Dieckman v. Regency GP LP, Regency GP LLC

       IN THE SUPREME COURT OF THE STATE OF DELAWARE

ADRIAN DIECKMAN, on behalf of        §
himself and all others similarly     §
situated,                            §
                                     §    No. 208, 2016
      Plaintiff Below, Appellant,    §
                                     §    Court Below—Court of Chancery
      v.                             §    of the State of Delaware
                                     §
REGENCY GP LP, REGENCY GP            §    C.A. No. 11130
LLC, ENERGY TRANSFER                 §
EQUITY, L.P., ENERGY                 §
TRANSFER PARTNERS, L.P.,             §
ENERGY TRANSFER                      §
PARTNERS,GP, L.P., MICHAEL J.        §
BRADLEY, JAMES W. BRYANT,            §
RODNEY L. GRAY, JOHN W.              §
McREYNOLDS, MATTHEW S.               §
RAMSEY and RICHARD                   §
BRANNON,                             §
                                     §
      Defendants Below, Appellees.   §

                        Submitted: November 16, 2016
                        Decided:   January 20, 2017

Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and
SEITZ, Justices, constituting the Court en Banc.

Upon appeal from the Court of Chancery: REVERSED.

Stuart M. Grant, Esquire (argued) and James J. Sabella, Esquire, Grant &
Eisenhofer P.A., Wilmington, Delaware; Mark Lebovitch, Esquire, Jeroen van
Kwawegen, Esquire and Alla Zayenchik, Esquire, Bernstein Litowitz Berger &
Grossman LLP, New York, New York; Mark C. Gardy, Esquire and James S.
Notis, Esquire, Gardy & Notis, LLP, New York, New York, for Plaintiff,
Appellant, Adrian Dieckman.
Rolin P. Bissell, Esquire and Tammy L. Mercer, Esquire, Young Conaway
Stargatt & Taylor, LLP, Wilmington, Delaware; Michael Holmes, Esquire
(argued), Manuel Berrelez, Esquire and Craig Zieminski, Esquire, Vinson &
Elkins LLP, Dallas, Texas for Defendants, Appellees, Regency GP LP, Regency
GP LLC, Energy Transfer Equity, L.P., Energy Transfer Partners, L.P., Energy
Transfer Partners, GP, L.P., Michael J. Bradley, Rodney L. Gray, John W.
McReynolds and Matthew S. Ramsey.

David J. Teklits, Esquire and D. McKinley Measley, Esquire, Morris, Nichols,
Arsht & Tunnell LLP, Wilmington, Delaware; M. Scott Barnard, Esquire, Michelle
A. Reed, Esquire and Matthew V. Lloyd, Esquire, Akin Gump Strauss Hauer &
Feld LLP, Dallas, Texas for Defendants, Appellees, James W. Bryant and Richard
Brannon.

SEITZ, Justice:
      In this appeal, we again wade into the details of a master limited partnership

agreement to decide whether the complaint’s allegations can overcome the general

partner’s use of conflict resolution safe harbors to dismiss the case. The parties are

identified by a host of confusing abbreviations, but the gist of the appeal is as

follows.

      The plaintiff is a limited partner/unitholder in the publicly-traded master

limited partnership (“MLP”). The general partner proposed that the partnership be

acquired through merger with another limited partnership in the MLP family. The

seller and buyer were indirectly owned by the same entity, creating a conflict of

interest. Because conflicts of interest often arise in MLP transactions, those who

create and market MLPs have devised special ways to try to address them. The

general partner in this case sought refuge in two of the safe harbor conflict

resolution provisions of the partnership agreement—“Special Approval” of the

transaction by an independent Conflicts Committee, and “Unaffiliated Unitholder

Approval.”

      In the MLP context, Special Approval typically means that a Conflicts

Committee composed of members independent of the sponsor and its affiliates

reviewed the transaction and made a recommendation to the partnership board

whether to approve the transaction. Unaffiliated Unitholder Approval is typically

just that—a majority of unitholders unaffiliated with the general partner and its
affiliates approve the transaction. Under the partnership agreement, if either safe

harbor is satisfied, the transaction is deemed not to be a breach of the agreement.

      The partnership agreement required that the Conflicts Committee be

independent, meaning that its members could not be serving on affiliate boards and

were independent under the audit committee independence rules of the New York

Stock Exchange. The plaintiff alleged in the complaint that the general partner

failed to satisfy the Special Approval safe harbor because the Conflicts Committee

was itself conflicted. According to the plaintiff, one of the Committee’s two

members began evaluating the transaction while still a member of an affiliate’s

board, and then resigned from the affiliate’s board four days after he began his

review to then become a member of the Conflicts Committee. On the same day the

transaction closed, the committee member was reappointed to the seat left vacant

for him on the affiliate’s board.

      The plaintiff also alleged that the general partner failed to satisfy the

Unaffiliated Unitholder Approval safe harbor because the general partner made

false and misleading statements in the proxy statement to secure that approval. In

the 165-page proxy statement sent to the unitholders, the general partner failed to

disclose the conflicts within the Conflicts Committee. Instead, the proxy statement

stated that Special Approval had been obtained by an independent Conflicts

Committee.

                                          2
       The general partner moved to dismiss the complaint and claimed that, in the

absence of express contractual obligations not to mislead investors or to unfairly

manipulate the Conflicts Committee process, the general partner need only satisfy

what the partnership agreement expressly required—to obtain the safe harbor

approvals and follow the minimal disclosure requirements.        In other words,

whatever the general partner said in the proxy statement, and whomever the

general partner appointed to the Conflicts Committee, was irrelevant because only

the express requirements of the partnership agreement controlled and displaced any

implied obligations not to undermine the protections afforded unitholders by the

safe harbors.

      The Court of Chancery side-stepped the Conflicts Committee safe harbor,

but accepted the general partner’s argument that the Unaffiliated Unitholder

Approval safe harbor required dismissal of the case. The court held that, even

though the proxy statement might have contained materially misleading

disclosures, fiduciary duty principles could not be used to impose disclosure

obligations on the general partner beyond those in the partnership agreement,

because the partnership agreement disclaimed fiduciary duties. Further, the court

agreed with the defendants that the only express disclosure requirement of the

agreement in the event of a merger—that the general partner simply provide either

a summary of, or a copy of, the merger agreement—displaced any implied

                                        3
contractual duty to disclose in the proxy statement material facts about the

conflicts within the Conflicts Committee.

      On appeal, the plaintiff concedes that if the general partner met the

requirements of either safe harbor, his breach of contract claim would fail. The

plaintiff also does not argue with the Court of Chancery’s ruling that the

partnership agreement’s express disclosure requirements cannot be supplanted by

implied or fiduciary-based disclosure obligations. Instead, he argues that the Court

of Chancery erred when it concluded that the general partner satisfied the

Unaffiliated Unitholder Approval safe harbor, because he alleged sufficient facts to

show that the approval was obtained through false and misleading statements. The

plaintiff also claims that, for pleading stage purposes, he has made a sufficient

showing that the Special Approval safe harbor was not satisfied, because the

Conflicts Committee was not independent.

      We view the central issue in the dispute through a different lens than the

Court of Chancery. The Court of Chancery was correct that the implied covenant

of good faith and fair dealing cannot be used to supplant the express disclosure

requirements of the partnership agreement. But the court focused too narrowly on

the partnership agreement’s disclosure requirements.        Instead, the center of

attention should have been on the conflict resolution provision of the partnership

agreement.

                                         4
      The partnership agreement’s conflict resolution provision is a powerful tool

in the general partner’s hands because it can be used to shield a conflicted

transaction from judicial review.    But the conflicts resolution provision also

operates for the unitholders’ benefit.   It ensures that, before a safe harbor is

reached by the general partner, unaffiliated unitholders have a vote, or the

conflicted transaction is reviewed and recommended by an independent Conflicts

Committee.

      The partnership agreement does not address how the general partner must

conduct itself when seeking the safe harbors. But where, as here, the express terms

of the partnership agreement naturally imply certain corresponding conditions,

unitholders are entitled to have those terms enforced according to the reasonable

expectations of the parties to the agreement. The implied covenant is well-suited

to imply contractual terms that are so obvious—like a requirement that the general

partner not engage in misleading or deceptive conduct to obtain safe harbor

approvals—that the drafter would not have needed to include the conditions as

express terms in the agreement.

      We find that the plaintiff has pled sufficient facts, which we must accept as

true at this stage of the proceedings, that neither safe harbor was available to the

general partner because it allegedly made false and misleading statements to secure

Unaffiliated Unitholder Approval, and allegedly used a conflicted Conflicts

                                         5
Committee to obtain Special Approval. Thus, we reverse the Court of Chancery’s

order dismissing Counts I and II of the complaint.

                                              I.

       As alleged in the complaint, the plaintiff, Adrian Dieckman, is a unitholder

of Regency.       The business entity defendants, their relationships, and other

abbreviations are as follows:

       Regency Energy Partners LP (“Regency”) - a publicly-traded
       Delaware limited partnership engaged in the gathering and processing,
       contract compression, treating and transportation of natural gas and
       the transportation, fractionation and storage of natural gas liquids.

       Regency General Partner LP (“General Partner LP”) - the general
       partner of Regency.

       Regency General Partner LLC (“General Partner LLC”) - a Delaware
       LLC and the general partner of General Partner LP.1

       Energy Transfer Partners L.P. (“ETP”) - the general partner of Sunoco
       LP; a 43% owner of limited partnership interests in Sunoco and a
       100% owner of Sunoco’s distribution rights.

       Energy Transfer Partners, GP, L.P. (“EGP”) - the general partner of
       ETP.

       Energy Transfer Equity, L.P. (“ETE”) - indirectly owns Regency’s
       general partner and ETP’s general partner.

       Conflicts Committee - the committee formed by the General Partner
       under § 7.9(a) of the LP Agreement.

1
  Like the Court of Chancery, for simplicity’s sake we collapse General Partner LP and General
Partner LLC into one as the “General Partner” of Regency, recognizing that there were two
layers of general partners.

                                              6
      LP Agreement - the Regency limited partnership agreement.

      The following is a diagram from the Court of Chancery opinion showing the

interconnected relationships among the entities before the merger, and Regency’s

status after the merger:




      The remaining defendants are the six members of General Partner LP’s

board of directors—Michael J. Bradley (also CEO of the General Partner), James

W. Bryant, Rodney L. Gray, John W. McReynolds (also CFO and president of

ETE), Matthew S. Ramsay, and Richard Brannon. Bryant and Brannon served on


                                       7
the Conflicts Committee of the General Partner’s board. Brannon was a Sunoco

director until January 20, 2015, and was reappointed to the Sunoco board on May

5, 2015. Bryant was appointed to Sunoco’s board on May 5, 2015.

                                             A.

       According to the complaint and the proxy statement distributed to

unitholders,2 the ETP and ETE boards met to discuss a merger between ETP and

Regency. ETP eventually made a merger proposal to Regency, where Regency

would be merged into ETP for a combination of cash and stock using an exchange

ratio of 0.4044 ETP common units for one Regency common unit, and a $137

million cash payment.        Because of the undisputed conflicts of interest in the

proposed merger transaction, the General Partner looked to the conflict resolution

provisions of the LP Agreement.

       Under § 7.9(a) of the LP Agreement, entitled “Resolution of Conflicts of

Interest; Standards of Conduct and Modification of Duties,” unless otherwise

provided in another agreement, the General Partner can resort to several safe

harbors to immunize conflicted transactions from judicial review:

       [A]ny resolution or course of action by the General Partner or its
       Affiliates in respect of such conflict of interest shall be permitted and
       deemed approved by all Partners, and shall not constitute a breach of

2
  The proxy statement incorporated into the complaint and relied on by the parties is properly
considered on a motion to dismiss. Allen v. Encore Energy Partners, L.P., 72 A.3d 93, 96 n.2
(Del. 2013).

                                              8
       this Agreement … or of any duty stated or implied by law or equity, if
       the resolution or course of action in respect of such conflict of interest
       is (i) approved by Special Approval, (ii) approved by the vote of a
       majority of the Common Units (excluding Common Units owned by
       the General Partner and its Affiliates), (iii) on terms no less favorable
       to the Partnership than those generally being provided to or available
       from unrelated third parties, or (iv) fair and reasonable to the
       Partnership, taking into account the totality of the relationships
       between the parties involved (including other transactions that may be
       particularly favorable or advantageous to the Partnership).3

       The General Partner sought the protections of the safe harbors by Special

Approval under § 7.9(a)(i) and Unaffiliated Unitholder Vote under § 7.9(a)(ii).

Special Approval is defined in the LPA as “approval by a majority of the members

of the Conflicts Committee.”4 The Conflicts Committee must be:

       [A] committee of the Board of Directors of the general partner of the
       General Partner5 composed entirely of two or more directors who are
       not (a) security holders, officers or employees of the General Partner,
       (b) officers, directors or employees of any Affiliate of the General
       Partner[,] or (c) holders of any ownership interest in the Partnership
       Group other than Common Units and who also meet the independence
       standards required of directors who serve on an audit committee of a
       board of directors established by the Securities Exchange Act of 1934,
       as amended, and the rules and regulations of the Commission
       thereunder and by the National Securities Exchange on which the
       Common Units are listed or admitted to trading.6

       For purposes of subsection (b), “Affiliate” is defined as any person “that

directly or indirectly through one or more intermediaries controls, is controlled by
3
  App. to Opening Br. at 105 (LP Agreement § 7.9(a)).
4
  Id. at 70 (LP Agreement § 1.1).
5
  The general partner of the General Partner is Regency GP LLC. As noted before, for simplicity
sake, “General Partner” in this decision includes both Regency GP LP and Regency GP LLC.
6
  App. to Opening Br. at 62 (LP Agreement § 1.1).

                                              9
or is under control with, the Person in question.”7 Sunoco and the General Partner

are both controlled by ETE, and are “Affiliates,” under the LP Agreement. Thus,

Sunoco board members were not eligible to serve as members of the General

Partner’s Conflicts Committee. Nor was it clear that they would meet the audit

committee independence rules of the New York Stock Exchange.

                                          B.

         The General Partner appointed Brannon and Bryant to the Conflicts

Committee. The complaint alleges that before the proposed transaction, Brannon

was a Sunoco director. On January 16, 2015, ETE appointed Brannon to the

General Partner’s board, while still a director of Sunoco. The plaintiff claims that,

from January 16-20, while a member of both boards, Brannon consulted informally

on the proposed transaction.          According to the complaint, Brannon then

temporarily resigned from the Sunoco board on January 20, and on January 22,

became an official member of the Conflicts Committee when formal resolutions

were passed creating the Committee. Brannon and Bryant then negotiated on

behalf of Regency with ETP and recommended the merger transaction to the

General Partner. On April 30, 2015, the day that the merger closed, Brannon was

reappointed to the Sunoco board, and Bryant was also appointed to Sunoco board.



7
    Id. at 49 (LP Agreement § 1.1).

                                          10
      The complaint also alleges that the Conflicts Committee retained a

conflicted financial advisor, J.P. Morgan. J.P. Morgan was supposedly chosen by

Regency’s CFO, Long, and not by the Conflicts Committee. Because it was

allegedly known that Long was expected to become the CFO of ETP GP LLC, the

plaintiff claims that J.P. Morgan was beholden to Long and would favor its long-

term relationship with the Energy Transfer entities.

      The plaintiff claims that the negotiations between the Conflicts Committee

and ETP were ceremonial and only lasted a few days. According to the complaint,

between January 23 and January 25, the Conflicts Committee made a perfunctory

and slightly increased counteroffer to ETP’s offer, which would have achieved a

15% premium to the closing price of common units.            ETP rejected the

counteroffer, and the parties settled on ETP’s opening bid of a 13.2% premium to

the January 23 closing price. The Conflicts Committee recommended that the

General Partner pursue the transaction on the original terms proposed by ETP,

which the General Partner approved on January 25. The plaintiff alleges that the

entire process from start to finish lasted nine days.

                                          C.

      The LP Agreement only required minimal disclosure when a merger

transaction was considered by the unitholders—a summary of, or a copy of, the




                                          11
merger agreement.8          But the General Partner went beyond the minimal

requirements in the LP Agreement. To gain Unaffiliated Unitholder Approval and

the benefit of the safe harbor, the General Partner filed a 165-page proxy statement

and disseminated it and a copy of the merger agreement to the unitholders.

       The proxy statement stated that the “Conflicts Committee consists of two

independent directors: Richard D. Brannon (Chairman) and James W. Bryant.”9 It

also stated that the Conflicts Committee approved the transaction, and such

approval “constituted ‘Special Approval’ as defined in the Regency partnership

agreement.”10      The proxy statement did not inform unitholders about the

circumstances of Bryant’s alleged overlapping and shifting allegiances, including

reviewing the proposed transaction while still a member of the Sunoco board, his

nearly contemporaneous resignation from the Sunoco board and appointment to the

General Partner’s board and then the Conflicts Committee, or Brannon’s

appointment and Bryant’s reappointment to the Sunoco board the day the

transaction closed. At a special meeting of Regency’s unitholders on April 28,

2015, a majority of Regency’s unitholders, including a majority of its unaffiliated

unitholders, approved the merger.



8
  Id. at 124-35 (LP Agreement § 14.3(a)).
9
  Id. at 215.
10
   Id.

                                            12
                                            D.

      After plaintiff filed his complaint challenging the fairness of the merger

transaction, the defendants moved to dismiss under Court of Chancery Rule

12(b)(6), invoking the protections of Special Approval and Unaffiliated Unitholder

Approval under the LP Agreement. The Chancellor reached only the Unaffiliated

Unitholder Vote safe harbor. After finding that all fiduciary duties were displaced

by contractual terms, the court noted that the LP Agreement contained “just a

single disclosure requirement” and thus the LP Agreement terms “unambiguously

extinguish the duty of disclosure and replace it with a single disclosure

requirement.”11 According to the court, given the express disclosure obligation,

the implied covenant of good faith and fair dealing “has no work to do” because

“the express waiver of fiduciary duties and the clearly defined disclosure

requirement … prevent the implied covenant from adding any additional disclosure

obligations to the agreement.”12 Once the Unaffiliated Unitholder Vote safe harbor

applied, the court dismissed the case because “the Merger is deemed approved by

all the limited partners, including plaintiff, and is immune to challenge for

contractual breach.”13



11
   Dieckman v. Regency GP LP, 2016 WL 1223348, at *9 (Del. Ch. Mar. 29, 2016).
12
   Id.
13
   Id. at *10.

                                           13
                                           II.

      The appeal comes to us from the Court of Chancery’s decision granting the

defendants’ motion to dismiss. Our review is de novo.14

                                           A.

      We start with the settled principles of law governing Delaware limited

partnerships.     The Delaware Revised Uniform Limited Partnership Act

(“DRUPLA”) gives “maximum effect to the principle of freedom of contract.”15

One freedom often exercised in the MLP context is eliminating any fiduciary

duties a partner owes to others in the partnership structure.16 The act allows

drafters of Delaware limited partnerships to modify or eliminate fiduciary-based

principles of governance, and displace them with contractual terms.

      With the contractual freedom accorded partnership agreement drafters, and

the typical lack of competitive negotiations over agreement terms, come

corresponding responsibilities on the part of investors to read carefully and

understand their investment. Investors must appreciate that “with the benefits of

investing in alternative entites often comes the limitation of looking to the contract

as the exclusive source of protective rights.”17 In other words, investors can no


14
   Winshall v. Viacom Int’l, Inc., 76 A.3d 808, 813 (Del. 2013).
15
   6 Del. C. § 17-1101(c).
16
   6 Del. C. § 17-1101(d).
17
   The Haynes Family Trust v. Kinder Morgan G.P., Inc., 135 A.3d 76, 2016 WL 912184, at *2
(Del. Mar. 10, 2016).

                                           14
longer hold the general partner to fiduciary standards of conduct, but instead must

rely on the express language of the partnership agreement to sort out the rights and

obligations among the general partner, the partnership, and the limited partner

investors.

       Even though the express terms of the agreement govern the relationship

when fiduciary duties are waived, investors are not without some protections. For

instance, in the case of an ambiguous partnership agreement of a publicly traded

limited partnership, ambiguities are resolved as with publicly traded corporations,

to give effect to the reading that best fulfills the reasonable expectations an

investor would have had from the face of the agreement.18 The reason for this is

simple. When investors buy equity in a public entity, they necessarily rely on the

text of the public documents and public disclosures about that entity, and not on

parol evidence.19      And, of course, another protection exists.               The DRUPLA




18
   Bank of New York Mellon v. Commerzbank Capital Funding Trust II, 65 A.3d 539, 551-52
(Del. 2013) (construing an agreement against the drafter to give effect to the “investors’
reasonable expectation” using a species of the contra proferentem doctrine); see also Norton v.
K-Sea Transp. Partners L.P., 67 A.3d 354, 365 n. 56 (Del. 2013); SI Mgmt., L.P. v. Wininger,
707 A.2d 37, 42-43 (Del. 1998).
19
   Stockman v. Heartland Industrial Partners, L.P., 2009 WL 2096213 at *5 (Del. Ch. July 14,
2009) (ambiguities are construed against drafter “to protect the reasonable expectations of people
who join a partnership or other entity after it was formed and must rely on the face of the
operating agreement to understand their rights and obligations when making the decision to
join.”).

                                               15
provides for the implied covenant of good faith and fair dealing, which cannot be

eliminated by contract.20

       The implied covenant is inherent in all contracts and is used to infer contract

terms “to handle developments or contractual gaps that the asserting party pleads

neither party anticipated.”21       It applies “when the party asserting the implied

covenant proves that the other party has acted arbitrarily or unreasonably, thereby

frustrating the fruits of the bargain that the asserting party reasonably expected.”22

The reasonable expectations of the contracting parties are assessed at the time of

contracting.23    In a situation like this, involving a publicly traded MLP, the

pleading-stage inquiry focuses on whether, based on a reading of the terms of the

partnership agreement and consideration of the relationship it creates between the

MLP’s investors and managers, the express terms of the agreement can be

reasonably read to imply certain other conditions, or leave a gap, that would

prescribe certain conduct, because it is necessary to vindicate the apparent

intentions and reasonable expectations of the parties.

                                              B.

       The Court of Chancery decided that the implied covenant could not be used

to remedy what the plaintiff alleged were faulty safe harbor approvals because the
20
   See 6 Del. C. § 17-1101(d).
21
   Nemec v. Shrader, 991 A.2d 1120, 1125 (Del. 2010) (internal citations omitted).
22
   Id. at 1126 (citing Dunlap v. State Farm Fire & Cas. Co., 878 A.2d 434, 442 (Del. 2005)).
23
   Id. (citing Cont’l Ins. Co. v. Rutledge & Co., 750 A.2d 1219, 1234 (Del. Ch. 2000)).

                                              16
LP Agreement waived fiduciary-based standards of conduct and contained an

express contractual term addressing what disclosures were required in merger

transactions. According to the court, the implied covenant had “no work to do”

because the express disclosure requirement displaced the implied covenant.24

         The Court of Chancery erred by focusing too narrowly on whether the

express disclosure provision displaced the implied covenant. Instead, it should

have focused on the language of the safe harbor approval process, and what its

terms reasonably mean. Although the terms of the LP Agreement did not compel

the General Partner to issue a proxy statement, it chose to undertake the

transaction, which the LP Agreement drafters would have known required a pre-

unitholder vote proxy statement. Thus, the General Partner voluntarily issued a

proxy statement to induce unaffiliated unitholders to vote in favor of the merger

transaction. The favorable vote led not only to approval of the transaction, but

allowed the General Partner to claim the protections of the safe harbor and

immunize the merger transaction from judicial review.       Not surprisingly, the

express terms of the LP Agreement did not address, one way or another, whether

the General Partner could use false or misleading statements to enable it to reach

the safe harbors.



24
     Dieckman, 2016 WL 1223348, at *9.

                                         17
       We find that implied in the language of the LP Agreement’s conflict

resolution provision is a requirement that the General Partner not act to undermine

the protections afforded unitholders in the safe harbor process.                  Partnership

agreement drafters, whether drafting on their own, or sitting across the table in a

competitive negotiation, do not include obvious and provocative conditions in an

agreement like “the General Partner will not mislead unitholders when seeking

Unaffiliated Unitholder Approval” or “the General Partner will not subvert the

Special Approval process by appointing conflicted members to the Conflicts

Committee.” But the terms are easily implied because “the parties must have

intended them and have only failed to express them because they are too obvious

to need expression.”25 Stated another way, “some aspects of the deal are so

obvious to the participants that they never think, or see no need, to address

them.”26



25
   Danby v. Osteopathic Hospital Ass’n of Del., 101 A.2d 308, 313-14 (Del. Ch. 1953), aff’d, 104
A.2d 903 (Del. 1954).
26
   In re El Paso Pipeline Partners, L.P. Deriv. Litig., 2014 WL 2768782, at *16 (Del. Ch. June
12, 2014), rev’d on other grounds sub nom. El Paso Pipeline GP Co., L.L.C. v. Brinckerhoff,
__A.3d __, 2016 WL 7380418 (Del. Dec. 20, 2016) (citing Katz v. Oak Indus. Inc., 508 A.2d
873, 880 (Del. Ch. 1986)); 508 A.2d at 880 (“[P]arties occasionally have understandings or
expectations that were so fundamental that they did not need to negotiate about those
expectations.”) (quoting Corbin on Contracts (Kaufman Supp. 1984), § 570)); see also
Cincinnati SMSA Ltd. P’ship v. Cincinnati Bell Cellular Sys. Co., 1997 WL 525873, at *5 (Del.
Ch. Aug. 13, 1997), aff’d, 708 A.2d 989 (Del. 1998) (“Terms are to be implied in a contract not
because they are reasonable but because they are necessarily involved in the contractual
relationship so that the parties must have intended them and have only failed to express them
because they are too obvious to need expression.” (quoting Danby, 101 A.2d at 313-14)).

                                              18
         Our use of the implied covenant is based on the words of the contract and

not the disclaimed fiduciary duties. Under the LP Agreement, the General Partner

did not have the full range of disclosure obligations that a corporate fiduciary

would have had. Yet once it went beyond the minimal disclosure requirements of

the LP Agreement, and issued a 165-page proxy statement to induce the

unaffiliated unitholders not only to approve the merger transaction, but also to

secure the Unaffiliated Unitholder Approval safe harbor, implied in the language

of the LP Agreement’s conflict resolution provision was an obligation not to

mislead unitholders.

         Further, the General Partner was required to form a Conflicts Committee

comprised of members who:

         [A]re not (a) security holders, officers or employees of the General
         Partner, (b) officers, directors or employees of any Affiliate of the
         General Partner or (c) holders of any ownership interest in the
         Partnership Group other than Common Units and who also meet the
         independence standards required of directors who serve on an audit
         committee of a board of directors established by the Securities
         Exchange Act of 1934, as amended, and the rules and regulations of
         the Commission thereunder and by the National Securities Exchange
         on which the Common units are listed or admitted to trading.27

         As with the contract language regarding Unaffiliated Unitholder Approval,

this language is reasonably read by unitholders to imply a condition that a

Committee has been established whose members genuinely qualified as

27
     App. to Opening Br. at 62 (LP Agreement § 1.1).

                                               19
unaffiliated with the General Partner and independent at all relevant times.

Implicit in the express terms is that the Special Committee membership be

genuinely comprised of qualified members and that deceptive conduct not be used

to create the false appearance of an unaffiliated, independent Special Committee.

                                         C.

      The plaintiff has agreed that the LP Agreement’s safe harbor provisions, if

satisfied, would preclude judicial review of the transaction. But we find that the

plaintiff has pled sufficient facts to support his claims that those safe harbors were

unavailable to the General Partner. Instead of staffing the Conflicts Committee

with independent members, the plaintiff alleges that the chair of the two-person

Committee started reviewing the transaction while still a member of an Affiliate

board. Just a few days before the General Partner created the Conflicts Committee,

the same director resigned from the Affiliate board and became a member of the

General Partner’s board, and then a Conflicts Committee member.

      Further, after conducting the negotiations with ETE over the merger terms

and recommending the merger transaction to the General Partner, the two members

of the Conflicts Committee joined an Affiliate’s board the day the transaction

closed. The plaintiff also alleges that the Conflicts Committee members failed to

satisfy the audit committee independence rules of the New York Stock Exchange,

as required by the LP Agreement.          In the proxy statement used to solicit

                                         20
Unaffiliated Unitholder Approval of the merger transaction, the plaintiff alleges

that the General Partner materially misled the unitholders about the independence

of the Conflicts Committee members.          In deciding to approve the merger, a

reasonable unitholder would have assumed based on the disclosures that the

transaction was negotiated and approved by a Conflicts Committee composed of

persons who were not “affiliates” of the general partner and who had the

independent status dictated by the LP Agreement. This assurance was one a

reasonable investor may have considered a material fact weighing in favor of the

transaction’s fairness.

      The plaintiff has therefore pled facts raising sufficient doubt about the

General Partner’s ability to use the safe harbors to shield the merger transaction

from judicial review. Thus, we reverse the judgment of the Court of Chancery

dismissing Counts I and II of the complaint.




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