TEUZA - A Fairchild Technology Venture Ltd. v. Mark Lindon

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: May 15, 2023 Date Decided: May 18, 2023

Stephen E. Jenkins, Esquire Raymond J. DiCamillo, Esquire Michael D. Walker, Esquire Kevin M. Gallagher, Esquire ASHBY & GEDDES Kyle H. Lachmund, Esquire 500 Delaware Avenue, 8th Floor RICHARDS, LAYTON & FINGER, P.A. P.O. Box 1150 920 North King Street Wilmington, DE 19899 Wilmington, DE 19801

Scott B. Czerwonka, Esquire Andrea S. Brooks, Esquire WILKS LAW, LLC 4250 Lancaster Pike, Suite 200 Wilmington, DE 19805

RE: Teuza – A Fairchild Technology Venture Ltd. v. Lindon, et al., C.A. No. 2022-0130-SG

Dear Counsel:

My April 27, 2023 Memorandum Opinion directed the parties “to submit a

form of order consistent with [that] decision.”1 The parties submitted competing

orders, which differ only in whether the counts dismissed will be with or without

prejudice.2 Plaintiff argues that “discovery in this case will reveal as-yet non-public

1 Teuza - A Fairchild Tech. Venture Ltd. v. Lindon, 2023 WL 3118180, at *11 (Del. Ch. Apr. 27, 2023). 2 Compare [Proposed] Order from Kevin M. Gallagher regarding the Ct.’s April 27, 2023 Memorandum Opinion, Dkt. No. 76, with Pl.’s Version of Proposed Order, Dkt. No. 75.

facts concerning the complex and intertwined relationships among the various

Defendants, and therefore there is good cause for the dismissals to be without

prejudice [under Rule 15(aaa).]”3 Speculation about what evidence discovery might

uncover does not constitute good cause.4 Dismissal of the counts in question is

therefore with prejudice.

To the extent evidence unearthed through discovery provides a compelling

reason to do so, Plaintiff is free to raise this issue again, subject to law of the case

doctrine.5

An order is attached.

Sincerely,

/s/ Sam Glasscock III Vice Chancellor

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

3 Letter to the Ct. from Stephen E. Jenkins concerning the Ct.’s direction to the parties to submit a form of order 5, Dkt. No. 75. 4 See Quadrant Structured Products Co., Ltd. v. Vertin, 2014 WL 5465535, at *5 (Del. Ch. Oct. 28, 2014) (rejecting Plaintiff’s argument that the potential for discovery of relevant evidence warrants dismissal without prejudice). 5 See id.; In re EZCORP Inc. Consulting Agreement Derivative Litig., 2016 WL 197814, at *10 (Del. Ch. Jan. 15, 2016).

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

)

TEUZA – A FAIRCHILD ) TECHNOLOGY VENTURE LTD., ) Individually and On Behalf of All Others ) Similarly Situated, ) C.A. No. 2022-0130-SG )

Plaintiff, )

vs. )

)

MARK LINDON, MICHAEL ) DREYER, ANOOSHEH BOSTANI, ) DAVID SCOTT, NICHOLAS ) TERRAFRANCA, JOSEPH RUBLE, ) ALFRED E. MANN TRUST, MANN ) GROUP, LLC, BIOVENTUS LLC, and ) BIOVENTUS INC. )

)

Defendants. )

ORDER

WHEREAS, on April 27, 2023, the Court issued a Memorandum Opinion

(D.I. 116) granting in part and denying in part Defendants’ motions to dismiss under

Rules 12(b)(2) and 12(b)(6);

IT IS HEREBY ORDERED this 18th day of May 2023, for the reasons stated

in the Memorandum Opinion, that:

1. The Motion to Dismiss under Rule 12(b)(2) filed by Defendants

Michael Dreyer and Anoosheh Bostani (D.I. 34) is hereby continued

pending jurisdictional discovery. Plaintiff shall be permitted to conduct

jurisdictional discovery to explore the connections between the

Trustees, Michael Dreyer and Anoosheh Bostani, and the sale to

Bioventus for the purpose of demonstrating personal jurisdiction.

2. The Motion to Dismiss under Rule 12(b)(6) filed by Defendants

Michael Dreyer, Anoosheh Bostani, Alfred E. Mann Trust, and Mann

Group, LLC (D.I. 34) is hereby GRANTED with prejudice as to Count

I, Count V, and Count VII, and DENIED as to Count IV, Count VI and

Count X.

3. The Motion to Dismiss filed by Defendant Mark Lindon (D.I. 31) is

hereby DENIED;

4. The Motion to Dismiss filed by David Scott, Nicholas Terrafranca, and

Joseph Ruble (D.I. 30) is hereby GRANTED with prejudice; and

5. The Motion to Dismiss filed by Defendants Bioventus LLC and

Bioventus Inc. (D.I. 33) is hereby GRANTED with prejudice.

6. Defendants Michael Dreyer, Anoosheh Bostani, Alfred E. Mann Trust,

Mann Group, LLC, and Mark Lindon’s Answer shall be filed on or

before June 16, 2023.

The parties shall confer and submit a proposed pre-trial scheduling stipulation

within 21 days of this Order.

IT IS SO ORDERED THIS 18th DAY OF May, 2023

/s/ Sam Glasscock III Vice Chancellor