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Full Opinion
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
AMALGAMATED BANK, Trustee for the )
LongView LargeCap 500 Index Fund and )
LongView LargeCap 500 Index VEBA )
Fund, )
)
Plaintiff, )
)
v. ) C.A. No. 10774-VCL
)
YAHOO! INC., )
)
Defendant. )
OPINION
Date Submitted: November 5, 2015
Date Decided: February 2, 2016
Christine S. Azar, Ryan T. Keating, LABATON SUCHAROW LLP, Wilmington,
Delaware; Thomas A. Dubbs, James W. Johnson, LABATON SUCHAROW LLP, New
York, New York; Counsel for Plaintiff Amalgamated Bank.
Kathaleen S. McCormick, Richard J. Thomas, YOUNG CONAWAY STARGATT &
TAYLOR, LLP, Wilmington, Delaware; Mark R.S. Foster, Su-Han Wang, MORRISON
& FOERSTER LLP, San Francisco, California; Counsel for Defendant Yahoo! Inc.
LASTER, Vice Chancellor.
Plaintiff Amalgamated Bank (âAmalgamatedâ) demanded to inspect the books and
records of respondent Yahoo! Inc. pursuant to Section 220 of the Delaware General
Corporation Law, 8 Del. C. § 220. Amalgamatedâs stated purpose was to investigate the
hiring and subsequent firing of Yahooâs Chief Operating Officer, Henrique de Castro.
This post-trial decision orders a tailored production of some of the documents identified
in the demand. The production is subject to a condition: The resulting documents will be
deemed incorporated by reference in any derivative complaint that Amalgamated may
file relating to the subject matter of the demand.
I. FACTUAL BACKGROUND
A trial on a paper record took place on September 29, 2015. The following facts
were proven by a preponderance of the evidence.
A. Change At Yahoo
2012 was a big year for Yahoo. Ten of the eleven members of the board of
directors (the âBoardâ) joined that year. The Board also reconstituted its Compensation
and Leadership Development Committee (the âCommitteeâ), comprising directors
Maynard Webb, Sue James, Peter Ligouri, and Harry Wilson. Webb served as chair.
Change was afoot at the executive level as well. In July 2012, the Board hired
Marissa Mayer as Yahooâs new CEO. Mayer previously worked at Google, Inc. as Vice
President of Local, Maps, and Location Services.
Soon after taking over as CEO, Mayer received an email from Henrique de Castro.
He was serving at Google as President of Media, Mobile, and Platforms. de Castro
invited Mayer to dinner.
1
During dinner, de Castro expressed interest in serving as Mayerâs number two
executive at Yahoo. Mayer liked the idea, and she and de Castro began discussing his
compensation package.
On September 12, 2012, the Committee held a special meeting. According to the
minutes, Mayer raised the fact that she âwas in discussions with a person to take the
number two role.â JX 5 at 1. The purpose of the meeting was to give Mayer âguidance on
potential compensation parametersâ to determine whether âit was feasible to have further
discussions with the candidate.â Id. She did not identify de Castro by name or state his
current job or title, citing confidentiality concerns. She did tell the Committee that the
candidate âwould require a significant compensation packageâ given his talents and the
money he would forfeit by leaving his existing employer. Id. Mayer described the
candidateâs expected compensation package as â$15 million per year (with $40 million as
part of that up front in a four-year grant) and a $16 million or more make-whole
payment.â Id.
George B. Paulin of Frederic W. Cook & Co. was the Committeeâs compensation
consultant. Paulin advised the Committee that the proposed compensation was âgenerally
more than the data supported for a number two executive in peer companies.â Id. at 2. He
nevertheless opined that âregardless of the data, the Compensation Committee could
justify this compensation,â even though he still did not know the candidateâs name. Id.
The Committee authorized Mayer to continue negotiations âsubject to Committee review
of the actual contract.â Id.
2
On September 23, 2012, the Committee met again. Mayer provided the Committee
members with a term sheet summarizing the candidateâs compensation package. The
Committee still did not know the name of the candidate. Mayer emphasized the
candidateâs expertise in the display-ad market, which Mayer identified as an important
area for Yahoo. The Committee authorized Mayer to continue negotiations. The
Committee did not receive any materials that illustrated how the different compensation
components in the term sheet interacted or how much compensation they would yield
under different scenarios.
On September 24, 2012, the Committee met for a total of thirty minutes. During
this meeting, the members finally learned that the candidate was de Castro. Mayer
presented the Committee members with a letter offering de Castro the positions of Chief
Operating Officer and Executive Vice President. JX 9 (the âOriginal Offer Letterâ). The
terms of the Original Offer Letter tracked the term sheet that the Committee had reviewed
the previous day. The Committee again did not receive any materials that illustrated the
complex interrelationships among the various compensation components or the amount
of compensation they generate in particular scenarios.
The Committee approved the Original Offer Letter and gave Mayer authority to
continue negotiating with de Castro. The Committee authorized Webb to approve any
non-material changes to the Original Offer Letter. The Committee retained control over
any âmaterial changes,â specifying that they would be âsubject to approval by the full
Committee.â Id. at 3.
3
The Original Offer Letter contemplated that de Castro would receive the following
forms of cash compensation:
ďˇ Base salary of $600,000.
ďˇ Annual bonus with a target value equal to 90% of base salary.
ďˇ Signing bonus of $1 million.
Id. at 1-2. In addition, the Original Offer Letter contemplated that de Castro would
receive three different types of equity compensation (collectively, the âEquity Awardsâ).
Each type of award had a target value and its own vesting schedule:
ďˇ The Incentive Restricted Stock Units (the âIncentive RSUsâ) had a target value of
$20 million. The first 25% of the Incentive RSUs would vest on November 23,
2013. The remaining 75% would vest monthly in 36 equal installments over a
three-year period, with 1/36 vesting one month after November 23, 2013, and each
month thereafter.
ďˇ The Performance Stock Options (the âOptionsâ) had a target value of $20 million
They were divided into four equal tranches with vesting dates of July 26, 2013,
January 26, 2014, January 26, 2015, and January 26, 2016. This meant the first
two tranches would vest in a little over a year, one approximately six months after
de Castro would start at Yahoo and another six months after that. The next tranche
would not vest for another year, after two years of service. The final tranche would
vest a year after that, after three years of service.
ďˇ The Make-Whole Restricted Stock Units (the âMake-Whole RSUsâ) had a target
value of $16 million. Beginning on December 23, 2012, they would vest equally in
48 monthly installments over a four-year period, with 1/48th vesting one month
after the grant date and each month thereafter.
Id. at 3-6. The total target value of the Equity Awards was $56 million.
The Original Offer Letter contemplated two possible types of terminations: with
cause and without cause. It detailed what de Castro would receive in each scenario.
4
If the termination was with cause, then de Castro would forfeit all of his unvested
Equity Awards. The Original Offer Letter defined âCauseâ as follows:
[T]ermination of your employment with the Company based upon the
occurrence of one or more of the following . . . .
(1) your refusal or material failure to perform your job duties and
responsibilities (other than by reason of your serious physical or mental
illness, injury, or medical condition),
(2) your failure or refusal to comply in any material respect with material
Company policies or lawful directives of the Companyâs Chief Executive
Officer,
(3) your material breach of any contract or agreement between you and the
Company (including but not limited to this letter agreement and any
Employee Confidentiality and Assignment of Inventions Agreement or
similar agreement between you and the Company), or your material breach
of any statutory duty, fiduciary duty or any other obligation that you owe to
the Company,
(4) your commission of an act of fraud, theft, embezzlement or other
unlawful act against the Company or involving its property or assets,
(5) your engaging in unprofessional, unethical or other intentional acts that
materially discredit the Company or are materially detrimental to the
reputation, character or standing of the Company . . . ,
(6) your indictment or conviction or plea of nolo contendere or guilty plea
with respect to any felony or crime of moral turpitude, or
(7) providing the Company with any knowingly false information regarding
your current health condition, work experience or educational
qualification . . . .
Id. at 19 (formatting into separate paragraphs added).
If the termination was without cause, then de Castro would keep all of the Equity
Awards that had vested through his termination date, plus a portion of his unvested
Equity Awards that would vest on an accelerated basis. The provisions of the Original
5
Offer Letter that governed the accelerated vesting were complex and differed for each
type of Equity Award, so they take some time to describe.1
At a conceptual level, the provisions established a total number of Equity Awards
that could vest, then cut back that amount based on a specified percentage. The terms for
the accelerated vesting of the Incentive RSUs and the Options were less favorable to de
Castro than the accelerated vesting for the Make-Whole RSUs, both in terms of the total
number of awards that potentially could vest and the calculation of the cutback.
For purposes of the Incentive RSUs and the Options, the total potential number of
awards that could vest on an accelerated basis was limited to the number âwhich would
have vested in the six months following termination of employmentâ if the employee
1
Scholars have questioned whether the increasing complexity of management
compensation arrangements has contributed to the overall increase in management
compensation, noting that (i) it is difficult and time-consuming to understand the various
component parts and how they operate, and (ii) directors lack the time and arguably the expertise
to parse through the agreements and map out the different scenarios. See, e.g., Lucian Bebchuk
& Jesse Fried, Pay Without Performance: The Unfulfilled Promise of Executive Compensation
37 (2004) (explaining that the complexity of compensation arrangements and the limited time
that directors have leads them to âto rely on information and advice provided by the firmâs
human resources department and by compensation consultants hired by the departmentâ); David
I. Walker, The Managerâs Share, 47 Wm. & Mary L. Rev. 587, 597 (2005) (â[T]he increasing
complexity and opacity of executive compensation over the last two decades has contributed
directly to the overall increase in managerial appropriation.â); see also Bernice Grant,
Independent Yet Captured: Compensation Committee Independence After Dodd-Frank, 65
Hastings L.J. 761, 788-97 (2014) (recommending continuing professional education
requirements for compensation committee members to respond to complexity and sophistication
of compensation arrangements and related regulatory environment); David I. Walker, Evolving
Executive Equity Compensation and the Limits of Optimal Contracting, 64 Vand. L. Rev. 611,
655-56 (2011) (citing possible reasons for âthe trimodal distribution of equity mix in recent
years,â including the possibility that âgrants of multiple equity instruments could represent an
effort to reduce transparency and the salience of individual elements of executive pay,â and that
âperhaps consultants profit from proposing more complex arrangementsâ).
6
remained employed and met all required criteria (the âSix-Month Tailâ). JX 9 at 8.
Because the Incentive RSUs and the Options had different vesting schedules, the Six-
Month Tail operated differently for those types of awards.
For the Incentive RSUs, an initial slug of twenty-five percent of the awards vested
on November 23, 2013, one year and eleven days after the start of de Castroâs
employment. The Six-Month Tail meant that the accelerated vesting of the Incentive
RSUs could result in either another 25% vesting or nothing, depending on de Castroâs
termination date. If he was terminated more than six months before November 23, 2013,
then the Six-Month Tail would not pick up his initial 25% tranche. If he was terminated
less than six months before November 23, 2013, then it would. The Six-Month Tail only
had this binary effect for the initial 25% tranche. After the first slug, additional Incentive
RSUs vested monthly in equal installments. If de Castro was terminated without cause
after the first year, then the Six-Month Tail would sweep in another 12.5% of the total
Incentive RSUs.2
For the Options, the vesting schedule contemplated four equal tranches. The first
tranche vested a little more than six months after de Castro started working at Yahoo, and
the next would vest approximately six months after that. Then the remaining two tranches
would vest annually. Depending on when the termination took place, the Six-Month Tail
2
The description in the text ignores a termination during the last six months of the
employment period, when the number of units covered by the Six-Month Tail would decline
proportionately with the number of months of employment that de Castro had left.
7
(i) would sweep in another tranche, if another vesting date would have occurred in the
next six months, or (ii) produce nothing, if another vesting date was more than six
months away. This meant the Six-Month Tail had a binary effect for the first, third, and
fourth tranches.
The Six-Month Tail established the number of Incentive RSUs and Options that
were eligible for accelerated vesting (the âEligible Poolâ). To determine the number of
awards that actually vested, the Original Offer Letter called for multiplying the Incentive
RSUs and Options in the Eligible Pool by a âSpecified Percentage.â This figure varied
depending on how long de Castro had been with Yahoo: (i) 25% for a termination before
November 23, 2013, (ii) 50% for a termination after November 23, 2013, and before
November 23, 2014, (iii) 75% for a termination after November 23, 2014, and before
November 23, 2015, and (iv) 100% for a termination after that.
The Make-Whole RSUs worked differently. First, they were not subject to the Six-
Month Tail. All of the Make-Whole RSUs were part of the Eligible Pool. Second, the
cutback percentage for the Make-Whole RSUs increased at a rate more favorable to de
Castro than for the Incentive RSUs and Options: (i) 50% for a termination before
November 23, 2013, (ii) 75% for a termination after November 23, 2013, and before
November 23, 2014, (iii) 100% for a termination after that.
The compensation implications of the varying vesting schedules, the Six-Month
Tail, and the Specified Percentage were not self-evident. When Mayer furnished the
Original Offer Letter to the Committee, no one provided the directors with any materials
that illustrated their consequences for different departure scenarios. Table 1 attempts to
8
illustrate the implications by identifying the specified percentage of each type of Equity
Award that the Original Offer Letter stated would accelerate and vest. It then calculates
an effective percentage of the total Equity Awards that de Castro would receive if
terminated without cause on the specified date. The table illustrates the direction and
order of magnitude of the accelerated vesting and the differences among the Equity
Awards.
For an example of how Table 1 works, consider the Make-Whole RSUs. If Yahoo
terminated de Castro on November 24, 2012, twenty-nine days before his first monthly
grant, then none of his Make-Whole RSUs would have vested due to service, leaving
100% outstanding. The Original Offer Letter provided that 50% of the remaining amount
would accelerate, so de Castro would receive the equivalent of 50% of the total grant. If
de Castro was terminated on November 24, 2013, then he would have received 25% his
Make-Whole RSUs through service, leaving 75% outstanding. The Original Offer Letter
provided that 75% of the outstanding Make-Whole RSUs would accelerate, giving him
an additional 56.25%. In total, de Castro would receive 81.25% of the grant. If de Castro
was terminated on November 24, 2014, then he would have received 50% his Make-
Whole RSUs through service, leaving 50% outstanding. The Original Offer Letter
provided that 100% of those outstanding Make-Whole RSUs would accelerate, giving
him an additional 50% of the all-in award. In total, de Castro would receive 100% of the
grant. Footnotes to Table 1 explain the calculations for other cells.
9
Table 1 Make-Whole RSUs Incentive RSUs and Options
Termination % Of Effective % Specified % Of Effective % Of Effective % Of
Date Remaining Of Total Remaining Total Incentive Total Options
Awards To Received Awards To RSUs Received Received
Accelerate Accelerate
November
24, 2012
50% 50% 25% 0%3 0%4
November
24, 2013
75% 81.25% 50% 31.25%5 37.5%6
November
24, 2014
100% 100% 75% 59.375%7 68.75%8
November
24, 2015
100% 100% 100% 87.5%9 100%10
3
0% already vested. Because the first tranche of Incentive RSUs would not vest until
November 23, 2013, the Six-Month Tail would not capture any Incentive RSUs.
4
0% already vested. Because the first tranche of Options would not vest until July 26,
2013, the Six-Month Tail would not capture any Options.
5
25% already vested (viz., the 25% that would vest on November 23, 2013). The Six-
Month Tail captures another six monthly grants, creating an Eligible Pool of 12.5%. The
Specified Percentage causes 50% of that to vest, or 6.25%.
6
25% already vested (viz., the 25% slug that would vest on July 26, 2013). The Six-
Month Tail captures the next 25% tranche of Options, which would vest on January 26, 2014.
The Specified Percentage causes 50% of that to vest, or 12.5%.
7
50% already vested. The Six-Month Tail captures six monthly grants, creating an
Eligible Pool of 12.5%. The Specified Percentage causes 75% of that to vest, or 9.375%.
8
50% already vested. The Six-Month Tail captures the next tranche of Options, which
would vest on January 26, 2015. The Specified Percentage causes 75% of that to vest, or
18.75%.
9
75% already vested. The Six-Month Tail captures six monthly grants, creating an
Eligible Pool of 12.5%. The Specified Percentage causes 100% of that to vest, or 12.5%.
10
75% already vested. The Six-Month Tail captures the final tranche of Options, which
would vest on January 26, 2016. The Specified Percentage causes 100% of that to vest, so de
Castro would get the full 25%.
10
The Committee did not have anything like Table 1, much less a helpful graph that
would show the individual and aggregate effects of the Equity Awards over time. The
Committee members only received a copy of the Original Offer Letter, and they spent a
total of thirty minutes considering it.
After the Committee meeting, the full Board met âto review and discuss the
appointment of Henrique de Castro as the Companyâs Chief Operating Officer.â JX 10 at
1. Like the Committee, the Board received a copy of the Original Offer Letter. The Board
did not receive any other materials. According to the minutes,
Ms. Mayer described Mr. de Castroâs background, including his current
work role as President of worldwide business partnerships at Google, and
also described potential visa issues related to his Portuguese citizenship.
Mr. Mayer indicated that Mr. de Castro has a strong reputation for ethics
and integrity, and has deep insights into the display ad market. Questions
were asked and answered regarding, among other things, potential issues
with Mr. de Castroâs non-solicitation agreement with his current employer.
A discussion followed.
Id. at 1-2.
Mayer then turned to Michael S. Sirkin of Proskauer Rose LLP, counsel to the
Committee, and Webb, the Chair of the Committee.
Mr. Sirkin summarized the major terms of the offer to Mr. de Castro, which
currently includes $1 million in annual salary, a $4 million âmakeupâ
equity grant, $5 million in time-based RSUs and $5 million in performance-
based options. He also noted that there were some outstanding issues
regarding the economics of the offer and certain restrictive covenants. Mr.
Webb reported that the [Committee] had approved the current terms of the
offer, and had delegated to him authorization [to] work with management
on finalizing certain outstanding issues in the offer.
Id. at 2. The description the Board received did not capture the implications of
accelerated vesting for various termination scenarios.
11
At this point, Yahooâs general counsel âreviewed the resolutions previously
distributed to the Board in advance of the meeting.â Id. The resolutions approved the
concept of hiring de Castro âon substantially the terms presented to the Board.â Id. at 3.
They also authorized Yahooâs officers âto execute and deliver the [Original] Offer Letter
substantially in the form attached hereto . . . with such administrative or non-material
changes to the [Original] Offer Letter as such officers, in conjunction with Maynard
Webb, chair of the Compensation Committee, may deem necessary or appropriate.â Id.
The Board approved the resolutions.
C. The Committee Eliminates The âSpecified Percentageâ Concept.
de Castro was not happy with the Original Offer Letter. He wanted accelerated
vesting for a larger number of Incentive RSUs and Options if he was terminated without
cause. The Original Offer Letter used the Six-Month Tail to determine the Eligible Pool.
de Castro wanted the tail period extended to twelve months (the âTwelve-Month Tailâ),
and he did not want the number of additional awards that vested during the tail period to
be cut back by the Specified Percentage.
On October 13, 2012, the Committee met to receive a report on the status of the
negotiations with de Castro. Counsel noted that the Committee âhad previously approved
proposed terms of employment . . . and had delegated to Mr. Webb authority to approve
changes [to] such terms, with the understanding that any material changes would be
presented to the Committee for approval.â JX 12 at 1-2. At this point, Mayer described
what the Committee ostensibly had approved previously, but she incorrectly described
â[t]he terms previously approved by the Committeeâ as having âprovided for 12-months
12
acceleration of a âSpecified Percentage.ââ Id. at 2. In other words, she represented to the
Committee that the Original Offer Letter already contained a Twelve-Month Tail.
Mayer framed the issue for the Committee to decide as whether the concept of the
Specified Percentage should be removed. Mayer represented to the Committee that âthe
Candidate had understood that he would receive 12 months acceleration of all equity,
regardless of when the termination event occurred.â Id. at 2.
The Committee discussed the issue as Mayer had framed it, viz., eliminating the
Specified Percentage based on the incorrect assumption that the Committee already had
approved a Twelve-Month Tail. During the discussion,
it was noted that the Candidate was a very important executive hire, as
reflected in his generous compensation package. Mr. Paulin described a
worst case scenario that might arise as a consequence of making the
requested changes to the employment terms: specifically, that an early
termination in the first year would trigger a very large payout to the
Candidate. Mr. Paulin noted that it is likely that the large potential payout
to the Candidate, as well as the general size of the contract, already would
attract negative reaction from proxy advisors, and that the increased amount
would just add to that unless the Company stock has significantly increased
in price by the time of the proxy vote.
Id. at 2-3.
The Committee did not receive any materials that attempted to quantify the effect
of the changes or illustrate how they altered the compensation payouts under different
scenarios. There is no evidence that anyone addressed the magnitude of the change,
whether based on the incorrect assumption that the baseline was a Twelve-Month Tail or
the actuality that the baseline was the Six-Month Tail.
13
Mayer expressed her view that âwhile she believed that the payout was already
significant and was concerned about the increase, her concerns was [sic] less in the
termination without cause scenario since that will be under her and the Boardâs control.â
Id. at 3. There is no evidence that anyone examined the definition of cause in the context
of Mayerâs comment.
After further discussion, Mayer asked that the Committee âapprove removing the
concept of âSpecified Percentageâ in the event of termination without cause.â Id. âThe
Committee approved the requested changes.â Id. At no point during the meeting did
anyone discuss changing the vesting schedule for the Make-Whole RSUs.
D. Mayer Makes More Changes To The Offer Letter.
After the Committee meeting, Mayer prepared a final version of the offer letter,
which she provided to de Castro. JX 13 (the âFinal Offer Letterâ). She made at least three
changes that materially increased de Castroâs compensation package.
The first change increased the tail period from six months to twelve months, which
doubled the effective percentages of the Incentive RSUs and Options that de Castro
would receive if terminated without cause. The Twelve-Month Tail was not something
the Committee ever approved. Mayer incorrectly represented to the Committee that the
Original Offer Letter already had a Twelve-Month Tail, so the Committee never
evaluated it.
Second, Mayer eliminated the Specified Percentage for the Incentive RSUs and
Options. That was consistent with what the Committee had approved, albeit based on a
misunderstanding about the existing tail period.
14
Third, Mayer eliminated the time-weighted schedule for accelerated vesting for
the Make-Whole RSUs. She provided instead that 100% of the grant would accelerate if
Yahoo terminated de Castro without cause. This last change was never discussed with the
Committee, much less approved.
Table 2 compares the effective percentages of Equity Awards that de Castro would
receive using the accelerated vesting as structured in the Original Offer Letter (as shown
in Table 1) with the effective percentages using the accelerated vesting as structured in
the Final Offer Letter. As with Table 1, it uses hypothetical termination dates to illustrate
the direction and magnitude of the changes.
15
Table 2 Make-Whole RSUs Incentive RSUs Options
Termination Original Final Original Final11 Original Final
Date
November
24, 2012
50% 100% 0% 25% 0% 25%12
November
24, 2013
81.25% 100% 31.25% 50% 37.5% 50%13
November
24, 2014
100% 100% 59.375% 75% 68.75% 75%14
November
24, 2015
100% 100% 87.5% 100% 100% 100%15
As the table shows, Mayerâs changes substantially increased the percentage of the Equity
Awards that de Castro would receive for an early termination.
Finally, Mayer reallocated the amount of target value conveyed through the
different types of Equity Awards. She increased the target value of the Make-Whole
RSUs from $16 million to $20 million. She simultaneously decreased the value of the
Incentive RSUs and Options from $20 million each ($40 million total) to $18 million
each ($36 million total). These changes were never discussed with the Committee, much
less approved.
Mayerâs changes did not affect the target value of the aggregate grant, which
remained at $56 million, but they did affect de Castroâs incentives and the size of his
11
The Twelve-Month Tail always captures another 25%. The percentages increase
because an additional 25% of de Castroâs Incentive RSUs vest each year through service.
12
0% vested. Twelve-Month Tail captures the initial tranche of 25%. No cut-back.
13
25% vested. Twelve-Month Tail captures the next tranche of 25%. No cut-back.
14
50% vested. Twelve-Month Tail captures the third tranche of 25%. No cut-back.
15
75% vested. Twelve-Month Tail captures the final tranche of 25%. No cut-back.
16
payout if he was terminated without cause. Because of the other changes Mayer had
made, de Castro would receive 100% of his Make-Whole RSUs if he was terminated
without cause, but only an additional twelve months of Incentive RSUs and Options.
Shifting value from the Incentive RSUs and Options to the Make-Whole RSUs benefited
de Castro by moving value into a category of Equity Award that would accelerate fully. It
also benefited de Castro because the Options had performance-vesting metrics that had to
be met, while the Make-Whole RSUs did not. The shifts worked with Mayerâs other
changes to increase substantially the value of the Equity Awards that de Castro would
receive for an early termination.
17
Table 3 compares the different categories of value conveyed to de Castro under
the Original Offer Letter versus the Final Offer Letter. The figures reflect the total value
of the vested portion of the Equity Award that de Castro would receive if terminated
without cause, including both what de Castro would have received from prior service and
the additional amounts from accelerated vesting. The calculations use the target value of
the awards and the percentages calculated in Tables 1 and 2. Amounts are in millions.
Make-Whole
Table 3 Incentive RSUs Options Total
RSUs
Termina- Original Final Original Final Original Final Original Final
tion Date ($16) ($20) ($20) ($18) ($20) ($18M) ($56M) ($56M)
November
24, 2012
$8 $20 $0 $4.5 $0 $4.5 $8 $29
November
24, 2013
$13 $20 $6.25 $9 $7.5 $9 $26.75 $38
November
24, 2014
$16 $20 $11.875 $13.5 $13.75 $13.5 $41.625 $47
November
24, 2015
$16 $20 $17.50 $18 $20 $18 $53.5 $56
18
Tables 4 compares the Original Offer Letter and the Final Offer Letter by focusing
on the amount of target compensation that de Castro would receive due to accelerated
vesting. Table 4 reflects the percentage of the Equity Awards that de Castro would
receive as severance. The calculation excludes Equity Awards that de Castro already
would have received through service as of the date of termination.
Table 4 Make-Whole RSUs Incentive RSUs Options
Termination Original Final16 Original Final17 Original Final18
Date
November
24, 2012
50% 100% 0% 25% 0% 25%
November
24, 2013
56.25% 75% 6.25% 25% 12.5% 25%
November
24, 2014
50% 50% 9.375% 25% 18.75% 25%
November
24, 2015
25% 25% 12.5% 25% 25% 25%
16
100% of the remaining percentage vests. The remaining percentage declines because
the balance has vested due to prior service as of the termination date.
17
The Twelve-Month Tail always captures another 25%.
18
For purposes of this table, the Twelve-Month Tail always captures another 25%. For a
termination between January 26, 2013, and July 26, 2013, however, the Twelve-Month Tail
would sweep in the first two tranches of options for 50% of the total grant.
19
Table 5 reflects the total dollar amounts de Castro would receive as severance. The
calculations are based on the target value of the Equity Awards and the percentages from
Table 4.
Make-Whole
Table 5 Incentive RSUs Options Total
RSUs
Termina- Original Final Original Final Original Final Original Final
tion Date ($16) ($20) ($20) ($18) ($20) ($18M) ($56M) ($56M)
November
24, 2012
$8 $20 $0 $4.5 $0 $4.5 $8 $29
November
24, 2013
$9 $15 $1.25 $4.5 $2.5 $4.5 $12.75 $24
November
24, 2014
$8 $10 $1.875 $4.5 $3.75 $4.5 $13.625 $19
November
24, 2015
$4 $5 $2.5 $4.5 $5 $4.5 $11.5 $14
Mayerâs changes thus resulted in payouts that made earlier termination without cause
dramatically more favorable to de Castro. For a termination on November 24, 2012, after
twelve days of service, her changes increased the value of his payout by $21 million, or
263%. For a termination on November 24, 2013, after one year and twelve days of
service, her changes increased the value of his payout by $11.25 million, or 94%.
The categories of Equity Awards that provided de Castro with his increased
payout each contained elements that the Committee had never approved, had approved
based on incorrect information, or both. The final terms of the Make-Whole RSUs
incorporated 100% vesting for a termination without cause and the incremental value that
Mayer reallocated. The Committee never approved either change. The final terms of the
Incentive RSUs and the Options used the Twelve-Month Tail, which the Committee
never considered because Mayer told the directors incorrectly that the Original Offer
Letter already included a Twelve-Month Tail. The final terms of the Incentive RSUs and
20
the Options also eliminated the Specified Percentage, which the Committee approved
based on the incorrect assumption that the Original Offer Letter already included the
Twelve-Month Tail. The Committee never received any calculations showing the value
of the changes, much less the aggregate effect of all of the changes.
E. Yahoo Hires De Castro.
On October 15, 2012, de Castro executed the Final Offer Letter, and Yahoo issued
a press release announcing the hiring. In the press release, Mayer cited de Castroâs
expertise in âInternet advertising and his proven success in structuring and scaling global
organizations.â JX 14 at 1.
That same day Yahoo issued a Form 8-K that attached the Final Offer Letter.
Public reception was mixed to negative. The Wall Street Journal described the
compensation package as âstaggering.â JX 16 at 1. The Business Insider ran an article
titled, âDid Marissa Mayer Just Make a Horrible Mistake? Several Ex-Googlers Think
So.â JX 17 at 1. It cited sources from Google who expressed generally negative reviews
of de Castroâs competence and personality. One source stated that âGoogle should pay
Yahoo to take him.â JX 17 at 3. Another described him as the âliterally the worst hire
ever.â Id. at 4. The sources who praised de Castro as smart and disciplined nevertheless
questioned his ability to get along with others.
F. Mayer Fires De Castro.
On November 12, 2012, de Castro started at Yahoo. His pay package for his first
year was $39.2 million, making him the eighth-highest paid executive in Silicon Valley.
21
In all of the United States, only eight CEOs of public companies earned more than $39.2
million in 2013. He even made more than Mayer.
de Castroâs responsibilities included running âsales, operations, media and
business development functions.â JX 15 at 6. Mayer expected him to boost Yahooâs
revenue by expanding the scope of its digital advertising. A key part of his job was
building relationships with big advertisers.
de Castro did not perform. In every quarter after he started, Yahooâs advertising
revenue declined. de Castro also did not get along well with Yahoo management. Within
a year of hiring him, Mayer personally took control of de Castroâs advertising team.
In January 2014, fourteen months after de Castro started as COO, Mayer decided
to fire him. The Committee approved her decision through action by written consent
dated January 12, 2014. The resolutions stated:
WHEREAS, management has discussed with the Committee the
termination without cause of the employment of Henrique de Castro, Chief
Operating Officer of the Company, effective on or about January 14, 2014,
and that in connection with such termination, Mr. de Castro will receive the
severance benefits for a termination without cause provided for in his
employment offer letter with the Company, dated October 15, 2012, his
Severance Agreement with the Company, dated February 28, 2013, and his
Company equity award agreements (collectively the âAgreementsâ);
NOW, THEREFORE, BE IT RESOLVED, that, the Committee hereby
approves the termination without cause of the employment of Henrique de
Castro and the payment of the severance benefits provided for in the
Agreements . . . .
JX 25 at 1.
The Committee did not actually meet in person or by phone. There is no evidence
of what information the Committee had, other than the vague reference in the resolution
22
to management having âdiscussed with the Committee the termination without cause.â
There is no evidence that the Committee evaluated the alternative of a for-cause
termination or was provided with a calculation of the severance benefits that de Castro
would receive.
In an internal memo to Yahoo employees, Mayer took responsibility for the firing,
stating: âI made the difficult decision that our COO, Henrique de Castro, should leave the
company.â JX 27 at 2. On January 15, 2014, Yahoo filed a Form 8-K announcing simply
that de Castro was âleaving the Companyâ and would receive âseverance benefits
provided for in his [Final] Offer Letter.â JX 29 at 3.
The media provided extensive coverage of the termination. A New York Times
article attributed de Castroâs termination to poor performance. JX 28. Another described
his pay package as âstratosphericâ â[e]ven by Silicon Valley standards.â JX 31 at 1.
Investors reacted negatively. The CtW Investment Group was an organization that
represented union pension funds owning own approximately 2 million shares of Yahoo.
CtW âcalled on Yahoo to take steps to ensure it wonât overpay for executive talent.â JX
34 at 1. CtW also called on Mayer to resign from her position as a director of Wal-Mart
Stores, Inc. and questioned Yahooâs decision to pay de Castro a make-whole bonus.
G. The Payout
On February 4, 2014, the Committee met for the first time since de Castroâs
termination. His unvested Options had performance vesting criteria that had to be met.
Based on the Companyâs performance, the Committee âcertifie[d] that the portion of the
full year 2013 tranches of the Performance Options that shall vest is: 79%.â JX 33 at 3.
23
The Committee also discussed the level of bonus that should be paid to the five members
of senior management who participated in the Executive Incentive Plan, including Mayer
and de Castro.
The Committee met again on February 27, 2014. Despite having approved de
Castroâs termination without cause via action by written consent on January 12, this
meeting was the first time the Committee discussed the reasons for his termination.
Mayer explained that âde Castro had not achieved his revenue or operational objectives,
including those with respect to advertisers. Overall he had not performed to the desired
level . . . [and] she had given him feedback on the deficiencies in his performance and he
still failed to correct or improve his performance.â JX 36 at 7. The Committee decided
not to award de Castro a bonus under the Executive Incentive Plan.
On April 16, 2014, in the proxy statement for its annual meeting, Yahoo finally
disclosed to its stockholders that de Castro had been terminated without cause, triggering
$59.96 million in severance. The payout comprised the following amounts:
ďˇ $1.14 million in cash, representing his base salary for twelve months ($600,000)
plus a target annual bonus equal to 90% of his base salary ($540,000).
ďˇ $9.62 million in value from the accelerated vesting of 238,474 Incentive RSUs,
representing the additional 25% of the remaining Incentive RSUs that would have
vested within twelve months after his termination date.
ďˇ $16.02 million in value from the accelerated vesting of Options to acquire 746,362
shares of common stock, representing 79% of the additional 25% of the remaining
Options that would have vested within twelve months after his termination date.
ďˇ $31.18 million from the accelerated vesting of 772,832 Make-Whole RSUs,
representing 100% of the original award.
24
JX 39 at 82-83. If Yahoo had terminated de Castro for cause, he would have forfeited his
unvested Equity Awards.
Based on the target value of the Equity Awards, their anticipated value for a
termination in early January 2014 was $23.58 million (versus $11.25 million under the
Original Offer Letter). Combined with his cash severance of one year base salary plus
bonus, the anticipated value of the total severance package was around $24.72 million.19
de Castroâs actual severance payout was nearly $60 million, with the difference
driven by an increase in Yahooâs stock price from $15.68 to $40.34 during the fourteen
months that he was employed. The bulk of that increase was attributable to Yahooâs
investment in Alibaba Group Holding Limited, an e-commerce company based in China.
At the 2014 annual meeting, Yahoo held its advisory say-on-pay vote. Holders of
71% of Yahooâs outstanding shares voted in favor of Yahooâs executive compensation
plan. Of the shares present or represented by proxy, 92% voted in favor.
H. Amalgamated Makes A Section 220 Demand.
Meanwhile, on February 24, 2014, Amalgamated served a demand on Yahoo for
books and records. See JX 35 (the âDemandâ). Amalgamated contended that it had a
legally recognized purpose for exploring these matters, namely the âinvestigation of
potential mismanagement, including mismanagement in connection with the payment of
19
These estimates deploy the same methodology as Tables 4 and 5. The principal
difference between a termination on November 24, 2013, and in early January 2014 is that
another month of the Make-Whole RSUs would have vested. Under the Final Offer Letter, this
reduces the amount of Make-Whole RSUs subject to accelerated vesting by 1/36, with a target
value of $416,666.
25
compensation to a corporationâs officers and directors.â Id. at 2. The Demand recited
some of the facts surrounding de Castroâs hiring and firing. Id. at 2-3. The Demand asked
for five categories of documents and provided ten illustrative subcategories that it
identified as falling under the first category. The specific requests appear and are
addressed in the Legal Analysis, infra.
On March 3, 2014, Yahoo rejected the Demand. Yahoo took the position that (i)
Amalgamatedâs documentation of its share ownership did not strictly comply with
Section 220; (ii) Amalgamated lacked authority to make the demand; (iii) the Demand
did not identify a credible basis to infer wrongdoing; and (iv) the scope of the inspection
was overly broad. Compl. Ex. B at 1-2. Yahoo agreed to âallow an appropriate inspection
of its books and records, consistent with section 220â so long as Amalgamated addressed
Yahooâs concerns and executed a confidentiality agreement. Id. at 3.
On March 13, 2014, Amalgamated provided Yahoo with additional documentation
evidencing its ownership of Yahoo stock. The documents consisted of account statements
for two of the funds for which Amalgamated served as trustee, demonstrating that the
funds held Yahoo stock from January 2012 through the date of the Demand. After that,
until this litigation was filed, Yahoo did not contest Amalgamatedâs standing to make a
Section 220 demand.
On May 14, 2014, Yahoo offered to provide Amalgamated âboard-level materialsâ
minutes and attachments, resolutions, presentations, and reportsâreflecting decisions or
discussions by the [Board] (including committees) about considering, recommending, or
approving, the appointment, compensation, severance, or termination of [de Castro].â
26
Compl. Ex. D at 1 (the âBoard-Level Materialsâ). In response, Amalgamated sought to
clarify whether the Board-Level Materials included documents that Mayer had reviewed,
but which the full Board or a committee had not reviewed. Yahoo declined to provide any
documents other than what the Board or a committee had reviewed. The record at trial
established that the Board-Level Materials did not include documents that Mayer had
reviewed, but which the full Board or a committee had not reviewed.
On August 12, 2014, Amalgamated accepted Yahooâs proposed document
production while reserving its right to file suit to compel the production of additional
documents. On September 12, 2014, Amalgamated and Yahoo entered into a
confidentiality agreement. On September 17, 2014, Yahoo produced 677 pages of
documents. The production included minutes and materials from sixteen meetings of the
Board or the Committee between September 2012 and February 2014 that related to the
hiring, compensation, or termination of de Castro. The production also contained
comparative executive compensation data, drafts of the offer letters that the directors had
considered, and the final agreements between de Castro and Yahoo. Although Yahoo had
declined to answer Amalgamatedâs question about the scope of what it considered Board-
Level Materials, the production in fact did not include documents that Mayer reviewed
that had not gone to the full Board or a committee.
On October 14, 2014, Amalgamated requested eleven more categories of
documents. Yahoo denied the request because it did not believe Amalgamated had a
credible basis to infer wrongdoing or that the new categories were necessary or essential
to its stated purpose. On March 10, 2015, Amalgamated filed this action.
27
II. LEGAL ANALYSIS
Section 220(b) of the Delaware General Corporation Law provides as follows:
Any stockholder, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the right
during the usual hours for business to inspect for any proper purpose, and to
make copies and extracts from: (1) The corporationâs stock ledger, a list of
its stockholders, and its other books and records . . . .
8 Del. C. § 220(b). âThe Section 220 demand for books and records under the Delaware
General Corporation Law serves many salutary goals in the corporate governance
landscape, but the burden on the plaintiff is not insubstantial.â Sec. First Corp. v. U.S.
Die Casting & Dev. Co., 687 A.2d 563, 565 (Del. 1997).
To obtain books and records under Section 220(b), the plaintiff must establish by a
preponderance of the evidence that the plaintiff (i) is a stockholder, (ii) complied with
statutory requirements specifying the form and manner for making a demand, and (iii)
possesses a proper purpose for conducting the inspection. Cent. Laborers Pension Fund
v. News Corp., 45 A.3d 139, 144 (Del. 2012). After meeting these requirements, the
plaintiff must demonstrate by a preponderance of the evidence that âeach category of
books and records is essentialâ to the plaintiffâs purpose. Sec. First, 687 A.2d at 569.
Once the plaintiff has made the necessary showing, the court must determine the
scope of the inspection. The order should permit access to books and records that are
âessentialâ for the plaintiff to achieve its purpose, but should stop at the quantum of
information that the court deems âsufficient.â Thomas & Betts Corp. v. Leviton Mfg. Co.,
681 A.2d 1026, 1035 (Del. 1996). The production order âmust be carefully tailored.â Sec.
First, 687 A.2d at 565. Framed metaphorically, it should be âcircumscribed with rifled
28
precisionâ to target the plaintiffâs proper purpose. Id. at 570. It should not be a sawed-off
shotgun blast.
A. The Form And Manner Requirements
If the party seeking books and records is not a record holder of the corporationâs
stock, then Section 220 requires that the demand attach prima facie evidence that the
party making the demand is either a beneficial owner or a duly empowered agent acting
on behalf of a record holder or beneficial owner. The statutory language states:
In every instance where the stockholder is other than a record holder of
stock in a stock corporation, . . . the demand under oath shall [1] state the
personâs status as a stockholder, [2] be accompanied by documentary
evidence of beneficial ownership of the stock, and [3] state that such
documentary evidence is a true and correct copy of what it purports to be.
8 Del. C. § 220(b) (enumeration added). âDelaware courts require strict adherence to the
section 220 inspection demand procedural requirements.â Cent. Laborers, 45 A.3d at
145. âStrict adherence to the section 220 procedural requirements for making an
inspection demand protects the right of the corporation to receive and consider a demand
in proper form before litigation is initiated.â Id. at 146 (quotation marks omitted).
In this case, Amalgamated satisfied the statutory requirements by (i) stating in the
Demand, under oath, that the LongView LargeCap 500 Index Fund and the LongView
LargeCap 500 Index Fund Veba (together, the âFundsâ) owned shares of Yahoo common
stock, (ii) providing documentary evidence supporting the Fundsâ ownership at a point
proximate to the date of the Demand and stating in the Demand, under oath, that the
documentation was what it appeared to be, and (iii) stating in the Demand, under oath,
29
that Amalgamated was acting as the trustee of the Funds for purposes of making the
Demand. See JX 35 at 1, 7.
Yahoo correctly observes that the Demand attached account statements reflecting
the Fundsâ ownership of Yahoo common stock as of February 21, 2014, three days before
the date of the Demand. According to Yahoo, this is statutorily inadequate because the
date of the account statements is not the same as the date of the Demand. Yahoo also
observes that the Funds did not continually update their documentation to provide
evidence of their continuing ownership of Yahoo common stock. Neither observation
provides a valid basis for defeating an inspection.
Section 220 must be applied with some appreciation of the practical considerations
surrounding its use. It takes a non-trivial amount of time to obtain documentation
evidencing stockholder status. The most commonly used method is account statements,
which are issued periodically. If Section 220 truly required evidence of stock ownership
as of the moment that the demand was sent, then a stockholder could not comply without
some form of same-day record. In my view, requiring that level of documentation would
be an unreasonable reading of the statute. What Section 220 instead requires is
documentation sufficiently proximate in time to the date of the demand as to be
consistent with and corroborate the averment of stock ownership made in the demand
itself. Recent brokerage statements are adequate. See Paul v. China MediaExpress
Hldgs., Inc., 2012 WL 28818, at *3 n.19 (Del. Ch. Jan. 5, 2012). In this case, evidence of
the Fundsâ ownership dated a few days before the Demand certainly sufficed.
30
Amalgamated and the Funds also were not required to provide Yahoo with an
ongoing stream of daily trading and ownership records confirming their continuing stock
ownership. The plain language of the statute only requires evidence that the demanding
party is a stockholder at the time of the demand. See 8 Del C. § 220(b). The statute does
not require a continuing showing, which would be impractical and overly burdensome for
both the party making the demand and for the company responding to it. No one wants to
send or receive a box of daily account statements covering a period of months (except
perhaps a law firm paid by the hour to assemble or review them).
Nevertheless, the use of Section 220 carries with it an implicit obligation on the
part of the demanding party to advise the company if it loses its status as a stockholder or
its authority to act on behalf of a stockholder. In an appropriate case, a court might well
impose a remedy on an erstwhile stockholder or a once-but-no-longer-authorized agent
that continued to use Section 220 under false pretenses. That was not the case here.
Finally, Amalgamated established its authority to act on behalf of the Funds by
averring under oath that it acted as the trustee for the Funds. This court has held that
similarly situated business principals need not provide documentary support to confirm
their apparent authority to act on behalf of an entity. âA general partner in a limited
partnership needs no written power of attorney to act on behalf of the limited partnership.
Similarly, the president of a corporation can make a demand on behalf of the corporation
without supplying written authorization or a board of directorsâ resolution.â 1 Welch et
al., Folk on the Delaware General Corporation Law § 220.02, at 7-209 (6th ed. 2015)
(citing Odyssey Pârs v. Trans World Corp., 1983 WL 18011, at *1 (Del. Ch. Mar. 29,
31
1983), and Agency Rent-A-Car, Inc. v. Gateway Indus., Inc., 1980 WL 3040, at *4-7
(Del. Ch. July 21, 1980) (footnote omitted)). The trustee for an index fund has analogous
authority. In this case, Amalgamated even provided decisions by this court recognizing
its authority to make Section 220 demands on behalf of funds for which it served as
trustee.20 Amalgamated satisfied the form and manner requirements.
B. Amalgamatedâs Proper Purposes
A party seeking to inspect books and records must have a proper purpose. In the
language of the statute, â[a] proper purpose shall mean a purpose reasonably related to
such personâs interest as a stockholder.â 8 Del. C. § 220(b).
Amalgamatedâs Demand described the purposes for the inspection as follows:
Amalgamated is making this Demand to: (1) investigate Yahooâs payment
of what appears to be excessive compensation to Yahooâs former Chief
Operating Officer (âCOOâ), Henrique de Castro (âMr. de Castroâ); (2)
assess the independence of the non-management members of Yahooâs
Board, including the members of the Compensation and Leadership
Development Committee (the âCompensation Committeeâ), who would
20
See Amalgamated Bank v. Dauphin Cty. Empls. Ret. Fund, 61 A.3d 617, at *1 n.2 (Del.
2013) (TABLE) (describing âAmalgamated Bank, as Trustee for the LongView LargeCap 500
Index Fund [and] LongView LargeCap 500 Index VEBA Fundâ as a âshareholderâ where
Amalgamated requested postponement of derivative action while it completed a parallel Section
220 action); In re Freeport-McMoRan Cooper & Cold Inc. Deriv. Litig., 2013 WL 616296, at *1
n.1 (Del. Ch. Feb. 14, 2013) (granting motion to intervene in Section 220 action filed by
âAmalgamated Bank, as Trustee for the LongView LargeCap 500 Index Fund [and the]
LongView LargeCap 500 Index VEBA Fundâ); Amalgamated Bank v. NetApp, Inc., 2012 WL
379908, at *1 (Del. Ch. Feb. 6, 2012) (âAmalgamated Bank, as Trustee of the LongView Funds .
. . , is a NetApp, Inc., stockholder . . . .â); In re Tyson Foods, Inc. Consol. Sâholder Litig., 919
A.2d 563, 571 n.4 (Del. Ch. 2007) (âAmalgamatedâs shareholder standing derives from its
trusteeship of the LongView MidCap 400 Index Fund.â); see also China MediaExpress, 2012
WL 28818, at 3 n.19 (dismissing form and manner claim after plaintiff produced evidence of
stock ownership at trial).
32
have approved any compensation paid to Mr. de Castro; and (3) investigate
the circumstances surrounding Mr. de Castroâs departure from the
Company.
JX 35 at 1-2. The Demand summarized Amalgamatedâs reasons for believing de Castroâs
compensation resulted from mismanagement or constituted waste.
1. Investigating Wrongdoing Or Mismanagement
â[A] stockholderâs desire to investigate wrongdoing or mismanagement is a
âproper purpose.ââ Seinfeld v. Verizon Commcâns, Inc., 909 A.2d 117, 121 (Del. 2006).
To conduct an inspection, a stockholder âis not required to prove by a preponderance of
the evidence that waste and mismanagement are actually occurring.â21 A stockholder
âneed only show, by a preponderance of the evidence, a credible basis from which the
Court of Chancery can infer there is possible mismanagement that would warrant further
investigation.â22 A showing that is sufficient to conduct an inspection âmay ultimately
21
Id. at 123 (alteration and quotation marks omitted); accord City of Westland Police &
Fire Ret. Sys. v. Axcelis Techs., Inc., 1 A.3d 281, 286-87 (Del. 2010) (âSuch evidence need not
prove that wrongdoing, in fact, occurred.â); Sec. First, 687 A.2d at 565 (âThe stockholder need
not actually prove the wrongdoing itself by a preponderance of the evidence.â); id. at 567 (âThe
actual wrongdoing itself need not be proved in a Section 220 proceeding, however.â); Thomas &
Betts, 681 A.2d at 1031 (â[Stockholders] are not required to prove by a preponderance of the
evidence that waste and [mis]management are actually occurring.â).
22
Seinfeld, 909 A.2d at 123; accord Axcelis, 1 A.3d at 286-87 (â[A] plaintiff seeking
inspection of books and records must present some evidence, through documents, logic,
testimony or otherwise, to suggest a credible basis from which the Court of Chancery could infer
that wrongdoing may have occurred.â (quotation marks and footnote omitted)); id. at 287 (âTo
obtain Section 220 relief based on [investigating possible wrongdoing or mismanagement], the
plaintiff-stockholder must present some evidence to suggest a credible basis from which a court
could infer possible mismanagement that would warrant further investigation.â (quotation marks
omitted)); Thomas & Betts, 681 A.2d at 1031 (â[A] stockholder must present some credible basis
from which the court can infer that waste or mismanagement may have occurred.â).
33
fall well short of demonstrating that anything wrong occurred.â Seinfeld, 909 A.2d at 123
(quotation marks omitted).
â[T]he âcredible basisâ standard sets the lowest possible burden of proof.â Id. The
âthreshold may be satisfied by a credible showing, through documents, logic, testimony
or otherwise, that there are legitimate issues of wrongdoing.â Id. at 123 (quotation marks
omitted); accord Sec. First, 687 A.2d at 568. The trial court may rely on âcircumstantial
evidence.â Wal-Mart Stores, Inc. v. Ind. Elec. Workers Pension Tr. Fund IBEW, 95 A.3d
1264, 1273 (Del. 2014). Hearsay statements may be considered, provided they are
sufficiently reliable.23
In this case, Amalgamated established a credible basis to suspect wrongdoing in
connection with de Castroâs hiring and firing. The possible wrongdoing may fall under
the headings of breach of fiduciary duty or waste.
a. Possible Breach of Fiduciary Duty
Mark Twain is often credited (perhaps erroneously) with observing that history
may not repeat itself, but it often rhymes. The credible basis for concern about
wrongdoing at Yahoo evokes the Disney case, with the details updated for a twenty-first
century, New Economy company. Like the current scenario, Disney involved a CEO
hiring a number-two executive for munificent compensation, poor performance by the
23
See Thomas & Betts, 681 A.2d at 1032-33; Marmon v. Arbinet-Thexchange, Inc., 2004
WL 936512, at *4 (Del. Ch. Apr. 28, 2004); Skoglund v. Ormand Indus., Inc., 372 A.2d 204,
208-13 (Del. Ch. 1976).
34
number-two executive, and a no-fault termination after approximately a year on the job
that conferred dynastic wealth on the executive under circumstances where a for-cause
termination could have been justified. Certainly there are factual distinctions, but the
assonance is there.
The Disney saga began with a complaint filed without the benefit of a Section 220
inspection. Chancellor Chandler dismissed the complaint for failing to plead with
particularity that demand was futile. In re Walt Disney Co. Deriv. Litig. (Disney I), 731
A.2d 342, 351 (Del. Ch. 1998) (subsequent history omitted). On appeal, the Delaware
Supreme Court affirmed the Chancellorâs legal analysis, but noted that the facts presented
âa very troubling case on the merits.â Brehm v. Eisner (Disney II), 746 A.2d 244, 249
(Del. 2000).
On the one hand, it appears from the Complaint that: (a) the compensation
and termination payout for Ovitz were exceedingly lucrative, if not
luxurious, compared to Ovitzâ value to the Company; and (b) the processes
of the boards of directors in dealing with the approval and termination of
the Ovitz Employment Agreement were casual, if not sloppy and
perfunctory. On the other hand, the Complaint is so inartfully drafted that it
was properly dismissed under our pleading standards for derivative suits.
From what we can ferret out of this deficient pleading, the processes of the
Old Board and the New Board were hardly paradigms of good corporate
governance practices. Moreover, the sheer size of the payout to Ovitz, as
alleged, pushes the envelope of judicial respect for the business judgment
of directors in making compensation decisions. Therefore, both as to the
processes of the two Boards and the waste test, this is a close case.
Id. Later in the decision, the high court observed that â[o]ne can understand why Disney
stockholders would be upset with such an extraordinarily lucrative compensation
agreement and termination payout awarded a company president who served for only a
little over a year and who underperformed to the extent alleged.â Id. at 267.
35
After affirming the dismissal of the complaint as framed, the Delaware Supreme
Court noted that the plaintiffs âmay well have the âtools at handâ to develop the necessary
facts for pleading purposes,â including using Section 220. Id. at 266. Citing the âunusual
nature of this case,â the senior tribunal reversed the dismissal âonly to the extent that the
dismissal ordered by the Court of Chancery was with prejudice.â Id. at 267. The without-
prejudice dismissal would âpermit plaintiffs to file an amended complaint in accordance
with the rulings of this Court as set forth in this opinion.â Id. The high court noted that it
did not âpresume to direct the Court of Chancery how it should decide any proceeding
under Section 220â but that â[f]rom a timing perspective . . . such a proceeding is a
summary one that should be managed expeditiously.â Id.
The plaintiffs took the hint. They used Section 220, obtained books and records,
and filed an amended complaint. This time, the claims survived a motion to dismiss for
failure to plead that demand was futile. In re Walt Disney Co. Deriv. Litig. (Disney III),
825 A.2d 275 (Del. Ch. 2003). The Chancellor helpfully summarized his reasoning:
Stated briefly, plaintiffsâ new allegations give rise to a cognizable question
whether the defendant directors of the Walt Disney Company should be
held personally liable to the corporation for a knowing or intentional lack of
due care in the directorsâ decision-making process regarding Ovitzâs
employment and termination. It is rare when a court imposes liability on
directors of a corporation for breach of the duty of care, and this Court is
hesitant to second-guess the business judgment of a disinterested and
independent board of directors. But the facts alleged in the new complaint
do not implicate merely negligent or grossly negligent decision making by
corporate directors. Quite the contrary; plaintiffsâ new complaint suggests
that the Disney directors failed to exercise any business judgment and
failed to make any good faith attempt to fulfill their fiduciary duties to
Disney and its stockholders. Allegations that Disneyâs directors abdicated
all responsibility to consider appropriately an action of material importance
to the corporation puts directly in question whether the boardâs decision-
36
making processes were employed in a good faith effort to advance
corporate interests. In short, the new complaint alleges facts implying that
the Disney directors failed to act in good faith and meet minimal
proceduralist standards of attention. Based on the facts asserted in the new
complaint, therefore, I believe plaintiffs have stated cognizable claims for
which demand is excused and on which a more complete factual record is
necessary.
Id. at 278 (quotation marks and footnote omitted).
Eventually, after a full trial, the defendants prevailed on the merits. In re Walt
Disney Co. Deriv. Litig. (Disney IV), 907 A.2d 693 (Del. Ch. 2005), affâd, 906 A.2d 27
(Del. 2006). Because the Disney saga went the distance, we came to know the facts as
developed after extensive discovery and as analyzed by the court. Those facts differed
materially from the pleading-stage allegations and the reasonable inferences they
supported.
From my standpoint, both factually and legally, the current showing regarding the
events at Yahoo falls somewhere between Disney I and Disney III. Amalgamated has
collected publicly available materials and received some information from Yahoo. The
resulting record is troubling and fails to answer important questions about the conduct of
Mayer, the Committee, and the Board in both the hiring and firing of de Castro. I need
not and do not hold that the record developed to date establishes wrongdoing, nor even
that it supports a claim for wrongdoing. It does, in my view, provide a âcredible basis
from which the Court of Chancery can infer there is possible mismanagement that would
warrant further investigation.â Seinfeld, 909 A.2d at 123. To state what should be
obvious, the existence of a credible basis to suspect possible wrongdoing sufficient to
warrant further investigation does not mean that wrongdoing actually occurred. Even in
37
Disney, where the complaint survived a motion to dismiss, the defendants ultimately
prevailed.
One basis for potential wrongdoing is a possible breach of fiduciary duty. For
analytical clarity, this decision first discusses de Castroâs hiring, then turns to his firing.
That separation is artificial, because the two decisions are factually and legally
interrelated. Taken together, they are more troubling than either individually.
i. Possible Breaches In The Hiring Process
There is a credible basis to suspect possible breaches of fiduciary duty by Mayer
during the hiring process. Officers are corporate fiduciaries who owe the same fiduciary
duties to the corporation and its stockholders as directors. Gantler v. Stephens, 965 A.2d
695, 708-09 (Del. 2009). Officers also are agents who report to the board of directors in
its capacity as the governing body for the corporation.24 âThe General Corporation Law
24
See 8 Del. C. § 141(a). A vibrant debate exists over the extent to which the full agency
law regime should apply to officers. One of the principal disputes appears to be whether officers
should be liable for simple negligence, like agents generally, or whether some form of more
deferential standard of review, such as the business judgment rule, should apply to their
decisions. This opinion does not speculate on that issue. For examples of the debate over the
standard of review, see Lyman Johnson & Robert Ricca, Reality Check on Officer Liability, 67
Bus. Law. 75 (2011); Paul Graf, A Realistic Approach to Officer Liability, 66 Bus. Law. 315
(2011); Lyman P.Q. Johnson & David Millon, Recalling Why Corporate Officers are
Fiduciaries, 46 Wm. & Mary L. Rev. 1597 (2005); Lawrence A. Hamermesh & A. Gilchrist
Sparks III, Corporate Officers and the Business Judgment Rule: A Reply to Professor Johnson,
60 Bus. Law. 865 (2005); Lyman P.Q. Johnson, Corporate Officers and the Business Judgment
Rule, 60 Bus. Law. 439 (2005); A. Gilchrist Sparks, III & Lawrence A. Hamermesh, Common
Law Duties of Non-Director Corporate Officers, 48 Bus. Law. 215 (1992). For examples of
scholarly analyses addressing other aspects of the officerâs role as corporate agent, see Megan
W. Shaner, The (Un)Enforcement of Corporate Officersâ Duties, 48 U.C. Davis L. Rev. 271
(2014); Amitai Aviram, Officersâ Fiduciary Duties and the Nature of Corporate Organs, 2013
U. Ill. L. Rev. 763; Megan W. Shaner, Restoring the Balance of Power in Corporate
38
of the State of Delaware . . . and the decisions of [the Delaware Supreme] Court have
repeatedly recognized the fundamental principle that the management of the business and
affairs of a Delaware corporation is entrusted to its directors, who are the duly elected
and authorized representatives of the stockholders.â25 Within this relationship, officers
have a duty to comply with the boardâs directives. See Restatement (Third) of Agency §
8.09 (2006). Stated in the negative, â[a] chief executive officer . . . may not act in a
manner contrary to the express desires of the board of directors.â Disney IV, 907 A.2d at
775 n.570. Officers also have a duty to provide the board of directors with the
information that the directors need to perform their statutory and fiduciary roles. 26
Management: Enforcing an Officerâs Duty of Obedience, 66 Bus. Law. 27 (2010); Donald C.
Langevoort, Agency Law Inside the Corporation: Problems of Candor and Knowledge, 71 U.
Cin. L. Rev. 1187 (2003).
25
Paramount Commcâns Inc. v. QVC Network Inc., 637 A.2d 34, 41-42 (Del. 1994); see,
e.g., McMullin v. Beran, 765 A.2d 910, 916 (Del. 2000) (âOne of the fundamental principles of
the Delaware General Corporation Law statute is that the business affairs of a corporation are
managed by or under the direction of its board of directors.â); Quickturn Design Sys., Inc. v.
Shapiro, 721 A.2d 1281, 1291-92 (Del. 1998) (âOne of the most basic tenets of Delaware
corporate law is that the board of directors has the ultimate responsibility for managing the
business and affairs of a corporation . . . . Section 141(a) . . . confers upon any newly elected
board of directors full power to manage and direct the business and affairs of a Delaware
corporation.â); Paramount Commcâns, Inc. v. Time Inc., 571 A.2d 1140, 1154 (Del. 1989)
(âDelaware law confers the management of the corporate enterprise to the stockholdersâ duly
elected board representatives.â).
26
See Restatement (Third) of Agency § 8.11 (describing agentâs duty to provide principal
with facts that the agent knows); see also Kalisman v. Friedman, 2013 WL 1668205, at *4 (Del.
Ch. Apr. 17, 2013) (discussing director information rights); Lewis v. Vogelstein, 699 A.2d 327,
334 (Del. Ch. 1997) (Allen, C.) (â[S]ince the relationship between a principal and agent is
fiduciary in character, the agent . . . must act not only with candor, but with loyalty.â); cf.
Hampshire Gp., Ltd. v. Kuttner, 2010 WL 2739995, at *34 (Del. Ch. July 12, 2010) (Strine,
V.C.) (â[W]hen a corporate officer is aware of financial misreporting that involves high-level
management and that has evaded the corporationâs auditors, and nonetheless certifies that he is
39
There is a credible basis to suspect that Mayer failed to provide material
information to the Committee during the early stages of the hiring process, when she
cryptically withheld de Castroâs name, position, and qualifications while seeking the
Committeeâs blessing for a large compensation package that the Committeeâs
compensation consultant regarded as âgenerally more than the data supported.â JX5 at 2.
More seriously, there is a credible basis to suspect that Mayer provided inaccurate
information to the Committee about the terms of the Original Offer Letter when asking
them to approve a change to de Castroâs package, and that the Committee agreed to the
change based on the inaccurate information that Mayer provided. The changes effectively
doubled the payout on the Incentive RSUs and Options.
It may be that Mayerâs conduct did not constitute a breach of fiduciary duty, but it
is worthy of investigation. Based on the current record, it is not clear why Mayer did
these things, and a range of explanations are possible. She may have made an innocent
mistake, and if this case ever proceeds on the merits, it might be shown to be
inconsequential. She may have been negligent to some degree. Although it seems
not aware of any material weakness in the companyâs internal controls, he is making a false
statement and failing to bring material information to the board, in breach of his duty of
loyalty.â); Ryan v. Gifford, 935 A.2d 258, 272 (Del. Ch. 2007) (holding that complaint stated
claim for breach of the duty of loyalty against CFO and vice president who knew about
backdating but âkept silentâ); Hoover Indus., Inc. v. Chase, 1988 WL 73758, at *2 (Del. Ch. July
13, 1988) (Allen, C.) (âA director does breach his duty of loyalty if he knows the company has
been defrauded and does not report what he knows to the board or to an appropriate committee
of the board, at the very least when he is involved in the fraud and keeps silent in order to escape
detection.â). See generally Langevoort, supra, at 1191-1208 (discussing duty of candor for
officers under agency principles and corporate law).
40
unlikely, perhaps she had some improper motive. Amalgamated observes that just as
Eisner was negotiating with his friend Ovitz in the Disney case, Mayer was negotiating
with a colleague from her former employer. At this stage, I am not suggesting, nor
inferring, that Mayer intentionally hid information or lied to the Committee. This
decision determines only that there is a credible basis for further investigation.
The credible basis becomes stronger, in my view, because of the changes that
Mayer made to the Final Offer Letter. The Committee approved the Original Offer Letter,
signed off on the elimination of the Specified Percentage for the Incentive RSUs and
Options, and reserved its authority to approve any material changes in de Castroâs
employment agreement. In preparing the Final Offer Letter, Mayer made additional
changes to the terms of de Castroâs employment that materially increased his potential
compensation. Mayer does not appear to have informed the Committee about the
changes, and they do not appear to have been authorized by the Committee. Again, based
on the current record, it is not clear why Mayer did these things, and the explanation may
well be innocent or innocuous. Regardless, further investigation is warranted.
Grounds also exist for investigation into the roles played by the Yahoo directors.
At the pleading stage in Disney III, Chancellor Chandler held that the directorsâ lack of
involvement in Ovitzâ hiring stated a claim for bad faith conduct. There, as here, the
corporationâs CEO conducted the negotiations. When Eisner eventually briefed Disneyâs
compensation committee, Eisner did not give the directors all of the information he had,
only a rough and incomplete summary of the terms of the offer he had made. The
committee members also did not receive any âanalytical document showing the potential
41
payout to Ovitz throughout the contract, or the possible cost of his severance package
upon a non-fault termination.â 825 A.2d at 280 (formatting omitted). After a short
meeting, the compensation committee approved the offer and gave Eisner the authority to
finalize the contract if the terms fell within the framework of the summary. The full
Disney board then met and appointed Ovitz to the office of President. Two months later,
the final employment agreement was executed in a form that âdiffered significantlyâ from
the terms that the compensation committee had reviewed. Id. at 282. When considered
together with the allegations regarding Ovitzâs subsequent no-fault termination, the
Chancellor held that these allegations supported an inference that the directors had acted
in an âostrich-likeâ manner that fell outside the protection of the business judgment rule.
Id. at 288. That behavior in turn âsuggest[ed] that the defendant directors consciously and
intentionally disregarded their responsibilities, adopting a âwe donât care about the risksâ
attitude concerning a material corporate decision.â Id. at 289. As pled, that supported an
inference of bad faith conduct: the âdefendant directors knew that they were making
material decisions without adequate information and without adequate deliberation, and .
. . they simply did not care if the decisions caused the corporation and its stockholders to
suffer injury or loss.â Id.
Based on the current record, the Yahoo directors were more involved in the hiring
than the Disney directors were, but the facts still bear a close resemblance to the
allegations in Disney III. The directorsâ involvement appears to have been tangential and
episodic, and they seem to have accepted Mayerâs statements uncritically. A board cannot
mindlessly swallow information, particularly in the area of executive compensation:
42
âWhile there may be instances in which a board may act with deference to corporate
officersâ judgments, executive compensation is not one of those instances. The board
must exercise its own business judgment in approving an executive compensation
transaction.â Haywood v. Ambase Corp., 2005 WL 2130614, at *6 (Del. Ch. Aug. 22,
2005). Directors who choose not to ask questions take the risk that they may have to
provide explanations later, or at least produce explanatory books and records as part of a
Section 220 investigation.
This decision does not hold that the Yahoo directors breached their duties. It holds
only that compared with the bookends of Disney I and Disney III, there is a credible basis
to investigate possible claims of breach of duty by the Committee and the Board.
ii. Possible Breaches In The Firing Process
The same is true for de Castroâs firing, where there is a credible basis to suspect
the possibility of wrongdoing by Mayer, the Committee, and the Board. The issue at this
stage turns on why Yahooâs fiduciaries agreed to a without-cause termination when a for-
cause alternative was potentially available. The same issue troubled the court in Disney
III. See 825 A.2d at 287-88. Mayer decided initially to terminate de Castro and
characterize it as âwithout cause.â Despite the financial implications, the Committee did
not question Mayerâs decision. They do not appear to have asked any questions at all.
Instead, they rubberstamped what Mayer had done through a quick email exchange of
written consents. The directors did not engage until three weeks later, when the
Committee determined to what degree Yahoo had met the performance criteria for option
vesting. The Committee did not receive a report about the reasons for de Castroâs
43
termination until three weeks after that, when they decided not to award de Castro a
bonus under the Executive Incentive Plan. As in Disney III, this suggests ostrich-like
conduct warranting further investigation.
b. Possible Waste
In addition to a credible basis to suspect wrongdoing involving potential breaches
of fiduciary duty, there is also reason to suspect waste. âCorporate waste occurs when a
corporation is caused to effect a transaction on terms that no person of ordinary, sound
business judgment could conclude represent a fair exchange.â Steiner v. Meyerson, 1995
WL 441999, at *1 (Del. Ch. July 19, 1995) (Allen, C.).
This is obviously an extreme test, very rarely satisfied by a shareholder
plaintiff. The difficulty of this test does not reflect judicial laxity or
sympathy, but rather reflects the lawâs understanding of what rules will
help promote wealth creating activity. If courts were permitted more freely
to âsecond guessâ the terms of corporate contracts (on for example a
âreasonablenessâ ground) there would be a substantial disincentive created
for officers and directors (especially directors who generally receive no
incentive compensation) to approve risky transactions. Yet the corporate
form, with its limited liability and potential for investor diversification, has
great utility in part because these characteristics encourage the assumption
of economic risk. The very high hurdle that a shareholder must overcome if
he seeks to impose liability on a theory of corporate waste is, thus, in fact a
protection of one of the basic utilities that the corporate form offers.
Id.
Despite the difficult standard for waste, Delaware courts have permitted
complaints challenging senior executive compensation as waste to survive the pleading
stage. For example, Chancellor Chandler held that a stockholder plaintiff had stated a
claim for waste involving a $68 million compensation package for the outgoing CEO of
Citigroup, Inc., Charles Prince, âwhose failures as CEO were allegedly responsible . . .
44
for billions of dollars of losses at Citigroup.â In re Citigroup Inc. Sâholder Deriv. Litig.,
964 A.2d 106, 138 (Del. Ch. 2009). The court explained that although directors have
discretion when setting executive compensation, âthere is an outer limitâ to that
discretion, âat which point a decision of the directors on executive compensation is so
disproportionately large as to be unconscionable and constitute waste.â Id. (quoting
Disney II, 746 A.2d at 262-63 & n.56). Chancellor Chandler credited the allegation that
Princeâs $68 million severance package was âso one sidedâ that it met the âadmittedly
stringentâ waste standard. Id. at 138-39.
The question for present purposes is whether there is reason to believe that waste
may have occurred. There is reason to believe that by making changes to the Final Offer
Letter, Mayer increased de Castroâs compensation unilaterally, without Committee or
Board approval, suggesting waste. There is also reason to believe that de Castro could
have been fired for cause, thereby avoiding the payment of any severance. Instead, Mayer
decided that the termination would be without cause, and the Committee members went
along. On the facts presented, Amalgamated has established a basis for further
investigation.
2. Exploring Director Disinterestedness And Independence
Another purpose for using Section 220 is to investigate questions of director
disinterestedness and independence.27 The Delaware Supreme Court has observed that it
27
See Rock Solid Gelt Ltd. v. SmartPill Corp., 2012 WL 4841602, at *4 (Del. Ch. Oct.
10, 2012); La. Mun. Police Empls. Ret. Sys. v. Morgan Stanley & Co. Inc., 2011 WL 773316, at
45
is âwithin [a stockholderâs] power to explore these mattersâ using Section 220. Beam ex
rel. Martha Stewart Living Omnimedia, Inc. v. Stewart, 845 A.2d 1040, 1056 (Del. 2004).
The high court observed that appropriate areas for inspection for this purpose could
include the companyâs âprocess of nominating board members,â the degree of
management involvement in or influence over the nomination process, and âwhether the
process incorporated procedural safeguards to ensure directorsâ independence.â Id. The
high court also posited that a stockholder might use Section 220 to review minutes
showing how âthe directors handled [management] proposals or conduct in various
contexts,â which could reveal patterns of behavior.28
More recently, the Delaware Supreme Court has indicated that a plaintiff could
obtain âa file of the disclosure questionnaires for the boardâ or similar materials that
could âprovide more detail about the thickness of the relationship[s]â in the boardroom.
Del. Cty. Empls. Ret. Fund v. Sanchez, 124 A.3d 1017, 1024 (Del. 2015). At the same
time, the Delaware Supreme Court candidly observed that Section 220 likely has âlimited
utilityâ for purposes of uncovering this type of information.29
*7 (Del. Ch. Mar. 4, 2011); Haywood v. Ambase Corp., 2005 WL 2130614, at *6 (Del. Ch. Aug.
22, 2005); Amalgamated Bank v. UICI, 2005 WL 1377432, at *3 (Del. Ch. June 2, 2005);
Grimes v. DSC Commcâns Corp., 724 A.2d 561, 566 (Del. Ch. 1998).
28
Id.; see also Grimes v. Donald, 673 A.2d 1207, 1216 n.11 (Del. 1996) (noting that
Section 220 may be used to obtain information to support arguments regarding demand futility);
Rales v. Blasband, 634 A.2d 927, 934 n.10 (Del. 1993) (same).
29
Id.; accord Harbor Fin. Pârs v. Huizenga, 751 A.2d 879, 889 n.32 (Del. Ch. 1999)
(Strine, V.C.) (noting that there were limits to the extent to which a plaintiff could use books and
records to explore a relationship between a director and an interested party before filing and that
46
In this case, Amalgamated identified a proper purpose in seeking to obtain books
and records for the purpose of investigating questions of director disinterestedness and
independence.
3. Exculpation As A Means Of Cutting Off Otherwise Proper Purposes
In a recent decision, this court held that a stockholder who sought books and
records for the purpose of bringing a derivative action for breach of fiduciary duty lacked
a proper purpose for conducting an inspection where the corporation had an exculpatory
provision and the stockholder had not identified a credible basis for believing that that the
directors had engaged in non-exculpated conduct. Se. Pa. Transp. Auth. v. Abbvie, Inc.,
2015 WL 1753033, at *14 (Del. Ch. Apr. 15, 2015), affâd, 2016 WL 235217 (Del. Jan.
20, 2016) (ORDER). Yahoo has an exculpatory provision. Relying on Abbvie, Yahoo
argues that Amalgamated lacks a proper purpose and that the inspection should be
denied.
The Abbvie decision and this case are distinguishable on their facts. First, the
evidence of possible wrongdoing in Abbvie was flimsy at best: the directors had agreed to
pay a termination fee to an acquirer if an inversion transaction failed to go through. 2015
WL 1753033, at *14. The potential for regulatory problems was a known risk, the parties
âone wonders how a plaintiff could use tools such as 8 Del. C. § 220 or public filings to generate
such factsâ); J. Travis Laster & K. Tyler OâConnell, Directorsâ Social and Business
Relationships in the Pre-Suit Demand Contest, 8 No. 1 M & A Law. 20 (May 2004) (âThe
[Beam] Court reiterated its often-repeated suggestion that stockholder plaintiffs inspect corporate
books and records before filing, however, this admonition rings somewhat hollow in this case.
Would-be plaintiffs might reasonably ask, exactly what proof of exceedingly close friendship
among directors are they likely to find?â).
47
to the transaction bargained over it, and the board approved a merger agreement that
provided for the termination fee. Id. at *14-15. The grounds for concern regarding the
hiring and firing of de Castro are much stronger.
Second, the Abbvie decision noted that there were a variety of purposes for which
a stockholder could use books and records, but concluded âfrom the Plaintiffsâ statements
at oral argument . . . that both Plaintiffs seek an investigation to aid in future derivative
litigationâ and that âlitigation is the sole motivation for the Plaintiffsâ investigations.â
2015 WL 1753033, at *12. Amalgamated has not similarly limited its potential uses of
the fruits of its investigation. The Delaware Supreme Court has stated that
[s]tockholders may use information about corporate mismanagement, waste
or wrongdoing in several ways. For example, they may institute derivative
litigation; seek an audience with the board of directors to discuss proposed
reform or, failing in that, they may prepare a stockholder resolution for the
next annual meeting, or mount a proxy fight to elect directors.
Seinfeld, 909 A.2d at 119-20 (quotation marks and alterations omitted); accord Saito v.
McKesson HBOC, Inc., 806 A.2d 113, 117 (Del. 2002). Exculpation is not an impediment
to the potential use of information obtained pursuant to Section 220 for taking action
other than filing a lawsuit.
Third, given the meager showing of potential wrongdoing by the plaintiffs in
Abbvie, the court understandably concluded that there was no basis to suspect the
possibility of misconduct that might support a non-exculpated claim. That is not the case
here. The claim that survived a motion to dismiss in Disney III was that the directors had
48
not acted in good faith, which is an aspect of the duty of loyalty and hence not subject to
exculpation.30 The waste claim also could fall outside the exculpatory provision. Waste
traditionally has been viewed as a separate cause of action, but it also can be understood
as a means of proving bad faith conduct. See Sample v. Morgan, 914 A.2d 647, 670 (Del.
Ch. 2007) (Strine, V.C.) (characterizing waste as a transaction âso one-sided as to create
an inference that no person acting in a good faith pursuit of the corporationâs interests
could have approved the termsâ (emphasis added)).
I have doubts that Amalgamated will be able to pursue and prevail on a non-
exculpated claim against Yahooâs outside directors. My skepticism rests on a
combination of confidence in what the record will show about the directorsâ oversight,
knowledge of the significant protections disinterested and independent directors enjoy,
and familiarity with the difficulties involved in litigation. The question now, however, is
not whether Amalgamated will prevail. Nor is the question even whether it is reasonably
conceivable that Amalgamated could prevail. The inquiry is whether Amalgamated has
established a credible basis from which the Court of Chancery can infer there is possible
mismanagement that would warrant further investigation. Seinfeld, 909 A.2d at 123. On
30
See 8 Del. C. § 102(b)(7)(ii) (excluding âacts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of lawâ); Disney III, 825 A.2d at 290
(â[P]laintiffsâ allegations support claims that fall outside the liability waiver provided under
Disneyâs certificate of incorporation.â); see also Stone ex rel. AmSouth Bancorporation v. Ritter,
911 A.2d 362, 369-70 (Del. 2006) (âThe failure to act in good faith may result in liability
because the requirement to act in good faith is a subsidiary element, i.e., a condition, of the
fundamental duty of loyalty.â (quotation marks and alterations omitted)).
49
the facts, I do not believe that the potential for directors to rely on exculpation if and
when a case is filed on the merits warrants foreclosing an inspection now.
There is also the possibility of a claim against Mayer in her capacity as an officer.
Section 102(b)(7) does not authorize exculpation for officers.31 In Abbvie, the court
recognized this possibility but observed that the plaintiffs had âfailed to meet their burden
to show a credible basis from which the Court can infer any corporate wrongdoing on the
part of AbbVieâs non-exculpated officers.â 2015 WL 1753033, at *13 n.108. In this case,
there is evidence supporting potential misconduct by Mayer in her capacity as an officer,
including when providing information to the Board, making changes to the Final Offer
Letter, and deciding on a without-cause termination for de Castro. A suit solely against
Mayer would face legal hurdles, but the exculpatory provision is not one of them. It
would be premature on the facts presented to allow Yahoo to rely on its exculpatory
provision to foreclose Amalgamated from investigating further.
C. The Scope Of The Inspection
Because Amalgamated has satisfied the prerequisites for conducting an inspection,
this courtâs task is to determine its scope. â[I]t is the responsibility of the trial court to
tailor the inspection to the stockholderâs stated purpose.â Sec. First Corp. v. U.S. Die
Casting & Dev. Co., 687 A.2d 563, 569 (Del. 1997).
31
8 Del. C. § 102(b)(7) (authorizing âa provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a directorâ); Gantler v. Stephens, 965 A.2d 695, 709 n.37 (Del. 2009)
(âAlthough legislatively possible, there currently is no statutory provision authorizing
comparable exculpation of corporate officers.â).
50
â[T]he burden of proof is always on the party seeking inspection to establish that
each category of the books and records requested is essential and sufficient to [the
partyâs] stated purpose.â32 In Delaware decisions framing the standard, the adjective
ânecessaryâ sometimes replaces âessential.â33 Usually, however, Delaware cases use
both,34 thereby demonstrating fealty to âthe lawâs hoary tradition of deploying joint
terms, such as âindemnify and hold harmless,â where technically one term would
suffice.â35
32
Thomas & Betts Corp. v. Leviton Mfg. Co., 681 A.2d 1026, 1035 (Del. 1996); accord
Espinoza v. Hewlett-Packard Co., 32 A.3d 365, 371 (Del. 2011) (âA shareholder . . . [must]
show that the specific books and records he seeks to inspect are essential to the accomplishment
of the stockholderâs articulated purpose for the inspection.â (quotation marks and alterations
omitted)); id. at 367 (âWe affirm . . . on the alternative ground that [the plaintiff] has not shown
that the Covington Report is essential to his stated purpose.â); id. at 371-72 (elaborating on what
it means for a document to be âessentialâ).
33
See, e.g., Norfolk Cty. Ret. Sys. v. Jos. A. Bank Clothiers, Inc., 2009 WL 353746, at *5
(Del. Ch. Feb. 12, 2009) (âI must examine . . . the scope of the documents necessary and
sufficient to address any proper purpose.â); Dobler v. Montgomery Cellular Hldg. Co., 2001 WL
1334182, at *7 n.28 (Del. Ch. Oct. 19, 2001) (âThe Court is required to evaluate, under the
circumstances, whether the sought after document is necessary for the proper purposes of the
shareholders.â). At least one decision uses another synonym, ârequired.â Carapico v. Phila.
Stock Exch., Inc., 791 A.2d 787, 793 (Del. Ch. 2000) (describing the test as whether the
requested documents are âreasonably required to satisfy the purpose of the demandâ).
34
See, e.g., Wal-Mart Stores, Inc. v. Ind. Elec. Workers Pension Tr. Fund IBEW, 95 A.3d
1264, 1271 (Del. 2014) (noting that appellants did not dispute that the operative standard for a
Section 220 action was whether the documents were ânecessary and essentialâ); Saito, 806 A.2d
at 116 (âThe scope of a stockholderâs inspection . . . is limited to those books and records that are
necessary and essential to accomplish the stated, proper purpose.â); BBC Acq. Corp. v. Durr-
Fillauer Med., Inc., 623 A.2d 85, 88 (Del. Ch. 1992) (stating standard as whether documents are
ânecessary, essential, and sufficient for the shareholdersâ purposeâ).
35
Quadrant Structured Prods. Co. v. Vertin, 106 A.3d 992, 1024-25 (Del. 2013)
(certifying question to New York Court of Appeals; attaching exhibit quoting trial court report
provided in response to similar question posed by Delaware Supreme Court as part of its
51
Subtle connotations aside, the terms ânecessaryâ and âessentialâ are functionally
synonymous for purposes of Section 220. Sanders v. Ohmite Hldgs., LLC, 17 A.3d 1186,
1194 n.2 (Del. Ch. 2011). The plaintiff can obtain books and records that âaddress the
âcrux of the shareholderâs purposeâ and if that information âis unavailable from another
source.ââ Wal-Mart, 95 A.3d at 1271 (quoting Espinoza, 32 A.3d at 371-72).
To reinforce the foundation of indispensability (however framed), the operative
standard trowels a layer of sufficiency (âessential and sufficientâ). Thomas & Betts, 681
A.2d at 1035. The inspection should stop at the quantum of information that the court
deems âsufficientâ to accomplish the plaintiffâs stated purpose. Id. If the books and
records are not âessentialâ for the stockholderâs purpose, then the stockholder already has
âsufficientâ information and the inspection can be denied as seeking materials beyond
what is âneeded to perform the task.â Carapico, 791 A.2d at 793 (quoting BBC Acq., 623
A.2d at 88). Stated conversely, if the stockholder already has âsufficientâ information
from other sources or as a result of other books and records requests, then the inspection
remand), certified question answered, 16 N.E.3d 1165 (N.Y. 2014); see Majkowski v. Am.
Imaging Mgmt. Servs., LLC, 913 A.2d 572, 588 (Del. Ch. 2006) (Strine, V.C.) (declining to give
separate meaning to the phrase âhold harmlessâ; noting that â[t]he terms âindemnifyâ and âhold
harmlessâ have a long history of joint use throughout the lexicon of AngloâAmerican legal
practiceâ). See generally Bryan A. Garner, The Redbook: A Manual on Legal Style § 11.2 at 224
(3d ed. 2013) (âThe doublet and triplet phrasing common in Middle English still survives in legal
writing, especially contracts, wills, and trusts. Thatâs probably the worst possible soil for it to
grow in because those who interpret legal writing are impelled to strain for distinctions so that no
word is rendered surplusage. Yet that is exactly all but one word . . . is [in these phrases].â).
52
can be curtailed because the additional materials are not âessential.â 36 Whether
documents meet the test is âfact specific and will necessarily depend on the context in
which the shareholderâs inspection demand arises.â Wal-Mart, 95 A.3d at 1283
(quotation marks omitted).
1. Books and Records Related To De Castroâs Hiring
The first request in the Demand seeks â[a]ll Yahoo books and records relating to
Mr. de Castroâs compensation (including salary, bonus, stock options, severance
payments, RSUs, and all other compensation outlined in the [Final] Offer Letter).â JX 35
at 3. The first request defines this category as âincludingâ ten subcategories:
(a) any metrics utilized to set Mr. de Castroâs compensation;
(b) any comparison(s) of Mr. de Castroâs compensation to the
compensation of other past or present executive officers of Yahoo;
(c) any comparison(s) of Mr. de Castroâs compensation to the
compensation of COOs or other executive officers at publicly-traded
companies other than Yahoo;
(d) minutes of any meetings involving any discussion of any
compensation plan, including the 1995 Stock Plan (as defined in the
[Final] Offer Letter), pursuant to which Mr. de Castro has received
or will receive compensation;
36
See, e.g., Marathon Pârs, L.P. v. M&F Worldwide Corp., 2004 WL 1728604, at *8
(Del. Ch. July 30, 2004) (denying inspection for valuation purposes because plaintiff âpresented
no evidence showing that the publicly available information is insufficient to value its publicly
traded sharesâ); Radwick Pty. Ltd. v. Med., Inc., 1984 WL 8264, at *3 (Del. Ch. Nov. 7, 1984)
(âIn deciding the extent of the stockholderâs inspection rights, the Court should consider . . . the
information previously provided by the company . . . .â); R. Franklin Balotti & Jesse A.
Finkelstein, 1 The Delaware Law of Corporations and Business Organizations § 7.47, at 7-102.4
(3d ed. Supp. 2011) (âIn determining whether to permit inspection (or the scope of any
inspection), the court may examine the extent to which the corporation has previously furnished
information (by public disclosure or otherwise) to stockholders.â).
53
(e) any policies and procedures applicable to the setting of Mr. de
Castroâs compensation, including any policies and procedures
relating to the setting of compensation for executive officers of
Yahoo;
(f) any Board minutes and presentations relating to Mr. de Castroâs
compensation;
(g) any Compensation Committee minutes and presentations relating to
Mr. de Castroâs compensation;
(h) any expertâs or consultantâs reports or opinions concerning Mr. de
Castroâs compensation;
(i) all drafts of the [Final] Offer Letter; and
(j) documents reflecting the amounts and conditions of Mr. de Castroâs
post-employment payments or compensation.
Id. at 3-4.
If this case was a plenary action where the complaint had survived a motion to
dismiss, and if the plaintiff had framed these demands as requests for production of
documents pursuant to Rule 34, then Yahoo would be obligated to produce all responsive
documents in its possession, custody, and control. See Ct. Ch. R. 34. If Yahoo wished to
limit the scope of its production, the burden would lie with Yahoo to identify reasonable
limitations and, if necessary, obtain an order from the court. See Ct. Ch. R. 26 (b)(1) &
(c).
A Section 220 inspection, however, is not the equivalent of discovery in a plenary
action. âThe two procedures are not the same and should not be confused.â Sec. First,
687 A.2d at 570. Unlike in plenary discovery, where the responding party bears the
burden of limiting its scope, the burden in a Section 220 proceeding is on the party
seeking production. See Thomas & Betts, 681 A.2d at 1035. Moreover, the court must
54
tailor the production order to balance the interests of the stockholder and the corporation.
See Sec. First, 687 A.2d at 569. As the Delaware Supreme Court has explained,
[Section 220] does not open the door to the wide ranging discovery that
would be available in support of litigation. For this statutory tool to be
meaningful, however, . . . [a] stockholder who demands inspection . . .
should be given access to all of the documents in the corporationâs
possession, custody or control, that are necessary to satisfy [that
stockholderâs] proper purpose. Thus, where a § 220 claim is based on
alleged corporate wrongdoing, and assuming the allegation is meritorious,
the stockholder should be given enough information to effectively address
the problem, either through derivative litigation or through direct contact
with the corporationâs directors and/or stockholders.
Saito v. McKesson HBOC, Inc., 806 A.2d 113, 114-15 (Del. 2002). âThe source of the
documents and the manner in which they were obtained by the corporation have little or
no bearing on a stockholderâs inspection rights. The issue is whether the documents are
necessary and essential to satisfy the stockholderâs proper purpose.â Id. at 118.
The starting pointâand often the ending pointâfor a sufficient inspection will be
board level documents evidencing the directorsâ decisions and deliberations, as well as
the materials that the directors received and considered.37 A corporation usually can
37
See City of Westland Police & Fire Ret. Sys. v. Axcelis Techs., Inc., 1 A.3d 281, 291
(Del. 2010) (stating that â[board] accountabilityâ for declining to accept the resignation of a
director who did not receive support from a majority of a quorum âshould take the form of being
subject to a shareholderâs Section 220 right to seek inspection of any documents and other
records upon which the board reliedâ); Cook v. Hewlett-Packard, 2014 WL 311111, at *4 (Del.
Ch. Jan. 30, 2014) (limiting inspection to âboard-levelâ documents relating to an acquisition and
subsequent problems with the acquired company); Robotti & Co. v. Gulfport Energy Corp., 2007
WL 2019796, at *4 (Del. Ch. July 3, 2007) (permitting inspection of board minutes); Grimes v.
DSC Commcâns Corp., 724 A.2d 561, 567 (Del. Ch. 1998) (stating that â[t]he right to obtain
corporate records for the purpose of determining whether or not a demand was improperly
refused focuses on the committee process itself and extends at least to reports or minutes,
reflecting the corporate action,â including âcopies of the Special Committeeâs report, minutes of
55
collect and provide these documents easily and quickly with minimal burden. In many
organizations, the corporate secretary maintains a central file for each board meeting in
either paper or electronic form. The file contains the minutes for the meeting and the
materials that the directors received and reviewed.38 These appear to be the types of
documents that Yahoo referred to as the Board-Level Materials. A better nomenclature
might be the âFormal Board Materialsâ or the âOfficial Board Materials,â but this
decision will use Yahooâs term.
In this case, the Board-Level Materials relating to de Castroâs hiring were
indisputably subject to inspection. These documents provided direct evidence of what the
directors thought and did, and they were necessary for Amalgamated to investigate the
hiring and the directorsâ disinterestedness and independence. Yahoo has represented that
the Board-Level Materials have been provided. To the extent there are types of materials
the meetings of the Special Committee and minutes of any meeting of the board of directors
relating to the creation or functioning of the Special Committee, including any meeting of the
board of directors at which the recommendation of the Special Committee was considered or
approvedâ (quotation marks and footnote omitted)).
38
See, e.g., 3 William B. Solomon & Michael A. Nemeroff, Practice Checklist,
Successful Partnering Between Inside & Outside Counsel § 46A:31 (2015) (âIn connection with
the corporate secretaryâs role as the companyâs record keeper, the corporate secretary often
maintains the official minutes of the meetings of the board in a central location. . . . The
corporate secretary generally prepares board packages or gathers them from the applicable
members of management, reviews what is gathered to ensure it is narrowly tailored to the
boardâs purposes and disseminates the materials necessary for the board members to review in
advance of each meeting of the board.â); Socây of Corp. Secâys. & Govâce Profâls, Corporation
Minutes: A Publication for the Corporate Secretary 23-24 (Feb. 2014) (âCorporate secretaries
may also maintain separate meeting files for each board and committee meeting which includes
the material related to the meeting and materials referenced in the minutes. . . . Companies have
also started storing these materials electronically. . . .â).
56
that did not appear in Yahooâs production, it is reasonably inferable that the directors did
not receive or review them when hiring de Castro.39
Because Yahoo produced Board-Level Materials, the dispute in this case turns on
whether and to what degree Yahoo must produce additional books and records relating to
de Castroâs hiring. Amalgamated seeks production of two additional categories. First,
Amalgamated seeks Mayerâs files, including emails40 (the âMayer Documentsâ). Second,
Amalgamated seeks documents, including emails, that reflect âdiscussions or decisions of
the full Board or Committee.â Dkt. 25 at 33 (the âAdditional Board Documentsâ).
Documents in this category would include memos and notes about the subject matter of
the Demand. It also would include emails to and from the directors from management or
the compensation consultant, emails among the directors themselves, and documents and
communications prepared by Yahoo officers and employees about the Boardâs
deliberations.
a. Mayerâs Documents
39
See In re China Agritech, Inc. Sâholder Deriv. Litig., 2013 WL 2181514, at *20 (Del.
Ch. May 21, 2013) (denying motion to dismiss pursuant to Rule 23.1; noting that the complaint
supported its allegations âwith references to books and records obtained using Section 220, and
with inferences that this Court can reasonably draw from the absence of books and records that
the Company could be expected to produceâ); In re Tyson Foods, Inc. Consol. Sâholder Litig.,
919 A.2d 563, 578 (Del. Ch. 2007) (explaining that âit is more reasonable to infer that
exculpatory documents would be provided [in response to a Section 220 demand] than to believe
the opposite: that such documents existed and yet were inexplicably withheldâ).
40
âThe plural form of e-mail is. . . e-mails, even though there's no corresponding plural
of mail as mails.â Ben Zimmer, The Plural of E-mail, N.Y. Times (May 7, 2010), available at
http://www.nytimes.com/2010/05/09/magazine/09FOB-onlanguage-t.html.
57
This court has the power to order production of documents prepared by officers
and employees as part of a Section 220 inspection.41 The question is whether the
documents are essential to fulfilling the plaintiffâs purpose.
The Wal-Mart case provides one example of a situation where this court found it
necessary to order access to officer and employee level documents. The plaintiffs
established a credible basis to suspect wide-ranging illegal conduct at a Wal-Mart
subsidiary followed by an internal cover-up. Wal-Mart, 95 A.3d at 1267-68. Chief Justice
Strine, then Chancellor, ordered an inspection of documents held by (i) eleven
custodians, including senior officers and employees, (ii) the Chair of Wal-Martâs Audit
Committee, and (iii) anyone who served as an assistant to those twelve individuals. Id. at
1269. The final order required Wal-Mart to produce âofficer (and lower)-level documents
regardless of whether they were ever provided to Wal-Martâs Board of Directors or any
committee thereof.â Id. at 1270.
On appeal, Wal-Mart challenged the order requiring production of officer and
employee documents. The Delaware Supreme Court affirmed, explaining that because the
stockholder sought to investigate misconduct involving officers, âofficer-level documents
are necessary and essential to determining whether and to what extent mismanagement
occurred and what information was transmitted.â Id. at 1273. The Delaware Supreme
41
See Wal-Mart, 95 A.3d at 1273; see also McKesson Corp. v. Saito, 818 A.2d 970 (Del.
2003) (TABLE) (affirming Court of Chancery decision requiring production of officer level
documents).
58
Court added that the officer-level documents âmay establish director knowledge . . . by
establishing that certain Wal-Mart offers were in a âreporting relationshipâ to Wal-Mart
directors, that those officers did in fact report to specific directors, and that those officers
received key information.â Id.; see also Beam, 845 A.2d at 1056 (explaining that officer-
level documents also can be necessary to understand how âdirectors handled
[management] proposals or conduct in various contexts,â which could reveal patterns of
boardroom behavior).
This case is not Wal-Mart, and in my view the facts of this case do not support the
type of production that the Delaware Supreme Court approved there. To its credit,
Amalgamated has not sought a similarly broad inspection. Amalgamated only seeks
production of the Mayer Documents.
The evidence establishes that the Mayer Documents are necessary for a
meaningful investigation of de Castroâs hiring. The trial record establishes that Mayer
was the principal corporate actor in the hiring process. She had all of the direct contact
with de Castro and conducted all of the discussions. She negotiated all of the financial
terms in the Original and Final Offer Letters. At present, she appears to be the person
who modified the terms of the Final Offer Letter. Her documents, including notes and
emails, will provide otherwise unavailable information about and insight into her
discussions and negotiations. Those books and records will show what Mayer knew and
when, and they will reveal any variations between what Mayer knew and what she told
the Board.
59
The scope of the production of the Mayer Documents will include email and other
electronic documents, which count as corporate books and records. Yahoo argues that
electronic documents are beyond the scope of Section 220, because the statute does not
mention âelectronically stored information.â Although it is true that Section 220 does not
contain those words, Yahoo is wrong that inspection rights are limited to paper records.
Stockholder inspection rights in Delaware date from the turn of the twentieth
century, when the courts recognized them under the common law. See, e.g., State ex rel.
De Julvecourt v. Pan-Am. Co., 61 A. 398 (Del. Super. 1904), affâd, 63 A. 1118 (Del.
1904). In that era and for a long time afterwards, courts logically focused on paper
documents, but times have changed. ââBooksâ as we know them may cease to exist in the
evolution of the Information Age.â Francis G.X. Pileggi, Kevin F. Brady, & Jill Argo,
Inspecting Corporate âBooks and Recordsâ in a Digital World: The Role of Electronically
Stored Information, 37 Del. J. Corp. L. 163, 165 (2012). Today, over 90% of business
documents are stored electronically. Id. Limiting âbooks and recordsâ to physical
documents âcould cause Section 220 to become obsolete or ineffective.â Id. at 164.
In other areas, Delaware law has moved beyond defining corporate records as
exclusively physical documents. Fifteen years ago, the General Assembly updated
Section 224 of the DGCL to recognize that corporate books and records are stored in
electronic form. The statute now states:
Any records maintained by a corporation in the regular course of its
business . . . may . . . be in the form of[] any information storage
device . . . . When records are kept in such manner, a clearly legible paper
form produced from or by means of the information storage device or
60
method shall be . . . accepted for all other purposes, to the same extent as an
original paper record of the same information would have been . . . .
8 Del. C. § 224. Not surprisingly, Delaware precedents have ordered the production of
electronic documents and emails in Section 220 actions.42
If Mayer chose to use a personal email account to conduct Yahoo business, she
must produce responsive documents. â[R]ights of shareholders secured by § 220 cannot
be defeated simply by having another entity hold the records.â Dobler, 2001 WL
1334182, at *10. A corporate record retains its character regardless of the medium used
to create it. By analogy, if two officers used their home computers to produce a
confidential corporate document that they shared with one another over their private
email addresses, no one would think that the report was a personal document that the
officers could sell for their own profit. See Ind. Elec. Workers Pension Tr. Fund IBEW v.
Wal-Mart Stores, Inc., 7779-CS, at 97-98 (Del. Ch. May 20, 2013) (Strine, C.)
(TRANSCRIPT) (using analogy to explain why Section 220 can extend to officersâ and
employeesâ personal email accounts when used for official business). As with other
42
See, e.g., Wal-Mart, 95 A.3d at 1274 (affirming order requiring production of
electronic documents, including data collected from disaster recovery tapes); In re Lululemon
Athletica Inc. 220 Litig., 2015 WL 1957196, at *6 (Del. Ch. Apr. 30, 2015) (explaining
reasoning for ordering production of emails); Tanyous v. Happy Child World, Inc., 2008 WL
2780357, at *7 n.50 (Del. Ch. July 17, 2008) (requiring production of â[c]orrespondence file
with Citizens Bank including all e-mails, letters, reports, etc.â); Deephaven Risk Arb Trading,
Ltd. v. UnitedGlobalCom, Inc., 2005 WL 1713067, at *10 (Del. Ch. July 13, 2005) (ordering
production of âelectronic communicationsâ); Dobler v. Montgomery Cellular Hldg. Co., 2001
WL 1334182, at *5-7 (Del. Ch. Oct. 19, 2001) (ordering production of emails âwhich reflect the
decision makingâ of corporationâs directors); see also Khanna v. Covad Commcâns Gp, Inc.,
2004 WL 187274, at *9 (Del. Ch. Jan. 23, 2004) (considering production of emails in a Section
220 action but finding the request excessive given stated purpose).
61
categories of documents subject to production under Section 220, what matters is whether
the record is essential and sufficient to satisfy the stockholderâs proper purpose, not its
source. See Wal-Mart, 95 A.3d at 1273.
b. Additional Board Documents
The Additional Board Documents are held by Yahoo officers and employees and
by the directors themselves. Just as this court has the power to order production of
corporate documents prepared by officers and employees as part of a Section 220
inspection, this court has the power to order production of corporate documents held by
directors.43 Once again, the question is whether the documents are essential to fulfilling
the plaintiffâs purpose.
The problem with the Additional Board Documents is the potential breadth of the
category. It necessarily overlaps to some degree with the Mayer Documents, which
Yahoo will provide. The discussion in this section therefore focuses on the Additional
43
Through its jurisdiction over a corporation, a court can compel production of
documents in the possession of officers, directors, and managing agents of the firm. See In re
Activision Blizzard, Inc., 86 A.3d 531, 552 (Del. Ch. 2014); Hamilton Pârs, L.P. v. Englard, 11
A.3d 1180, 1214 (Del. Ch. 2010); Hoechst Celanese Corp. v. Natâl Union Fire Ins. Co. of
Pittsburgh, Pa., 1997 WL 716898, at *1 (Del. Super. Aug. 18, 1997) (ORDER); 7 Daniel R.
Coquillette et al., Mooreâs Federal Practice â Civil § 30.03 (3d ed. 1997 & Supp. 2013); see also
Dalton v. Am. Inv. Co., 1981 WL 7619, at *1 (Del. Ch. June 9, 1981) (noting Courtâs
discretionary authority to order a corporation to produce a particular officer, director, or
managing agent for deposition in a particular location); Lasher v. Sterwin Labs., 1980 WL
10017, at *1-2 (Del. Ch. Jan. 28, 1980) (ordering defendant corporations to produce witness for
deposition in Delaware); 8A Charles Alan Wright et al., Federal Practice and Procedure § 2107
(3d ed. 1998 & Supp. 2010) (âA [third party] subpoena is not necessary if the person to be
examined is a party or an officer, director, or a managing agent of the partyâ (footnote omitted)).
The court can impose sanctions or other consequences on the firm if the officer, director, or
managing agent fails to comply.
62
Board Documents relating to de Castroâs hiring that are not already subject to production
as Mayer Documents. But even with this limitation, the category of Additional Board
Documents is still expansive and could encompass numerous document custodians. In
addition to the directors themselves, possible custodians include Yahooâs compensation
consultant, members of his team, and any other officers or employees who were involved
in the hiring decision, such as personnel in Yahooâs human resources department.
Possible documents would include anything memorializing or referring to the hiring
decision and the directorsâ deliberations, including emails.
In my view, Amalgamated has not carried its burden to justify a production of this
scope. Amalgamated would be entitled to that type of production in a plenary proceeding,
but this is a Section 220 action.
A subset of the Additional Board Documents is justified. The production will be
limited to Webb, James, Ligouri, and Wilson, who were the members of the Committee.
Yahoo will produce their documents regarding de Castroâs hiring, including their email
communications.
2. Books And Records Relating To De Castroâs Termination
The second and third requests in the Demand address de Castroâs termination.
Request 2 asks for â[a]ll books and records relating to Mr. de Castroâs termination from
Yahoo, including all Board and Compensation Committee minutes and presentations
relating to Mr. de Castroâs termination.â JX 34 at 4. Request 3 asks for â[a]ny expertâs or
consultantâs reports or opinions concerning Mr. de Castroâs termination, including books
and records sufficient to determine whether Mr. de Castro was terminated for âCause.ââ
63
Id. Here again, Yahoo has produced the Board-Level Materials. The question is what
else, if anything, needs to be produced.
Request 3 is easily dealt with. The trial record established that de Castro was not
terminated for âCause,â so Amalgamated has its answer. Production of any expertâs or
consultantâs report or opinions concerning de Castroâs termination is necessary for
Amalgamatedâs inspection, because these reports or opinions (if any) establish the
informational base potentially available to Mayer and the Board. By limiting its
production to Board-Level Materials, Yahoo may have excluded reports or opinions that
Yahoo received below the Board level. The request as framed is narrow and targeted, and
Yahoo will respond to it without limitation. If Yahooâs officers, or its human resources
department, obtained a report or opinion from an expert or consultant about de Castroâs
termination, then that is something Yahoo should know and readily be able to provide.
Request 2 presents the same issues as Request 1, except that Request 2 addresses
de Castroâs firing while Request 1 involves the hiring. This decisionâs rulings on the
Mayer Documents and the specified Additional Board Documents apply equally to
Request 2, albeit with the subject matter modified. If anything, the case for producing the
Mayer Documents and the specified Additional Board Documents is stronger for the
termination, because it was Mayer who determined that de Castro had not performed his
duties or fulfilled his responsibilities and decided to fire him. The Committee then
approved the termination without deliberation or meaningful information, and the
directors only became substantively involved after the fact.
64
3. Books And Records Relating To De Castroâs Performance
The fourth request in the Demand seeks â[a]ll books and records relating to Mr. de
Castroâs job performance at Yahoo, including Board and Compensation Committee
minutes relating to Mr. de Castroâs performance as Chief Operating Officer.â Id. Yahoo
already has produced the Board-Level Materials. For the reasons already discussed,
Yahoo also will produce the Mayer Documents and the specified Additional Board
Documents.
The record provides reason to believe that there are additional books and records
beyond the Board-Level Materials that are essential to Amalgamatedâs inspection. For
example, Mayer told the Committee that she gave de Castro âfeedback on the
deficiencies in his performance.â JX 36 at 7. It also seems likely that Mayer may have
kept some or all of the directors informed about developments with de Castro outside of
formal Board meetings. That seems particularly true for events in January 2014, where
the official record of Committee involvement is decidedly sparse.
4. Board Appointments And Nominations
The fifth and final request in the Demand is â[a]ll books and records concerning
discussions, communications, or decisions as to the nominations of the current members
of the Companyâs Board, and the placement of such directors on any committees or
subcommittees of the Companyâs Board.â JX 35 at 4. Yahoo has not produced any
documents responsive to this category.
The scope of the inspection called for by this request is potentially broad, but it is
something that the Delaware Supreme Court contemplated in Beam and more recently in
65
Wal-Mart and Sanchez. I nevertheless believe the production should be tailored. In the
first instance, the subject matter of the request is limited as follows:
â Rather than extending to âthe nominations of the current members of the
Companyâs Board,â the request shall cover only the initial nominations of the
current members of the Board.
â For purposes of the re-nomination of any existing member of the Board, the
request shall apply only to the extent that there was consideration by the Board,
the Nomination Committee, or Mayer about re-nominating a particular current
member of the Board. Yahoo and its counsel should be able to determine relatively
quickly by asking Mayer and the directors whether this has occurred. This should
enable Yahoo to avoid a potentially broad search entirely or, if further
investigation is necessarily, target the issue.
â The request about the placement of the directors on committees shall apply only to
the directors who served on the Committee during the period that encompassed de
Castroâs hiring and firing.
Yahoo and its counsel should be able to determine whether and to what degree
Yahoo keeps files on these matters. If Yahoo does not have a centralized file, then the
custodians for purposes of production shall be Mayer, Yahooâs corporate secretary,
Yahooâs head of human resources, and any officer or employee specifically tasked with
director recruitment and evaluation, committee assignments, and board effectiveness.
Yahoo also will produce any annual director questionnaires and related materials that the
directors complete as part of Yahooâs preparation of its proxy or applications for
directorsâ and officersâ liability insurance. At present, Amalgamated has not convinced
me that searching the outside directorsâ files and emails on this issue is warranted.
5. The Counsel Documents
A final issue that runs across all of the categories sought in the Demand is
consultations with counsel (âCounsel Documentsâ). The Delaware Supreme Court has
66
held that if a stockholder has shown that particular documents are essential to its
inspection, then the stockholder can overcome the attorney-client privilege and work
product doctrine by making the showing required by Garner v. Wolfinbarger, 430 F.2d
1093 (5th Cir. 1970). See Wal-Mart, 95 A.3d at 1275-81. Before reaching the Garner
analysis, however, the trial court first must determine that the documents are essential,
because that inquiry âis dispositive of the threshold questionâthe scope of document
production to which the plaintiff is entitled under Section 220.â Id. at 1278; accord
Espinoza v. Hewlett-Packard Co., 32 A.3d 365, 374 (Del. 2011).
At this point, I do not believe that Amalgamated has justified having Yahoo search
broadly for Counsel Documents. To the extent that Yahoo previously identified any
Counsel Documents during its collection of the Board-Level Documents, or if Yahoo
identifies any when producing the Mayer Documents and the Additional Board
Documents, then Yahoo will identify those documents on a privilege log. It is premature
for this court to do anything other than require Yahoo to log documents.
D. The Incorporation Condition
Yahoo raises one issue of first impression. Yahoo asks that this court condition
any further production on Amalgamated incorporating by reference into any derivative
action complaint that it files the full scope of the documents that Yahoo has produced or
will produce in response to the Demand (the âIncorporation Conditionâ). Yahooâs request
is granted, and further production is conditioned on Amalgamated agreeing that the
entirety of Yahooâs production in response to the Demand is incorporated by reference in
any derivative action complaint it files relating to the subject matter of the demand.
67
âSection 220(c) of the DGCL gives broad discretion to the Court of Chancery to
condition a books and records inspection . . . .â United Techs. Corp. v. Treppel, 109 A.3d
553, 557-58 (Del. 2014). By statute, the Court of Chancery âmay, in its discretion,
prescribe any limitations or conditions with reference to the inspection, or award such
other or further relief as the Court may deem just and proper.â 8 Del. C. § 220(c).
âThe ability to limit the use of information gathered from an inspection . . . has
long been recognized as within the Court of Chanceryâs discretion.â United Techs., 109
A.3d at 558. This court has used conditions as part of its effort to âmaintain a proper
balance between the rights of shareholders to obtain information based upon credible
allegations of corporation mismanagement and the rights of directors to manage the
business of the corporation without undue interference from stockholders.â Seinfeld v.
Verizon Commcâns, Inc., 909 A.2d 117, 122 (Del. 2006).
One common limitation is to condition production on the stockholder entering into
a confidentiality agreement. See CM & M Gp., Inc. v. Carroll, 453 A.2d 788, 793-94
(Del. 1982). Although once novel, now â[t]here is a presumption that the production of
books and records pursuant to section 220 should be âconditioned upon a reasonable
confidentiality order.ââ 1 Welch et al., supra, § 220.06, at 7-238.1 (quoting Disney v. The
Walt Disney Co., 857 A.2d 444, 447 (Del. Ch. 2004)). More recently, the Delaware
Supreme Court held that this court can condition a Section 220 production on the plaintiff
agreeing to file any subsequent derivative action in a Delaware court. See United Techs.,
109 A.3d at 558-59.
68
In this case, the Incorporation Condition protects the legitimate interests of both
Yahoo and the judiciary by ensuring that any complaint that Amalgamated files will not
be based on cherry-picked documents. It achieves this goal by building on the
incorporation-by-reference doctrine, which permits a court to consider documents that
have been incorporated by reference in a complaint when ruling on a motion to dismiss.44
A plaintiff generally is master of its complaint and can choose what it wants to plead.
â[A]ll well-pleaded factual allegations are accepted as true.â Savor, Inc. v. FMR Corp.,
812 A.2d 894, 896 (Del. 2002). The plaintiff also is entitled to âall reasonable inferencesâ
that can be drawn from the allegations of the complaint. Id. at 897. If these principles
were applied mindlessly, however, a plaintiff could describe a document or take a
handful of words out of context and claim that the court was required to accept the
plaintiffâs pleading-stage characterization. Instead, under the incorporation-by-reference
doctrine, â[a] plaintiff may not reference certain documents outside the complaint and at
the same time prevent the court from considering those documentsâ actual terms.â
Winshall v. Viacom Intâl, Inc., 76 A.3d 808, 818 (Del. 2013).
The incorporation-by-reference doctrine permits a court to review the actual
document to ensure that the plaintiff has not misrepresented its contents and that any
44
See Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312, 320 (Del. 2004); In re
Mortonâs Rest. Gp., Inc. Sâholders Litig., 74 A.3d 656, 658 n.3 (Del. Ch. 2013) (Strine, C.); H-M
Wexford LLC v. Encorp, Inc., 832 A.2d 129, 139 (Del. Ch. 2003).
69
inference the plaintiff seeks to have drawn is a reasonable one. 45 The doctrine limits the
ability of the plaintiff to take language out of context, because the defendants can point
the court to the entire document. The doctrine also enables courts to dispose of meritless
complaints at the pleading stage. âWithout the ability to consider the document at issue in
its entirety, âcomplaints that quoted only selected and misleading portions of such
documents could not be dismissed under Rule 12(b)(6) even though they would be
doomed to failure.ââ General Motors, 897 A.2d at 169-70 (quoting Santa Fe, 669 A.2d at
70). With the incorporation-by-reference doctrine, âa complaint may, despite allegations
to the contrary, be dismissed where the unambiguous language of documents upon which
the claims are based contradict the complaintâs allegations.â Encorp, 832 A.2d at 139.
Likewise, âa claim may be dismissed if allegations in the complaint or in the exhibits
incorporated into the complaint effectively negate the claim as a matter of law.â Malpiede
v. Townson, 780 A.2d 1075, 1083 (Del. 2001).
The Incorporation Condition takes these concepts one step further by extending
them to other documents that Yahoo produces in response to the Demand. If Yahoo feels
that the plaintiff has seized on a document and taken it out of context, then the
Incorporation Condition will permit Yahoo to point the court to the other documents. The
Incorporation Condition also acknowledges that Yahoo has invested time litigating this
45
See In re General Motors (Hughes) Sâholder Litig., 897 A.2d 162, 169-70 (Del. 2006);
In re Santa Fe Pac. Corp. Sâholder Litig., 669 A.2d 59, 70 (Del. 1995); In re Gardner Denver,
Inc., 2014 WL 715705, at *2 n.17 (Del. Ch. Feb. 21, 2014).
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action and producing documents, âwhich comes at a cost to its stockholders.â United
Techs., 109 A.3d at 560. Imposing the condition helps balance Yahooâs rights against
those of the plaintiff by recognizing that the production as a whole should provide the
basis for any follow-on complaint, not just a handful of isolated documents or emails.
It is important to stress what the Incorporation Condition does not do. The
Incorporation Condition does not change the pleading standard that governs a motion to
dismiss. For purposes of a Rule 12(b)(6) motion, âall well-pleaded factual allegationsâ
still will be accepted as true. Savor, 812 A.2d at 896. If there are factual conflicts in the
documents or the circumstances support competing interpretations, and if the plaintiff
makes a well-pleaded factual allegation, then the allegation will be credited. The plaintiff
also will be entitled to âall reasonable inferences.â Id. at 897. This means that if a
document or the circumstances support more than one possible inference, and if the
inference that the plaintiff seeks is reasonable, then the plaintiff receives the inference. Id.
The same applies for a Rule 23.1 motion. All particularized factual allegations still
will be accepted as true. Rales v. Blasband, 634 A.2d 927, 931 (Del. 1993). The court
will âdraw all inferences from those particularized facts in favor of the plaintiff, and not
the defendant.â Del. Cty. Empls. Ret. Fund v. Sanchez, 124 A.3d 1017, 1022 (Del. 2015).
And when determining whether a plaintiff has pled facts supporting an inference that a
director cannot act independently of an interested director for purposes of demand
excusal, âall particularized facts pled by the plaintiffs about the relationships between the
director and the interested partyâ will be considered âin their totality and not in isolation
from each other.â Id. at 1019.
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In the end, the only effect of the Incorporation Condition will be to ensure that the
plaintiff cannot seize on a document, take it out of context, and insist on an unreasonable
inference that the court could not draw if it considered related documents. It will allow
the court to address complaints that should not advance past the pleading stage, but it will
not prevent a plaintiff from stating a well-pled claim. At a functional level, the
Incorporation Condition resembles an approach that Delaware decisions have taken when
ruling on motions to dismiss after plaintiffs have taken expedited discovery in support of
preliminary injunction applications.46 In the Mortonâs case, for example, then-Chancellor
Strine denied an application for a preliminary injunction. Afterwards, the plaintiffs
amended their complaint, and the defendants moved to dismiss the complaint for failing
to state a cognizable claim. The plaintiffs had taken four depositions during the injunction
phase, and the defendants attached the transcripts to their briefs. Chancellor Strine held
that the plaintiffs had âplain[ly] reli[ed]â on âthe discovery material taken in connection
with their preliminary injunction applicationâ when formulating their complaint, and he
therefore treated the discovery material as incorporated by reference for purposes of his
decision. Mortonâs, 74 A3d at 658 n.3. The Incorporation Condition accomplishes the
46
See Gardner Denver, 2014 WL 715705, at *8 (treating five depositions taken during
expedited discovery as âintegralâ to the complaint for purposes of a motion to dismiss even
though the plaintiffs had not cited all of them); Mortonâs, 74 A3d at 658 n.3; see also Simplexity,
LLC v. Zeinfeld, 2013 WL 5702374, at *1 n.2 (Del. Ch. Oct. 17, 2013) (noting that although the
court was only considering the documents explicitly incorporated by reference in the complaint,
âthe facts developed through expedited discovery only reinforce th[is] decisionâ).
72
same result for the materials generated by the pre-suit investigation that Amalgamated is
conducting using Section 220.
Amalgamated protests that the strictures of Rule 11 make the Incorporation
Condition unnecessary. See Ct. Ch. R. 11. It is true, as Amalgamated argues, that Rule 11
mitigates the cherry-picking problem to some degree, but invoking Rule 11 is strong
medicine. The more common case will involve a plaintiffâs counsel seeking to draw an
unreasonable inference by citing a document in isolation, not in bad faith but perhaps
over-zealously in the belief that the document reveals more than it does. The
Incorporation Condition enables a court to deal with that in more measured fashion.
A final procedural note: The Incorporation Condition does not mean that
Amalgamated should attach the entire Section 220 production to a future complaint, nor
is it an invitation for the defendants in a future action to file an appendix containing the
entire Section 220 production in support of their motion to dismiss. Either approach
would help the State of Delaware by generating hefty filing fees, but it would not help the
parties brief the motion or the judge make a ruling. Amalgamated can and should file a
complaint, if it chooses to do so, as if the Incorporation Condition had not been imposed.
Defense counsel must then use judgment and supply the court only with the limited
documents (if any) necessary to show that it would not be reasonable to draw a particular
inference on which the complaint depends.
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III. CONCLUSION
Yahoo shall provide the additional books and records contemplated by this
opinion, subject to the Incorporation Condition. The production shall be completed
within thirty days. The parties shall submit a form of implementing order.
74