirely conclusory with no supporting facts. There are no
allegations that this CEO of a publicly traded company had any communications
with the transfer agent about the plaintiffs’ shares. Indeed, there are no allegations
that the CEO knew that the plaintiffs had sought to sell their shares, let alone any act
on the CEO’s part that could lead to a reasonable inference that he stymied the
plaintiffs’ stock transfer.
The plaintiffs’ remaining claims assert various theories to find the Company
or the transfer agent liable for the damages that the plaintiffs allegedly suffered due
to the delay in effecting the transfer of their shares. The problem for the plaintiffs is
that the court lacks subject matter jurisdiction over the remaining claims. Both
plaintiffs and defendants want these claims litigated in this court. But this court is a
court of limited jurisdiction. The court is duty bound to raise the issue of subject
matter jurisdiction on its own. The court has done so here, and the parties have not
demonstrated that the remaining claims are anything other than legal theories
designed to obtain a judgment for money damages. Although the court could, in the
exercise of discretion, retain jurisdiction under the clean-up doctrine, the court
declines to do so. This case is in its embryonic stages. Now that the only claim for
which the court had jurisdiction is dismissed at the pleadings stage, it is appropriate
2 to decline jurisdiction under the clean-up doctrine and to allow plaintiffs to refile
their remaining claims in the Superior Court. Accordingly, Count II is dismissed for
failure to state a claim upon which relief can be granted. Counts I and III–VI are
dismissed for lack of subject matter jurisdiction.
I. BACKGROUND
The facts recited in this Memorandum Opinion are drawn from the operative
complaint and documents integral thereto or otherwise subject to judicial notice.
A. Factual History
1. The Parties
The plaintiffs in this action are two trusts, The Gregory J. Parseghian
Revocable Trust and The Christine M. Parseghian Revocable Trust (collectively the
“Trusts” and “Plaintiffs”).1 Gregory J. Parseghian and Christine M. Parseghian are
the respective Grantors and Trustees of these trusts.2 The Trusts are purported
stockholders of Frequency.3 The Company is a Delaware corporation with a
principle place of business in Massachusetts.4 Defendant David Lucchino
(“Lucchino”) is a co-founder, CEO, and director of Frequency.5 Defendant
1 Compl. ¶¶ 15–16. 2 Id. 3 Id. ¶ 1. 4 Id. ¶ 18. 5 Id. ¶ 22.
3 Computershare, Inc. and its wholly owned subsidiary, Defendant Computershare
Trust Company N.A., work together as the Company’s transfer agent (collectively
“Computershare”).6 Frequency, Lucchino, and Computershare are herein referred
to as the “Defendants.”
2. The Trusts’ Investment in Frequency
In March 2017, the Trusts purchased 333,333 shares of Frequency Preferred
Stock Series A.7 On October 9, 2017, the Trusts purchased another 149,530
Frequency shares.8 For each of these investments, the purchased shares were divided
equally between the Trusts.9 On October 3, 2019, Frequency commenced its initial
public offering (“IPO”) on the Nasdaq Global Select Market.10 In conjunction with
the IPO, Frequency’s Series A preferred stock was converted into common stock at
a ratio of approximately 6.7 to 1.11 As a result, the Trusts’ 482,863 shares of Series
A preferred were converted to 71,688 shares of common stock.12
6 Id. ¶¶ 19–20. 7 Id. ¶ 24. 8 Id. ¶ 26 9 Id. ¶¶ 25, 27 10 Id. ¶ 30. 11 Id. 12 Id.
4 3. Frequency
Frequency is a biotechnology company focused on developing treatments that
activate targeted regenerative cells in the human body.13 At all times relevant to this
matter, Frequency has been developing one such treatment, “FX-322,” to combat
sensorineural hearing loss (“SNHL”), a condition that includes presbycusis (the
medical name for age-related hearing loss).14
Prior to its public offering, Frequency hired Computershare to provide
investor services and act as its corporate transfer agent.15 According to
Computershare’s website, it acts as the “global financial record keeper for 16,000
private and public companies.”16
On September 13, 2020, Frequency revealed positive results from a Phase 1/2
study of FX-322.17 Specifically, these results indicated that FX-322 may improve
hearing for up to 21 months for patients with SNHL.18 Following this news,
Frequency’s share price rose from $18.91 to $22.43.19 On September 22, 2020,
13 Id. ¶ 21. 14 Id. 15 Id. ¶ 33. 16 Id. ¶ 20. 17 Id. ¶ 35. 18 Id. ¶¶ 35–36. 19 Id. ¶ 51.
5 Frequency announced that it had completed enrollment for a Phase 2a study.20 On
October 29, 2020, Frequency issued a press release summarizing FX-322 clinical
studies, announcing a plan “to provide a complete analysis of day-90 Phase 2a study
data late in Q1 2021,” and setting milestones for completing aspects of the study and
announcing results.21 Following this press release, Frequency’s stock price “began
to steadily climb.”22
On January 5, 2021, Frequency announced that it would be presenting a
review of its business and pipeline at the 39th Annual J.P. Morgan Healthcare
Conference later that month.23 Plaintiffs believe January 6, 2021, or at the latest
January 21, 2021, was “day-90” for the FX-322 Phase 2a study.24 On January 13,
2021, Lucchino presented at the 39th Annual J.P. Morgan Healthcare Conference.25
The complaint contains no allegations as to what Lucchino said during his
presentation. The complaint speculates that “[a]t this time, Lucchino was possibly
aware that the results of the Phase 2a study would not be positive.”26 On January
20 Id. ¶ 37. 21 Id. ¶ 39. 22 Id. ¶ 52. 23 Id. ¶ 40. 24 Id. ¶ 41. 25 Id. ¶ 42. 26 Id.
6 19, 2021, Frequency’s Chief Development Officer positively compared the ongoing
Phase 2a study to a prior Phase 1 study in an investor conference call.27 On January
27, 2021, J.P. Morgan analyst Anupan Rama lifted his target price for Frequency
stock from $27 to $56.28
4. Plaintiffs Decide to Sell Their Stock in Early 2021
By February 1, 2021, Frequency’s stock was trading at $44.17.29 Around this
time, the Parseghians decided to sell most or all of their holdings in Frequency.30 On
February 2, 2021, the Parseghians instructed their broker at J.P. Morgan, James
Jacob, to initiate transfer requests to Computershare on behalf of the Trusts to
transfer their Frequency shares to their brokerage accounts at J.P.
Morgan.31 Computershare informed Jacob that inconsistencies existed between the
account details listed on J.P. Morgan’s system and Computershare’s system and
those inconsistencies would prevent any transfer requests from being approved.32
Plaintiffs allege that these inconsistencies are the result of an error that occurred
during the migration of Frequency’s pre-IPO investor data over to Computershare’s
27 Id. ¶ 43. 28 Id. ¶ 45. 29 Id. ¶ 54. 30 Id. ¶ 70. 31 Id. ¶¶ 70, 74. 32 Id. ¶¶ 75–77.
7 systems in 2020.33 According to Plaintiffs, Computershare erroneously listed
Gregory Parseghian as the trustee of both Trusts.34 During its communications with
Plaintiffs’ broker in early 2021, Computershare identified an additional issue – the
Trusts’ J.P. Morgan accounts reflected a “transfer on death” (“TOD”) notation not
present on Computershare’s system.35
On February 10, 2021, Jacob recommended to the Parseghians that they create
new J.P. Morgan accounts to match the account details on Computershare’s
system.36 J.P. Morgan created the new accounts three weeks later, on or about
March 5, 2021.37 Jacob then submitted a transfer request to Computershare.38
At or around the time that the Parseghians decided to sell their Frequency
shares, Lucchino coincidentally had been selling some of his Frequency shares
pursuant to a Rule 10b5-1 trading plan.39 Lucchino is alleged to have done the
following:
33 Id. ¶¶ 34, 75–76. 34 Id. 35 Id. ¶ 77. 36 Id. ¶ 78. 37 Id. ¶ 80. 38 Id. 39 Id. ¶¶ 3, 55, 57–58, 60, 63. Rule 10b5-1 of the Securities Exchange Act of 1934 “permits insiders to implement written, pre-arranged stock trading plans when they are not in possession of material non-public information. Generally speaking, 10b5-1 plans offer a safe harbor for corporate insiders to sell stock by ceding trading authority to third parties
8 - On February 1, 2021, Lucchino converted preferred shares into 33,102
shares of common stock and sold them for a gain of $1,406,032.94.40
- On February 2, 2021, Lucchino converted preferred shares into 5,518
shares of common stock and sold them for a gain of $250,959.82.41
- On February 3, 2021, Lucchino converted preferred shares into 11,306
shares of common stock and sold them for a gain of $531,273.04.42
- On February 8, 2021, Lucchino converted preferred shares into 16,554
shares of common stock and sold them for a gain of $900,372.06.43
- On March 1, 2021, Lucchino converted preferred shares into 9,416 shares
of common stock and sold them for a gain of $469,028.26.44
After these February and March sales, Lucchino continued to own 308,086
shares of Frequency common stock.45
with exclusive discretion to execute trades under certain pre-determined parameters.” Laborers Dist. Council Constr. Indus. Pension Fund v. Bensoussan, 2016 WL 3407708, at *2 (Del. Ch. June 14, 2016) (footnote omitted), aff’d, 155 A.3d 1283 (Del. 2017). 40 Compl. ¶ 55. 41 Id. ¶ 57. 42 Id. ¶ 58. 43 Id. ¶ 60. 44 Id. ¶ 63. 45 Frequency Therapeutics, Inc., Statement of Changes in Beneficial Ownership (Form 4) (March 2, 2021). See In re General Motors (Hughes) S'holder Litig., 897 A.2d 162, 170 (Del. 2006) (“This Court has recognized that, in acting on a Rule 12(b)(6) motion to dismiss, trial courts may consider hearsay in SEC filings to ascertain facts appropriate for judicial notice under [Delaware Rule of Evidence] 201.” (internal quotations omitted)).
9 On March 23, 2021, Frequency issued a press release announcing that interim
results from its Phase 2a study “did not demonstrate improvements in hearing
measures.”46 Frequency’s stock closed that day at $7.99 per share,47 compared to
the prior day’s close at $36.29 per share.48 The next morning, Computershare
completed the Parseghians’ requested transfers of stock to their J.P. Morgan
accounts.49
Based on the closing market prices, the value of the Trusts’ 71,688 shares on
March 24, 2021 was $572,787.12, as compared to $3,441,024 on February 3, 2021,
$2,679,697.40 on March 5, 2021, and $4,184,425.50 on the intraday trading zenith
within the period of February 3, 2021 to March 23, 2021.50
B. Procedural History
On June 23, 2021, Plaintiffs filed their six-count Verified Complaint.51 The
next day, Plaintiffs filed a corrected Verified Complaint (the “Complaint”).52 Count
I of the Complaint asserts a claim for conversion against Frequency and
46 Compl. ¶ 67. 47 Id. ¶ 68. 48 Id. ¶ 66. 49 Id. ¶ 82. 50 Id. ¶¶ 83–85. 51 Dkt. 1. 52 Dkt. 3. See Dkt. 2 (letter from Plaintiffs’ counsel explaining the non-substantive error remedied in the second-filed complaint).
10 Computershare, jointly and severally, for their wrongful exercise of dominion over
the Trusts’ shares from February 3, 2021 until March 23, 2021. In the alternative to
Count I, Count III seeks the imposition of a constructive trust against Frequency on
the basis of unjust enrichment. Plaintiffs allege that the Trusts’ inability to sell
shares was an impoverishment which benefitted and enriched Frequency by causing
its stock prices to become artificially high. The Complaint does not allege what
Plaintiffs seek to be placed in the constructive trust. Instead, as discussed below, the
only remedy sought is money damages. Count II alleges that Lucchino breached his
fiduciary duty of loyalty by taking “actions to prevent the Trusts from selling their
shares at a time when he was personally selling shares under a 10b-5-1 plan, [which]
served to benefit him personally.”53 Counts IV–VI are negligence claims asserted
against Computershare in the alternative to Counts I–III. Count IV alleges that
Computershare’s failure to transfer the Trusts’ shares upon demand on February 3,
2021 creates an inference of negligence. Count V asserts the same for demands “on
or about” February 10, 2021,54 and Count VI asserts the same for demands “on or
about” March 5, 2021.55 The only form of relief sought is money damages.56
53 Compl. ¶ 109. 54 Id. ¶¶ 127–30. 55 Id. ¶¶ 131–34. 56 Id. Wherefore Clause ¶¶ A–B.
11 On July 19, 2021, Frequency and Lucchino jointly filed a motion to dismiss
for failure to state a claim and failure to plead demand futility.57 On October 6, 2021,
Computershare filed a motion to dismiss the counts against it for failure to state a
claim.58 On March 1, 2022, the court heard argument on the Defendants’ motions
to dismiss.59 During that hearing, the court questioned whether it had subject matter
jurisdiction over any claim other than the breach of fiduciary duty claim against
Lucchino.60 At the close of hearing, the court requested supplemental briefing
addressing the jurisdictional issues.61 The parties filed supplemental submissions,
each maintaining that this court has subject matter jurisdiction over this case because
Counts I–III are equitable in nature and the court can assert jurisdiction over the
remaining claims under the clean-up doctrine.62
II. ANALYSIS
The Court of Chancery is “proudly a court of limited subject matter
jurisdiction.” Crown Castle Fiber LLC v. City of Wilmington, 2021 WL 2838425,
at *1 (Del. Ch. July 8, 2021); see also Perlman v. Vox Media, Inc., 2019 WL
57 Dkt. 7. 58 Dkt. 22. 59 Dkt. 43. 60 Dkt. 49 (Mar. 1, 2022 Hrg. Tr.) (“Transcript”) at 13–14, 31–32, 50–51. 61 Transcript at 50; see also Dkt. 45. 62 Dkt. 46 (“Pls.’ Supp. Memo.”); Dkt. 50 (“Defs.’ Supp. Memo.”).
12 2647520, at *4 (Del. Ch. June 27, 2019) (same); El Paso Nat. Gas Co. v.
TransAmerican Nat. Gas Corp., 669 A.2d 36, 39 (Del. 1995) (explaining that the
Court of Chancery has “only that limited jurisdiction that the Court of Chancery in
England possessed at the time of the American Revolution, or such jurisdiction as
has been conferred upon it by the Delaware General Assembly.”). The court may
acquire subject matter jurisdiction in any one of three ways: (i) the assertion of
equitable claims; (ii) requests for equitable relief; and (iii) by statutory grant.
Candlewood Timber Grp., LLC v. Pan Am. Energy, LLC, 859 A.2d 989, 997 (Del.
2004) (footnotes omitted). Plaintiffs bear the burden of establishing that subject
matter jurisdiction exists,63 and this question is “so crucial that it may be raised at
any time” by the court or the parties. In re Coinmint, LLC, 261 A.3d 867, 904 (Del.
Ch. 2021) (quoting Envo, Inc. v. Walters, 2009 WL 5173807, at *4 n.10 (Del. Ch.
Dec. 30, 2009)). In fact, this court has a “duty to determine” whether it has subject
matter jurisdiction over the claims. Id.
In their supplemental submission, Plaintiffs argue that Counts I–III invoke
subject matter jurisdiction.64 Specifically, they maintain that the court has subject
63 See, e.g., Legent Grp., LLC v. Axos Fin., Inc., 2021 WL 73854, at *2 (Del. Ch. Jan. 8, 2021) (collecting cases); Christiana Town Ctr., LLC v. New Castle Ctr., 2003 WL 21314499, at *3 (Del. Ch. June 6, 2003) (citing Wilmington Fraternal Order of Police Lodge No. 1 v. Bostrom, 1999 WL 39546, at *4 (Del. Ch. Jan. 22, 1999)). 64 Pls.’ Supp. Memo. at 2–4.
13 matter jurisdiction because Counts I and III seek equitable remedies and Count II
asserts an equitable claim.65 The parties concede that Counts IV–VI are claims for
negligence, which are legal in nature.66 Nevertheless, the parties urge the court to
exercise jurisdiction under the clean-up doctrine.67
Under the clean-up doctrine, “if a controversy is vested with equitable features
which would support Chancery jurisdiction of at least a part of the controversy, then
the Chancellor has discretion to resolve the remaining portions of the controversy as
well.” Getty Ref. & Mktg. Co. v. Park Oil, Inc., 385 A.2d 147, 149 (Del. Ch. 1978)
(internal quotations omitted), aff'd, 407 A.2d 533 (Del. 1979). “Reliance on the
cleanup doctrine is a matter for the Court's discretion.” CCC Atl., LLC v. Grey, 2014
WL 4217211, at *1 (Del. Ch. Aug. 25, 2014). Therefore, if any one of Plaintiffs’
claims provides an equitable hook for subject matter jurisdiction, then this court may
choose to exercise jurisdiction over the legal claims as well.
There is no question that Count II, alleging that Lucchino breached his
fiduciary duties to Plaintiffs, is the “quintessential equitable claim.”68 If adequately
pleaded, this claim would provide the court with a basis to assert subject matter
65 Id. at 4–7. 66 Compl. ¶¶ 117–134; Dkt. 26 at 13–14; Dkt. 29 at 9. 67 Pls.’ Supp. Memo. at 7–8; Defs.’ Supp. Memo. at 8–9. 68 Pls.’ Supp. Memo. at 4 (citing Prospect St. Energy, LLC v. Bhargava, 2016 WL 446202, at *4 (Del. Super. Ct. Jan. 27, 2016)); Defs.’ Supp. Memo. at 3.
14 jurisdiction. If this claim is deemed facially invalid, then subject matter jurisdiction
will hinge on the nature of the relief sought in the remaining claims. The court
therefore begins its analysis with this sole equitable claim.
A. Standard of Review
On a motion to dismiss for failure to state a claim under Court of Chancery
Rule 12(b)(6):
(i) all well-pleaded factual allegations are accepted as true; (ii) even vague allegations are well-pleaded if they give the opposing party notice of the claim; (iii) the Court must draw all reasonable inferences in favor of the non-moving party; and ([iv]) dismissal is inappropriate unless the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof.
Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002) (cleaned up). At this
early stage, “[p]laintiffs are entitled to all reasonable factual inferences that logically
flow from the particularized facts alleged, but conclusory allegations are not
considered as expressly pleaded facts or factual inferences.” White v. Panic, 783
A.2d 543, 549 (Del. 2001) (quoting Brehm v. Eisner, 746 A.2d 244, 255 (Del.
2000)). “Although the standard is a minimal one, the Court will not credit
conclusory allegations or draw unreasonable inferences in favor of the Plaintiff.”
Miramar Firefighters Pension Fund v. AboveNet, Inc., 2013 WL 4033905, at *3
(Del. Ch. July 31, 2013) (cleaned up).
15 B. The Complaint Does Not State a Claim Against Lucchino for Breach of Fiduciary Duty
Plaintiffs allege that Lucchino breached his fiduciary duty of loyalty through
his wrongful actions contributing to the delay in the transfer of Plaintiffs’ stock.69
In support of this allegation, Plaintiffs focus on the profits Lucchino made in his
stock sales from February 1–8 and on March 1, 2021, which coincided with
Plaintiffs’ efforts to transfer their shares.
Plaintiffs’ sole claim against Lucchino alleges that “[his] actions to prevent
the Trusts from selling their shares at a time when he was personally selling shares
under a 10b-5-1 plan, served to benefit him personally.” Compl. ¶ 109. This claim
is factually unsupported. The reader of the Complaint is left to guess what “actions”
Lucchino took to prevent the Trusts from selling their shares. The Complaint does
not allege any well-pleaded fact to infer that Lucchino had anything to do with
Plaintiffs’ inability to transfer their shares. All of the allegations concerning
Plaintiffs’ transfer woes involve communications between Plaintiffs’ broker and
Computershare. There is not a single allegation that Lucchino had any
communication, directly or indirectly, with Computershare at any time between
February 1 and March 24, 2021. There is no allegation that Lucchino was informed
about Plaintiffs’ ordeal with Computershare in February or March 2021 or at any
69 Compl. ¶ 109.
16 time prior to his reading the Complaint. There is no allegation that Lucchino knew
that Plaintiffs had sought to sell or transfer their stock in February or March 2021.
Indeed, there is no allegation in the Complaint that Lucchino even knew of the
Plaintiffs’ existence.
The Plaintiffs’ reference to Lucchino’s stock sales are nothing more than a
diversion from their inability to connect Lucchino to the Plaintiffs and their brokers’
communications with Computershare. Plaintiffs are essentially attempting to
transmogrify a state-law insider trading claim under Brophy into an individual claim.
Plaintiffs disclaim doing so,70 but that is the only conclusion to be drawn from the
allegations of the Complaint. To wit, the Complaint alleges that on January 13,
2021, Lucchino “was possibly aware” that the results of the Company’s ongoing
clinical study “would not be positive.” Compl. ¶ 42. Plaintiffs allege that, by
January 27, 2021, Lucchino was “likely aware” that the results of the Phase 2a study
“would not be positive.” Id. ¶ 45. Plaintiffs conclude that, by February 22, 2021,
Lucchino “had to have been keenly aware” that the results would be “highly
disappointing” and that the Company’s share price would fall once this news was
70 Transcript at 40 (Plaintiffs’ counsel: “So the reason why it's not a Brophy claim is because what we're focusing on is [Lucchino’s] frustration of the Parseghians. That's the key. That's the heart of it. And that's what I think paragraph – that was certainly the intention of paragraph 109, was that – ‘Lucchino's actions to prevent the Trusts from selling their shares,’ that's the wrongful conduct.” (quoting Compl. ¶ 109)).
17 released. Id. ¶ 47. Plaintiffs then seemingly try to tie Lucchino’s stock sales on
February 1, 2, 3 and 8 and March 1, 2021 to the Plaintiffs’ inability to convince
Computershare to transfer their Frequency shares:71
Lucchino’s actions to prevent the Trusts from selling their shares at a time when he was personally selling shares under a 10b-5-1 plan, served to benefit him personally. While Frequency also benefited from the temporary increase in share price (as well as any other selling insiders), Lucchino personally gained $3,557,666.12 in profits.
Compl. ¶ 109.
This is a non-sequitur. As explained above, Plaintiffs’ direct claim that
Lucchino thwarted Plaintiffs’ efforts to transfer their shares is without any factual
support. Count II, at best, is framed as a Brophy claim. Even viewed as a Brophy
claim, however, this count must be dismissed. Insider trading claims under Brophy
are derivative. See Latesco, L.P. v. Wayport, Inc., 2009 WL 2246793, at *6 (Del.
Ch. July 24, 2009) (“A Brophy claim is fundamentally derivative in nature, because
it arises out of the misuse of corporate property—that is, confidential information—
by a fiduciary of the corporation, for the benefit of the fiduciary and to the detriment
of the corporation.”); see also In re Vaxart, Inc. Stockholder Litig., 2021 WL
5858696, at *22 (Del. Ch. Nov. 30, 2021) (“This court treats as derivative Brophy
71 Compl. ¶¶ 55, 57–58, 60, 63–64, 95.
18 claims alleging that a fiduciary possessing material, nonpublic information breached
her fiduciary duties by trading on that information.”).
To pursue a Brophy claim against Lucchino, Plaintiffs must allege well-
pleaded facts to excuse demand. Under Court of Chancery Rule 23.1, Plaintiffs must
“plead with particularity facts showing that a demand on the board would have been
futile.” In re Citigroup Inc. S'holder Deriv. Litig., 964 A.2d 106, 120 (Del. Ch.
2009) (citing Ct. Ch. R. 23.1(a)). Plaintiffs acknowledge that they have not made
any demand on Frequency’s board of directors to institute litigation against
Lucchino, and they do not attempt to argue that demand would be futile.
Accordingly, Count II is dismissed with prejudice.
C. Does the Court Have Subject Matter Jurisdiction over the Remaining Claims?
Having dismissed Count II on the merits, the court turns to the question it
raised on its own at oral argument: Does the court have subject matter jurisdiction
over any of the remaining claims? The parties urge the court to keep the case. The
parties admit that Counts IV–VI are legal claims for negligence. Nevertheless, the
parties insist that Counts I and III are either equitable in nature or seek equitable
relief.
“The Court of Chancery shall not have jurisdiction to determine any matter
wherein sufficient remedy may be had by common law, or statute, before any other
court or jurisdiction of this State.” 10 Del. C. § 342. “When examining its own
19 jurisdiction, this Court must honor the first obligation of a limited-jurisdiction court:
modesty.” Elavon, Inc. v. Elec. Transaction Sys. Corp., 2022 WL 667075, at *2
(Del. Ch. Mar. 7, 2022). “Chancery jurisdiction is not conferred by the incantation
of magic words.” McMahon v. New Castle Associates, 532 A.2d 601, 603 (Del. Ch.
1987). Nor may the parties confer subject matter jurisdiction by consent or
agreement. El Paso, 669 A.2d at 39. “Neither the artful use nor the wholesale
invocation of familiar chancery terms in a complaint will itself excuse the court . . .
from a realistic assessment of the nature of the wrong alleged and the remedy
available . . . .” McMahon, 532 A.2d at 603. “If a realistic evaluation leads to the
conclusion that an adequate legal remedy is available this court, in conformity with
the command of section 342 of title 10 of the Delaware Code will not accept
jurisdiction over the matter.” Id. Acknowledging these important principles, this
court turns to the only claims remaining with purported foundations in equity,
Counts I and III.
1. Count I: Conversion
Count I asserts that Frequency and Computershare “took wrongful actions that
prevented the Trusts from selling their positions . . . until after the price had collapsed
to 43% below its initial offering price.”72 Plaintiffs argue that the court has subject
72 Compl. ¶ 102.
20 matter jurisdiction over this claim because it seeks an equitable remedy.73 The
Complaint belies that assertion.
The tort of conversion is typically viewed as a legal claim. See FirstString
Research, Inc. v. JSS Med. Research Inc., 2021 WL 2182829, at *3 (Del. Ch. May
28, 2021) (holding that plaintiff’s conversion claim was a tort claim “that [is] legal
in nature”); GWO Litig. Tr. v. Sprint Sols., Inc., 2018 WL 5309477, at *11 (Del.
Super. Oct. 25, 2018) (holding that conversion is an intentional tort for which a legal
remedy exists); Spano v. Morse, 2003 WL 22389542, at *1 (Del. Ch. Oct. 8, 2003)
(holding that a claim for conversion was a legal claim). To invoke subject matter
jurisdiction in this court for a claim for conversion the claim must: (i) involve the
wrongdoing of a fiduciary; or (ii) seek damages that are difficult to assess or relief
that is equitable in nature. Int’l. Bus. Machs. v. Comdisco, Inc., 602 A.2d 74, 78, 81
(Del. Ch. 1991). Absent a showing of one of these two special circumstances, a
claim for conversion will be deemed legal and not equitable. See Cartanza v.
Cartanza, 2012 WL 1415486, at *5–6 (Del. Super. April 16, 2012) (contrasting its
jurisdiction over “typical conversion claims” with the Court of Chancery’s
jurisdiction over conversion claims involving the special factors highlighted in
Comdisco).
73 Pls.’ Supp. Memo. at 4–5.
21 Plaintiffs’ claim for conversion fails to meet either of the required
circumstances to confer jurisdiction in equity. Plaintiffs cannot allege a wrongdoing
of a fiduciary because they do not allege a fiduciary relationship with either
Computershare or Frequency.74 Plaintiffs also do not allege that their damages are
too complicated to calculate. To the contrary, their own Complaint expressly
articulates the formula to compute Plaintiffs’ damages: “the proper measure of
damages is the value of the Trusts’ position at its intraday trading zenith . . . less the
value of the shares on March 24, 2021.”75 In Comdisco, this court rejected the
argument that damages for the conversion of several pieces of computer equipment
74 It is well established that a corporation does not owe fiduciary duties to its stockholders. In re Orchard Enters., Inc. S’holder Litig., 88 A.3d 1, 54 (Del. Ch. 2014). Plaintiffs concede this point. Compl. ¶ 116 (“[T]he company itself does not owe its shareholders fiduciary duties.”). The Complaint does not allege that Computershare owed fiduciary duties to the Plaintiffs. Plaintiffs also cannot rely on any fiduciary relationship with Lucchino to support an equitable hook to this claim. Although the allegations in the body of Count I refer to “Frequency, Lucchino, and Computershare,” Compl. ¶¶ 102, 103 (emphasis added), the headline to Count I states that it is a claim for conversion only “against Frequency and Computershare, jointly and severally,” Compl. at 24. In their briefing, Plaintiffs confirmed that the header accurately described the defendants subject to this claim: “Count I alleges a conversion claim against Frequency and Computershare, but not Lucchino.” See Dkt. 27 at 10 n.3. In any event, as explained above, the Complaint contains no allegation that Lucchino took any action concerning the Trusts’ attempts to transfer their stock. Therefore, Plaintiffs are unable to rely upon Lucchino’s actions “as the wrongdoing of a fiduciary” to provide an equitable element to their conversion claim. 75 Compl. ¶ 105. In their Supplemental Submission, Plaintiffs reverse course, relying on cases accepting jurisdiction over a conversion claim where the court found damages “incalculable.” Pls.’ Supp. Memo. at 5 (citing cases). Plaintiffs cannot amend their Complaint through their brief. Cal. Pub. Emps. Ret. Sys. v. Coulter, 2002 WL 31888343, at *12 (Del. Ch. Dec. 18, 2002) (“Arguments in briefs do not serve to amend the pleadings.”).
22 would be so difficult to quantify as to render any legal remedy incomplete.
Comdisco, 602 A.2d at 79. Instead, the court found that once plaintiff proved the
value of each item converted, “all that [would be] left for the trier of fact is simple
addition, a task that would not appear to be more difficult for a lay juryman than for
a vice chancellor.” Id. The simple damages calculation that Plaintiffs posit
resembles the simple addition in Comdisco, which the court considered an adequate
remedy at law.76 Based on a realistic evaluation of Count I, the Court concludes that
an adequate remedy at law is available. Accordingly, Count I is a legal claim seeking
a legal remedy over which this court lacks subject matter jurisdiction.
2. Count III: Unjust Enrichment
Plaintiffs’ unjust enrichment claim is asserted only against Frequency. It
seeks only money damages. In Nemec v. Shrader, 991 A.2d 1120 (Del. 2010), the
Court articulated the elements of unjust enrichment as: “(1) an enrichment, (2) an
impoverishment, (3) a relation between the enrichment and impoverishment, (4) the
absence of justification, and (5) the absence of a remedy provided by law.” Id. at
1130.
Unjust enrichment is a traditionally legal claim. Garfield on behalf of ODP
Corp. v. Allen, 2022 WL 1641802, at *42 (Del. Ch. May 24, 2022). The fifth
76 Comdisco, 602 A.2d at 79. The court expresses no opinion as to Plaintiffs’ ability to establish damages or the viability of their conversion theory.
23 element is not actually an element of the claim, but rather, an element that must be
satisfied to obtain equitable jurisdiction over an unjust enrichment claim. Indeed,
the “no adequate remedy at law” element developed to identify a basis for the
assertion of equitable jurisdiction specifically because this claim “did not arise in
equity and was not a purely equitable claim.” Id. at *42. Therefore, “[i]f a plaintiff
seeks to pursue a claim for unjust enrichment in the Court of Chancery and has no
other basis for equitable jurisdiction, then the plaintiff must establish the absence of
a remedy at law to establish equitable jurisdiction.” Id. at *44.
The Plaintiffs have not attempted to establish that their unjust enrichment
claim lacks an adequate remedy at law so as to confer jurisdiction in this court. To
the contrary, Plaintiffs’ requested relief is solely money damages. Plaintiffs seek a
monetary award “not less than $3,611,641.40 calculated as the difference between:
(1) the value of the Trusts’ [shares] at its intraday trading zenith . . . and (2) the value
of the Trusts’ [shares] as of March 23, 2021.”77
Plaintiffs’ Count III mentions the imposition of a constructive trust in its
header, yet the Complaint contains no allegations supporting or even mentioning
such a remedy. Indeed, imposition of a constructive trust is not a remedy listed in
the Complaint’s prayers for relief. “The party seeking an equitable remedy has the
77 Compl. Wherefore Clause ¶ A.
24 burden to show that a legal remedy would be inadequate.” Amaysing Techs. Corp.
v. Cyberair Commc'ns, Inc., 2004 WL 1192602, at *2 (Del. Ch. May 28, 2004).
“A constructive trust is one imposed by a court of equity as a remedy to
correct the unlawful vesting, or assertion of, legal title.”
Triton Const. Co. v. E. Shore Elec. Servs., Inc., 2009 WL 1387115, at *28 (Del. Ch.
May 18, 2009) (quoting E. Lake Methodist Episcopal Church, Inc. v. Trs. of
Peninsula-Del. Annual Conf. of the United Methodist Church, Inc., 731 A.2d 798,
809 n.4 (Del. 1999)). “A constructive trust may be imposed upon specific property
[or] identifiable proceeds of specific property, and even money so long as it resides
in an identifiable fund to which the plaintiff can trace equitable ownership.” B.A.S.S.
Gp., LLC v. Coastal Supply Co., 2009 WL 1743730, at *7 (Del. Ch. June 19,
2009) (internal quotation omitted). Thus, a constructive trust, not premised on an
equitable right, will not succeed in conferring equity jurisdiction unless it relates to
specific property or identifiable proceeds of specific property. McMahon, 532 A.2d
at 609; accord Metro Ambulance, Inc. v. E. Med. Billing, Inc., 1995 WL 409015, at
*4 (Del. Ch. July 5, 1995).
At this stage, the court is instructed to examine a plaintiff’s pleadings to
“determine the true substance of the relief [sought].” HBMA Holdings, LLC v. LSF9
Stardust Holdings LLC, 2017 WL 6209594, at *3 (Del. Ch. Dec. 8, 2017) (quoting
E.I. du Pont de Nemours & Co. v. Bayer Crop., L.P., 2008 WL 2673376, at *2 (Del.
25 Ch. July 2, 2008)), order clarified, (Del. Ch. 2018).78 In its determination, the court
shall “not be bound by the form of relief as described [by the plaintiff].” Id. “A
Court must examine what has been alleged in the pleadings, not what a plaintiff
believes has been alleged.” Gabelli & Co., Inc. v. Liggett Grp., Inc., 1983 WL
18015, at *3 (Del. Ch. Mar. 2, 1983), aff'd, 479 A.2d 276 (Del. 1984).
Plaintiffs’ single, unadorned use of the term “constructive trust” does not open
the doors of this court to an unjust enrichment claim seeking money damages.
See Comdisco, 602 A.2d at 78 (“[A] judge in equity will take a practical view of the
complaint, and will not permit a suit to be brought in Chancery where a complete
legal remedy otherwise exists but where the plaintiff has prayed for some type of
traditional equitable relief as a kind of formulaic ‘open sesame’ to the Court of
Chancery.”) Plaintiffs are not seeking restoration of title to specific property or
identifiable proceeds of specific property. Plaintiffs are seeking money damages.
Therefore, Plaintiffs have an adequate remedy at law as to Count III. Accordingly,
the court lacks subject matter jurisdiction over the unjust enrichment claim.
78 See also Medek v. Medek, 2008 WL 4261017, at *3 (Del. Ch. Sept. 10, 2008) (“In deciding whether or not equitable jurisdiction exists, the Court must look beyond the remedies nominally being sought, and focus upon the allegations of the complaint in light of what the plaintiff really seeks to gain by bringing his or her claim. In other words, ‘the court must address the nature of the wrong alleged and the available remedy to determine whether a legal, as opposed to an equitable remedy, is available and sufficiently adequate.’” (footnote and citation omitted)).
26 3. Counts IV–VI: Negligence
Plaintiffs do not allege that Counts IV–VI assert equitable claims or seek
equitable remedies. Indeed, Counts IV–VI are legal claims, sounding in tort,79 that
may be remedied by an award of monetary damages.
Acknowledging this, Plaintiffs argue that this court should still retain
jurisdiction over these claims, even if it chooses to dismiss any equitable claims, in
order “to avoid multiplicity of suits, promote judicial efficiency, avoid expense, and
afford complete relief in one action.”80 As discussed below, this decision rests in
the court’s discretion.
D. The Court Declines to Retain Jurisdiction Under the Clean-Up Doctrine
This court is permitted to exercise ancillary jurisdiction under the clean-up
doctrine “to resolve purely legal causes of action that are before it as part of the same
controversy over which the Court originally had subject matter jurisdiction in order
to avoid piecemeal litigation.” Kraft v. WisdomTree Investments, Inc., 145 A.3d
969, 974 (Del. Ch. 2016). This court has described the policies underlying the clean-
up doctrine as follows:
Some of the reasons why equity, once having acquired jurisdiction over part of a controversy, will, in the Court's discretion, continue to exercise jurisdiction over the entire controversy, even over those portions where
79 Wollard v. Yoder & Sons Constr., LLC, 2021 WL 141984, at *1 (Del. Ch. Jan. 15, 2021). 80 Pls.’ Supp. Memo. at 8.
27 there is an adequate remedy at law are: to resolve a factual issue which must be determined in the proceedings; to avoid multiplicity of suits; to promote judicial efficiency; to do full justice; to avoid great expense; to afford complete relief in one action; and to overcome insufficient modes of procedure at law.
Getty, 385 A.2d at 150 (citation omitted); accord FirstString Research, Inc., 2021
WL 2182829, at *6.
In this case, the Plaintiffs’ sole equitable claim has been dismissed for failure
to state a claim. The absence of any factual allegations to support a direct claim for
breach of fiduciary strongly suggests that Count II was a thinly veiled attempt to
manufacture subject matter jurisdiction for otherwise legal claims. Where, as here,
the only claims for which this court had subject matter jurisdiction are dismissed at
an early stage in the proceedings, it is appropriate to decline jurisdiction under the
clean-up doctrine. Rizzo ex rel. JJ&B, LLC v. Joseph Rizzo & Sons Const. Co., 2007
WL 1114079, at *2 (Del. Ch. Apr. 10, 2007). To do otherwise in these circumstances
would be inviting litigants to confer subject matter jurisdiction through the assertion
of specious equitable claims.
Plaintiffs’ claims of conversion and unjust enrichment assert legal rights,
“ultimately seek[] a monetary award, the quintessential legal remedy,”81 and
otherwise fail to vest this court with subject matter jurisdiction. Plaintiffs’ sole
81 Bancorp Bank v. Cross & Simon, LLC, 2015 WL 2209539, at *2 (Del. Ch. May 8, 2015).
28 equitable claim, for breach of fiduciary duty, is inadequately pleaded and fails on its
face. The three remaining claims are concededly legal claims sounding in
negligence.
Acknowledging its role as a limited-jurisdiction court, this court is not
persuaded to exercise jurisdiction over the surviving legal claims. This case is only
at the pleadings stage. See Rizzo, 2007 WL 1114079, at *2 (“[J]udges of this court
are more reluctant to exercise discretionary jurisdiction over legal claims after the
equitable claims have been resolved or have become moot, especially when those
claims are resolved at an early stage, such as by a motion to dismiss.”). Declining
jurisdiction will not result in duplicative litigation in two courts or great additional
expense. At this early stage, the legal claims that remain in this case should be
litigated where they belong, in a court of law.82 Because “there are no remaining
82 In their Answering Brief in Opposition to Computershare’s Motion to Dismiss, Plaintiffs argued that Computershare is also liable under 6 Del. C. §§ 8-503, 8-505–8-508. Dkt. 26 at 4, 14–15. Plaintiffs asserted no such statutory claim in their Complaint, and the Complaint did not even reference these statutory provisions. “Plaintiff's counsel's post hoc attempt to clarify the allegations in the Complaint in response to a motion to dismiss, while understandable given the paucity of the Complaint, cannot be received as a supplement or amendment to the pleading itself.” Akrout v. Jarkoy, 2018 WL 3361401, at *3 n.23 (Del. Ch. July 10, 2018). Delaware law does not permit plaintiffs to amend their complaint through briefing. Coulter, 2002 WL 31888343, at *12; see also MCG Capital Corp. v. Maginn, 2010 WL 1782271, at *5 (Del. Ch. May 5, 2010) (“[Plaintiff] could either seek leave to amend its complaint or stand on its complaint and answer the motion to dismiss.”); see also Sparton Corp. v. O’Neil, 2017 WL 3421076, at *5 n.36 (Del. Ch. Aug. 9, 2017) (disregarding facts alleged for the first time in briefing). This restriction naturally extends to attempts at recasting the allegations occurring at oral argument governing the motions
29 equitable claims upon which this Court's jurisdiction may be premised, there is no
basis for retaining jurisdiction over any legal claim.” Kennett v. Carlyle Johnson
Mach. Co., 2002 WL 1358755, at *7 (Del. Ch. June 17, 2002); see also 1 Donald J.
Wolfe, Jr. & Michael A. Pittenger, Corporate and Commercial Practice in the
Delaware Court of Chancery § 2.04, at 2-86 (2d ed. 2021) (noting that the court is
more likely to decline to exercise jurisdiction under the clean-up doctrine “where the
equitable claims have fallen away, at least where the proceedings have not
progressed to the point where prejudice and inefficiency would result from
discontinuing the pending proceeding.”).
III. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss Count II is
GRANTED for failure to state a claim. The remaining claims are dismissed for lack
of subject matter jurisdiction, subject to Plaintiffs’ right to elect under 10 Del. C. §
1902 to have those claims transferred to the Superior Court of Delaware.
IT IS SO ORDERED.
to dismiss. See Harcum v. Lovoi, 2022 WL 29695, at *12 n.139 (Del. Ch. Jan. 3, 2022) (“Just as a plaintiff may not amend her complaint through her brief, she may not do so at oral argument.” (citation omitted)). Accordingly, these arguments are improper and will not be considered.