                             COURT OF CHANCERY
                                   OF THE
 SAM GLASSCOCK III           STATE OF DELAWARE                   COURT OF CHANCERY COURTHOUSE
  VICE CHANCELLOR                                                         34 THE CIRCLE
                                                                   GEORGETOWN, DELAWARE 19947



                                   October 17, 2019

  Blake A. Bennett, Esq.                         Edward B. Micheletti, Esq.
  Cooch and Taylor, P.A.                         Lilianna Anh P. Townsend, Esq.
  The Brandywine Building                        Mary T. Reale, Esq.
  1000 West Street, 10th Floor                   Skadden, Arps, Slate, Meagher & Flom LLP
  Wilmington, DE 19899                           One Rodney Square
                                                 Wilmington, DE 19899


              RE: Dahle v. Pope, C.A. No. 2019-0136-SG, Supplemental Briefing


Dear Counsel:

      This matter is before me on the Defendants’ Motion to Dismiss a derivative

complaint under Rules 23.1 and 12(b)(6). As the parties are aware, the

Defendants’ motion turns in part on whether a communication by the Plaintiff

stockholder requesting action by the board of directors should be considered a

demand on the board, in which case the Plaintiff has implicitly conceded that the

board is capable of exercising business judgement in the matter. The

communication at issue has some of the features of a typical demand under Rule

23.1, but explicitly states that it is not a demand under that Rule; to refute the
allegation that he has made a demand, the Plaintiff relies in part on what might be

termed the Magritte defense.1

       At oral argument yesterday, counsel made me aware that the same counsel

are litigating a Motion to Dismiss on the same grounds, featuring a similar letter

but different parties, before Vice Chancellor McCormick, Solak ex rel. Ultragenyx

Pharmaceutical Inc. v. Welch, C.A. No. 2018-0810-KSJM. Decision in that matter

is pending. After consulting with the Vice Chancellor, it appears to me that

litigants’ and judicial economy is best served by my deferring consideration of the

instant motion pending decision in Ultragenyx, and then allowing the parties to

supplement the briefing to incorporate the Court’s ruling in that case. The parties

should confer on a schedule for supplemental memoranda.

       To the extent the foregoing requires an order to take effect, it is SO

ORDERED.



                                                   Sincerely,

                                                   /s/ Sam Glasscock III

                                                   Sam Glasscock III




1
 See René Magritte, La Trahison des images, 1929, oil on canvas, 23.75 by 31.94 in., Los
Angeles, Los Angeles County Museum of Art.
                                              2
