Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Diane Mann, as Trustee for ) the Estate of LeapSource, Inc.,) et al., ) ) Plaintiffs, ) ) vs. ) ) GTCR Golder Rauner, L.L.C., ) a Delaware limited liability ) company, et al., ) Defendants. ) )

No. CIV-02-2099-PHX-RCB O R D E R

Introduction LeapSource, Inc. existed as a "business process outsourcing" company for less than two years.1 LeapSource's demise engendered

this litigation which has been ongoing for nearly five years (more than twice as long as the Company existed).2 Before the court is a motion directed at 15 counts of the Fourth Amended Complaint
On September 16, 1999, LeapSource's predecessor corporation was formed. DSOF (doc. 348) at 2, ¶ 1; see also PSOAF (doc. 417, pt. 2) at 2, ¶ 1. On July 11, 2001, LeapSource filed its petition for bankruptcy. In re LeapSource, Inc., No. B 01-9020 PHX JMM (Bankr. D. Ariz. 2001) (doc. 1).
2 The court has issued familiarity with which is assumed. 1

no

less

than

nine

substantive

decisions,

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("FAC") (doc. 121), brought by defendants GTCR Golder Rauner, L.L.C., GTCR Fund VI, L.P., GTCR VI Executive Fund, L.P., GTCR Associates VI,3 Joseph P. Nolan, Bruce V. Rauner, Daniel Yih,

David A. Donnini and Philip A. Canfield4 for summary judgment pursuant to Fed. R. Civ. P. 56 (doc. 347). unnecessary, the court rules as follows. Discussion I. Standard of Review The court assumes familiarity with what has sometimes been referred to as the Celotex trilogy wherein the Supreme Court, in 1986, clarified and refined the standards for deciding Rule 56 summary judgment motions. See Anderson v. Liberty Lobby, Inc., 477 Finding oral argument

U.S. 242, 106 S.Ct. 2505, 91 L.E.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); and Matsushita Elec. Industr. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). There is no need to repeat

the entire body of summary judgment case law which has developed since then, but a few principles are worth highlighting. A motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party
When necessary to distinguish among these defendants, the GTCR VI Entities shall be read as referring to the three defendant private equity funds, GTCR Fund VI, L.P., GTCR VI Executive Fund and GTCR Associates VI. GTCR shall be read as referring to GTCR Golder Rauner, LLC, the general partner of GTCR Partners VI, L.P., which, in turn, is the general partner of the GTCR VI Entities.
4 Unless necessary to distinguish among them, hereinafter "the GTCR defendants" and "GTCR" shall be read as referring to GTCR, the GTCR VI entities, as well as any or all of the individual GTCR principals, Rauner, Nolan, Yih, Donnini, and Canfield. 3

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is entitled to a judgment as a matter of law." 56(c).

Fed. R. Civ. P.

It is beyond dispute that "[t]he moving party bears the

initial burden to demonstrate the absence of any genuine issue of material fact." Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007) (citation omitted). "Once the moving party

meets its initial burden, . . . , the burden shifts to the nonmoving party to set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." Id. (internal quotation marks and citations omitted). must be concrete and cannot rely on 'mere

This "[e]vidence

speculation, conjecture, or fantasy.'" Bates v. Clark County,2006 WL 3308214, at * 2 (D.Nev. Nov. 13, 2006) (quoting O.S.C. Corp. v. Apple Computer, Inc., 792 F.2d 1464, 1467 (9th Cir. 1986)). Similarly, uncorroborated and self-serving testimony or declarations, without more, will not create a genuine issue of material fact precluding summary judgment. See Dubois v. Ass'n

Apart. Owners 2987 Kalakaua, 453 F.3d 1175, 1180 (9th Cir. 2006), cert. denied, 2007 WL 506192, 75 USLW 3436 (Feb. 20, 2007). Nor will "a mere 'scintilla' of evidence" be sufficient "to

defeat a properly supported motion for summary judgment; instead, the nonmoving party must introduce some 'significant probative evidence tending to support the complaint.'" Fazio v. City &

County of San Francisco, 125 F.3d 1328, 1331 (9th Cir. 1997) (quoting Anderson, 477 U.S. at 249, 252, 106 S.Ct. 2505). Thus,

in opposing a summary judgment motion it is not enough to "simply show that there is some facts." metaphysical doubt as to the material

Matsushita, 475 U.S. at 586, 106 S.Ct. 1348 (citations

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By the same token though, when assessing the record to determine whether there is a "genuine issue for trial," the court must "view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inference in his favor. " Horphag, 475 F.3d at 1035 (citation omitted). The court may not

make credibility determinations; nor may it weigh conflicting evidence. See Anderson, 475 U.S. at 255. It is with these

standards firmly in mind that the court has examined, at length, the record as presently constituted. Before addressing the merits, the court has a few preliminary observations. Most importantly, plaintiffs' response memorandum is Their

substantially lacking in terms of citations to the record. 40 page response includes cites to only 11 paragraphs of plaintiffs' 106 page, 261 paragraph PSOAF.

Further, plaintiffs

twice designated deposition testimony by page and line, but elected not to correlate that testimony to any specific exhibit in the record. And although plaintiffs incorporate by reference memoranda

filed in earlier motions, they did not indicate which pages are relevant to the issues now before the court. These omissions would

be problematic in any case, but they are especially so here where the record consists of over 140 exhibits, totaling approximately 2500 pages.5 Perhaps these omissions simply indicate that much of

the record does not support plaintiffs' position, and they have done the best possible with the facts and law available. As the Ninth Circuit has acknowledged on more than one

To put the length of this record in perspective, Leo Tolstoy's War and Peace is "typically over 1400 pages as a paperback." http://en.wikipedia.org/wiki/List_of_longest_novels (last visited March 7, 2007).

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occasion though, a court does not have an obligation to "examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found." See

Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); see also Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.) (internal quotations and citations omitted) ("[It] is not our task to scour the record in search of a genuine issue of triable fact.; Forsberg v. Pacific N.W. Bell Tel. co., 840 F.2d 1409, 1418 (9th Cir. 1988) (A district court is not "required to comb the

record to find some reason to deny a motion for summary judgment[.]"). That is so because courts "rely on the nonmoving

party to identify with reasonable particularity the evidence that precludes summary judgment." Keenan, 91 F.3d at 1279 (internal Or, as the Ninth Circuit

quotation marks and citations omitted). so succinctly put it in Carmen:

A lawyer drafting an opposition to a summary judgment motion may easily show a judge, in the opposition, the evidence that the lawyer wants the judge to read. It is absurdly difficult for a judge to perform a search unassisted by counsel, through the entire record, to look for such evidence. Carmen, 237 F.3d at 1030; see also Guarino v. Brookfield Township Trustees, 980 F.2d 399, 405 (6th Cir. 1992) ("[The nonmoving party's] burden to respond is really an opportunity to assist the court in understanding the facts. But if the nonmoving party fails

to discharge that burden - for example, by remaining silent- its opportunity is waived and its case wagered.") In short, nothing in Rule 56 or the case law construing it, requires the court to -5Filed 03/30/2007

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consider matters not specifically brought to its attention. Accordingly, as is its prerogative, here the court has "'limit[ed] its review to the documents submitted for purposes of summary judgment and those parts of the record specifically referenced therein.'" Hubbard v. 7-Eleven, Inc., 433 F.Supp.2d 1134, 1140 (S.D.Cal. 2006) (quoting Carmen, 237 F.3d at 1030) (emphasis added). This insufficient identification of those facts which plaintiffs believe defeat defendants' summary judgment motion is compounded by the fact that frequently in their response plaintiffs relied more upon rhetoric than reason. Indeed, in discussing some

issues, for example, aiding and abetting of fiduciary breaches, plaintiffs did not cite to any case law at all. When it was

difficult to discern the exact nature of plaintiffs' opposition argument, the court did not speculate because to do so would mean that it would be impermissibly taking on the role of rather than impartial decision-maker. advocate,

Again, however, the court

assumes that plaintiffs provided the court with such citations to the record as were available to them. II. Fiduciary Duties For discussion purposes, the remaining counts in the FAC can be divided into two broad categories ­ those alleging breach of fiduciary duties (and the aiding and abetting of those breaches), as well as six remaining miscellaneous counts. The fiduciary duty

claims can be further divided into those brought by plaintiff Dianne Mann, as bankruptcy trustee (counts 2, 4, 5, 6 and 7), and those brought by the eight individual plaintiffs, former LeapSource employees (counts 17-20). -6Filed 03/30/2007

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A.

Scope

As it did in its September 30, 2003, dismissal order, the court will once again look to Delaware law, the state of LeapSource's incorporation, to assess the viability of plaintiffs' fiduciary duty claims. See Mann I (doc. 72) at 42 (citing First

National City Bank v. Banco Para Elcommercio Exterior de Cuba, 462 U.S. 611, 621 (1983)). Delaware law recognizes that not only do

directors and officers "stand in a fiduciary relationship to their corporation and stockholders[,]" but "a majority shareholder, or a group of shareholders who combine to form a majority, has a fiduciary duty to the corporation and to its minority shareholders if the majority shareholder dominates the board of directors and controls the corporation." Matter of Reading Co., 711 F.2d 509, 517 (3rd Cir. 1983) (citations omitted); see also In re MAXXAM, Inc., 659 A.2d 760, 771 (Del.Ch. 1995) ("A shareholder that owns a majority interest in a corporation, or exercises actual control over its business affairs, occupies the status of a fiduciary to the corporation and its minority shareholders.") Consistent with that view, plaintiffs allege separate breaches of fiduciary duties by the GTCR Entities as "majority shareholders of LeapSource," doc. 121 at 75, ¶325 (count 2); and at 95, ¶ 444 (count 17); and separately by defendants Nolan, Rauner, Donnini, and Yih6 as "directors and officers of LeapSource." Id. at 78, ¶ 345 (count

6 Michael Makings, a former LeapSource employees also is named as a defendant in this cause of action, as well as a number of other counts in the FAC. Defendant Makings has separately moved for summary judgment (doc. 340). His motion is the subject of a separate order which is being issued contemporaneously herewith. David Eaton was also a defendant in this count, as well as in other counts, but the parties entered into a stipulation of dismissal with respect to all counts against him.

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5); and at 98, ¶ 455 (count 19).

Further, plaintiffs generally

allege that these defendants owed them a host of fiduciary duties: "good faith, fair dealing, candor, loyalty, due care, and full and fair disclosure." See, e.g., id. at 79, ¶ 346; and 95 at ¶ 444.

These claimed breaches of fiduciary duties occurred in a variety of ways, ranging from "engaging in the fraudulent transfer of valuable assets[]" to "placing . . . [LeapSource] in bankruptcy liquidation." See id. at ¶ 446.

Despite the broad scope of the breach of these fiduciary duty counts, defendants frame their summary judgment motion strictly in terms of the duties of loyalty and due care. This is in accordance

with Delaware law which identifies loyalty and due care as the two "traditional" fiduciary duties. See In re Gaylord Container Corp.

S'holders Litig., 753 A.2d 462, 475 (Del. Ch. 2000); see also Cede & Co. v. Technicolor, Inc., 634 A.2d 345, 367 (Del. 1993)(citation omitted)("Duty of care and duty of loyalty are the traditional hallmarks of a fiduciary who endeavors to act in the service of a corporation and its stockholders.") "Each of these duties is of equal and independent significance." other fiduciary Cede, 634 A.2d at 367. The

"duties" which plaintiffs claim were owed them are For example, in

subsumed in the duties of loyalty and due care.

Stone v. Ritter, 911 A.2d 362 (Del. 2006), the Delaware Supreme Court clarified that "although good faith may be described colloquially as part of a 'triad' of fiduciary duties that includes the duties of care and loyalty, the obligation to act in good faith does not establish an independent fiduciary duty that stands on the same footing as the duties of care and loyalty." (footnote omitted) (emphasis added). Id. at 370

For that reason, "[o]nly the

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latter two duties, where violated, may directly result in liability, whereas a failure to act in good faith may do so, but indirectly." Id.

Likewise, "the . . . fiduciary duty of disclosure, . . . , is not an independent dut[y] but the application in a specific context of the . . . fiduciary duties of care, good faith, and loyalty." Malpiede v. Townson, 780 A.2d 1075, 1086, (Del. 2001) (footnote

omitted); Stroud v. Grace, 606 A.2d 75, 84 (Del. Supr. 1992) ("[I]t is more appropriate . . . to speak of a duty of disclosure [which is subsumed in the traditional duties] . . . rather than the unhelpful terminology that has crept into Delaware court decisions as a 'duty of candor.'") Therefore, it is logical to assume that

to the extent there may be a duty of "fair dealing," as plaintiffs allege, it too is subsumed in the primary duties of loyalty and due care. The import of the foregoing is that if defendants prevail on their motion for summary judgment with respect to the alleged breaches of the fiduciary duties of due care and loyalty, then they would be entitled to summary judgment with respect to all counts alleging breaches of fiduciary duty, regardless of how those duties are defined. This is especially so given that plaintiffs devote

their opposition almost exclusively to arguing that defendants did not act in good faith as a means of rebutting the business judgment rule, as opposed to showing a separate such a duty. B. Standing and independent breach of

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claims (counts 17-20).

The first argument is lack of standing and

is directed solely at the individual plaintiffs, as opposed to the plaintiff trustee.7 If, as defendants assert, the individuals lack

standing, then the court would not have jurisdiction to consider their fiduciary duty claims. See KB2S, Inc. v. City of San Diego,

California, 2007 WL 173858, at *1 (S.D.Cal. Jan. 17, 2007) ("Article III standing is necessary for federal court jurisdiction.") Given the jurisdictional nature of standing, as did the defendants, the court will address this argument first. "Article III standing must be determined as a threshold matter in every federal case."8 United States v. 5208 Los Franciscos Way,

LA, CAL., 385 F.3d 1187, 1191 (9th Cir. 2004) (citation omitted). "The Constitution's case-or-controversy limitation on federal judicial authority is the lynch pin for standing . . . jurisprudence." United States v. Lazarenko, 476 F.3d 642, 649 (9th

Cir. 2007) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). At its core, "[t]he standing doctrine determines 'whether

the litigant is entitled to have the court decide the merits of the dispute or of particular issues.'" Id. (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). There

are two components to standing ­ one "rooted in the Constitution's case-or-controversy requirement," and the other "a prudential

Hereinafter in this section "plaintiffs" shall be read as referring to the individual plaintiffs -- not to the plaintiff trustee. Even though the FAC includes only state law based claims, because this action is "related to" the LeapSource bankruptcy proceeding, this court has "original but not exclusive jurisdiction" pursuant to 28 U.S.C. § 1334(b), making this a "federal case."
8

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component, which embraces judicially self-imposed restraints on federal jurisdiction." Id. (citing, inter alia, Elk Grove Unified

Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004)). "A litigant must satisfy both [components] to seek Id. (citation omitted).

redress in federal court."

"Article III's standing requirements are familiar[.]" Nuclear Inf. & Res. v. Nuclear Reg. Com'n., 457 F.3d 941 (9th Cir. 2006). plaintiff must show: (1) it has suffered an 'injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 949 (internal quotation marks and citations omitted). In A

addition to meeting those criteria, a plaintiff "must also meet non-constitutional or prudential requirements to invoke federal jurisdiction." Lazarenko, 476 F.3d at 649. "Prudential standing

encompasses 'the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked.'" Id. (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). In Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), the Supreme Court reiterated that "[t]he party invoking federal jurisdiction bears the burden of establishing [the standing] elements." Id. at 561, 112 S.Ct. 2130

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(citing, inter alia, Warth, 422 U.S. at 508,

95 S.Ct. 2197).

As

the Lujan Court made clear, because the elements of standing "are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e. with the manner and degree of evidence required at the successive stages of the litigation." Id. (citations omitted).

Thus, while "[a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, . . . [i]n response to a summary judgment motion, . . . , the plaintiff can no longer rest on such 'mere allegations,' but must 'set forth' by affidavit or other evidence 'specific facts,' which for purposes of the summary judgment motion will be taken to be true." Id.

(quoting Fed. R. Civ. P. 56(c)); see also Bras v. California Public Utilities Commission, 59 F.3d 869, 874 (9th Cir. 1995) ("In deciding whether [plaintiff] has . . . standing, we must consider the allegations of fact contained in [plaintiff's] declaration and other affidavits in support of his assertion of standing.") The fact of removal does not change plaintiffs' burden as to standing at this point in the litigation. Thus, even if plaintiffs

had doubts as to their standing upon removal from state to district court, "as the party asserting federal jurisdiction when it is challenged," plaintiffs must "make the showings required for standing." See DaimlerChrysler Corp. v. Cuno, 126 S.Ct. 1854, 1861

n.3, 164 L.Ed.2d 589 (2006). Initially the GTCR defendants took the position that because the fiduciary duty claims are being brought by plaintiffs "as minority shareholders," FAC (doc. 121) at 95, ¶ 443; and at 98, ¶ - 12 Filed 03/30/2007

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456, and because these claims "are premised upon direct harm to the corporation" in the form of decreased stock value, these are derivative claims which can only be brought by the plaintiff trustee. See Mot. (doc. 347) at 9.

The foregoing argument conforms to the plain language of the FAC, wherein plaintiffs allege that they are bringing these fiduciary duty claims as "minority shareholders[.]" FAC (doc. 121) at 95, ¶ 443; and at 98, ¶ 456. In responding to GTCR's standing Now plaintiffs

argument, plaintiffs shifted gears however.

maintain that they are pursuing these claims as "creditors of LeapSource[,]" and as such they, as well as the trustee, have standing. See Resp. (doc. 417) at 7. Citing to Production

Resources Group, L.L.C. v. NCT Group Inc., 863 A.2d 772 (Del. Ch. 2004), plaintiffs contend that they "have standing to complain of the breaches of fiduciary duties owed to the creditors of LeapSource when it was insolvent or in the zone of insolvency."9 Id. According to plaintiffs, their standing derives from their status as "creditors" who have "suffered . . . individualized damages, apart from the losses sustained as shareholders including claims for unpaid bonuses10 and severance payments." Id. (footnote added).

Regardless of whether plaintiffs are bringing these fiduciary duty claims "as shareholders or 'creditors,'" in their reply,
"Standing is measured at the time the complaint is filed." Hubbard, 433 F.Supp.2d at 1141 (citation omitted). Here, the FAC was filed on June 11, 2004. The first amended complaint, which was the basis for removal to this district court on October 21, 2002, was filed on July 31, 2002. Thus, regardless of which filing date the court uses, because LeapSource filed its bankruptcy petition on July 11, 2001, clearly it was insolvent "at the time the complaint [wa]s filed[,]" see id.; and the parties are not disputing that. See Resp. (doc. 417) at 6. There are no allegations in counts 17-20 that plaintiffs were injured because they were not paid bonuses.
10 9

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defendants stress that these claims are derivative. (doc. 449) at 9.

See Reply

Given the derivative nature of the fiduciary duty

claims, GTCR adheres to its position that "only . . . the trustee[]" has standing to assert them. Id. As further support

for its argument that the fiduciary duty counts are derivative, in its reply GTCR relied upon Big Lots Stores, Inc. v. Bain Capital Fund VII, LLC, 2006 WL 846121 (Del. Ch. Mar. 28, 2006), an unpublished opinion. The court in Big Lots, found that "[s]horn of

excess verbiage, Big Lots's fundamental complaint . . . is that the defendants caused HCC to become insolvent through what amounted to breaches of fiduciary duty." Id. at *7. Quoting from the

Production Resources, the Big Lots court found that "claims of th[at] type [we]re classically derivative[,]" and thus could not "be maintained by Big Lots in this proceeding." Id. at *7

(quotation marks, citation and footnote omitted); and at *8 (footnote omitted). The court did note, however, that if "Big Lots

[had] pleaded facts which establish a direct claim, such as those in Production Resources, both the bankruptcy estate and Big Lots could have brought claims arising out of the same facts[,]" but it did not. See id. at *8 n. 54.

As an unpublished decision, in accordance with Rule 171(h) of the Court of Chancery of the State of Delaware, a copy of Big Lots should have been attached to GTCR's reply, but it was not. For that reason, and to allow plaintiffs to address the potential applicability of Big Lots to the present action, the court ordered plaintiffs to file a sur-reply (doc. 468), which they did (doc. 469). Defendants were given an opportunity to respond, which they

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"[I]t is settled under Delaware law," as plaintiffs suggest, that "[w]hen a firm has reached the point of insolvency, . . . the firm's directors . . . owe fiduciary duties to the company's creditors." Production Resources, 863 A.2d at 790-91 (footnote

omitted); see also Geyer v. Ingersoll Publications Co., 621 A.2d 784, 787 (Del. Ch. Ct. 1992) (directors of insolvent corporation have a fiduciary duty to act for the benefit of corporate creditors). In fact, as the court in Production Resources

observed, "[t]his is an uncontroversial proposition and does not completely turn on its head the equitable obligations of the directors to the firm itself." Id. at 791 (footnote omitted).

What is less clear however is whether those creditors' claims are direct or derivative. This is an important distinction here GTCR

because GTCR and the plaintiffs have opposing views.

maintains that the plaintiffs' claims are derivative, and hence they lack standing, whereas, plaintiffs argue that the direct nature of their fiduciary duty claims gives them standing. "Whether an action is derivative or direct is usually a question of state law." Abrahamson v. Western Savings and Loan

Association, 1994 WL 374294, at *3 (D.Ariz. Jan. 24, 1994) (citing, inter alia, In re Sunrise Sec. Litig., 916 F.2d 874, 881 (3rd Cir. 1990)). And, as mentioned at the outset, Delaware law governs the See Mann I (doc. 72) at

breach of fiduciary duty claims herein. 42(citation omitted).

"Aiming at clarification in light of

confusing jurisprudence on the direct/derivative dichotomy," In re Enron Corp. Securities, Derivative and "ERISA" Litigation, 2005 WL 2230169, at *1 (S.D. Tex. Sept. 12, 2005) (internal quotation marks omitted), the Delaware Supreme Court in Tooley v. Donaldson, - 15 Filed 03/30/2007

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Lufkin, & Jenrette, Inc., 845 A.2d 1031 (Del. 2004), "discarded the old 'special injury' test, i.e. whether the plaintiff has suffered an injury different from that suffered by shareholders in general, for determining whether a claim is direct or derivative." Dieterich v. Harrer, 857 A.2d 1017, 1027 (Del. Ch. 2004) (footnote omitted); see also Albert v. Alex. Brown Management Services, Inc., 2005 WL 2130607, at *12 (Del. Ch. Aug. 26, 2005) (In Tooley, the

Supreme Court of Delaware "revised the standard for determining whether a claim is direct or derivative.") After Tooley, "the

proper analysis" for distinguishing between direct and derivative claims requires a court to examine "the nature of the wrong and to whom the relief should go." Tooley, 845 A.2d at 1039. More

specifically, the Tooley Court held that the issue of "whether the complaint alleges a direct or derivative claim . . . must turn solely on the following questions: (1) who suffered the alleged harm (the corporation or the suing stockholders individually); and (2) who would receive the benefit of any recovery or other remedy (the corporation or the stockholders, individually)?" Id. at 1033.

In analyzing the first prong, the Delaware Supreme Court found "helpful" the Chancellor's approach, which was to "[l]ook[] at the body of the complaint and consider[] the nature of the wrong alleged and the relief requested[.]" Id. at 1036 (internal quotation marks omitted). From there, the question becomes whether

"the plaintiff [has] demonstrated that he or she can prevail without showing any injury to the corporation[.]" Id. (internal quotation marks and footnote omitted). "The second prong of the analysis should logically follow[,]" opined the Tooley Court. Stated somewhat differently, the Delaware Supreme Court in Tooley - 16 Filed 03/30/2007

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stressed that "[t]he stockholder's claimed direct injury must be independent of any alleged injury to the corporation." 1039. Id. at

"The stockholder must demonstrate that the duty breached was

owed to the stockholder and that he or she can prevail without showing an injury to the corporation." Id.

Applying the two prong Tooley test, GTCR asserts that plaintiffs' claims fail under the first prong in that they cannot prevail on the fiduciary duty counts "without showing an injury to the corporation[.]" Resp. (doc. 470) at 2 (internal quotation marks omitted). Indeed, GTCR is quick to point out that as plaintiffs'

themselves describe their theory, "GTCR reacted angrily and destructively [to their criticism], and in less than a month LeapSource was destroyed." citation omitted). Id. (internal quotation marks and

As GTCR views it "[t]hese are classically Id.

derivative claims, belonging solely to the Trustee."

Consequently, the individual plaintiffs lack standing. Overlooking Tooley, in their sur-reply plaintiffs argue that they have standing because their damages "fall within the class of cases, contemplated by the court in Production Resources and acknowledged by the court in Big Lots, where the claims of particular creditor plaintiffs are based at least in part upon conduct aimed specifically at those plaintiffs, and motivated by animus that is not common to all creditors (or to all shareholders)." Sur-Reply (doc. 469) at 5 (emphasis in original).

Originally, plaintiffs did not indicate whether they were seeking to bring direct or derivative fiduciary duty claims. Their sur-

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Plaintiffs' heavy reliance upon Production Resources, combined with the fact that that court "stressed multiple times the unusual and particularized facts that gave rise to its holding[,]" Fleet National Bank v. Boyle, 2005 WL 2455673, at *14 (E.D.Pa. Sept. 12, 2005), warrants a close examination of those facts. In concluding

that the creditor's direct breach of fiduciary duty claim survived a motion to dismiss, the Production Resources court was persuaded by several factors. First, and perhaps foremost, the plaintiff in

Production Resources had obtained a $2 million judgment against the defendant, a judgment which plaintiff had been seeking to collect for approximately five years with little success. Second, the

defendant's actions in Production Resources all took place after it became insolvent. Third, the challenged conduct there included made to

allegations that the defendant breached "specific promises

[the judgment creditor] and [it] . . . t[ook] steps to accept new capital in a manner that was intentionally designed to hinder [the judgment creditor's] effort to obtain payment." (emphasis added). Id. at 800

In other words, the board took "particular steps

to disadvantage PRG as a creditor and to frustrate its efforts at collection." Id. Finally, as the court in Big Lots so aptly put

it, "[i]n the face of such extraordinary machinations, the [Production Resources] court was unwilling to dismiss the creditor's claims of specific injury as derivative because it seemed possible that the creditor in question was the only one that had been injured, and was thus the only one to which recovery was due." Big Lots, 2006 WL 846121, at *7. Production Resources stands in sharp contrast to the present Even viewing the evidence in a light most favorable to - 18 Filed 03/30/2007

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plaintiffs, and drawing all reasonable inferences in their favor, as the court must, it cannot find that plaintiffs' fiduciary duty claims fall within the narrow category of direct claims recognized in Production Resources. This is not a situation, such as

Production Resources, where plaintiffs are judgment creditors who have been seeking to collect a debt owed to them for a number of years. Rather, the plaintiffs herein are "creditors holding

unsecured priority claims[,]" in the related bankruptcy proceeding. See PSOAF (doc. 417-18), exh. 29 thereto. This is a significant

distinction because as the court in Big Lots astutely observed, "[t]he immediacy of the Production Resource defendant's debt was a necessary underpinning of th[at] court's find that the debtor's recalcitrance might have been motivated by targeted animus towards the plaintiff." Id. (footnote omitted). In fact, in Big Lots the

court distinguished Production Resources because, among other things, the plaintiff in Big Lots "had no right to repayment of its debt at the time of the challenged transaction." 846121, at *7. herein. Furthermore, also in sharp contrast to Production Resources, it is plaintiffs' theory that the GTCR defendants' breaches of fiduciary duties caused LeapSource's insolvency, not that LeapSource was insolvent at the time of the alleged breaches. addition, unlike Production Resources, there is not "a marked degree of animus [here] towards a particular creditor with a proven entitlement to payment[.]" Production Resources, 863 A.2d at 798 (footnote omitted). "In March 2001, [LeapSource] attempted to In Big Lots, 2006 WL

The same is true of the individual plaintiffs

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employees."

DSOF (doc. 348) at 15, ¶ 100 (citations omitted); Other terminated employees,

PSOAF (doc. 417, pt. 2) at 55, ¶ 100.

but not plaintiffs, "agreed to execute . . . releases in return for partial severance payments." id. at 56, ¶ 102. Id. at 15, ¶ 102 (citations omitted);

Plaintiffs decided to pursue another avenue. PSOAF

They filed claims in the LeapSource bankruptcy proceeding.

(doc. 417, pt. 2) at 106, ¶ 261 (citing exh. 29); Def. Resp. PSOAF (doc. 450) at 70, ¶ 216. Thus, despite how plaintiffs attempt to They

depict it, they were not treated differently than others.

simply chose a different option than did the employees who elected to sign a release. This similar treatment further weakens

plaintiffs' argument of animus directed "specifically" at them. See Sur-Reply (doc. 469) at 5 (emphasis in original).

Not only that, in Production Resources there were allegations that the defendants were intentionally hindering the judgment creditor's collection efforts, and "engaging in preferential treatment of the company's primary creditor[.]" Resources, 863 A.2d at 800 (footnote omitted). See Production There are no such

allegations or proof of similar conduct by the GTCR defendants. Given the significant factual distinctions between Production Resources and the present case, the latter does not mandate the conclusion that plaintiffs' fiduciary duty claims are direct, and thus they have standing. There are several other compelling reasons to find that these fiduciary duty claims are derivative, and hence plaintiffs lack standing to bring them. The first is that on a continuum, the

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plaintiffs' "fundamental complaint" here is that the defendants caused LeapSource "to become insolvent through what amounted to breaches of fiduciary duty." The present case is no soundly reasoned: [T]he underlying infirmity of the complaint is that the unavoidable effect of granting relief would be to unfairly advantage the plaintiff, an unsecured creditor, over any number of other unsecured creditors having claims in the bankruptcy. Simply put, this case stands for the wellestablished proposition that derivative claims cannot be used by a single creditor to upset the structured bankruptcy process. That principle equally applies when a plaintiff has erroneously characterized various derivative claims as direct, in the hope of escaping the broad jurisdiction of the bankruptcy court and the proceedings therein. Id. This is precisely what the individual plaintiffs are seeking See Big Lots, 2006 WL 846121, at *7.

different than Big Lots where the court

to do through their fiduciary duty claims in this case. They are seeking to circumvent the bankruptcy process. condone this strategy. GTCR defendants. The court cannot

On this point, the court agrees with the

These "employee/creditor claims belong . . . in

the bankruptcy court, where the . . . plaintiffs can recover alongside other creditors in the bankruptcy process." 470) at 2. Application of the two prong Tooley test provides further support for a finding that plaintiffs' fiduciary duty claims are not direct. Their claimed injuries are not independent of the Indeed the alleged fiduciary Resp. (doc.

alleged injuries to LeapSource.

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duties, with one exception,11 all pertain directly to LeapSource. Those alleged breaches run the gamut from defendants "refus[al] to fully fund LeapSource with $65 million, as promised[]" to "preventing LeapSource from meeting its budgetary and business plan objectives[,]" culminating in an allegation that defendants "plac[ed] [LeapSource] in bankruptcy liquidation." FAC (doc. 121) at 96, ¶ 446. Certainly plaintiffs' claimed direct injury, not

receiving their severance payments due to LeapSource's insolvency, is not "independent of any alleged injury" to LeapSource, as Tooley requires. See Tooley, 845 A.2d at 1039. Stated somewhat

differently, these plaintiffs cannot, as Tooley also requires, demonstrate that they "can prevail without showing an injury to" LeapSource. See id. In short, these are "classically derivative"

claims "in the sense that they involve an injury to [LeapSource] as an entity and any harm to the stockholders and creditors is purely derivative of the direct financial harm to [LeapSource] itself." Big Lots, 2006 WL 846121 at *7 n. 46 (internal quotation marks and citation omitted). These derivative claims, as the Big Lots court

cogently explained, "do not become direct simply because they are raised by a creditor, who alleges that the breaches of fiduciary duty caused it specific harm by preventing it from recovering a debt outside of bankruptcy." See id. at *7.

To conclude, because plaintiffs have not shown a direct injury independent of any injury to LeapSource, but instead have only shown
11

a derivative loss, they do not have standing to pursue the

The exception is plaintiffs' claim that defendants breached their fiduciary duties "by terminating [them] and by refusing to fully pay each of them annual severance upon their terminations without cause[.]" FAC (doc. 121) at 96, ¶ 446; and at 99, ¶ 459.

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breaches of fiduciary duty claims alleged in counts 17 and 19.

It

stands to reason then, that if plaintiffs lack standing to pursue those counts, they also lack standing to pursue the counts for aiding and abetting those breaches (counts 18 and 20). Therefore,

the court grants the GTCR defendants' motion for summary judgment as to counts 17-20. C. Duty of Loyalty

With one exception,12 it is impossible to discern from the 106 page, 486 paragraph FAC exactly what transaction or transactions form the basis for the alleged duty of loyalty breaches. Therefore, as a consequence, the GTCR VI Entities looked to plaintiffs' answers to interrogatories. Based upon those answers,

the Entities identified "four areas of alleged misconduct . . . : (1) nondisclosure13 regarding the funding cutoff; (2) interference with management; (3) interference with the company's sale; and (4) improper disposition of company assets." Mot. (doc. 347) at 14-15 (footnote added). Plaintiffs disagree with this

"characterization" as to "nondisclosure[,]" but not with the fact that they are claiming that the GTCR Entities breached their duty of loyalty by deciding to discontinue funding LeapSource. Resp. (doc. 417) at 17. See

Likewise, plaintiffs agree that the other

12 Count 2 (the trustee's breach of fiduciary duty claim against the GTCR entities) specifically alleges that those Entities "breach[ed] their duty of loyalty by dissipating or diverting assets of LeapSource for the benefit of themselves, other Defendants, or certain preferred creditors[.]" FAC (doc. 121) at 75, ¶ 327.

Under some circumstances Delaware law recognizes a fiduciary duty of disclosure, although as previously mentioned, not independent of the duties of due care and loyalty. Malpiede, 780 A.2d at 1086. Thus, to avoid confusion, because what plaintiffs are actually claiming is that the GTCR Entities breached their duty of loyalty by discontinuing funding, when analyzing this particular claim, the court will not refer to "non-disclosure," even though the parties do.

13

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alleged areas of misconduct just enumerated constitute the bases for their breach of the duty of loyalty counts. limit its analysis accordingly. Delaware law does not permit "[c]orporate officers and directors . . . to use their position of trust and confidence to further their private interests." In re Greater Southeast Community Hospital Corp., 353 B.R. 324, 344 (Bankr. D.C.C. 2006) (internal quotation marks and citation omitted) (applying Delaware law). "Instead, the best interest of the corporation and its shareholders [must] take precedence over any interest possessed by a director, officer[,] or controlling shareholder and not shared by the shareholders generally." citation omitted). Id. (internal quotation marks and The court will

"For that reason, Delaware law distinguishes Id. (internal

between the duty of loyalty and the duty of care." quotation marks and citation omitted).

"[C]lassic example[s]" of breaches of the duty of loyalty are "when a fiduciary either appears on both sides of a transaction or receives a personal benefit not shared by all shareholders." (internal quotation marks and citation omitted). Id.

However, "the

fiduciary duty of loyalty is not limited to cases involving a financial or other cognizable fiduciary conflict of interest." Stone, 911 A.2d at 370(emphasis added); see also In re Walt Disney Company Derivative Litigation, 906 A.2d 27, 66 (Del. 2006) ("[T]he universe of fiduciary misconduct is not limited to either disloyalty in the classic sense (i.e., preferring the adverse self interest of the fiduciary or of a related person to the interest of the corporation) or gross negligence.") The duty of loyalty is not

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Disney: Cases have arisen where corporate directors have no conflicting self-interest in a decision, yet engage in misconduct that is more culpable than simple inattention or failure to be informed of all facts material to the decision. To protect the interests of the corporation and its shareholders, fiduciary conduct of this kind, which does not involve disloyalty (as traditionally defined)but is qualitatively more culpable than gross negligence, should be proscribed. Disney, 906 A.2d at 66. The "doctrinal vehicle" to address "such Id. Thus, the

violations . . . is the duty to act in good faith."

duty of loyalty "also encompasses cases where the fiduciary fails to act in good faith." Stone, 911 A.2d at 370. The rationale, as

set forth by the Stone Court is that "[a] director cannot act loyally towards the corporation unless she acts in the good faith belief that her actions are in the corporation's best interest." Id. (internal quotations and citation omitted). The Delaware Supreme Court has "identified the following examples of conduct that would establish a failure to act in good faith[,]" and in turn a breach of the duty of loyalty: 'where the fiduciary intentionally acts with a purpose other than that of advancing the best interests of the corporation, where the fiduciary acts with the intent to violate applicable positive law, or where the fiduciary intentionally fails to act in the face of a known duty to act, demonstrating a conscious disregard for his duties.' Stone, 911 A.2d at 369 (quoting Disney, 906 A.2d at 67). The

Disney Court acknowledged that "[t]here may be other examples of bad faith . . . , but these three are the most salient." 906 A.2d at 67 (footnote omitted). Basically, the GTCR Entities are taking the position that the business judgment rule presumption, discussed below, entitles them - 25 Filed 03/30/2007 Disney,

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to summary judgment on the breach of loyalty counts.

Although not

articulated in precisely this way, plaintiffs respond that they have successfully rebutted that presumption because they have shown genuine issues of material fact as to whether defendants acted in good faith. Regardless of which of the purported breaches of

loyalty is at issue, GTCR counters that "[b]ecause neither GTCR nor any of its director designees stood on both sides of a challenged transaction, and because GTCR ­ LeapSource's single largest shareholder ­ stood to gain or lose in the same way as all other shareholders did from LeapSource's success or failure, plaintiffs cannot satisfy their burden" of rebuttal. (citation omitted). After Disney, GTCR's counter-argument is unavailing. A breach Reply (doc. 449) at 13

of loyalty claim is not dependent upon a showing of self-dealing or a showing that a fiduciary "received a personal benefit not shared by all shareholders." See Greater Southeast Community Hospital,

353 B.R. at 344 (internal quotation marks and citation omitted). Disney leaves no room for doubt; it is possible under Delaware law to find a lack of good faith, and in turn a violation of the duty of loyalty, even outside the "classic" breach of loyalty situations just described. Therefore, the court will turn to the remaining -- whether plaintiffs have successfully

and critical issue

rebutted the business judgment rule with respect to each of the alleged breaches of loyalty. Before engaging in such an analysis,

however, it is necessary to define the contours of that rule, which at times is easier stated than applied. 1. Business Judgment Rule

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judgment rule entitles them to summary judgment as to the fiduciary duty counts. The business judgment rule is "[t]he default

standard" of judicial review "[w]hen directors are subjected to litigation for breach of the duties owed a corporation or, by virtue of insolvency, its creditors[.]" Growe v. Bedard, 2004 WL 2677216, at *8 (D.Me. Nov. 23, 2004) (applying Delaware law). The

business judgment "rule" actually "'is a presumption that in making a business decision the directors [and officers] of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interest of the company [and its shareholders].'" Greater Southeast Community Hospital, 353

B.R. at 343 n. 26 (quoting, inter alia, Emerald Partners v. Berlin, 787 A.2d 85 90 (Del. 2001)). As with most rules of law, there are First, it does not apply

exceptions to the business judgment rule.

if "directors . . . appear on both sides of a transaction [] or expect to derive any personal financial benefit from it in the sense of self-dealing, as opposed to a benefit which devolves upon the corporation or all stockholders generally." Aronson v. Lewis,

473 A.2d 805, 812 (Del. 1984) (citations omitted), overruled on other grounds, Brehm v. Eisner, 746 A.2d 244 (Del. 2000). Second, as its name indicates, the business judgment rule only applies where a judgment has been made. "Technically speaking, it

has no role where directors have either abdicated their functions, or absent a conscious decision, failed to act." (footnote omitted). Id. at 813

By the same token though, "a conscious

decision to refrain from acting may . . . be a valid exercise of business judgment and enjoy the protections of the rule." Id.

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the business judgment rule will not shield a director from liability if that director did not act in good faith. See Grobow

v. Perot, 539 A.2d 180, 187 (Del. 1988)(citations omitted) ("[G]ood faith and the absence of self-dealing are threshold requirements for invoking the [business judgment] rule."), overruled on other grounds, Brehm, 746 A.2d 244. The business judgment rule has both a procedural and a substantive component. "As a procedural rule, the business

judgment presumption is a rule of evidence that places the initial burden of proof on the plaintiff." Emerald Partners, 787 A.2d at

90 (internal quotation marks and footnote omitted) (emphasis added). "To rebut the rule, a plaintiff must provide evidence that

the directors, in reaching a challenged decision, breached their fiduciary duties to the corporation or its shareholders." 2004 WL 2677216, at *8 (citing Cede, 634 A.2d at 361). Growe,

"Among the

kind of evidence that may suffice to rebut the business judgment rule is evidence that the defendant directors abdicated their duties." Id. (citing, inter alia, Cede, 634 A.2d at 363). Because

the business judgment rule is a "powerful presumption," Cede, 634 A.2d at 361, it can only be "rebutted in those rare cases where the decision under attack is so far beyond the bounds of reasonable judgment that it seems essentially inexplicable on any ground other than bad faith." Parnes v. Bally Entertainment Corp., 722 A.2d

1243, 1246 (Del. 1999) (internal quotations and citation omitted) (emphasis added). "The Delaware Supreme Court has defined 'bad faith' as 'not simply bad judgement or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral - 28 Filed 03/30/2007

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obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.'" Roselink Investors, L.L.C. v. Shenkman, 386 F.Supp.2d 209, 221 (S.D.N.Y. 2004) (quoting Desert

Equities, Inc. v. Morgan Stanley Leveraged Equity Fund, II, L.P., 624 A.2d 1199, 1208 n. 16 (Del. 1993)). A presumption of good

faith may be created by "the absence of significant financial adverse interest . . ., although the good faith requirement further demands an ad hoc determination of the board's motives in making the business decision." omitted). Id. (internal quotation marks and citation

Stated somewhat differently, "[i]rrationality is the Brehm, 746 A.2d at

outer limit of the business judgment rule." 264.

"Irrationality may be the functional equivalent of the waste

test or it may tend to show that the decision is not made in good faith, which is a key ingredient of the business judgment rule." Id. (footnote omitted). "If a shareholder plaintiff fails to meet this [initial] evidentiary burden, the business judgment rule operates to provide substantive protection for the directors and for the decisions that they have made." omitted). Emerald Partners, 787 A.2d at 91 (footnote "'rule

As the foregoing shows, the business judgment

posits a powerful presumption in favor of actions taken by the director [and officers] in that a decision made by a loyal and informed board [and the corporation's officers] will not be overturned by the courts unless it cannot be 'attributed to any rational business purpose.''" Greater Southeast Community Hospital, 353 B.R. at 343 n. 26 (quoting Cede, 634 A.2d at 361) (emphasis added). Or, as this court succinctly observed in its September 30, - 29 Filed 03/30/2007

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2003 dismissal order: The business judgment "presumption is a hurdle that must be cleared before a court will second-guess the corporate decisionmaking of officers and directors." 72) at 43. Mann I (doc.

"Thus, directors' decisions will be respected by courts

unless the directors are interested or lack independence relative to the decision, do not act in good faith, act in a manner that cannot be attributed to a rational business purpose or reach their decision by a grossly negligent process that includes the failure to consider all material facts reasonably available." Brehm, 746

A.2d at 264 n. 66. As the foregoing demonstrates, "[o]vercoming the presumptions of the business judgment rule on the merits is a near Herculean task." In re: Tower Air, Inc., 416 F.3d 229, 238 (3d

Cir. 2005) (applying Delaware law). On the other hand, "[i]f the presumption of the business judgment rule is rebutted, . . . , the burden shifts to the director defendants to prove to the trier of fact that the challenged transaction was 'entirely fair' to the shareholder plaintiff." Emerald Partners, 787 A.2d at 91 (internal quotation This "[b]urden shifting does not

marks and footnote omitted).

create per se liability[.]" Cinerama Inc. v. Technicolor, Inc., 663 A.2d 1156, 1162 (Del. 1995)(citation omitted). "Rather, it is a

procedure by which Delaware courts of equity determine under what standard of review director liability is to be judged." (internal quotation marks and citation omitted). Id.

A logical

corollary of the foregoing is that in the context of a summary judgment motion such as this, if the plaintiffs do not successfully rebut the business judgment rule, which includes rebutting the presumption of good faith, summary judgment should be granted. - 30 Filed 03/30/2007 See

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McGowan v. Ferro, 859 A.2d 1012, 1030-32 (Del.Ch. 2004) (granting summary judgment to defendant directors who approved an extension of a merger agreement where plaintiff did not "raise a genuine issue of material fact on the issue of bad faith"), aff'd without pub'd opinion, 873 A.2d 1099 (Del. 2005); see also Gaylord Container, 753 A.2d at 487 (granting summary judgment in favor of defendant directors where "plaintiffs . . . failed to produce evidence creating a genuine issue of material fact regarding whether the board's actions [were] entitled to the protection of the business judgment rule[]"). With these principles firmly in

mind the court will next examine each of the acts supposedly constituting breaches of the duty of loyalty. 2. "Funding Cutoff"

One way in which the GTCR VI Entities allegedly breached the duty of loyalty is by "deciding to cease further purchases of LeapSource preferred stock." See Mot. (doc. 347) at 17. The

Entities maintain that in making that decision they were simply exercising their contractual rights under the September 27, 1999, Purchase Agreement with LeapSource. More specifically, the

Entities point to that part of the Agreement identifying three conditions to their stock purchase obligations thereunder: [GTCR's] obligation to purchase any stock of . . . [LeapSource] . . . will be conditioned on [LeapSource's] [1] not being in default under any of its material agreements, [2] adequate debt financing being available to fund any proposed acquisition or other Approved Use on terms satisfactory to . . . [GTCR], and [3] . . . [LeapSource's] operations and the acquisition or other use of proceeds being satisfactory to [GTCR]. Doc. 345, Vol. 2, exh. 21 thereto at EX0833-002 (brackets, numbers and emphasis added). By its terms, the third condition in - 31 Filed 03/30/2007

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particular gave the GTCR VI Entities considerable leeway in deciding whether or not to purchase LeapSource stock. The Entities

did not have to continue funding LeapSource through stock purchases unless LeapSource's "operations" were "satisfactory" to them. Adding to the GTCR VI Entities' discretion in this respect is the fact that the Purchase Agreement does not define either "operations" or "satisfactory." expansive. In Mann I this court held that that language was "not Obviously both terms are fairly

ambiguous[]" because there was "no doubt whatsoever that the agreement provides for a conditional obligation on the part of the GTCR entities to finance" LeapSource. Mann I (doc. 72) at 8 and 6.

If any one of those conditions was not satisfied, the Entities did not have an obligation to provide additional funding to LeapSource. Furthermore, this court in Mann I explicitly "note[d] that the Purchase Agreement governs the duty of any shareholder to purchase Id. at 52 (emphasis added). It is

stock in LeapSource."

undisputed that GTCR was LeapSource shareholder in that it "owned approximately 70% of LeapSource's common stock and 100% of its preferred stock." DSOF (doc. 348) at 6, ¶ 30 (citations omitted);

see also PSOAF (doc. 417, pt.2) at 12, ¶ 30. In addition to that broad discretion as to funding, the Purchase Agreement gave the GTCR VI Entities a fair amount of latitude in terms of investigating and inspecting LeapSource operations. In particular, that Agreement required LeapSource to

"permit any representatives designated" by the GTCR VI Entities to "visit and inspect any" LeapSource property. Doc. 345, vol. 2,

exh. 21 thereto at EX0083-006 at ¶ 3B.

The GTCR VI Entities also

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had the express right under the Purchase Agreement to "examine the corporate and financial records" of LeapSource, and to "discuss the affairs, finances and accounts of [LeapSource] corporations with the directors, officers, key employees and independent accountants of . . . [LeapSource][.]" Id. There is proof in the record that "GTCR's concerns regarding LeapSource's performance, including cash burn rate and its ability to generate revenue and control costs, escalated during the latter half of 2000." See DSOF(doc. 348) at 9, ¶ 57 (citing references). "to the extent that it

Plaintiffs do not dispute this fact, except

is implied that these concerns were discussed among LeapSource board members[.]" PSOAF (doc. 417, pt.2) at 34, § VI, ¶ 57. Whether these concerns were discussed among LeapSource board members is irrelevant and not material at this point given the unilateral and conditional nature of the GTCR VI Entities' funding obligations under the Purchase Agreement. Hence this claimed

"factual dispute" does not factor into the court's analysis at this juncture. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (citation

omitted) ("Factual disputes that are irrelevant or unnecessary will not be counted[]" in opposing a summary judgment motion.) In any event, based upon the GTCR VI Entities' escalating concerns as to, among other things, LeapSource's financial condition, the Entities exercised their rights under the Purchase Agreement by designating defendant Yih and Sean Cunningham, two GTCR employees, "to investigate [those] concerns." DSOF (doc. 348)

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at 9, ¶ 58 (citations omitted).14

Messrs. Yih and Cunningham were While

on site at LeapSource in December 2000 and January 2001.

there, they "interviewed management, [and] reviewed data[,]" including financial data. omitted). DSOF (doc. 348) at 9, ¶ 59 (citations

Based partially upon that investigation, in a February

27, 2001 letter the GTCR Entities advised LeapSource of its decision to stop funding, explicitly indicating its

"dissatis[faction]" with "[t]he continued level of expenses incurred by [LeapSource] which greatly exceed [LeapSource's] revenues, resulting in continuing negative cash flows." Id.

As the foregoing demonstrates, the GTCR VI Entities' concerns about LeapSource's strained financial condition, together with the considerable leeway they had under the Purchase Agreement in terms of their stock purchase obligations, provided more than adequate justification for their decision to discontinue funding LeapSource in February 2001. Against this backdrop plaintiffs are attempting to rebut the business judgment rule presumption. Plaintiff's refer to a

February 24, 2001, "confidential memorandum" from plaintiff Gilman to LeapSource board members, which evidently they believe shows that the GTCR VI Entities did not act in good faith in deciding to discontinue funding LeapSource. They also cite to seven paragraphs This

in their SOAF which purports to summarize this memorandum. "proof" is defective in at least two ways.

First, plaintiff's

memorandum did not include a cite to the record so that the Gilman

Plaintiffs counter that Yih and Cunningham were not sent "merely to 'investigate GTCR's concerns[.]'" PSOAF (doc. 417, pt. 2) at 35, ¶ 58. Importantly, they do not dispute that that was at least one reason for Yih and Cunningham's visits to LeapSource in late 2000 and January 2001, however.

14

Case 2:02-cv-02099-RCB

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- 34 Filed 03/30/2007

Page 34 of 76

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memorandum, which is the sole factual basis for plaintiffs' opposition to this aspect of defendants' summary judgment motion, could be located in this vast record.15 The second and more significant weakness in plaintiffs' proof is the form in which it was submitted. The paragraphs to which

plaintiffs cite in their SOAF do not "set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." See Horphag, 475 F.3d at 1035

(internal quotation marks and citations omitted) (emphasis added). Instead, those paragraphs appear to be broad gener