          IN THE SUPREME COURT OF THE STATE OF DELAWARE

ELIZABETH MORRISON, Individually  §
And on Behalf of All Others Similarly
                                  §
Situated,                         §                   No. 445, 2017
                   Appellant,     §
                   Plaintiff Below,
                                  §                   Case Below:
                                  §
     v.                           §                   Court of Chancery
                                  §                   of the State of Delaware
RAY BERRY, RICHARD A. ANICETTI,   §
MICHAEL D. CASEY, JEFFREY NAYLOR, §                   C.A. No. 12808-VCG
RICHARD NOLL, BOB SASSER, ROBERT §
K. SHEARER, MICHAEL TUCCI, STEVEN §
TANGER, JANE THOMPSON, and BRETT §
BERRY,                            §
               Appellees,         §
               Defendants Below.  §

                              Submitted:    April 18, 2018
                               Decided:      July 9, 2018
                              Revised:      July 27, 2018

Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

Upon appeal from the Court of Chancery. REVERSED and REMANDED.

Joel Friedlander, Esquire (argued), Jeffrey M. Gorris, Esquire, and Christopher P. Quinn,
Esquire, of Friedlander & Gorris, P.A., Wilmington, Delaware. Of Counsel: Randall J.
Baron, Esquire, of Robbins Geller Rudman & Dowd LLP, San Diego, California;
Christopher H. Lyons, Esquire, of Robbins Geller Rudman & Dowd LLP, Nashville,
Tennessee for Appellant.

Rudolf Koch, Esquire (argued), Matthew D. Perri, Esquire, and Ryan P. Durkin, Esquire
of Richards, Layton & Finger, P.A., Wilmington, Delaware. Of Counsel: Adam L.
Sisitsky, Esquire, Lavinia M. Weizel, Esquire, of Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C., Boston, Massachusetts; Robert I. Bodian, Esquire, and Scott A. Rader,
Esquire, of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., New York, New York
for Appellees Richard A. Anicetti, Michael D. Casey, Jeffrey Naylor, Richard Noll, Bob
Sasser, Robert K. Shearer, Michael Tucci, Steven Tanger, and Jane Thompson.
John L. Reed, Esquire, Ethan H. Townsend, Esquire, and Harrison S. Carpenter, Esquire,
of DLA Piper LLP, Wilmington, Delaware. Of Counsel: David Clarke, Jr., Esquire of
DLA Piper LLP, Washington, D.C. for Appellees Ray Berry and Brett Berry.

VALIHURA, Justice:

         This case calls into question the integrity of a stockholder vote purported to qualify

for Corwin “cleansing.” It offers a cautionary reminder to directors and the attorneys who

help them craft their disclosures: “partial and elliptical disclosures”1 cannot facilitate the

protection of the business judgment rule under the Corwin doctrine.2

                                               ***

         In March 2016, soon after The Fresh Market (the “Company”) announced plans to

go private, the Company publicly filed certain required disclosures under the federal

securities laws.3 Given that the transaction involved a tender offer, the required disclosures

included a Solicitation/Recommendation Statement on Schedule 14D-9 (together with

amendments, the “14D-9”), which articulated the Board’s reasons for recommending that



1
    Arnold v. Soc’y for Sav. Bancorp, Inc., 650 A.2d 1270, 1280 (Del. 1994).
2
 See Corwin v. KKR Fin. Holdings LLC, 125 A.3d 304, 312 (Del. 2015); Appel v. Berkman, 180
A.3d 1055, 1064 (Del. 2018).
3
  See 15 U.S.C. § 78n(d)(4) (requiring compliance with the terms prescribed by the SEC whenever
recommending that stockholders tender their shares); 17 C.F.R. § 240.14d-9 (outlining the SEC’s
requirements for the 14D-9); 17 C.F.R. § 240.14d-101 (Schedule 14D-9); see also 3 Thomas Lee
Hazen, Treatise on the Law of Securities Regulation § 11:16, Westlaw (updated May 2018)
(“Schedule 14D-9 is the disclosure document that must be filed in connection with any other
solicitation or recommendation for or against tender offers.”). State law complements the
directors’ duties of disclosure under the federal securities laws. See Arnold, 650 A.2d at 1277
(noting that the Delaware state-law “‘fiduciary duty to disclose fully and fairly all material
information within the board’s control when it seeks shareholder action’” is an “obligation [that]
attaches to proxy statements and any other disclosures in contemplation of stockholder action.”
(quoting Stroud v. Grace, 606 A.2d 75, 84 (Del. 1992))).


                                                 2
stockholders accept the tender offer—from an entity controlled by private equity firm

Apollo Global Management LLC (“Apollo”) for $28.5 in cash per share.4 The 14D-9 also

included a narrative of the events leading up to the transaction,5 which, in addition to the

tender offer, included an equity rollover whereby The Fresh Market’s founder, Ray Berry,

and his son, Brett—who collectively owned 9.8% of the Company’s shares—were to roll

over their equity and end up with an approximately 20% stake in the Company upon the

closing.6 As also required under the federal securities laws,7 Apollo publicly filed a

Schedule TO, which included its own narrative of the background to the transaction. The

14D-9 incorporated Apollo’s Schedule TO by reference.8




4
  As used in this opinion, “Apollo” also refers to Apollo Management VIII, L.P., the entity
involved in this deal, or equity funds managed by that entity.
5
  See Matador Capital Mgmt. Corp. v. BRC Holdings, Inc., 729 A.2d 280, 295 (Del. Ch. 1998)
(“Delaware law requires directors who disclose such a recommendation also disclose such
information about the background of the transaction, the process followed by them to maximize
value in the sale, and their reason for approving the transaction so as to be materially accurate and
complete.”).
6
  See The Fresh Market, Inc., Schedule 14D-9 Solicitation/Recommendation Statement Under
Section 14(d)(4) of the Securities Exchange Act of 1934 (March. 25, 2016), at 1 (A59), 4 (A62)
[hereinafter 14D-9]; Plaintiff’s Opening Br. at 28-29 n.5 (calculating the Berrys’ post-merger
equity stake of 20% based on publicly disclosed information). The Berrys’ pre-merger equity
stake accounted for 9.8% of the 47,049,217 total shares outstanding. Plaintiff’s Opening Br. at
28-29 n.5 (citing 14D-9, at 1 (A59)). Given the transaction price of $28.50 per share, the Berrys’
stake was valued at $131.4 million, or approximately 20.0% of the transaction’s total equity
financing of $656 million. Id. (citing 14D-9, at 4 (A62)).
7
 See 15 U.S.C. § 78n(d)(4) (requiring compliance with the terms prescribed by the SEC whenever
soliciting stockholders’ shares through a tender offer); 17 C.F.R. § 240.14d-3 (requiring that the
Tender Offer Statement on Schedule TO be filed with the SEC and delivered to stockholders); 17
C.F.R. § 240.14d-100 (Schedule TO).
8
    See 14D-9, supra note 6, at 59 (A117).


                                                 2
         After reading these disclosures, as the tender offer was still pending, stockholder

Elizabeth Morrison (“Plaintiff”) suspected that the Company’s directors had breached their

fiduciary duties in the course of the sale process, and she sought Company books and

records pursuant to Section 220 of the Delaware General Corporation Law. The Company

denied her request, and the tender offer closed as scheduled on April 21 with 68.2% of

outstanding shares validly tendered.9

         Litigation over the Section 220 demand ensued, and Plaintiff obtained several key

documents, such as board minutes and a crucial e-mail from Ray Berry’s counsel to the

Company’s lawyers. Plaintiff then filed this action in the Court of Chancery. It includes

a breach of fiduciary duty claim against all ten of the Company’s directors, including Ray

Berry, and a claim for aiding and abetting the breach against Ray Berry’s son, Brett Berry,

who did not serve on the Board.10

         The thrust of Plaintiff’s breach of fiduciary duty claim is that Ray and Brett Berry

teamed up with Apollo to buy The Fresh Market at a discount by deceiving the Board and

inducing the directors to put the Company up for sale through a process that “allowed the

Berrys and Apollo to maintain an improper bidding advantage” and “predictably emerge[]

as the sole bidder for Fresh Market” at a price below fair value.11 Plaintiff also alleges that


9
    The Fresh Market, Inc., Form 8-K (Apr. 27, 2016), at B112.
10
  The director defendants, other than Ray Berry, filed a separate brief and defined themselves as
the “Director Defendants.” We use “Director Defendants” herein when quoting from their brief.
We use “Defendants” to refer to all eleven defendants. Ray and Brett Berry are separately
represented and filed their own brief.
11
  Verified Complaint, Morrison v. Berry, C.A. No. 12808-VCG, ¶ 2 (A137) [hereinafter
Complaint].

                                                 3
Ray Berry’s commitment to Apollo was not fully disclosed to the Board or to other

stockholders, and that the auction that ensued led to a pre-ordained result: Apollo was the

winner, with the Berrys participating in an equity rollover. In other words, Plaintiff alleges

that the Board and the stockholders were misled into believing that Ray Berry would open-

mindedly consider partnering with any private equity firm willing to outbid Apollo, but,

instead, “[t]he reality of the situation was that Ray Berry (a) had already formed the belief

that Apollo was uniquely well situated to buy Fresh Market; (b) had already entered into

an undisclosed agreement with Apollo; and (c) was incentivized not to create price

competition for Apollo.”12

          In moving to dismiss, Defendants argued that Corwin applied. Under that doctrine,

the “business judgment rule is invoked as the appropriate standard of review for a post-

closing damages action when a merger that is not subject to the entire fairness standard of

review has been approved by a fully informed, uncoerced majority of the disinterested

stockholders.”13 The Corwin doctrine is premised on the view that, “[w]hen the real parties

in interest—the disinterested equity owners—can easily protect themselves at the ballot

box by simply voting no, the utility of a litigation-intrusive standard of review promises

more costs to stockholders in the form of litigation rents and inhibitions on risk-taking than

it promises in terms of benefits to them.”14 The same is true of stockholders deciding



12
     Id. ¶ 16 (A142).
13
     Corwin, 125 A.3d at 305-06 (Del. 2015).
14
  Id. at 313; In re Lear Corp. S’holder Litig., 926 A.2d 94, 114-15 (Del. Ch. 2007) (“Delaware
corporation law gives great weight to informed decisions made by an uncoerced electorate. When

                                               4
whether to tender their shares, and the Corwin doctrine has been extended to these

circumstances.15 However, those same stockholders cannot possibly protect themselves

when left to vote on an existential question in the life of a corporation based on materially

incomplete or misleading information. Careful application of Corwin is important due to

its potentially case-dispositive impact.16

       In granting Defendants’ motion to dismiss this case, the Court of Chancery stated

that this matter “presents an exemplary case of the utility of th[e] ratification doctrine, as

set forth in Corwin and Volcano.”17 Respectfully, we disagree.

        Here, Defendants have not shown, as required under Corwin, that the vote was

fully informed—especially given that Plaintiff’s complaint alleges facts showing that the


disinterested stockholders make a mature decision about their economic self-interest, judicial
second-guessing is almost completely circumscribed by the doctrine of ratification.”).
15
   In re Volcano Corp. S’holder Litig., 143 A.3d 727, 743-44, 747 (Del. Ch. 2016) (applying
Corwin to “acceptance of a first-step tender offer by fully informed, disinterested, uncoerced
stockholders representing a majority of a corporation’s outstanding shares in a two-step merger”
under 8 Del. C. § 251(h) because “[a] stockholder is no less exercising her ‘free and informed
chance to decide on the economic merits of a transaction’ simply by virtue of accepting a tender
offer rather than casting a vote. And, judges are just as ‘poorly positioned to evaluate the wisdom
of’ stockholder-approved mergers under Section 251(h) as they are in the context of corporate
transactions with statutorily required stockholder votes.” (quoting Corwin, 125 A.3d at 312-13)),
aff’d, 156 A.3d 697, 2017 WL 563187 (Del. 2017) (TABLE); Larkin v. Shah, 2016 WL 4485447,
at *20 (Del. Ch. Aug. 25, 2016) (applying Corwin to completed first-step tender offer); see also
Berkman, 180 A.3d at 1057-58 (reversing the Court of Chancery’s dismissal under Corwin
because, contrary to the Court of Chancery’s holding, the tender offer was not fully informed).
16
   See Singh v. Attenborough, 137 A.3d 151, 152 (Del. 2016) (Order) (“When the business
judgment rule standard of review is invoked because of a vote, dismissal is typically the result.
That is because the vestigial waste exception has long had little real-world relevance, because it
has been understood that stockholders would be unlikely to approve a transaction that is
wasteful.”).
17
   Morrison v. Berry (Chancery Op.), 2017 WL 4317252, at *1 (Del. Ch. Sept. 28, 2017)
(referencing Corwin, 125 A.3d at 305-06; Volcano, 143 A.3d at 743-44, 747).


                                                5
Company failed to disclose “troubling facts regarding director behavior . . . that would have

been material to a voting stockholder.”18 A reasonable stockholder would have found these

facts material because they would have shed light on the depth of the Berrys’ commitment

to Apollo, the extent of Ray Berry’s and Apollo’s pressure on the Board, and the degree

that this influence may have impacted the structure of sale process. Thus, “the business

judgment rule is not invoked.”19

         We REVERSE the Court of Chancery’s decision for these reasons and those that

follow, and we REMAND this case for further proceedings consistent with this opinion.

                                                 I.

         Plaintiff’s argument on appeal is straightforward: she contends that the Court of

Chancery erred in applying Corwin because an array of alleged deficiencies rendered the

14D-9’s disclosures materially incomplete and misleading.20 A brief overview of the key


18
   Corwin, 125 A.3d at 312; Harbor Fin. Partners v. Huizenga, 751 A.2d 879, 898-99 (Del. Ch.
1999) (“If the corporate board failed to provide the voters with material information undermining
the integrity or financial fairness of the transaction subject to the vote, no ratification effect will
be accorded to the vote and the plaintiffs may press all of their claims. . . . In this regard, it is
noteworthy that Delaware law does not make it easy for a board of directors to obtain ‘ratification
effect’ from a stockholder vote.”).
19
     Corwin, 125 A.3d at 312.
20
   In recounting the facts of this case, “we (1) accept all well pleaded factual allegations as true,
(2) accept even vague allegations as ‘well pleaded’ if they give the opposing party notice of the
claim, (3) draw all reasonable inferences in favor of the non-moving party, and (4) do not affirm a
dismissal unless the plaintiff would not be entitled to recover under any reasonably conceivable
set of circumstances.” Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d
531, 535 (Del. 2011) (citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002)). Our
review is de novo. Id. Further “[w]hen a plaintiff expressly refers to and heavily relies upon
documents in her complaint, these documents are considered to be incorporated by reference into
the complaint; this is true even where the documents are not expressly incorporated into or attached
to the complaint.” Freedman v. Adams, 2012 WL 1345638, at *5 (Del. Ch. Mar. 30, 2012) (citing
Albert v. Alex. Brown Mgmt. Servs., Inc., 2005 WL 1594085, at *12 (Del. Ch. June 29, 2005); e4e,

                                                  6
dates recounted in the 14D-9 is helpful to establish the context of the alleged flaws in the

disclosures.

          On October 1, 2015, The Fresh Market received an “unsolicited preliminary non-

binding indication of interest” from Apollo to purchase the Company for $30 per share in

cash.21 The letter stated that Apollo had discussed an equity rollover with the Berrys and

had an “exclusive partnership” with them.22 On October 15, the Company’s Board

convened a meeting to review the proposal and plan its course of action. The directors

authorized the formation of a Strategic Transaction Committee (the “Committee”), and

they specifically asked Ray Berry if he had an agreement with Apollo. Ray Berry denied

that he did, and he recused himself from the meeting “so that the members of the Board




Inc. v. Sircar, 2003 WL 22455847, at *3 (Del. Ch. Oct. 9, 2003)), aff’d, 58 A.3d 414 (Del. 2013).
Here, the Complaint expressly refers to and relies heavily upon the two key disclosure
documents—the 14D-9 and Schedule TO—as well as the Board meeting minutes and other internal
documents obtained via the Section 220 Litigation. See Winshall v. Viacom Int’l, Inc., 76 A.3d
808, 818 (Del. 2013), as corrected (Oct. 8, 2013) (“[A] plaintiff may not reference certain
documents outside the complaint and at the same time prevent the court from considering those
documents’ actual terms.” (quoting Fletcher Int’l, Ltd. v. ION Geophysical Corp., 2011 WL
1167088, at *3 n. 17 (Del. Ch. Mar. 29, 2011))); In re Books-A-Million, Inc. S’holders Litig., 2016
WL 5874974, at *1 (Del. Ch. Oct. 10, 2016) (“This court may consider the Proxy Statement to
establish what was disclosed to stockholders and other facts that are not subject to reasonable
dispute.” (citing In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 170 (Del. 2006);
Abbey v. E.W. Scripps Co., 1995 WL 478957, at *1 n.1 (Del. Ch. Aug. 9, 1995))), aff’d, 164 A.3d
56 (Del. 2017); Amalgamated Bank v. Yahoo! Inc., 132 A.3d 752, 797 (Del. Ch. 2016) (“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 inference the plaintiff seeks to have
drawn is a reasonable one.”).
21
     14D-9, supra note 6, at 17 (A75).
22
     Complaint, supra note 11, ¶ 44 (A150) (quoting Apollo letter to Board).


                                                  7
could engage in a discussion without him present.”23 Following that meeting, Ray Berry

recused himself from Board meetings through the date the Company entered into the

merger agreement.24

          In a letter dated as of that date, October 15, 2015, Apollo stated that its proposal

would expire on October 20, and, on October 21, the firm formally withdrew it. But, on

November 25, Apollo reaffirmed the same proposal and again stated that it “was making

the proposal together with Ray Berry and Brett Berry.”25 The Company’s lawyers wrote

Ray Berry’s counsel seeking clarity on Ray Berry’s status with Apollo. Ray Berry’s

counsel responded by e-mail on November 28 (the “November 28 E-mail”).26 That e-mail

referred to an agreement that Ray Berry had with Apollo in October—an agreement that

can rationally be seen as contrary to Ray Berry’s representation to the Board on October

15 that he had no such agreement. The sale process officially began on December 3, the

day after the conclusion of a two-day Board meeting.27

          Plaintiff identifies a number of problems that allegedly render the 14D-9 materially

misleading, including the following four:




23
   The Fresh Market, Inc., Minutes of the Board of Directors Meeting (Oct. 15, 2015), at A31
[hereinafter Oct. 15, 2015 Minutes]. Before the next Board meeting, Ray Berry also provided a
written waiver of notice of any Board meetings at which directors planned to discuss any inquiry
from a potential acquirer, including Apollo’s proposal. 14D-9, supra note 6, at 18-19 (A76-77).
24
     14D-9, supra note 6, at 19 (A77).
25
     Id. at 20 (A78).
26
  See id.; David Clarke to Damien Zoubek and Mark Gentile, E-mail (Nov. 28, 2015), at A40
[hereinafter Nov. 28 E-mail].
27
     14D-9, supra note 6, at 20-21 (A78-79).

                                               8
       First, the November 28 E-mail from Ray Berry’s counsel reveals that Berry had an

agreement with Apollo as of October, and that revelation must have suggested to the Board

that Berry had not been forthcoming as he previously had denied the existence of an

agreement. But, because the 14D-9 never disclosed this information, the 14D-9 omitted

material information or was misleading.

       Second, Ray Berry’s statements expressing a clear preference for a rollover

transaction involving Apollo—and reluctance to engage in such a transaction if another

buyer were to prevail—were material, and these statements were never disclosed to

stockholders. In fact, the 14D-9 disclosures implied otherwise—i.e., that Ray Berry was

willing to partner with a party other than Apollo.

       Third, the 14D-9 never disclosed a “threat” contained in the November 28 E-mail—

that Ray Berry would sell his shares if the Board did not undertake a sale process.

       Fourth, Plaintiff also alleges that the Board misrepresented the reasons that the

Board formed the Committee tasked with overseeing a sale process because the 14D-9

failed to state that the directors were motivated by existing activist pressure.

       Though Plaintiff challenges the adequacy of other disclosures, such as those

concerning the management projections reviewed by the Board, we need not consider them

here given that the aforementioned deficiencies in the disclosures prove sufficient to deny

Corwin “cleansing.”




                                              9
          A.     Plaintiff alleges serious misrepresentations—both to the Board, and
                 to stockholders—about Ray Berry’s “agreement” with Apollo.

          The November 28 E-mail indicates that Ray Berry had agreed as early as October

that, if Apollo reached a deal with the Board to purchase the Company, he would roll over

his equity interest. But the 14D-9 never mentioned the October agreement and even

suggested that, to the contrary, none ever existed.28 And the Company’s Board minutes

show that Ray Berry also never disclosed this “agreement” to his fellow directors, even

when he was asked directly about his arrangement with Apollo at the October 15, 2015

Board meeting. Plaintiff alleges that the omission of the November 28 E-mail’s revelation

of an October agreement (the “Agreement Omission”) is material “not only in substance

but also because it shows that Ray Berry was lying to the Board, the Board was on notice

that Ray Berry was lying to them and the Board did nothing to address it.”29

          The following chart compares the 14D-9’s summary of the November 28 E-mail

with the actual e-mail. Italicized words indicate portions omitted from the 14D-9.

                      14D-930                               November 28 E-Mail31

 Berry’s counsel . . . stated that since          Since Apollo withdrew its earlier offer in
 [Apollo’s] earlier offer had expired on          October, Mr. Berry has had one
 October 20, 2015, Mr. Berry had engaged          conversation with Apollo. During that
 in one conversation with [Apollo], and           conversation, he agreed, as he did in

28
  See, e.g., id. at 17 (A75) (“Mr. Berry further advised [the Company’s general counsel] that he
had not been involved in [Apollo]’s formulation of its proposal, he had not committed to any
participation in a transaction with [Apollo] (or any other potential buyer) and he was not working
with [Apollo] on an exclusive basis.”).
29
     Complaint supra note 11, ¶ 124 (A184).
30
     14D-9, supra note 6, at 20 (A78).
31
     Nov. 28 E-mail, supra note 26, at A40.


                                               10
 during that conversation he had agreed that       October, that, in the event Apollo agreed
 he would roll his equity interest over into       on a transaction with TFM, he would roll
 the surviving entity if [Apollo] were to be       his equity interest over into the surviving
 successful in agreeing to a transaction with      entity. Apollo determined the price that
 TFM.32                                            was offered.


           Plaintiff alleges that the exclusion of “as he did in October” from the 14D-9 is a

material omission not just on its own, but because it undermines the veracity of other

statements that Berry had made to both the Company’s general counsel and its Board. For

example, the 14D-9 states that, on October 5, 2015, Ray Berry told the Company’s general

counsel that he had told Apollo that he “would consider an equity rollover depending upon

the terms . . . .”33 But the 14D-9 omits reference to any agreement to engage in an equity

rollover as of that time. In fact, the 14D-9 also states that Berry even told the general

counsel that “he had not been involved in [Apollo’s] formulation of its proposal, he had

not committed to any participation in a transaction with [Apollo] (or any other potential

buyer) and he was not working with [Apollo] on an exclusive basis.”34 And, when the

Board convened its telephonic meeting on October 15, Berry “reiterated that he had not



32
  In their separate answering brief, the Director Defendants point to this sentence and assert that,
“contrary to Plaintiff’s assertion that the Chancery Court ‘confused how Ray Berry’s October
agreement with Apollo was disclosed to the Board on November 28, but was never disclosed to
the stockholders,’ the Chancery Court correctly recognized that Ray Berry’s pre-November 28
agreement with Apollo was explicitly disclosed.” Director Defendants’ Answering Br. at 32
(quoting Plaintiff’s Opening Br. at 8). This assertion is obviously incorrect as the sentence from
the 14D-9 quoted above does not reveal the existence of an agreement predating the post-October
20, 2015 agreement.
33
     14D-9, supra note 6, at 17 (A75) (emphasis added).
34
     Id.


                                                11
committed to any transaction with [Apollo] (or any other potential bidder),” as recounted

in the 14D-9.35

          Moreover, even if the Schedule TO is also considered to be part of the “total mix”

of information disclosed to stockholders, as the Director Defendants urge, any impression

of an agreement is undermined by the 14D-9’s suggestions to the contrary. The Schedule

TO discloses that Apollo called the Berrys just before the submission of its October 1

proposal “to confirm whether they would participate in such a transaction,”36 and states

that the Berrys “indicated they were interested”—albeit with a caveat that they needed

flexibility and Board approval.37       In contrast, though the 14D-9 references several

conversations that Ray Berry had with Apollo before its submission of the October 1

proposal, it undermines any impression one might get of an agreement by describing

Apollo’s last pre-October 1 call as a “courtesy call” in which Apollo stated that it would

be submitting an offer.38




35
     Id. at 17-18 (A75-76).
36
  Offer to Purchase for Cash All Outstanding Shares of Common Stock of The Fresh Market, Inc.,
dated Mar. 25, 2016, Exhibit (a)(1)(A) to Schedule TO Tender Offer Statement under Section
14(d)(1) or 13(e)(1) of the Securities Exchange Act of 1934, filed by Pomegranate Merger Sub,
Inc., Pomegranate Holdings, Inc., & Apollo Management VIII, L.P., (Mar. 25, 2016), at 28 (A130)
(emphasis added) [hereinafter Schedule TO].
37
   See id. (noting that the Berrys “indicated that they would like to retain the flexibility to
participate in a similar transaction with other potential transaction partners in the event that
Management VIII’s proposal was not well received by The Fresh Market Board.”).
38
  See 14D-9, supra note 6, at 17 (A75) (describing the conversation as a “courtesy call in which
[Apollo] informed Mr. Berry that [Apollo] would be sending an offer letter to TFM and in which
Mr. Berry did not communicate any positions that were inconsistent with his prior statements.”).


                                              12
          Moreover, the 14D-9 omits any mention of Brett Berry in its description of Apollo’s

pre-October 1 contacts with Ray Berry—allegedly because a reference to these discussions

would bolster the impression of an agreement among Apollo, Ray Berry, and Brett Berry.39

Nor does it disclose that, at the October 15, 2015 Board meeting, Ray Berry told the

directors that he “was not aware of any conversation that may or may not have occurred

with Apollo and Brett Berry.”40 Plaintiff alleges that, given that the Schedule TO suggests

that Ray Berry was in fact aware of such conversations,41 this omission is material because,

if revealed, it would have informed stockholders that the Company’s directors “blinded

themselves to the reality of the joint plan among Apollo, Ray Berry and Brett Berry.” 42

Moreover, even if Ray Berry and the 14D-9’s statement that he “had not been involved in

[Apollo’s] formulation of its proposal”43 were literally true, Plaintiff alleges that it is


39
  See Complaint, supra note 11, ¶¶ 18-19 (A142-43) (alleging that the 14D-9 omits facts that, “if
disclosed, would call into question the veracity of the narrative that Ray Berry was open to working
with alternative bidders and would point instead to the reality that Ray Berry, Brett Berry and
Apollo had formulated and acted pursuant to a plan to buy Fresh Market at a vulnerable time at
the lowest possible price . . . .”).
40
     Oct. 15, 2015 Minutes, supra note 23, at A31.
41
   In contrast to the 14D-9, the Schedule TO indicates that, when Ray Berry spoke with the Apollo
representative, senior partner Andrew Jhawar, on September 4, 2015, Berry “recommended that
Mr. Jhawar contact his son, Brett Berry, to explore various structural alternatives for an equity
rollover transaction.” Schedule TO, supra note 36, at 27 (A129). The Schedule TO adds that,
indeed, “Mr. Jhawar and Brett Berry had several communications regarding potential transaction
structures.” Id. Given that Ray Berry had recommended that Jhawar contact Brett, Plaintiff alleges
that it is reasonable to infer that Ray Berry knew such conversations occurred before Apollo
submitted its proposal. See Complaint, supra note 11, ¶ 43 (A150).
42
   Complaint, supra note 11, ¶ 48 (A152) (arguing that “[t]he most logical reason the Company
omitted this information is that the Board failed to inquire further and learn that Ray Berry had
instructed Apollo to speak directly to Brett Berry”).
43
     14D-9, supra note 6, at 17 (A75).


                                                 13
misleading because it omits that he was involved by providing indications of his interest

and directing the Apollo senior partner, Andrew Jhawar, to contact Brett Berry to explore

“various structural alternatives for an equity rollover transaction,” and Jhawar and Brett

Berry then “had several communications regarding potential transaction structures.”44

                 B.     Plaintiff alleges that the 14D-9 misled stockholders
                        about Ray Berry’s clear preference for Apollo.

          Plaintiff alleges that the 14D-9 misleadingly conveys an impression that Berry

would open-mindedly consider offers from a potential purchaser other than Apollo. The

narrative in the 14D-9 fails to mention that Ray Berry divulged to the Board his clear

preference for Apollo and reluctance to consider bids from other prospective purchasers.

          For example, the 14D-9 states that, at the October 15 Board meeting, Berry told the

directors that “he had communicated to [Apollo] that he would only participate in a

transaction that was supported by the Board and that he would also be willing to sell his

shares to any potential purchaser for cash in a Board-supported transaction.”45 But the

14D-9 never mentions that, in response to a question from the Company’s outside counsel,

Cravath, Swaine & Moore LLP, as to whether “he would be willing to participate in an

equity rollover with another party were the Corporation to engage in [a] sale transaction

with a party other than Apollo,” Ray Berry also told the Board that “he was not aware of

any other potential private equity buyer that had experience in the food retail industry with




44
     See Schedule TO, supra note 36, at 27-28 (A129-30).
45
     14D-9, supra note 6, at 18 (A76).


                                               14
whom he would be comfortable engaging in an equity rollover.”46 A fair implication of

this statement in the minutes is that, while Ray Berry would be willing to consider selling

his shares to another private equity buyer for cash, he would not engage in an equity

rollover with a party other than Apollo. But the 14D-9 never discloses that fact.

          The November 28 E-mail further suggests Ray Berry’s resistance to participate in

an equity rollover with a non-Apollo party, but the 14D-9’s account never mentions that

resistance in its summary. Again, a comparison between the disclosure of the November

28 E-mail and the November 28 E-mail itself is illustrative. (Italicized words indicate

substantive information omitted.)

                      14D-947                                 November 28 E-Mail48

 Mr. Berry’s counsel also said that in the           Should Apollo not be successful in its bid,
 event that another buyer, and not equity            Mr. Berry would consider rolling his equity
 funds managed by [Apollo], were to                  interest over in connection with an
 acquire TFM, Mr. Berry would also                   acquisition of TFM by another buy-out
 consider rolling his equity interest over in        firm that successfully bids for the
 such a transaction.                                 company, provided he has confidence in its
                                                     ability to properly oversee the company.
                                                     As he mentioned to the board of directors
                                                     in October, however, he believes that
                                                     Apollo is uniquely qualified to generate
                                                     value because of its recent success in
                                                     TFM’s space with the acquisition of
                                                     Sprouts.




46
     Oct. 15, 2015 Minutes, supra note 23, at A31.
47
     14D-9, supra note 6, at 20 (A78).
48
     Nov. 28 E-mail, supra note 26, at A40.

                                                 15
Whereas the 14D-9 states that Ray Berry was willing to consider an equity rollover with a

party other than Apollo, Plaintiff alleges that the omitted portion suggests that the opposite

is the case: that he would be willing to consider such an equity rollover only if he “has

confidence in [the firm’s] ability to properly oversee the company,” and he only had

confidence in one party, namely, Apollo.49 If, as Plaintiff fairly alleges, Ray Berry were

only willing to consider an equity rollover with a qualified party, and Apollo was “uniquely

qualified,” then Ray Berry was not, in fact, willing to consider an equity rollover with

another party.

                 C.     Plaintiff alleges that the 14D-9 failed to disclose Ray
                        Berry’s “threat” to sell the Company.

           Plaintiff alleges that the November 28 E-mail reveals that the 14D-9 is marred by

another material omission: the 14D-9 never mentions that Ray Berry’s counsel emphasized

his client’s belief that the Company needed to go private and that, if it stayed public, Ray

Berry would sell his shares. Specifically, Berry’s attorney stated in the November 28 E-

mail that Ray Berry believed it was “in the best interests of the shareholders for the board

to pursue a sale of the company at this time due to the low valuation of the company in

spite of a built-in buy-out premium as well as the complexity of implementing the changes

[new CEO] Rick Anicetti covered in the earnings release while under the scrutiny of the

public market.”50 But the 14D-9 does not include anything resembling a summary of that

assertion. Berry’s counsel stated further that, “If The Fresh Market remains public, Mr.



49
     Id.
50
     Id.

                                              16
Berry will give serious consideration to selling his stock when permitted as he does not

believe TFM is well positioned to prosper as a public company and he can do better with

his investment dollars elsewhere.”51 Again, this assertion is missing from the 14D-9.

           D.    Plaintiff alleges that the 14D-9 misled stockholders about the
                 Company’s reasons for forming the Strategic Transaction Committee.

           Plaintiff alleges that the 14D-9 misled stockholders concerning existing activist

stockholder pressure facing the Company at the time of the October 15, 2015 Board

meeting, when the directors decided to form the Strategic Transaction Committee. The

14D-9 states that the Board decided to form the Committee in order “to enhance efficiency

in light of the fact that TFM could become the subject of shareholder pressure and

communications and potentially additional unsolicited acquisition proposals in light of

TFM’s recent stock performance.”52 It fails to mention that the Company had already

become subject to stockholder pressure and that the Board considered that fact when

deciding to form the Committee. According to the minutes of the October 15 meeting, the

Board discussed “that there had been a significant amount of shareholder outreach recently

regarding the strategic direction of the Corporation in light of the Corporation’s

performance and the trends facing the industry.”53 In particular, the directors addressed a

letter dated October 8, 2015, from activist investor Neuberger Berman LLC, which owned




51
     Id.
52
     14D-9, supra note 6, at 18 (A76) (emphasis added).
53
     Oct. 15, 2015 Minutes, supra note 23, at A32 (emphasis added).


                                                17
3.4% of the Company’s shares.54 The letter listed grievances with The Fresh Market’s

performance and proclaimed that “urgent action is necessary to restore credibility and

prevent further damage to this asset base.”55 Neuberger stated that “it is now time” for the

Board “to initiate a comprehensive strategic review” and “consider in that review hiring

outside financial advisers to assess: (i) a sale of the Company, (ii) possible strategic

partnerships, joint ventures, or alliances, or (iii) other possible internal investments or

external transactions.”56

                                                II.

          Reviewing the Court of Chancery’s decision to dismiss the complaint de novo,57 we

reverse because Defendants did not meet their burden for triggering application of the

business judgment rule under Corwin.58

          We focus on whether the stockholder vote was fully informed—that is, whether the

Company’s disclosures apprised stockholders of all material information and did not



54
  Charles Kantor to Richard Noll, Letter on behalf of Neuberger Berman LLC to Lead Independent
Director of the Board (Oct. 8, 2015), at A26 [hereinafter Neuberger Letter]; Oct. 15, 2015 Minutes,
supra note 23, at A32. Neuberger owned 1.6 million of The Fresh Market’s 47,049,217 total
shares outstanding. Neuberger Letter, at A26; 14D-9, supra note 6, at 1 (A59).
55
     Neuberger Letter, supra note 54, at A26.
56
     Id. at A27.
57
     Brinckerhoff v. Enbridge Energy Co., 159 A.3d 242, 252 (Del. 2017).
58
  Corwin, 125 A.3d at 312 n.27 (“The burden to prove that the vote was fair, uncoerced, and fully
informed falls squarely on the board.” (quoting Huizenga, 751 A.2d at 899)); Yiannatsis v.
Stephanis by Sterianou, 653 A.2d 275, 280 (Del. 1995) (“The burden rests on the party claiming
the ratification to establish that the stockholder approval resulted from a fully informed electorate.”
(quoting E. Folk, R. Ward & E. Welch, Folk on the Delaware General Corporate Law § 144.5.2.3
(1992))) (emphasis removed).


                                                      18
materially mislead them.59 At the pleading stage, that requires us to consider whether

Plaintiff’s complaint, when fairly read, supports a rational inference that material facts

were not disclosed or that the disclosed information was otherwise materially misleading.60

          “An omitted fact is material if there is a substantial likelihood that a reasonable

shareholder would consider it important in deciding how to vote.”61 Framed differently,

an omitted fact is material if there is “a substantial likelihood that the disclosure of the

omitted fact would have been viewed by the reasonable investor as having significantly

altered the ‘total mix’ of information made available.”62 But, to be sure, this materiality

test “does not require proof of a substantial likelihood that disclosure of the omitted fact

would have caused the reasonable investor to change his vote.”63



59
   Berkman, 180 A.3d at 1057 (“Precisely because Delaware law gives important effect to an
informed stockholder decision, Delaware law also requires that the disclosures the board makes to
stockholders contain the material facts and not describe events in a materially misleading way.”).
60
  See id. at 1064 (reversing a motion to dismiss because the complaint’s “omitted facts are material
and their omission precludes the invocation of the business judgment rule standard at the pleading
stage”); Huizenga, 751 A.2d at 881 (because “[t]he complaint fails to state a claim that the
disclosures in connection with the Merger were misleading or incomplete . . . the business
judgment rule standard of review is invoked . . . .”). We agree with the Chancellor’s statement in
Solera that “a plaintiff challenging the decision to approve a transaction must first identify a
deficiency in the operative disclosure document, at which point the burden would fall to defendants
to establish that the alleged deficiency fails as a matter of law in order to secure the cleansing effect
of the vote.” In re Solera Holdings, Inc. S’holder Litig., 2017 WL 57839, at *8 (Del. Ch. Jan. 5,
2017) (citing Huizenga, 751 A.2d at 890 n.36, in support of this proposition).
61
  Rosenblatt v. Getty Oil Co., 493 A.2d 929, 944 (Del. 1985) (quoting TSC Indus., Inc. v.
Northway, Inc., 426 U.S. 438, 449 (1976)).
62
     Id. (quoting TSC Indus., 426 U.S. at 449).
63
  Id. (quoting TSC Indus., 426 U.S. at 449). We have reaffirmed the TSC standard for materiality,
consistent with the definition of materiality under the federal securities laws, “in a long line of
cases,” most recently in Appel v. Berkman, 180 A.3d at 1063 n.36 (quoting 2 Stephen A. Radin,
The Business Judgment Rule ch. II, § E(3)(a), at 1741 (6th ed. 2009) (collecting cases)).


                                                   19
         Just as disclosures cannot omit material information, disclosures cannot be

materially misleading. As we said in Arnold v. Society for Savings Bancorp, Inc.,64 “once

defendants traveled down the road of partial disclosure of the history leading up to the

Merger . . . they had an obligation to provide the stockholders with an accurate, full, and

fair characterization of those historic events.”65 And, in Zirn v. VLI Corp.,66 we explained

that, “even a non-material fact can, in some instances, trigger an obligation to disclose

additional, otherwise non-material facts in order to prevent the initial disclosure from

materially misleading the stockholders.”67

         Here, the Court of Chancery stated that, if the Plaintiff could adequately allege in

her pleadings that “the apparent robustness of the auction was a sham” and “[Ray] Berry

had already made up his mind that he wished Apollo to be the acquirer and only Apollo

had a shot at winning the auction,” then “surely the disclosures were flawed and inadequate




64
     650 A.2d 1270 (Del. 1994).
65
   Id. at 1280. But see id. (“Delaware law does not require disclosure of inherently unreliable or
speculative information which would tend to confuse stockholders or inundate them with an
overload of information.”). Our disclosure jurisprudence is conscious of the risks of
overdisclosure, such as “bury[ing] the shareholders in an avalanche of trivial information.”
Solomon v. Armstrong, 747 A.2d 1098, 1130 (Del. Ch. 1999) (internal quotation marks omitted),
aff’d, 746 A.2d 277 (Del. 2000). Assessing whether a given fact is material “requires a careful
balancing of the potential benefits of disclosure against the possibility of resultant harm.” Arnold,
650 A.2d at 1279.
66
     681 A.2d 1050 (Del. 1996).
67
  Id. at 1056; see also Pfeffer v. Redstone, 965 A.2d 676, 689 (Del. 2009) (“It is well settled that
‘[w]hen fiduciaries undertake to describe events, they must do so in a balanced and accurate
fashion, which does not create a materially misleading impression.’” (quoting Clements v. Rogers,
790 A.2d 1222, 1240 (Del. Ch. 2001))).


                                                 20
to allow the vote to serve as a ratification of the Defendants’ actions.”68 But the trial court

rejected Plaintiff’s argument because it found “the facts regarding Berry’s involvement

with Apollo were disclosed” and, thus, “[t]he conclusion that the Plaintiff reaches—that

the auction was a sham—is not supported by the record.”69 Respectfully, we disagree.

          Plaintiff has unearthed and pled in her complaint specific, material, undisclosed

facts that a reasonable stockholder is substantially likely to have considered important in

deciding how to vote.70 We believe a reasonable stockholder likely would find such

information important because it would have helped the stockholder to reach a materially

more accurate assessment of the probative value of the sale process. These facts include

“troubling facts regarding director behavior,”71 and thus we conclude that there is a

substantial likelihood that they would have altered the total mix of information available

to stockholders.

          A.      Plaintiff adequately alleges material omissions in the 14D-9
                  concerning Ray Berry’s “agreement” with Apollo and relationship
                  with the firm.

          Plaintiff alleges that the phrase “as he did in October” in the November 28 E-mail

should have informed directors that Ray Berry had “lied” at their October 15 meeting, but

that agreement and its eventual disclosure to the directors was never disclosed to the


68
     Chancery Op., 2017 WL 4317252, at *2.
69
     Id. at *3.
70
  See Cent. Mortg., 27 A.3d at 536 (“[I]t may, as a factual matter, ultimately prove impossible for
the plaintiff to prove his claims at a later stage of a proceeding, but that is not the test to survive a
motion to dismiss.”); infra note 20.
71
     Corwin, 125 A.3d at 312.


                                                   21
Company’s stockholders.72 This omission seems to undermine the veracity of Ray Berry’s

statement to the Board that, as of the October 15 meeting, “he had not committed to any

transaction with [Apollo],” as suggested in the Schedule 14D-973 and the minutes.74

          We agree with the Plaintiff that this Agreement Omission was material.75 A

reasonable stockholder would want to know the facts showing that Ray Berry had not been

forthcoming with the Board about his agreement with Apollo (among other information

discussed below),76 as directors have an “‘unremitting obligation’ to deal candidly with

their fellow directors.”77 Moreover, a reasonable stockholder would want to know about

this level of commitment to a potential purchaser, in the context of this deal.78


72
     See supra note 32.
73
     14D-9, supra note 6, at 17-18 (A75-76).
74
  Oct. 15, 2015 Minutes, supra note 23, at A31. The Court of Chancery reasoned that, “[t]o the
extent disclosed facts must have demonstrated Berry’s mendacity to the directors, it should have
been equally clear to the stockholders themselves.” Chancery Op., 2017 WL 4317252, at *3. We
do not understand that statement. Plaintiff’s allegation that Ray Berry lied to the directors is not
based on disclosed facts, but rather on November 28 Counsel E-mail obtained through her Section
220 Litigation—particularly the portions omitted from the description of the e-mail in the 14D-9.
Thus, this “mendacity” could not have been clear to stockholders from the face of the disclosures.
75
     See Complaint, supra note 11, ¶ 124 (A184).
76
  In order for a vote to be fully-informed under Corwin, directors must disclose all those “troubling
facts regarding director behavior” material to a voting stockholder. See Corwin, 125 A.3d at 312;
Solera, 2017 WL 57839, at *9 (citing Corwin, 125 A.3d at 212).
77
   HMG/Courtland Properties, Inc. v. Gray, 749 A.2d 94, 119 (Del. Ch. 1999) (quoting Mills Mills
Acquisition Co. v. Macmillan, Inc., 559 A.2d 1261, 1283 (Del. 1989)); see also Hollinger Int’l,
Inc. v. Black, 844 A.2d 1022, 1061 (Del. Ch. 2004) (finding director liable for breach of the
fiduciary duty of loyalty for failing to “fulfill his obligation to be candid to his fellow directors,”
including by “purposely denying the [company’s] board the right to consider fairly and responsibly
a strategic opportunity within the scope of its Strategic Process and diverting that opportunity to
himself.”).
78
  Plaintiff also alleges that the existence of an agreement between the Berrys and Apollo indicates
that they “had formed a group with the intention of changing or influencing the control over the

                                                   22
         Though the 14D-9 does mention certain of Ray Berry’s prior conversations with

Apollo, the 14D-9 avoids implying any agreement with Apollo and limits facts that might

suggest such an impression. For example, whereas the Schedule TO describes the last pre-

October 1 call from Apollo to the Berrys as a call “to confirm they would participate in

such [an equity rollover] transaction,”79 the 14D-9 merely describes it as a “courtesy

call.”80

         The 14D-9’s failure to mention Brett Berry also supports a pleading-stage inference

that the 14D-9 is so committed to “the false proposition that Ray Berry, Brett Berry and

Apollo were not acting pursuant to a plan” that it presents a distorted narrative. 81 As

Plaintiff alleges, if included, this information would help show that “Ray Berry, Brett Berry

and Apollo had formulated and acted pursuant to a plan to buy Fresh Market at a vulnerable


Company,” and, thus, Section 13(d) of the Securities Exchange Act of 1934 required them to file
a beneficial ownership report on Schedule 13D. But “[t]hey never did so.” Complaint, supra note
11, ¶ 67 (A159).
79
     Schedule TO, supra note 36, at 28 (A130).
80
   14D-9, supra note 6, at 17 (A75). Moreover, the Schedule TO’s description of the three pre-
October 1 conversations between Apollo’s Jhawar and the Berrys is, at least, somewhat
inconsistent with the statements in the Schedule 14D-9 that Berry “had not been involved in
[Apollo’s] formulation of its proposal,” and that Berry had not committed to the proposal or to
working exclusively with Apollo. See id. Indeed, in addition to the distinction between a “courtesy
call” and a confirmatory one, the Schedule TO indicates that Ray Berry and Jhawar were “long-
time professional and social acquaintances,” and that, before Apollo’s submission of its proposal,
Ray Berry directed Jhawar to speak with his son, Brett, “to explore various structural alternatives
for an equity rollover transaction,” and the two men then “had several communications regarding
potential transaction structures.” Schedule TO, supra note 36, at 27 (A129). Director Defendants’
answering brief includes several block quotations to the Schedule TO. See Director Defendants’
Answering Br. at 18-19, 21, 22-23. But their inclusion does not help the Defendants’ case. The
tension between the 14D-9 and Schedule TO puts stockholders in the untenable position of
determining which one is accurate.
81
     Complaint, supra note 11, ¶ 18 (A142).


                                                 23
time at the lowest possible price.”82 We agree that Plaintiff’s allegations are sufficient to

prevent invocation of the business judgment rule under Corwin.

          B.     Plaintiff adequately alleges that the 14D-9 is materially misleading
                 about Ray Berry’s clear preference for Apollo and willingness to
                 consider an equity rollover.

          Plaintiff adequately alleges that the 14D-9 is materially misleading because it

repeatedly includes statements that imply an openness to consider other bidders, while

omitting Ray Berry’s statements from those same conversations that suggest that he would

actually only consider an equity rollover with Apollo. The 14D-9 posits that, at the October

15 Board meeting, Berry stated that he would be willing to sell his shares for cash to other

potential bidders and that he had not yet committed to Apollo, evoking an impression of

openness.83 Yet the 14D-9 omits that, when asked by the Board’s counsel about an equity

rollover with a party other than Apollo, Ray Berry’s comments indicated that only Apollo

would suffice: he stated that he was unaware of “any other potential private equity buyer

that had experience in the food retail industry with whom he would be comfortable

engaging in an equity rollover.”84 Such omission is material because, if disclosed, a

reasonable stockholder might infer that Berry’s expression of a clear preference for Apollo



82
   Id. ¶ 19 (A143). In In re Topps Co. S’holders Litig., 926 A.2d 58 (Del. Ch. 2007), the court
found the proxy statement materially misleading because it evoked “an impression that Topps
managers have been given no assurances about their future by [the prospective purchaser],”
whereas, “[i]n reality, [that potential purchaser] has premised his bid all along as one that is
friendly to management and that depends on their retention.” Id. at 74. Similarly, the 14D-9
presents a misleading impression of the Berrys’ and Apollo’s level of commitment to each other.
83
     See 14D-9, supra note 6, at A76.
84
     Oct. 15, 2015 Minutes, supra note 23, at A31.


                                                 24
and reluctance to engage with other bidders hindered the openness of the sale process,

notwithstanding that Ray Berry also submitted that “he had not committed to any

transaction with Apollo.”85

           Even more, the description of the November 28 E-mail includes the statement that

Ray Berry would consider an equity rollover involving another buyer, but it omits the

crucial precondition—that he must have “confidence in [the firm’s] ability to properly

oversee the company”86—and that Berry believed that Apollo was “uniquely qualified to

generate value because of its recent success in TFM’s space with the acquisition of

Sprouts,”87 effectively ruling out other parties despite the 14D-9’s suggestion to the

contrary.      Directors cannot fulfill their disclosure obligations through such partial

disclosure—that is, where material facts are either not disclosed or “presented in an

ambiguous, incomplete, or misleading manner.”88 Stockholders are “entitled to a balanced

and truthful recitation of events, not a sanitized version that is materially misleading.”89

                 C.      Plaintiff adequately alleges that the 14D-9’s omission
                         of Ray Berry’s “threat” to sell his shares is material.

           Plaintiff adequately alleges that the 14D-9 omits the material statement from the

November 28 E-mail that Ray Berry believed that the Board should pursue a sale of the



85
     Id.
86
     Nov. 28 E-mail, supra note 26, at A40.
87
     Id.
88
  Berkman, 180 A.3d at 1064 (quoting 2 Edward P. Welch et. al., Folk on the Delaware General
Corporation Law § 212.04, at 7-78 to 7-79 (6th ed. 2014)).
89
     In re Pure Res., Inc., S’holders Litig., 808 A.2d 421, 451 (Del. Ch. 2002).


                                                  25
Company “at this time” and that, if it failed to act, he would sell his shares 90—a warning

that Plaintiff characterizes as a threat. We do not embrace Plaintiffs’ characterization of

this as a threat, but we do view it as an economically relevant statement of intent.

           The Court of Chancery considered the omission of this so-called “threat” to be the

“only factual lacuna in the disclosures that comes close to materiality.” 91 But the court

dismissed it because it reasoned that “it would not have made investors less likely to tender

if they knew that a large blockholder—the founder—was considering a sale if the deal was

not consummated.”92 That is not the test. Omitted information is material if there is a

substantial likelihood that a reasonable stockholder would have considered the omitted

information important when deciding whether to tender her shares or seek appraisal.93 This

is any information that an investor would consider important. Such information could

make a stockholder less likely to tender. But it also may be material if it is the sort of

information that would make a stockholder more likely to tender, or just information that a

reasonable stockholder would generally want to know in making the decision, regardless




90
   Nov. 28 E-mail, supra note 26, at A40 (“If The Fresh Market remains public, Mr. Berry will
give serious consideration to selling his stock when permitted as he does not believe TFM is well
positioned to prosper as a public company and he can do better with his investment dollars
elsewhere.”).
91
     Chancery Op., 2017 WL 4317252, at *3.
92
     Id.
93
     See Berkman, 180 A.3d at 1057-58, 1064.


                                               26
of whether it actually sways a stockholder one way or the other, as a single piece of

information rarely drives a stockholder’s vote.94

         Further, the November 28 E-mail included Berry’s counsel’s communication of the

reason why Ray Berry believed that it was time to sell the Company.95 A reasonable

stockholder would want to know the rationale that Ray Berry gave the Board in

encouraging it to pursue the sale, as well as his communication of his intent to sell his

shares if a transaction were not consummated.96

         D.      Plaintiff adequately alleges that the 14D-9’s presentation of the
                 Board’s reasons for forming the Strategic Transaction Committee are
                 materially misleading.

         Plaintiff alleges that the 14D-9 “conceals the pressure on the Board from activist

stockholders to sell the Company.”97 But the trial court dismissed that argument, finding



94
   Radin, supra note 63, ch. II, § E(3)(a), at 1746 (“To establish materiality, ‘it need not be shown
that an omission or distortion would have made an investor change his overall view of a proposed
transaction’ or that ‘the information be of such import that its revelation would cause an investor
to change his vote,’ but ‘it must be shown that the fact in question would have been relevant to
him.’” (quoting Zirn v. VLI Corp., 621 A.2d 773, 779 (Del. 1993))); 1 R. Franklin Balotti & Jesse
A. Finkelstein, The Delaware Law of Corporations and Business Organizations § 17.2[B][1] (3d
ed.) (“Although the omission or distortion need not be shown to have made an investor change his
vote or overall view of a proposed transaction, to be material it need only be demonstrated that the
fact in question, when considered under all circumstances, would assume actual significance in the
deliberations of a reasonable shareholder.”).
95
   See Nov. 28 E-mail, supra note 26, at A40 (noting that Ray Berry believed it to be an opportune
time to sell the Company because of “low valuation of the company in spite of a built-in buy-out
premium as well as the complexity of implementing the changes [new CEO] Rick Anicetti covered
in the earnings release while under the scrutiny of the public market”).
96
   Berkman, 180 A.3d at 1062 (“It is inherent in the very idea of a fiduciary relationship that the
stockholders that directors serve are entitled to give weight to their fiduciaries’ opinions about
important business matters.”).
97
     Complaint, supra note 11, ¶ 122 (A182).


                                                 27
the existing disclosures sufficient.98 That was error. The 14D-9 did disclose that, at the

October 15, 2015 Board meeting, the Board decided to create the Committee “to enhance

efficiency in light of the fact that TFM could become the subject of shareholder pressure

and communications and potentially additional unsolicited acquisition proposals in light of

TFM’s recent stock performance.”99 However, the minutes of that meeting reveal that the

14D-9 omits an important point: the Company had actually already become subject to

stockholder pressure. In fact, before forming the Committee, the Board discussed “that

there had been a significant amount of shareholder outreach recently regarding the

strategic direction of the Corporation.”100 We believe there is more than a semantic

difference between the possibility that there “could” be stockholder pressure, as suggested

in the 14D-9, and “there had been a significant amount of shareholder outreach recently,”

as revealed in the minutes. Given the Company chose to speak on the topic, stockholders

were entitled to know the depth and breadth of the pressure confronting the Company,

especially given that it already existed.101




98
     Chancery Op., 2017 WL 4317252, at *3.
99
     14D-9, supra note 6, at 18 (A76) (emphasis added).
100
   Oct. 15, 2015 Minutes, supra note 23, at A32 (emphasis added). In particular, the directors
discussed the Neuberger letter—an example of such activist outreach. See id.; Neuberger Letter,
supra note 54, at A26. The 14D-9 fails to mention that letter altogether.
101
   See Balotti & Finkelstein, supra note 95, § 17.2 (“Although the board generally is not required
to disclose all of the ‘bends and turns in the road’ in summarizing a proposed transaction, the
Delaware Supreme Court has suggested that, once a board travels down the path of describing its
process, it has a duty to provide a full and fair characterization of events.” (quoting McMillan v.
Intercargo Corp., 1999 WL 288128, at *9 (Del. Ch. May 3, 1999))).


                                                28
                                         III.

         As in Berkman, “given the nature of the omission[s],” we decline “defendants’

invitation for us to find another ground for affirmance, such as reliance on the exculpatory

charter provision, which was not addressed by the Court of Chancery.”102

         For the reasons set forth above, we REVERSE the Court of Chancery’s opinion and

REMAND for proceedings consistent with this opinion.




102
      Berkman, 180 A.3d at 1064-65.

                                                29
