COURT OF CHANCERY OF THE STATE OF DELAWARE 417 S. State Street JOSEPH R. SLIGHTS III Dover, Delaware 19901 VICE CHANCELLOR Telephone: (302) 739-4397 Facsimile: (302) 739-6179
Date Submitted: April 6, 2018 Date Decided: April 27, 2018
R. Bruce McNew, Esquire David A. Jenkins, Esquire Wilks, Lukoff & Bracegirdle, LLC Smith, Katzenstein & Jenkins LLP 4250 Lancaster Pike, Suite 200 1000 West Street, Suite 1501 Wilmington, DE 19805 Wilmington, DE 19801
Re: The Ravenswood Inv. Co. L.P. v. The Estate of Bassett S. Winmill; C.A. No. 3730-VCS The Ravenswood Inv. Co. L.P. v. Winmill & Co., Incorporated; C.A. No. 7048-VCS
Dear Counsel:
Plaintiff has moved for reargument under Court of Chancery Rule 59(f) or,
alternatively, for alteration or amendment of the Court’s March 21, 2018, post-trial
memorandum opinion, revised on March 22, 2018 (the “Opinion”),1 under Court of
1 Ravenswood Inv. Co., L.P. v. Estate of Bassett S. Winmill, 2018 WL 1410860 (Del. Ch. Mar. 21, 2018, revised Mar. 22, 2018). Capitalized terms herein are as defined in the Opinion. The Ravenswood Inv. Co. L.P. v. The Estate of Bassett S. Winmill; C.A. No. 3730-VCS The Ravenswood Inv. Co. L.P. v. Winmill & Co., Incorporated; C.A. No. 7048-VCS April 27, 2018 Page 2
Chancery Rule 59(e).2 For the reasons that follow, Plaintiff’s Motion is without
merit and, therefore, must be denied.
In the Opinion, the Court held that (1) Defendants, Bassett, Thomas and Mark
Winmill, as directors of Winmill & Co., breached their fiduciary duty of loyalty to
the Company by granting themselves stock options at an unfair price through an
unfair process; and (2) Plaintiff failed to prove that Defendants’ financial reporting
practices constituted a breach of their fiduciary duties. Despite finding that
Defendants had breached their duty of loyalty, the Court determined that it lacked
any evidentiary basis to remedy the breaches and, consequently, awarded only
nominal damages. Plaintiff now moves to reargue, alter or amend the Court’s
determination with respect to remedies.
“A motion for reargument under Court of Chancery Rule 59(f) will be denied
unless the court has overlooked a controlling decision or principle of law that would
have controlling effect, or the court has misapprehended the law or the facts so that
2 Corrected Pl.’s Mot. for Rearg. and/or to Alter or Amend a J. (the “Motion”), D.I. 257. The Ravenswood Inv. Co. L.P. v. The Estate of Bassett S. Winmill; C.A. No. 3730-VCS The Ravenswood Inv. Co. L.P. v. Winmill & Co., Incorporated; C.A. No. 7048-VCS April 27, 2018 Page 3
the outcome of the decision would be different.”3 Reargument “is only available to
re-examine the existing record,”4 not to consider new evidence, entertain arguments
not raised previously or rehash arguments already made.5 On a motion under Court
of Chancery Rule 59(e), the Court may alter or amend its order where the movant
demonstrates “the need to correct a clear error of law or to prevent manifest
injustice.”6
3 Certain Underwriters at Lloyd’s, London v. Nat’l Installment Ins. Servs., Inc., 2008 WL 2133417, at *1 (Del. Ch. May 21, 2008). 4 Reserves Dev. LLC v. Severn Sa. Bank, FSB, 2007 WL 4644708, at *1 (Del. Ch. Dec. 31, 2007) (citing Miles, Inc. v. Cookson Am., Inc., 677 A.2d 505, 506 (Del. Ch. 1995)). 5 Id. (“Reargument under Court of Chancery Rule 59(f) is only available to re-examine the existing record; therefore, new evidence generally will not be considered on a Rule 59(f) motion”); Sunrise Ventures, LLC v. Rehoboth Canal Ventures, LLC, 2010 WL 975581, at *1 (Del. Ch. Mar. 4, 2010) (“[A] motion for reargument is ‘not a mechanism for litigants to relitigate claims already considered by the court,’ or to raise new arguments that they failed to present in a timely way.” (quoting Am. Legacy Found. v. Lorillard Tobacco Co., 895 A.2d 874, 877 (Del. Ch. 2005)); Miles, 677 A.2d at 506 (“Where . . . the motion for reargument represents a mere rehash of arguments already made at trial and during post- trial briefing, the motion must be denied.”). 6 In re Declaration of Trust Creating Survivor’s Trust Created Under the Ravet Family Trust Dated Feb. 9, 2012, 2014 WL 2538887, at *2 (Del. Ch. June 4, 2014) (quoting Nash v. Schock, 1998 WL 474161, at *1 (Del. Ch. July 23, 1998)). The Ravenswood Inv. Co. L.P. v. The Estate of Bassett S. Winmill; C.A. No. 3730-VCS The Ravenswood Inv. Co. L.P. v. Winmill & Co., Incorporated; C.A. No. 7048-VCS April 27, 2018 Page 4
In its Motion, Plaintiff asserts that the Court misapprehended both the law and
the facts in such a manner as to warrant reargument or amendment/alteration of the
judgment as stated in the Opinion. As to the law, Plaintiff submits that (1) contrary
to the Court’s findings, “[a]s a matter of law, the Court may never factually defer to
illiquid, thinly traded, over-the-counter stock quotation[s] [] as constituting the value
of [] stock”7; and (2) the Court erred as a matter of law when it found that
cancellation was not available despite the fact that Defendants “essentially paid
nothing” for their stock.8 As to the facts, Plaintiff contends that the Court
misapprehended the facts when it found the Company lacked sufficient funds to
repay Defendants (to effect rescission of the option issuances) and that such payment
would significantly reduce the Company’s available cash resources.9 Specifically,
Plaintiff argues that, contrary to the Court’s findings, the trial record shows that
(1) the amount to be repaid would amount to only 10% of the Company’s cash
7 Mot. ¶ 7. 8 Mot. ¶¶ 9–10. 9 Mot. ¶¶ 1, 3. The Ravenswood Inv. Co. L.P. v. The Estate of Bassett S. Winmill; C.A. No. 3730-VCS The Ravenswood Inv. Co. L.P. v. Winmill & Co., Incorporated; C.A. No. 7048-VCS April 27, 2018 Page 5
resources10; (2) the Company has more than sufficient net assets to repay
Defendants11; (3) such repayment would not be detrimental to the Company12; and
(4) neither the interest nor principal paid by Defendants would need to be returned
to Defendants as part of a rescission remedy because the interest was not paid for
the purpose of exercising the options and Bassett’s principal payment was a gift.13
Moreover, Plaintiff argues, “[e]ven were it ultimately to prove true that
Winmill [& Co.] could not repay amounts which must be returned, . . . the Court’s
decision to make such a finding on this record also creates a manifest injustice in
allowing a faithless fiduciary to escape without providing a remedy.”14 According
to Plaintiff, the Court determined that Winmill & Co. would be unable to repay
Defendants based on untimely submitted evidence and “[t]his has created a manifest
10 Mot. ¶ 4. 11 Mot. ¶ 4. 12 Mot. ¶ 5. 13 Mot. ¶¶ 6, 10. 14 Mot. ¶ 11. The Ravenswood Inv. Co. L.P. v. The Estate of Bassett S. Winmill; C.A. No. 3730-VCS The Ravenswood Inv. Co. L.P. v. Winmill & Co., Incorporated; C.A. No. 7048-VCS April 27, 2018 Page 6
injustice, warranting either an order of rescission, conditioning the cancellation [sic]
of repayment of an amount found due by the Court or a fair opportunity to address
this claim . . . .”15
In response, Defendants argue that Plaintiff failed to “properly identify,
explain, or prove the damages it sought” and that Plaintiff, through its Motion, now
seeks to “offer both new and previously-rejected arguments and allege new non-
record ‘facts,’” all of which is improper on a motion for reargument.16 Specifically,
with regard to the Court’s factual findings, Defendants contend that (1) the Court
properly determined that rescission would eliminate a material amount of Winmill
& Co.’s cash resources and not benefit the Company; (2) Plaintiff failed to argue at
any time prior to its Motion that non-cash assets should be the benchmark for
rescission and, in any event, non-cash assets would first have to be sold, which also
15 Mot. ¶ 11. 16 Defs.’ Opp’n to Pl.’s Mot. for Rearg. and/or to Alter or Amend a J., D.I. 259, ¶¶ 1, 4. Defendants also contend that Plaintiff “makes no effort to identify or meet the standard for” an alteration or amendment and, thus, the Motion really only seeks reargument. Id. ¶ 2 n.2. The Ravenswood Inv. Co. L.P. v. The Estate of Bassett S. Winmill; C.A. No. 3730-VCS The Ravenswood Inv. Co. L.P. v. Winmill & Co., Incorporated; C.A. No. 7048-VCS April 27, 2018 Page 7
might not be in the Company’s best interest; (3) Plaintiff failed to present evidence
that Winmill & Co.’s stock value was something other than $1.00; (4) Plaintiff’s
new theory that Bassett’s principal payment was a gift is unsupported by the record;
and (5) Defendants paid interest on their notes to the Company and would be entitled
to receive back those funds if rescission were granted.
As to Plaintiff’s legal argument regarding cancellation, Defendants submit
that Plaintiff’s Motion ignores the legal bases for the Court’s determination that
cancellation was not warranted and instead raises new arguments; namely, that
Thomas and Mark paid essentially nothing for their stock, that Bassett’s payments
were a gift, that Defendants have unclean hands and that manifest injustice would
result from the Court’s Opinion. Finally, Defendants contend that the Court
previously rejected Plaintiff’s argument that Defendants failed timely to assert that
rescission would not be in the Company’s best interest. Thus, according to
Defendants, the record supports the Court’s factual findings and the Court did not
misapprehend the law. For the reasons that follow, I agree with Defendants. The Ravenswood Inv. Co. L.P. v. The Estate of Bassett S. Winmill; C.A. No. 3730-VCS The Ravenswood Inv. Co. L.P. v. Winmill & Co., Incorporated; C.A. No. 7048-VCS April 27, 2018 Page 8
To be frank, Plaintiff’s Motion represents the first time in this ten-year
litigation that Plaintiff has attempted to present any argument or “evidence” in
support of its requested remedy with regard to the stock option grants. As recited in
the Opinion,
Plaintiff requested in the Complaint that the Court award damages “in an amount to be determined at trial,” cancel “the options and all shares acquired using the options” and award “such other further relief” as might be justified. In the Pre-Trial Order and its pre-trial opening brief, Plaintiff requested “[r]escission of all of the challenged Stock issued to the Individual Defendants in 2005.” In its post-trial opening brief, Plaintiff again requested cancellation of the “options issued under the [ ] PEP,” but additionally requested that the Court not return to Defendants the money they paid to exercise their options.17 Plaintiff, however, did not support any of its rotating requests for relief with
evidence or substantive argument. When asked to address remedies at post-trial oral
argument, Plaintiff’s counsel impetuously stated, without any attempt to invoke any
17 Op. at *19. The Ravenswood Inv. Co. L.P. v. The Estate of Bassett S. Winmill; C.A. No. 3730-VCS The Ravenswood Inv. Co. L.P. v. Winmill & Co., Incorporated; C.A. No. 7048-VCS April 27, 2018 Page 9
aspect of the evidentiary record, that “this court has always fashioned remedies
based on the evidence presented at trial and the Court’s conclusions,”18 and that
[t]he suggestion that a court of equity could find the defendants breached their fiduciary duties and say “But you know what, my hands are tied because I’m lock-stepped into some particular format of remedy that will actually hurt the company,” finds no support in the jurisprudence of this court. A remedy can be fashioned, and we’ve suggested some. And if Your Honor wants to say, you know what, I want more on post remedies, the Court can certainly do that. But the suggestion that equity would tolerate a wrong without providing a remedy is unfounded.19
Those statements constitute the full extent of Plaintiff’s engagement on the
subject of remedies (until now).20 Consequently, the Court was left to cobble a
remedy from a wholly inadequate trial record with no guidance from Plaintiff other
than its blanket request(s) for cancellation, rescission, damages or some other
18 Tr. of H’rg Dec. 13, 2017 (“Tr.”), 102:13–15; see also Op. at *19. 19 Tr. 41:5–16; see Op. at *19 n.167. 20 As noted in the Opinion, Plaintiff made similar references to the Court’s equitable powers in its post-trial reply brief but again failed to support those references with any evidence or substantive argument, much less one approximating the arguments raised for the first time in the Motion. See Op. at *19 n.167. The Ravenswood Inv. Co. L.P. v. The Estate of Bassett S. Winmill; C.A. No. 3730-VCS The Ravenswood Inv. Co. L.P. v. Winmill & Co., Incorporated; C.A. No. 7048-VCS April 27, 2018 Page 10
remedy the Court might devise in its apparently uninhibited exercise of equitable
powers.21 After thoroughly exploring the possible options, the Court ultimately
declined to manufacture a remedy beyond nominal damages because there was no
evidentiary basis for the Court to do so in any principled way.
While the record is clear that Plaintiff did not previously bring to the Court’s
attention any of the evidence or argument raised in its Motion, for the sake of
completeness, I will address seriatim Plaintiff’s new arguments on the merits.
First, Plaintiff argues that the Court erred as a matter of law by accepting the
$1.00 trading value of Winmill & Co. stock as its actual value.22 In the Opinion, the
Court explained that the only record evidence of Winmill & Co.’s current stock value
was the $1.00 value identified by trial witnesses.23 Plaintiff presented no contrary
21 Op. at *19. 22 Mot. ¶ 7 (“As a matter of law, the Court may never factually defer to an illiquid, thinly traded, over-the-counter stock quotation . . . as constituting the value of the stock.”). 23 Op. at *23. The Ravenswood Inv. Co. L.P. v. The Estate of Bassett S. Winmill; C.A. No. 3730-VCS The Ravenswood Inv. Co. L.P. v. Winmill & Co., Incorporated; C.A. No. 7048-VCS April 27, 2018 Page 11
evidence at trial.24 The Court did not misapprehend the law with respect to valuation
evidence; rather, it relied on the only valuation evidence that the parties chose to
place in the trial record.
Second, Plaintiff argues that the Court erred as a matter of law when it
determined that cancellation was not available even though “Defendants breached
their fiduciary duties” and “essentially paid nothing for their stock.”25 Of course,
Plaintiff acknowledges that Defendants paid the par value for the stock26 and that
“the Estate paid the [note principal] amount.”27 And the evidence presented at trial
established that all three Defendants paid interest on their respective notes.28 In the
24 During post-trial argument, Plaintiff explained, “the stock trades at a dollar [but] [i]t’s almost impossible to know what this stock is worth, and the dollar is a discount on what you can figure out about what the stock is worth. The stock is, in fact, worth far more than that.” Tr. 106:24–107:4. The record, however, did not include any evidence of this allegedly higher value. 25 Mot. ¶ 10. 26 Mot. ¶ 6 (explaining that Defendants paid $1,532.39 each for the stock). 27 Mot. ¶ 10. 28 See Op. at *6. These interest payments constitute consideration for the stock. Consideration is “a benefit to a promisor or a detriment to a promisee pursuant to the promisor’s request.” Cigna Health and Life Ins. Co. v. Audax Health Solutions, Inc., 107 The Ravenswood Inv. Co. L.P. v. The Estate of Bassett S. Winmill; C.A. No. 3730-VCS The Ravenswood Inv. Co. L.P. v. Winmill & Co., Incorporated; C.A. No. 7048-VCS April 27, 2018 Page 12
Opinion, the Court explained that “[g]enerally, cancellation without restitution is
only warranted where there has been a total failure of consideration (including as a
result of fraud),” and that “[t]he court has [] denied cancellation without restitution
even in cases of fraud and misrepresentation where there has been some exchange
A.3d 1082, 1088 (Del. Ch. 2014). In other words, “[c]onsideration is that which is given to induce a promise or performance in return.” Enloe v. Gorkin, 1990 WL 263563, at *2 (Del. Super. Ct. Dec. 26, 1990). The stock issuance at issue here entailed an immediate transfer of Winmill & Co. stock to each Defendant in exchange for his immediate payment of the stock’s par value (in cash) and his promise to pay the balance of the purchase price of the stock at a specified future time, with interest, as evidenced by Defendants’ respective notes. It is clear that the Company would not have transferred that stock to Defendants when it did if Defendants had not then given the Company interest-bearing notes. And it is equally clear that Defendants gave those notes to the Company to induce the Company to immediately transfer the stock to them, i.e., as consideration for that transfer. See, e.g., Enloe, 1990 WL 263563, at *2 (“Consideration is that which is given to induce a promise or performance in return.”). Moreover, “the principal and interest on [a] note together constitute one sum due upon the note, and any payment thereon, whether applied to meet the interest or to meet the principal, is . . . a partial payment on account of the note . . . .” Pyle v. Gallaher, 75 A. 373, 375 (Del. Super. Ct. 1908); see also In re Oakwood Homes Corp., 449 F.3d 588, 599 (3d Cir. 2006) (“A note providing for payments of principal plus interest is fundamentally more valuable than a note involving the same principal payments, but no interest. A buyer of a note that includes interest surely knows he is bargaining for a more valuable instrument, as does the seller.”). In light of the foregoing, I remain satisfied that each Defendant’s promise to pay interest on his note’s principal balance constitutes consideration for the stock in respect of which he gave the note, as does the interest each Defendant actually paid to the Company. The Ravenswood Inv. Co. L.P. v. The Estate of Bassett S. Winmill; C.A. No. 3730-VCS The Ravenswood Inv. Co. L.P. v. Winmill & Co., Incorporated; C.A. No. 7048-VCS April 27, 2018 Page 13
of consideration.”29 Even in its belated argument, Plaintiff presents no contrary legal
authority.30 I am satisfied, therefore, that the Court did not misapprehend the
applicable law regarding cancellation.
Plaintiff has invoked Rule 59(e) only with regard to the Court’s alleged
misapprehensions of law.31 Accordingly, the Motion under Rule 59(e) and
Rule 59(f), to the extent reargument is sought based on the Court having
misapprehended the law, must be denied.
I turn next to Plaintiff’s arguments that the Court misapprehended the facts in
such a manner as to warrant reargument under Rule 59(f). Here again, I note that
none of the fact-based arguments in Plaintiff’s Motion were made to the Court prior
to the Motion. Accordingly, it is difficult to comprehend how the Court could have
misapprehended a “fact” of which it was never apprised. In any event, as the
29 Op. at *22. 30 See Mot. ¶ 10. 31 See Mot. ¶ 2. The Ravenswood Inv. Co. L.P. v. The Estate of Bassett S. Winmill; C.A. No. 3730-VCS The Ravenswood Inv. Co. L.P. v. Winmill & Co., Incorporated; C.A. No. 7048-VCS April 27, 2018 Page 14
following discussion makes clear, Plaintiff’s fact-based arguments fail on their
merits as well.
First, the trial evidence showed Winmill & Co. to be a company with small
cash resources—with its main assets being holdings in other companies.32 The only
evidence presented regarding the impact on Winmill & Co. of repayment to
Defendants (in order to effect rescission) was the testimony of the Company’s CEO
that repayment would eliminate a “material” amount of the Company’s cash
resources.33 Insofar as it might have been an overstatement to say that repayment
could completely deplete the Company’s cash resources, that overstatement does not
32 See Op. at *14 n.135; id. at *22 & n.196. 33 Op. at *22 n.196. Plaintiff argues that the Court could have taken judicial notice of certain information in its unguided quest to determine what resources the Company actually has. That certainly is true. Plaintiff, however, never attempted to draw the Court’s attention to the information of which it now would have the Court take judicial notice. And Rule 59(f) is not a vehicle through which parties may supplement their trial evidence or trial arguments. Reserves, 2007 WL 4644708, at *1 (“Reargument under Court of Chancery Rule 59(f) is only available to re-examine the existing record; therefore, new evidence generally will not be considered on a Rule 59(f) motion.”); Sunrise Ventures, 2010 WL 975581, at *1 (“[A] motion for reargument is not a mechanism for litigants . . . to raise new arguments that they failed to present in a timely way.”). The Ravenswood Inv. Co. L.P. v. The Estate of Bassett S. Winmill; C.A. No. 3730-VCS The Ravenswood Inv. Co. L.P. v. Winmill & Co., Incorporated; C.A. No. 7048-VCS April 27, 2018 Page 15
change the outcome. The evidence established that repayment would result in a
material reduction of the Company’s cash resources in a manner that could do more
harm than good. Plaintiff presented no contrary evidence.
Second, Plaintiff presented no evidence or argument at trial regarding the
amount or value of the Company’s assets that would allow the Court to assess
whether those assets (1) should be considered for purposes of evaluating the
availability of a rescission remedy; or (2) are such that rescission would be in the
best interest of the Company. Plaintiff now asserts that Winmill & Co.’s “net assets
are reasonably estimated to be at least $10,900,000.”34 This new assertion, however,
does not merit reargument.35 In any event, Plaintiff’s argument in the Motion seems
to suggest that the Company would have to (and should) liquidate certain of its
investments in order to repay Defendants as a predicate to rescission. Again, I have
no way of knowing from the record presented at trial (or even in the Motion) whether
the liquidation of Company holdings to effect rescission of the stock option grants
34 Mot. ¶ 8. 35 Reserves, 2007 WL 4644708, at *1. The Ravenswood Inv. Co. L.P. v. The Estate of Bassett S. Winmill; C.A. No. 3730-VCS The Ravenswood Inv. Co. L.P. v. Winmill & Co., Incorporated; C.A. No. 7048-VCS April 27, 2018 Page 16
would or would not be in the Company’s best interest. Consequently, Plaintiff’s
second argument also fails.
Third, Plaintiff attacks the finding that rescission would not be in the best
interest of the Company. I have addressed that argument in my discussion of
Plaintiff’s first point. Again, whether ultimately persuasive or not, the Court would
have welcomed the arguments and evidence Plaintiff now presents during trial or, at
least, at some point prior to issuing its post-trial Opinion. But Plaintiff elected not
to present any evidence or argument in support of its requested remedies and,
instead, appeared content to have the Court make up a remedy on its own. That is
not how the adversarial process works, even in a court of equity.
Fourth, there is no basis in law or fact to exclude the interest and principal
payments made by Defendants from the amounts to be returned to Defendants in the
case of rescission. As explained in the Opinion, rescission requires a mutual return
to the status quo.36 Here, in exchange for the stock at issue, each Defendant paid par
36 Op. at *21–22. The Ravenswood Inv. Co. L.P. v. The Estate of Bassett S. Winmill; C.A. No. 3730-VCS The Ravenswood Inv. Co. L.P. v. Winmill & Co., Incorporated; C.A. No. 7048-VCS April 27, 2018 Page 17
value and gave a promissory note to the Company.37 Each Defendant then paid
interest to the Company on his promissory note.38 And, in Bassett’s case, his estate
paid the principal of his note in full.39 If Defendants’ stock is to be cancelled, and
Defendants are to be returned to the status quo, Defendants must be reimbursed the
interest and principal payments they made. Thus, as explained in the Opinion, all
these amounts would have to be returned to Defendants in the case of rescission.40
Finally, Plaintiff’s cry of manifest injustice in “allowing a faithless fiduciary
to escape without providing a remedy” falls flat given that Plaintiff had ten years to
develop a record and cognizable theory that could have allowed the Court to fashion
relief.41 Even when prompted by the Court in reaction to Defendants’ testimony and
argument regarding the unsuitability of the requested remedy, Plaintiff failed to
37 Op. at *6. 38 Id. 39 Op. at *8. 40 Op. at *22 n.196. Plaintiff raised its argument that Bassett’s principal payment was a gift for the first time in the Motion. That is not proper reargument. 41 Mot. ¶ 11. The Ravenswood Inv. Co. L.P. v. The Estate of Bassett S. Winmill; C.A. No. 3730-VCS The Ravenswood Inv. Co. L.P. v. Winmill & Co., Incorporated; C.A. No. 7048-VCS April 27, 2018 Page 18
provide the Court with any meaningful guidance.42 As stated in the Opinion, while
this court endeavors to remedy wrongs, “[e]quity is not a license to make stuff up.”43
For the foregoing reasons, Plaintiff’s Motion is DENIED.
Very truly yours,
/s/ Joseph R. Slights III
42 See Op. at *19 & n.167. As Defendants explain, at trial I rejected the argument that Defendants’ theory that rescission would actually harm Winmill & Co. was a new theory of which Plaintiff had not been adequately apprised. Tr. of Trial May 15, 2017, at 14:17– 23. I see no reason to revisit that finding here. 43 See Op. at *2; see also id. at *19 & n.172 (“But the Court still must have some basis in the evidence upon which to grant relief.” (citing Arnold v. Soc’y for Sav. Bancorp, Inc., 678 A.2d 533, 541 (Del. 1996); PharmAthene, Inc. v. SIGA Tech., Inc., 2011 WL 6392906, at *3 (Del. Ch. Dec. 16, 2011); In re Fuqua Indus., Inc., 2005 WL 1138744, at *7 (Del. Ch. May 6, 2005))).