   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
DONALD REITH, individually and on )
behalf of all others similarly situated,
                                  )
                                  )
             Plaintiff,           )
                                  )
     v.                           )             C.A. No. 2018-0277-MTZ
                                  )
WARREN G. LICHTENSTEIN, GLEN )
M. KASSAN, WILLIAM T. FEJES, JR., )
JACK L. HOWARD, JEFFREY J.        )
FENTON, PHILIP E. LENGYEL,        )
JEFFREY S. WALD, STEEL            )
PARTNERS HOLDINGS L.P., STEEL     )
PARTNERS, LTD., SPH GROUP         )
HOLDINGS LLC, HANDY &             )
HARMAN LTD., and WHX CS CORP., )
                                  )
             Defendants,          )
                                  )
     and                          )
                                  )
STEEL CONNECT, INC., a Delaware   )
Corporation,                      )
                                  )
             Nominal Defendant.   )

                         MEMORANDUM OPINION

                        Date Submitted: March 15, 2019
                         Date Decided: June 28, 2019

Andrew S. Dupre and Alexandra M. Joyce, MCCARTER & ENGLISH, LLP,
Wilmington, Delaware; Eduard Korsinksy, Amy Miller, William J. Fields, and
Samir Shukurov, LEVI & KORSINSKY, LLP, New York, New York; Attorneys for
Plaintiff Donald Reith.
John M. Seaman, ABRAMS & BAYLISS LLP, Wilmington, Delaware; Thomas J.
Fleming, Adrienne Ward, and Kerrin T. Klein, OLSHAN FROME WOLOSKY
LLP, New York, New York; Attorneys for Defendants Warren G. Lichtenstein,
Jack L. Howard, Glen M. Kassan, William T. Fejes, Jr., Steel Partners Holdings
L.P., Steel Partners, Ltd., SPH Group Holdings LLC, Handy & Harman Ltd., and
WHX CS Corp.

Gregory V. Varallo, Matthew D. Perri, and Sarah T. Andrade, RICHARDS,
LAYTON & FINGER, P.A., Wilmington, Delaware; Attorneys for Defendants
Jeffrey J. Fenton, Philip E. Lengyel, and Jeffrey S. Wald.


ZURN, Vice Chancellor.
      Steel Connect, Inc. acquired another company in December 2017. A Steel

Connect stockholder plaintiff sees wrongdoing in part of the deal financing, in which

Steel Connect sold preferred stock to Steel Partners Holdings, L.P. (“Steel

Holdings”). Steel Holdings already held over a third of Steel Connect’s stock,

owned the entity responsible for managing Steel Connect, and was affiliated with

management and several board members. The newly issued preferred stock pushed

Steel Holdings’ stock ownership to nearly half. Steel Holdings’ component of the

financing was considered and approved by a special committee of independent board

members, and by the board.

      That special committee, and the compensation committee, also recommended

equity grants to Steel Connect’s executive chairman and two individuals who joined

the board the same day Steel Holdings’ financing was approved.              All three

individuals are affiliated with Steel Holdings. Adding these new equity grants to

Steel Holdings’ existing stock, and the preferred stock it bought, gave Steel Holdings

and its affiliates majority control of Steel Connect. Issuing the grants required

amending the company’s incentive award plan, which in turn required an informed

stockholder vote.

      The plaintiff views Steel Holdings as a controlling stockholder who owed and

breached fiduciary duties by causing Steel Connect to issue Steel Holdings preferred

stock, and the equity grants, on the cheap. He claims the directors breached their
fiduciary duties in approving the transaction with Steel Holdings and the equity

grants, and by making faulty disclosures in seeking stockholder approval for

amending the incentive award plan. On the defendants’ motion to dismiss, it appears

that Steel Holdings is a controlling stockholder, that the plaintiff’s claims are

derivative, and that demand for bringing those claims is excused. The stockholder’s

breach of fiduciary duty claims against these individuals and entities survive the

motion to dismiss. I conclude the stockholder has failed to allege the members of

the special committee committed a non-exculpated breach of fiduciary duty in

approving the preferred stock transaction, but has pled a non-exculpated breach of

fiduciary duty for approving the equity grants.

    I.     BACKGROUND

         I draw the facts from the allegations in, and documents incorporated by

reference or integral to, the Complaint and judicially noticeable facts available in

public Securities and Exchange Commission filings.1 Additionally, plaintiff Donald




1
  Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312, 320 (Del. 2004) (providing that
on a motion to dismiss, the Court may consider documents that are “incorporated by
reference” or “integral” to the complaint); In re Gen. Motors (Hughes) S’holder Litig., 897
A.2d 162, 170 (Del. 2006) (holding that trial courts may take judicial notice of facts in SEC
filings that are “not subject to reasonable dispute”). All citations to the Complaint are to
Plaintiff’s Verified Stockholder Class Action and Derivative Complaint, Docket Item
(“D.I.”) 1 (“Compl.”).

                                             2
Reith (“Plaintiff”) received books and records from the Company that he used in

drafting the Complaint, which are also properly considered on a motion to dismiss.2

         A.    Steel Holdings Acquires Company Stock, Appoints Directors To
               The Company’s Board, And Influences The Selection Of New
               Company Executives.

         Defendant Steel Holdings is a Delaware limited partnership and a publicly

traded holding company.         In 2011, Steel Holdings3 started acquiring stock in

ModusLink Global Solutions, Inc., later renamed Steel Connect, Inc. (“the

Company”), which is a Delaware corporation. Steel Holdings owned 14.9% of the

Company’s outstanding shares by September 28, 2012. In February 2013, Steel

Holdings entered into a settlement agreement with the Company that permitted Steel

Holdings to appoint directors and purchase additional shares.4 As part of that

agreement, the Company nominated two Steel Holdings designees for election to its




2
    Amalgamated Bank v. Yahoo! Inc., 132 A.3d 752, 797 (Del. Ch. 2016).
3
  Steel Holdings operates through a number of subsidiaries and affiliates, which this
opinion often simplifies by referring only to Steel Holdings. Of note, non-party Steel
Partners Holdings GP, Inc. (“SHGP”) is the general partner of Steel Holdings. Defendant
SPH Group Holdings LLC (“SPH”) is a subsidiary of SHGP, defendant Handy & Harman
Ltd. (“HNH”) is wholly owned by SPH, and defendant WHX CS Corp. (“WHX”) is wholly
owned by HNH. Defendant Steel Partners, Ltd. (“Steel Partners”) is an affiliate of Steel
Holdings. Each entity beneficially owns shares of Company stock. I refer to Steel
Holdings, SPH, HNH, WHX, and Steel Partners together as the “Entity Defendants.”
When referring collectively to the Entity Defendants and Fejes, Howard, Kassan, and
Lichtenstein, I use the term “Steel Holdings Defendants.” When referring to the seven
individual defendants, I use the term “Director Defendants.”
4
    ModusLink Glob. Solutions, Inc., Current Report (Form 8-K) (Feb. 13, 2013).

                                             3
board (defendants Glen M. Kassan and Warren G. Lichtenstein) and agreed that if

Lichtenstein were elected, he would serve as chairman; two incumbent directors also

retired and were replaced by other new directors. If certain conditions were met,

including the election of Steel Holdings’ nominees to the board, Steel Holdings

would purchase stock and warrants in a private placement. In March 2013, Kassan

and Lichtenstein were elected to the board. Accordingly, pursuant to the settlement

agreement, the Company sold shares and warrants to Steel Holdings that increased

its ownership to 29.9%. From 2013 through 2016, Steel Holdings purchased more

Company stock. As of December 14, 2016, Steel Holdings owned 20,440,133 shares

of the Company’s stock, constituting approximately 35.62% of the Company’s

outstanding shares.

      Lichtenstein is connected to Steel Holdings and its affiliates in a number of

ways. He is Executive Chairman of SHGP, which is the general partner of Steel

Holdings. He is also CEO of Steel Partners and Chairman of HNH.

      Kassan served as the Company’s Chief Administrative Officer from May

2014 until January 2015 and has been the board’s Vice Chairman since May 2014.

He has been associated with Steel Partners LLC, a subsidiary of Steel Holdings,

since August 1999.     He served as HNH’s CEO from October 2005 through

December 2012 and on the HNH board until May 2015. He was also an officer and

director of SL Industries until its acquisition by HNH in June 2016. Additionally,

                                        4
his principal occupation was “serving as an employee of Steel Services, Ltd.” (“Steel

Services”), which is a subsidiary of Steel Holdings.5

         Defendants Jeffrey J. Fenton and Jeffrey S. Wald were already on the

Company’s board when Kassan and Lichtenstein became directors. Fenton and

Wald have no connection to Steel Holdings, and the Company considers them

independent directors.

         On December 18, 2013, non-party Anthony Bergamo was appointed to the

board. “Mr. Bergamo’s nomination was recommended by Mr. Lichtenstein, the

Company’s Chairman of the Board.”6 Although Bergamo was also a director of

Steel Holdings, he was classified as an independent director under NASDAQ rules.7

Bergamo served as a director until his death on September 29, 2017.

         Finally, Philip E. Lengyel joined the board in May 2014. Like Fenton and

Wald, Lengyel was not affiliated with Steel Holdings, and the Company considers

him independent. Bergamo, Fenton, Kassan, Lengyel, Lichtenstein, and Wald were

the six members of the Company’s board as of August 2017.

         Steel Holdings is also involved in managing the Company. On December 31,

2014, an indirect wholly owned subsidiary of Steel Holdings, SP Corporate Services


5
    D.I. 28 Ex. 14 at 14.
6
 ModusLink Glob. Solutions, Inc., Definitive Proxy Statement (Schedule 14A), at 10 (Oct.
29, 2013).
7
    D.I. 28 Ex. 15 at 13.

                                           5
LLC (“SP Corporate”), entered into a Management Services Agreement with the

Company.8 SP Corporate provided management services from January 1, 2015

through March 10, 2016.9 That day, the Management Services Agreement was

amended and SPH Services, Inc., the parent of SP Corporate and an affiliate of Steel

Holdings, took over.10 SP Corporate and Steel Partners LLC then merged into SPH

Services, Inc., with SPH Services, Inc. surviving.11 SPH Services, Inc. has since

changed its name to Steel Services Ltd. Lichtenstein was the CEO of SP Corporate

Services, and is now the CEO of Steel Services.12

           Under the management agreement, Steel Services provides “(1) services

related to corporate treasury functions and financing matters; (2) services to support

M&A functions[;] and (3) services related to advising the Company on risk

management, governance and compliance generally, assisting with public company

reporting requirements, advising on investigations and litigation, and advising on

major business transactions.”13 “During the year ended July 31, 2017, pursuant to

the Management Services Agreement, the Company paid a fixed monthly fee of



8
    D.I. 28 Ex. 15 at 54.
9
    Id.
10
     Id.
11
     Id.
12
     Id.
13
     D.I. 28 Ex. 11 at 6.

                                          6
$175,000 in consideration for the services and incremental costs as incurred.”14 This

fee was reduced on September 1, 2017, to $95,641 per month.15

           Steel Holdings affiliates replaced Company management in 2016.

Lichtenstein served as the Company’s interim CEO from March 28 through June 17,

2016, when he became Executive Chairman. That day, the Company made two

additional personnel changes. First, James R. Henderson replaced Lichtenstein as

CEO of the Company, and also became President. From March 23 to June 16, 2016,

Henderson had served as CEO of the Company’s principal operating subsidiary.

Henderson’s relationship with Steel Holdings goes back to 1999.            “He was

associated with [Steel] Partners LLC and its affiliates from August 1999 until

2011.”16 He was a director of SL Industries from January 2002 to March 2010. In

the early- to mid-2000’s, he was a director, CEO, President, COO, and Vice

President of Operations at different times for Steel Holdings’ predecessor,

WebFinancial Corporation.17 That included serving as CEO of WebBank, a wholly

owned subsidiary of Steel Holdings.




14
     Id
15
     Id.
16
     D.I. 28 Ex. 15 at 57.
17
     Id.

                                         7
           Second, the Company hired Louis J. Belardi to serve as Executive Vice

President, CFO, and Secretary. Belardi joined the Company from SL Industries,

where he had spent approximately the previous twelve years as CFO, Secretary,

Treasurer, and Corporate Controller at different times. He replaced Joseph B. Sherk,

a Steel Services employee who had served as the Company’s Principal Financial

Officer, Principal Accounting Officer, and Corporate Controller under the

Management Services Agreement from January 1, 2015, through June 27, 2016.18

In June 2016, when Belardi joined, Sherk went back to working for the Company in

a different role.19

           B.     The Company Finances The IWCO Acquisition With Funding
                  From Steel Holdings, Adds New Directors, And Awards Them
                  Equity Grants.

           Plaintiff alleges that in the summer of 2017, Steel Holdings started exploring

ways to utilize the Company’s net operating loss carryforwards (“NOLs”).20 NOLs




18
     Id. at 54.
19
     Id.
20
   Plaintiff argues, without citation, that Steel Holdings was the driving force behind this
strategy. D.I. 50 at 7. The Company highlighted this benefit in announcing the transaction:
“Warren Lichtenstein, Executive Chairman of ModusLink, said, ‘We have been looking to
acquire a profitable business with attractive operations and financials, and with a strong
management team in order to leverage our approximately $2.1 billion in net operating loss
carryforwards (NOLs) and cash. We found a great fit in IWCO Direct.” D.I. 28 Ex. 10 at
1.

                                              8
can offset income, reducing the taxes a company pays.21 But because the Company

was not profitable, it could not utilize its NOLs. Acquiring another entity that

generated profits would allow the Company to unlock the value of the NOLs.

      In August 2017, the Company agreed to acquire all outstanding shares of

IWCO, a Delaware corporation that provides data-driven marketing solutions.

IWCO had consistently generated profits that would allow the Company to take

advantage of its NOLs. Plaintiff alleges that Steel Holdings saw the deal as an

opportunity to extract economic benefits and seize majority control of the Company

without a stockholder vote, and did so through the structure of the deal financing.

      The Company’s board met on September 8 and discussed financing for the

deal. Henderson and Belardi also attended the meeting, along with outside counsel

and Defendant Jack L. Howard. At the time, Howard was affiliated with Steel

Holdings, but not the Company. The expected deal value was $475.6 million. The

board considered a structure that would include financing from affiliates of Cerberus

Business Finance LLC, and $83.7 million in cash from the Company in turn financed

partially through a “bridge loan” from Steel Holdings. The board resolved to form

a special committee of independent directors (“the Special Committee”) to consider

Steel Holdings’ financing, and appointed Wald, Lengyel and Fenton (together the


21
  Our Supreme Court has summarized NOLs, how they are used, and how they can be
impaired in another case involving a Steel Holdings affiliate. Versata Enters., Inc. v.
Selectica, Inc., 5 A.3d 586, 589 (Del. 2010).

                                          9
“Special Committee Defendants”), with Wald as chair, to the Special Committee.

The board approved payment of a $25,000 fee to each member of the Special

Committee, half payable immediately and half upon closing of the transaction. The

Special Committee met for the first time the same day, and minutes reflect that Steel

Holdings could “invest up to $35 million in the Company through the purchase of a

to-be-established series of the company’s convertible preferred stock.”22

           On September 25, the Special Committee met and retained legal and financial

advisors.23 On November 15, the Special Committee met with its financial advisor.24

The Special Committee reviewed a proposed $35 million capital raise through the

issuance of convertible preferred stock (“Preferred Stock”).25

           On December 15, the board met and (1) approved the IWCO acquisition and

its funding, (2) added two new members to the board, and (3) awarded equity grants

to those new directors and Lichtenstein. The order in which these actions were

taken, and which directors approved each act, is disputed. Plaintiff alleged that all

seven directors approved the deal and equity grants. The Company disclosed that

“[t]he preferred stock transaction was approved by a special committee consisting




22
     D.I. 1 ¶ 49.
23
     D.I. 34 Ex. 6.
24
     D.I. 34 Ex. 8.
25
     Id.

                                            10
of independent directors of ModusLink who are not affiliated with Steel Partners.”26

At argument, the defendants clarified that the full board approved the deal and equity

grants after the Special Committee had approved them.27 It is not clear whether that

version of the full board included the two new directors, and the Company did not

include the relevant board minutes in its books and records production to Plaintiff.

         Be that as it may, some version of the board approved the deal, and the

transaction closed. Under the final terms of the Preferred Stock, the Company

created and sold $35,000,000 worth (35,000 shares at $1,000 a share) of Series C

Convertible Preferred Stock to SPH, a subsidiary of Steel Holdings. The initial

conversion price was $1.96 a share, which represented a 31.5% premium over the

December 15, 2017 closing price, of $1.49 per share. The Preferred Stock carried

voting rights equal to the number of common shares at the $1.96 conversion price,

equaling approximately 11.14% of the Company’s voting power. As a result, Steel

Holdings’ voting power increased from 35.62% to 46.76%. The day the deal was

announced, the Company’s stock closed at $2.18 per share.

         As to the new directors, the Company disclosed that the Nominating

Committee28 of the board had recommended, and the board approved, increasing the


26
     D.I. 28 Ex. 10 at 2.
27
     D.I. 92 at 27.
28
   Lengyel and Wald were the members of the Nominating Committee. Bergamo had
served on the Committee prior to his death. D.I. 28 Ex. 15 at 15.

                                         11
board to seven seats and electing Howard and William T. Fejes to those seats.29

Howard is President of Steel Holdings and Steel Holdings GP, and also a director of

Steel Holdings GP. Howard is also HNH’s Principal Executive Officer and Vice

Chairman of its board. Fejes has served as President of non-party Steel Services, an

indirect wholly owned subsidiary of Steel Holdings, since October 2017. He has

also served as an executive at HNH and at SL Industries, Inc., a subsidiary of HNH.

          Finally, the Company further disclosed that the Compensation Committee and

Special Committee also recommended, and the board approved, equity grants of 5.5

million shares to Lichtenstein (3.3 million), Howard (1.65 million) and Fejes

(550,000) (the “Equity Grants”). Fejes and Howard received these grants for

“current and future services to the Company.” 30          At argument, their counsel

described their role as “de facto investment bankers” for the Company, as “[t]hey

found the IWCO merger opportunity, went out there and rounded up the financing,

did the negotiating and the like.”31




29
     D.I. 28 Ex. 11 at 5-6.
30
     Id. at 6.
31
  D.I. 92 at 34. Defendants’ counsel stated that the nature of work performed by Fejes and
Howard was in the Board’s minutes, and may have been in the Company’s public
disclosures. D.I. 92 at 37. According to Plaintiff, “the Company refused to produce the
applicable Board minutes in response to Plaintiff’s 220 Demand.” D.I. 50 at 40-41. Unlike
the September minutes, which were filed as exhibits, the December minutes were not,
raising the issue of whether they can be considered on a motion to dismiss.

                                           12
      Four million shares of the Equity Grants were to vest immediately, and the

balance (1,500,000) would vest upon the Company’s stock price closing at $2.00,

$2.25 and $2.50 for five consecutive days. 1,050,000 of the shares were also subject

to stockholder approval due to limits set by the Company’s Incentive Award Plan

adopted in 2010 (the “2010 Plan”). Based on the $2.19 closing price of the

Company’s stock on December 18, 2017, the Equity Grants to Lichtenstein, Howard,

and Fejes were worth approximately $7.2 million, $3.6 million, and $1.2 million,

respectively. The Equity Grants gave Steel Holdings’ affiliates more than 5% of

additional voting power. Through the Equity Grants and Preferred Stock combined,

Steel Holdings and its affiliates increased their beneficial ownership from

approximately 35.62% to approximately 52.3%.

      C.     The Company Seeks Stockholder Approval To Amend Its
             Compensation Plan.

      The Company asked stockholders to approve amendments to the 2010 Plan.

The 2010 Plan provided for the grant of various awards, including stock options,

restricted stock, and stock appreciation rights. One type of award is a “Full Value

Award.” Section 2.26 of the Plan defines “Full Value Award” as “any Award other

than (i) an Option, (ii) a Stock Appreciation Right or (iii) any other Award for which




                                         13
the Holder pays the intrinsic value existing as of the date of grant (whether directly

or by forgoing a right to receive a payment from the Company or any Affiliate).”32

         Section 3.1 of the Plan limits the number of Full Value Awards. The parties

disagree how it does so. The language is as follows:

         (a) Subject to Section 13.2 and Section 3.1(b), the aggregate number of
         Shares which may be issued or transferred pursuant to Awards under
         the Plan is (i) 5,000,000 plus (ii) any Shares which are subject to awards
         under the Prior Plans which after the Effective Date are forfeited or
         lapse unexercised or are settled in cash and are not issued under the
         Prior Plans; provided, that subject to Section 13.2 and, with respect to
         Full Value Awards that terminate, expire or lapse or for which shares
         of Common Stock are tendered or withheld, Section 3.1(b) the
         aggregate number of shares of Common stock which may be issued or
         transferred pursuant to Full Value Awards under the Plan is 3,000,000.
         No more than 5,000,000 Shares may be issued upon the exercise of
         Incentive Stock Options. After the Effective Date, no awards may be
         granted under any Prior Plan, however, any awards under any Prior Plan
         that are outstanding as of the Effective Date shall continue to be subject
         to the terms and conditions of such Prior Plan.33

         In the Company’s Schedule 14A Proxy Statement filed on December 8, 2010

(the “2010 Proxy”), the Company stated that the maximum number of Full Value

Awards that could be issued was three million shares: “The Plan provides that no

more than 3,000,000 shares will be granted as ‘full value awards’, such as restricted




32
     Compl. ¶ 101.
33
     Id. ¶ 102.

                                            14
stock, restricted stock units, deferred stock, performance awards, or stock payments

where the participant does not pay the intrinsic value for such award.”34

         On March 19, 2018, the Company filed its 2017 Proxy. Therein, the Company

sought stockholder approval to amend the 2010 Plan to allow for 1,050,000 of the

5,500,000 million in Equity Grants. The proposed amendments (i) increased the

number of shares available for issuance from five million to eleven million, and (ii)

eliminated the limit on the number of “Full Value Awards” that could be issued

under the 2010 Plan (the “Plan Amendment”).

         In describing the 2010 Plan’s terms, the 2017 Proxy did not disclose the limit

on Full Value Awards or that the 2010 Proxy described that limit as being set at three

million. The 2017 Proxy stated the limit applied not to all Full Value Awards, but

only to those issued under the Company’s compensation plans prior to the 2010 Plan

that were forfeited, lapsed, or settled in cash after the 2010 Plan’s effective date,

which were recycled for use under the 2010 Plan (the “Recycled Awards”). The

board also did not disclose why the Plan Amendment was necessary to effectuate

the Equity Grants. The 2017 Proxy told stockholders about the 1,050,000 shares

that were subject to the Plan Amendment, but did not reiterate the previously

disclosed details of all of the Equity Grants.




34
     Id. ¶ 103.

                                           15
      D.     Litigation Ensues.

      On January 23, 2018, Plaintiff sent the Company a demand pursuant to 8 Del.

C. § 220 for books and records concerning the issuance of the Preferred Stock and

the Equity Grants (the “Challenged Transactions”).          After agreeing to a

confidentiality agreement that provided that the Company’s production would be

deemed incorporated in a subsequent complaint, Plaintiff received documents.

Plaintiff then filed his six-count complaint on April 13, 2018. In short, Plaintiff

alleges that (1) the Challenged Transactions were a pretext for allowing Steel

Holdings to gain majority voting control for inadequate consideration, and (2) the

Director Defendants misled stockholders in seeking their approval for the Equity

Grants.    Accordingly, Plaintiff argues the individual directors breached their

fiduciary duties in approving and disclosing the Challenged Transactions, and

violating the 2010 Plan through the Equity Awards (Counts I (direct) and II

(derivative)); that the Entity Defendants aided and abetted those breaches (Counts

III (direct) and IV (derivative)); that Steel Holdings as the Company’s controlling

stockholder breached its fiduciary duties (Count V); and that the recipients of the

Preferred Stock and Equity Grants were unjustly enriched (Count VI).

      On June 8, 2018, the defendants moved to dismiss under Court of Chancery

Rule 12(b)(6) and Rule 23.1. The parties briefed the motions, and I heard oral




                                        16
argument on March 5, 2019.          Of their own volition, the parties submitted

supplemental letters on March 8 and 15.

II.       ANALYSIS

      The defendants’ motions to dismiss under Rules 12(b)(6) and 23.1 and is made

more complex by the fact that the board went through several iterations. The Steel

Holdings Defendants provided the following chart summarizing the composition of

the board during the relevant periods:

        August 2017               December 15, 201735              Present
 Lichtenstein (Chair)             Lichtenstein (Chair)     Lichtenstein (Chair)
 Kassan                           Kassan                   Kassan
 Wald                             Wald                     Wald
 Fenton                           Fenton                   Fenton
 Lengyel                          Lengyel                  Lengyel
 Bergamo (to Sept. 29, 2017)                               Howard
                                                           Fejes

      I first address whether Steel Holdings was a controlling stockholder at the

time of the Challenged Transactions. That analysis informs whether Plaintiff’s

claims are dual, not just derivative, and whether Plaintiff’s claims are reviewed

under the business judgment rule or entire fairness. After concluding Steel Holdings

is a controller and Plaintiff’s claims are derivative, I turn to whether demand is

excused. Finding that it is, I turn to whether the members of the Special Committee



35
  As explained earlier, Fejes and Howard joined the board at some point on December 15,
2017. This column represents the Board before it met and added new members that day.

                                          17
are exculpated. I then consider Plaintiff’s claims for aiding and abetting. Finally,

under Rule 12(b)(6), I consider whether Plaintiff has adequately pled his derivative

breach of fiduciary duty, unjust enrichment, and disclosure claims.

         A.    Standard of Review
         Rules 12(b)(6) and 23.1 place different pleading burdens on the parties. “Rule

23.1 places a heightened burden on Plaintiff to plead demand futility by meeting

‘stringent requirements of factual particularity that differ substantially from the

permissive notice pleadings’” of Rules 8 and 12(b)(6).36 “Because the standard

under Rule 12(b)(6) is less stringent than that under Rule 23.1, a complaint that

survives a motion to dismiss pursuant to Rule 23.1 will also survive a 12(b)(6)

motion to dismiss, assuming that it otherwise contains sufficient facts to state a

cognizable claim.”37

         Under the reasonable conceivability standard of Rule 12(b)(6), I must “accept

all well-pleaded factual allegations in the Complaint as true, accept even vague

allegations in the Complaint as ‘well-pleaded’ if they provide the defendant notice

of the claim, draw all reasonable inferences in favor of the plaintiff, and deny the

motion unless the plaintiff could not recover under any reasonably conceivable set




36
  Tilden v. Cunningham, 2018 WL 5307706, at *9 (Del. Ch. Oct. 26, 2018) (quoting
Brehm v. Eisner, 746 A.2d 244, 254 (Del. 2000)).
37
     McPadden v. Sidhu, 964 A.2d 1262, 1270 (Del. Ch. 2008).

                                           18
of circumstances susceptible of proof.”38 And “[a]lthough there is a heightened

burden under Rule 23.1 to plead particularized facts, when a motion to dismiss for

failure to make a demand is made, all reasonable inferences from the pled facts must

nonetheless be drawn in favor of the plaintiff in determining whether the plaintiff

has met its burden under Aronson.”39

         B.     Steel Holdings Is A Controlling Stockholder.
         The allegation that a transaction involves a controlling stockholder on both

sides is a serious one because it imposes fiduciary duties on the controlling

stockholder and potentially strips directors of the protection of the deferential

business judgment rule. “If the plaintiff rebuts the business judgment presumption,

the Court applies the entire fairness standard of review to the challenged action and

places the burden on the directors to prove that the action was entirely fair.”40 This

usually precludes granting a motion to dismiss.41



38
  Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531, 536 (Del.
2011).
39
   Del. Cty. Empls. Ret. Fund v. Sanchez, 124 A.3d 1017, 1020 (Del. 2015); see also
Marchand v. Barnhill, --- A.3d ---, 2019 WL 2509617, at *10 (Del. June 18, 2019) (“The
standard for conducting this inquiry at the demand futility stage is well balanced, requiring
that the plaintiff plead facts with particularity, but also requiring that this Court draw all
reasonable inferences in the plaintiff’s favor.”)
40
     eBay Domestic Hldgs., Inc. v. Newmark, 16 A.3d 1, 36-37 (Del. Ch. 2010).
41
  See Hamilton P’rs, L.P. v. Highland Capital Mgmt., L.P., 2014 WL 1813340, at *12
(Del. Ch. May 7, 2014) (“[T]he possibility that the entire fairness standard of review may
apply tends to preclude the Court from granting a motion to dismiss under Rule 12(b)(6)
unless the alleged controlling stockholder is able to show, conclusively, that the challenged
                                             19
         “In 1994, in the seminal case of Kahn v. Lynch Communications Systems,

Inc.[], the Delaware Supreme Court described two scenarios in which a stockholder

could be found a controller under Delaware law: where the stockholder (1) owns

more than 50% of the voting power of a corporation or (2) owns less than 50% of

the voting power of the corporation but ‘exercises control over the business affairs

of the corporation.’”42 A plaintiff may plead that a minority stockholder exercises

control over the business affairs of the corporation even if only “with regard to the

particular transaction that is being challenged.”43           Before the Challenged

Transactions, Steel Holdings owned 35.62% of the Company’s shares, so the parties

appropriately focus on the second scenario.

         The “‘actual control’ test requires the court to undertake an analysis of

whether, despite owning a minority of shares, the alleged controller wields ‘such

formidable voting and managerial power that, as a practical matter, it is no

differently situated than if it had majority voting control.’”44 “Making this showing

is no easy task, as the minority blockholder’s power must be so potent that it triggers


transaction was entirely fair based solely on the allegations of the complaint and the
documents integral to it.”).
42
  In re KKR Fin. Hldgs. LLC S’holder Litig., 101 A.3d 980, 991 (Del. Ch. 2014) (quoting
Kahn v. Lynch Commc’ns Sys., Inc., 638 A.2d 1110, 1113-14 (Del. 1994)), aff’d sub nom.
Corwin v. KKR Fin. Hldgs. LLC, 125 A.3d 304 (Del. 2015).
43
     Williamson v. Cox Commc’ns, Inc., 2006 WL 1586375, at *4 (Del. Ch. June 5, 2006).
44
 Larkin v. Shah, 2016 WL 4485447, at *13 (Del. Ch. Aug. 25, 2016) (quoting In re
Morton’s Rest. Gp., Inc. S’holders Litig., 74 A.3d 656, 665 (Del. Ch. 2013)).

                                            20
the traditional Lynch concern that independent directors’ free exercise of judgment

has been compromised.”45 “[T]he scatter-plot nature of the [Court’s previous]

holdings highlights the importance and fact-intensive nature of the actual control

factor.”46    But at bottom, the plaintiff must show only that it is reasonably

conceivable the minority stockholder is a controller.47

         Finally, a note about timing. This Court has not often had to identify the

precise moment when a stockholder assumed or wielded control, or decide whether

a change in board composition caused a controller to lose control. In this case, the

parties select a time that helps their arguments when taking Bergamo’s September

29, 2017 passing into account. Defendants argue the relevant time is when the

Special Committee approved the Challenged Transactions on December 15.48

Plaintiff argues Steel Holdings was a controller throughout all relevant time periods,




45
     Larkin, 2016 WL 4485447, at *13.
46
  In re Crimson Expl. Inc. S’holder Litig., 2014 WL 5449419, at *10 (Del. Ch. Oct. 24,
2014).
47
  Id. at *8; see also In re Tesla Motors, Inc. S’holder Litig., 2018 WL 1560293, at *13
(Del. Ch. Mar. 28, 2018) (applying reasonable conceivability test to controlling stockholder
analysis).
48
  D.I. 92 at 6. Defendants cited Carr v. New Enterprise Associates, Inc., 2018 WL
1472336, at *10 (Del. Ch. Mar. 26, 2018), which dealt with the different question of
whether there was an alleged controller before a transaction at all, not when to evaluate the
party’s control in light of changes to the stockholder’s power during the relevant time
period.

                                             21
but suggests that if the Court must select one time to evaluate the transaction, that

moment should be September 8, 2017, when the Special Committee was created.49

          The Delaware Supreme Court’s recent decision in Olenik v. Lodzinski50

provides guidance. There, in deciding whether a majority stockholder who fell

below 50% ownership during the negotiating period remained a controlling

stockholder, the Supreme Court concluded the analysis should focus on when

“substantive economic negotiations took place that fixed the field of play for the

eventual transaction price.”51 Here, the key economic negotiations started at least in

early September, when the board created the Special Committee and started

negotiating the terms of the Preferred Stock. Still, because context matters, this

opinion analyzes Steel Holdings’ influence throughout the relevant period, including

how it changed over time.

                   1.   Steel Holdings Controlled The Company As Of August
                        2017.
          Plaintiff focuses on three aspects of Steel Holdings’ influence over the

Company. The first is its stock ownership of 35.62%. The second is Steel Holdings’

ability to appoint Company directors. The third is its control over the Company’s

management. Steel Holdings replaced the Company’s management with alleged


49
     D.I. 92 at 72.
50
     --- A.3d ---, 2019 WL 1497167 (Del. Apr. 5, 2019).
51
     Id. at *10.

                                            22
affiliates in June 2016, and the Company paid an affiliated entity significant funds

every month under the Management Services Agreement. Together, these sources

of influence make it reasonably conceivable Steel Holdings was a controlling

stockholder entering August 2017.

         First, the 35.62% stake in the Company is not enough on its own,52 but it is “a

large enough block of stock to be the dominant force in any contested election.”53

Indeed, Steel Holdings used its stock purchases to secure a settlement agreement that

allowed it to purchase additional shares and obtain clout over the board: in early

2013 it replaced two of the five incumbents, and increased the board to seven by

adding Lichtenstein and Kassan.          Later that year, Lichtenstein successfully

recommended that Bergamo, also a director at Steel Holdings, join the board.

Defendants concede Lichtenstein is not independent of Steel Holdings. Plaintiff has

alleged extensive connections between Kassan and Steel Holdings that, for reasons

explained below in the context of demand futility, also impair his ability to act

independently of Steel Holdings.


52
   Compare In re Rouse Props., Inc., 2018 WL 1226015, at *18 (Del. Ch. Mar. 9, 2018)
(“Brookfield’s 33.5% ownership stake in Rouse is not impressive on its own.”), and In re
PNB Hldg. Co. S’holders Litig., 2006 WL 2403999, at *10 (Del. Ch. Aug. 18, 2006)
(describing a 33.5% ownership group as “an overall level of ownership that is relatively
low” and would require “additional facts supplementing [the stockholder’s] clout”), with
In re Cysive, Inc. S’holders Litig., 836 A.2d 531, 551 (Del. Ch. 2003) (group of
stockholders controlling “about 40% of the voting equity” deemed to be controlling
stockholders given influence over management).
53
     Cysive, 836 A.2d at 551-52.

                                           23
         Lastly, the parties dispute Bergamo’s independence.54 That is not the question

that informs whether Steel Holdings is a controlling stockholder.55                   “Lack of

independence focuses on the director, and whether she has a conflict in the exercise

of her duty on behalf of her corporation. Consideration of controller status focuses

on the alleged controller, and whether it effectively controls the board of directors

so that it also controls disposition of the interests of the unaffiliated stockholders.”56

In considering Steel Holdings’ control at the Company, what matters is its ability to

control who joined the board. The Company’s disclosure on this point is clear: “Mr.




54
   The Company’s 2016 10-K stated, “[m]embers of our Board of Directors also have
significant interests in Steel Partners and its affiliates, which may create conflicts of
interest.” ModusLink Glob. Solutions, Inc., Annual Report (Form 10-K) at 14 (Oct. 14,
2016). It listed the relationships that Lichtenstein and Kassan had with Steel Holdings, and
said “Anthony Bergamo, a director, is also a director of Steel Partners.” Id. It closed with:
“As a result, these individuals may face potential conflicts of interest with each other and
with our stockholders. They may be presented with situations in their capacity as our
directors that conflict with their fiduciary obligations to Steel Partners and its affiliates,
which in turn may have interests that conflict with the interests of our other stockholders.”
Id. Defendants overlook that as to the Preferred Stock, Bergamo was “a classic dual
fiduciary, with duties to both sides in the Transaction.” Calesa Assocs., L.P. v. Am.
Capital, Ltd., 2016 WL 770251, at *11 (Del. Ch. Feb. 29, 2016).
55
   Sciabacucchi v. Liberty Broadband Corp., 2017 WL 2352152, at *18 (Del. Ch. May 31,
2017) (“Whether or not this is a sufficient pleading to imply lack of director independence,
it is not sufficient, if true, to show that [the alleged controller] exercised actual control over
the Board.”).
56
     Sciabacucchi, 2017 WL 2352152, at *17.

                                               24
Bergamo’s nomination was recommended by Mr. Lichtenstein, the Company’s

Chairman of the Board.”57

         Finally, Steel Holdings increasingly influenced management. It signed the

Management Services Agreement whereby the Company paid a Steel Holdings

affiliate to provide services. And the Company’s top executives were also Steel

Holdings affiliates: Lichtenstein acted as interim CEO until Henderson and Balardi,

who also have connections to Steel Holdings, took the executive positions of CEO

and CFO in 2016. In the period before the IWCO transaction, Howard and Fejes

acted as “de facto investment bankers” for the Company, as “[t]hey found the IWCO

merger opportunity, went out there and rounded up the financing, did the negotiating

and the like.”58 This hands-on work further supports the conclusion that Steel

Holdings had “day-to-day managerial supremacy” over the Company as of August

2017.59

         The gestalt of Steel Holdings’ stock ownership, influence over the board, and

influence over management makes it reasonably conceivable that it exercised control

over the Company’s business affairs entering August 2017, when the Company

began negotiating the IWCO acquisition, such that it owed fiduciary duties.


57
  ModusLink Glob. Solutions, Inc., Definitive Proxy Statement (Schedule 14A) at 10 (Oct.
29, 2013).
58
     D.I. 92 at 34.
59
     Cysive, 836 A.2d at 552.

                                           25
                2.    Steel Holdings Appears To Exercise Control Leading Up To
                      The Challenged Transactions And Over Their Approval.
         On September 8, 2017, the board met to consider the deal to acquire IWCO

and its financing, and appointed the Special Committee to review Steel Holdings’

financing component. On September 29, as the Company was moving forward with

the transaction, Bergamo passed away. Thus, as of September 29, three of the

Company’s five directors were independent and unaffiliated with Steel Holdings.

Based only on that fact, especially in light of Plaintiff’s insistence that Bergamo was

not independent from Steel Holdings, Steel Holdings’ influence would appear to

decrease leading up to the approval of the Challenged Transactions. But other data

points show the opposite.

         First, Steel Holdings affiliates were involved in the IWCO transaction.

Howard, a Steel Holdings affiliate and eventual board nominee, attended the

September 8 board meeting. At that time, Howard had no position at the Company.

His only connection was to Steel Holdings. The minutes from that meeting show

the board only discussed two topics: (1) whether the board should appoint a Special

Committee, and (2) management’s update as to ongoing Company operations.60

         Second, the Company gave Howard and Fejes stock options worth $3.6

million and $1.2 million when they joined the board in December 2017 for “current



60
     D.I. 34 Ex. 5.

                                          26
and future services to the Company,”61 apparently in the form of facilitating the

IWCO transaction as described above. The fact that the Company compensated two

Steel Holdings individuals for arranging the IWCO transaction supports the

conclusion that Steel Holdings controlled that transaction.

         Finally, Fejes and Howard joined the board on the same day the board

approved the IWCO transaction. As when Lichtenstein, Kassan, and Bergamo

joined the board, the December additions indicate Steel Holdings had control over

who joined the board.62 Whether Fejes and Howard joined the board before or after

it approved the Challenged Transactions, and whether they participated in the vote,

remain to be seen. According to the Steel Holdings Defendants’ briefing, the Special

Committee approved the Challenged Transactions “at a time when the independents

were a majority (three of five) of the board.”63 At argument, the Steel Holdings

Defendants clarified that the full board approved the Challenged Transactions after

the Special Committee had approved them.64 Plaintiff alleges all seven board



61
     D.I. 28 Ex. 11 at 6.
62
   See Sciabacucchi, 2017 WL 2352152, at *17 (“Consideration of controller status focuses
on the alleged controller, and whether it effectively controls the board of directors so that
it also controls disposition of the interests of the unaffiliated stockholders.”).
63
  D.I. 28 at 2; see also id. at 27 (“Plaintiff also cannot state any claim with respect to the
Preferred Stock transaction as it was approved by the Special Committee at a time when
independent directors constituted the majority of Board members.”); id. at 39 (same with
respect to Equity Grants).
64
     D.I. 92 at 27.

                                             27
members, including Fejes and Howard, approved the Challenged Transactions.65

Plaintiff also points out that under the 2010 Plan, awards such as the Equity Grants

could only be given to employees, consultants, or non-employee directors, so Fejes

and Howard must have been directors on the day the transactions were approved to

receive their grants. Thus, it is reasonably conceivable that Fejes and Howard were

on the version of the board that approved the Challenged Transactions.66 Under

those facts, and as further discussed below in the context of demand futility, a

majority of the directors were not disinterested and independent when the board

approved the Challenged Transactions.

         Thus, even if control is analyzed as of December 2017, when the board

approved the Challenged Transactions, it is reasonably conceivable that Steel

Holdings was a controlling stockholder, and that it exercised actual control over the

Company for purposes of the IWCO acquisition.




65
     Compl. ¶ 155-56.
66
   This conclusion also precludes dismissal of Plaintiff’s claims against and Fejes and
Howard. Plaintiff alleges all of the Director Defendants approved the IWCO transaction,
including the Preferred Stock, and that Fejes and Howard breached their fiduciary duties
by knowingly accepting stock grants in violation of the 2010 Plan. Id. ¶¶ 163-64. Fejes
and Howard initially made a simple argument to support dismissal: they were not on the
board that approved the Challenged Transactions and therefore could not owe fiduciary
duties. D.I. 28 at 23. But, in the context of Defendants’ concession that the full board
approved the transaction, Plaintiff has sufficiently alleged that Fejes and Howard were
fiduciaries at the time of the Challenged Transaction.

                                          28
         C.         Plaintiff’s Claims Are Solely Derivative, And The Gentile
                    Exception Does Not Apply.
         Plaintiff alleges both direct (Counts I, III, V) and derivative claims (Counts

II, IV, VI) asserting the board and Entity Defendants breached their fiduciary duties

in approving the Challenged Transactions.67          Tooley v. Donaldson, Lufkin &

Jenrette, Inc. governs whether a claim is direct or derivative.68 The inquiry “must

turn solely on the following questions: (1) who suffered the alleged harm (the

corporation or the suing stockholders, individually); and (2) who would receive the

benefit of any recovery or other remedy (the corporation or the stockholders,

individually)?”69 “[A] court should look to the nature of the wrong and to whom the

relief should go.”70 “Where all of a corporation’s stockholders are harmed and

would recover pro rata in proportion with their ownership of the corporation’s stock

solely because they are stockholders, then the claim is derivative in nature.”71 By

contrast, a stockholder pleads a direct claim if he “demonstrate[s] that the duty




67
   Plaintiff also alleges the Director Defendants breached their duty of candor in seeking
stockholder approval to amend the 2010 Plan to allow parts of the Equity Grants. This is
well pled as a direct claim and is addressed below.
68
     845 A.2d 1031 (Del. 2004).
69
     Id. at 1033.
70
     Id. at 1039.
71
     Feldman v. Cutaia, 951 A.2d 727, 733 (Del. 2008).

                                            29
breached was owed to the stockholder and that he or she can prevail without showing

an injury to the corporation.”72

           Appropriately, Plaintiff does not argue his claims are direct under Tooley. “In

the typical corporate overpayment case, a claim against the corporation’s fiduciaries

for redress is regarded as exclusively derivative, irrespective of whether the currency

or form of overpayment is cash or the corporation’s stock.”73 In such situations,

“any dilution in value of the corporation’s stock is merely the unavoidable result

(from an accounting standpoint) of the reduction in the value of the entire corporate

entity, of which each share of equity represents an equal fraction.”74

           Plaintiff instead argues “[t]he Preferred Stock and Equity Grants fall squarely

within the unique circumstances that give rise to dual-natured claims espoused by

the Delaware Supreme Court in” Gentile v. Rossette.75 In Gentile, our Supreme

Court stated that there “is at least one transactional paradigm—a species of corporate

overpayment claim—that Delaware case law recognizes as being both derivative and

direct in character.”76 Claims are treated as “both derivative and direct” if:




72
     Tooley, 845 A.2d at 1039.
73
     Gentile v. Rossette, 906 A.2d 91, 99 (Del. 2006).
74
     Id.
75
     D.I. 50 at 37.
76
     906 A.2d at 99.

                                              30
          (1) a stockholder having majority or effective control causes the
          corporation to issue “excessive” shares of its stock in exchange for
          assets of the controlling stockholder that have a lesser value; and (2) the
          exchange causes an increase in the percentage of the outstanding shares
          owned by the controlling stockholder, and a corresponding decrease in
          the share percentage owned by the public (minority) shareholders.77

          In El Paso Pipeline GP Co., L.L.C. v. Brinckerhoff, the Supreme Court

indicated that Gentile should be applied cautiously, and “decline[d] the invitation to

further expand the universe of claims that can be asserted” dually.78 Chief Justice

Strine concurred and went further, describing Gentile as “difficult to reconcile with

traditional doctrine” and viewing the Supreme Court’s refusal “to extend Gentile to

the alternative entity arena” as “implicitly recogniz[ing] that Gentile undercuts the

clarity and coherence that Tooley brought to the determination of what claims are

derivative.”79




77
     Id. at 100.
78
     152 A.3d 1248, 1264 (Del. 2016).
79
     Id. at 1266.

                                              31
          Since El Paso, this Court has handled Gentile claims carefully.80 One of those

decisions, Klein v. H.I.G. Capital, L.L.C., guides the analysis in this case.81 Klein

also dealt with the issuance of preferred stock. The alleged controlling stockholder

there purchased $310 million worth of Series A preferred stock from the

corporation.82 “[T]he gravamen of the Complaint [was] that [the alleged controller]

paid less than fair value to the Company to acquire the Preferred Stock.”83 That

claim was “a classic form of an ‘overpayment’ claim” because it challenged “the

fairness of the consideration paid for the Preferred Stock given its terms.”84




80
   See Sheldon v. Pinto Tech. Ventures, L.P., 2019 WL 336985, at *11 (Del. Ch. Jan. 25,
2019) (“declin[ing] to extend Gentile as Carsanaro and Nine Systems did”); Klein v. H.I.G.
Capital, L.L.C., 2018 WL 6719717, at *7 (Del. Ch. Dec. 19, 2018) (noting “this court has
exercised caution in applying the Gentile framework”); Almond v. Glenhill Advisors LLC,
2018 WL 3954733, at *24 (Del. Ch. Aug. 17, 2018) (noting the Supreme Court in El Paso
“recently construed the [Gentile] doctrine narrowly” and that “[i]n the wake of El Paso,
this court has exercised caution in applying the Gentile framework”); Sciabacucchi v.
Liberty Broadband Corp., 2018 WL 3599997, at *10 (Del. Ch. July 26, 2018) (“In my
view, the reasoning of El Paso, applied here, means that Gentile must be limited to its facts,
which involved a dilutive stock issuance to a controlling stockholder.”).
81
  2018 WL 6719717. Klein was issued after briefing on the motions occurred in this case
and discussed with counsel at argument. D.I. 92 at 81-82.
82
   2018 WL 6719717 at *3. The many transactions there were interrelated and
interdependent, which complicated the analysis of when the entity receiving the preferred
stock became a controlling stockholder. Chancellor Bouchard “assume[d] for the sake of
argument” that the entity had acquired the common shares and control before acquiring the
preferred stock. Id. at *8.
83
     Id. at *5.
84
     Id. at *6.

                                             32
           Chancellor Bouchard concluded Gentile did not apply to the issuance of the

preferred stock, “particularly in light of the Supreme Court’s recent El Paso

decision.”85 Even though the preferred stock “would have resulted in a dilution of

the minority stockholders’ voting power,” “the critical point” was that the minority

stockholders were not diluted in the same way as those in Gentile “because they

retained the same percentage of the Company’s shares of common stock after the

Preferred Stock was issued as they had before.”86 The harm came not from dilution,

but from the “issuance of a different type of security (the Preferred Stock) whose

terms allegedly should have commanded a higher price than was paid.”87 “The

benefit of any recovery to remedy this alleged harm logically would go to the

Company rather than any specific stockholder(s) and thus the underlying legal

theory is plainly derivative in nature.”88

           In this case, the allegations about the Preferred Stock are nearly identical and

so warrant the same conclusion as Klein. Because Gentile does not apply here,

Plaintiff’s claims concerning the Preferred Stock are properly analyzed as derivative.




85
     Id. at *8.
86
     Id.
87
     Id. at *9.
88
     Id.

                                              33
         The same is true for the approval of the Equity Grants. It is not clear that the

Grants even satisfy the first prong of Gentile because there is no exchange of shares

for assets of the controlling stockholder that have a lesser value. The Equity Grants

were for “current and future services to the Company.”89 Lawsuits challenging such

“excessive payments of corporate funds” are also traditionally derivative,90 as under

Tooley any loss was experienced by, and any recovery would go to, the

corporation.91 The claim is derivative, and in light of El Paso, I will not extend

Gentile to the Equity Grants. Plaintiff’s direct claims of breach of fiduciary duty in

Counts I and V are dismissed.

         D.      Demand Is Excused.
         “A cardinal precept of the General Corporation Law of the State of Delaware

is that directors, rather than shareholders, manage the business and affairs of the


89
     D.I. 28 Ex. 11 at 6.
90
  Kramer v. W. Pac. Indus., Inc., 546 A.2d 348, 353 (Del. 1988); see also Feldman, 951
A.2d at 735 (challenge to stock options derivative); Calma v. Templeton, 114 A.3d 563,
574 (Del. Ch. 2015) (analyzing demand futility for derivative claims related to
compensation awards to directors).
91
   The same conclusion is warranted for Count V, which Plaintiff pled as a direct claim
against Steel Holdings as a controlling stockholder. “Tooley requires this Court to look
beyond the labels used to describe the claim, evaluating instead the nature of the wrong
alleged.” In re Straight Path Commc’ns Inc. Consol. S’holder Litig., 2018 WL 3120804,
at *9 (Del. Ch. June 25, 2018). As described above, if Steel Holdings benefitted from the
Challenged Transactions at the Company’s expense, then it was the Company that was
harmed, and the Company that would get any recovery. See Teamsters Union 25 Health
Servs. & Ins. Plan v. Baiera, 119 A.3d 44, 56 (Del. Ch. 2015) (describing “straightforward
examples of derivative claims” arising from contract between controlling stockholder and
corporation). The claim is thus derivative and belongs to the Company.

                                            34
corporation.”92 This applies to “[t]he decision whether to initiate or pursue a lawsuit

on behalf of the corporation.”93 “Recognizing, however, that directors and officers

of a corporation may not hold themselves accountable to the corporation for their

own wrongdoing, courts of equity have created an ingenious device to police the

activities of corporate fiduciaries: the shareholder’s derivative suit.”94 Because a

derivative action “impinges on the managerial freedom of directors” to control that

litigation, the Court conducts a threshold inquiry to determine whether the derivative

action is appropriate.95 “Accordingly, in order to cause the corporation to pursue



92
  Aronson v. Lewis, 473 A.2d 805, 811 (Del. 1984) (citing 8 Del. C. § 141(a)). As Vice
Chancellor Laster has explained, “[a]lthough the technical rules of legal citation would
require noting that [Aronson] was reversed on other grounds by Brehm,” that “creates the
misimpression that Brehm rejected core elements of the Delaware derivative action canon”
set forth in Aronson that remain good law. In re EZCORP Inc. Consulting Agreement
Deriv. Litig., 2016 WL 197814, at *5 (Del. Ch. Jan. 15, 2016). This opinion therefore also
“omit[s] the cumbersome subsequent history” in citing Aronson. Id. at *5 n.2.
93
  In re Citigroup Inc. S’holder Deriv. Litig., 964 A.2d 106, 120 (Del. Ch. 2009); see also
South v. Baker, 62 A.3d 1, 13 (Del. Ch. 2012) (“When a corporation suffers harm, the board
of directors is the institutional actor legally empowered under Delaware law to determine
what, if any, remedial action the corporation should take, including pursuing litigation
against the individuals involved.”).
94
  Agostino v. Hicks, 845 A.2d 1110, 1116 (Del. Ch. 2004); see also Aronson, 473 A.2d at
811 (“The derivative action developed in equity to enable shareholders to sue in the
corporation’s name where those in control of the company refused to assert a claim
belonging to it.”).
95
  Aronson, 473 A.2d at 812; see also Desimone v. Barrows, 924 A.2d 908, 914 (Del. Ch.
2007) (describing issue as whether “board should be divested of its authority to address
that misconduct”); Kaplan v. Peat, Marwick, Mitchell & Co., 540 A.2d 726, 730 (Del.
1988) (“Because the shareholders’ ability to institute an action on behalf of the corporation
inherently impinges upon the directors’ power to manage the affairs of the corporation the
law imposes certain prerequisites on a stockholder’s right to sue derivatively.”).

                                             35
litigation, a [stockholder] must either (1) make a pre-suit demand by presenting the

allegations to the corporation’s directors, requesting that they bring suit, and

showing that they wrongfully refused to do so, or (2) plead facts showing that

demand upon the board would have been futile.”96

          The demand requirement “insure[s] that a stockholder exhausts his

intracorporate remedies,”97 “provide[s] a safeguard against strike suits,”98 and

“assure[s] that the stockholder affords the corporation the opportunity to address an

alleged wrong without litigation and to control any litigation which does occur.”99

“[T]he demand requirement and the strict requirements of factual particularity

under Rule 23.1 ‘exist to preserve the primacy of board decisionmaking regarding

legal claims belonging to the corporation.’”100 Any attempt to plead demand futility

“must comply with stringent requirements of factual particularity” required by Rule

23.1, which are “not satisfied by conclusory statements or mere notice pleading.”101

          Plaintiff did not make a demand before bringing his derivative claims (Counts

II, IV, and VI), and alleges doing so would have been futile. “Under Delaware law,


96
     Citigroup, 964 A.2d at 120.
97
     Aronson, 473 A.2d at 811.
98
     Id. at 812.
99
     Kaplan, 540 A.2d at 730.
100
   Citigroup, 964 A.2d at 120 (quoting Am. Int’l Group, Inc., Consol. Deriv. Litig., 965
A.2d 763, 808 (Del. Ch. 2009)).
101
      Brehm, 746 A.2d at 254.

                                            36
depending on the factual scenario, there are two different tests for determining

whether demand may be excused: the Aronson test and the Rales test.”102 This Court

has discussed the differences between those tests (or lack thereof) at length in other

decisions.103 Here, the parties agree Aronson applies.104            “Under the familiar

Aronson test, to show demand futility, plaintiffs must provide particularized factual

allegations that raise a reasonable doubt that ‘(1) the directors are disinterested and

independent [or] (2) the challenged transaction was otherwise the product of a valid

exercise of business judgment.’”105




102
   Feuer v. Redstone, 2018 WL 1870074, at *8 (Del. Ch. Apr. 19, 2018); see generally
Rales v. Blasband, 634 A.2d 927 (Del. 1993).
103
   See, e.g., Park Empls. & Ret. Bd. Empls. Annuity & Benefit Fund of Chicago v. Smith,
2017 WL 1382597, at *5 (Del. Ch. Apr. 18, 2017) (“The analyses in both Rales and
Aronson drive at the same point; they seek to assess whether the individual directors of the
board are capable of exercising their business judgment on behalf of the corporation.”); In
re China Agritech, Inc. S’holder Deriv. Litig., 2013 WL 2181514, at *16 (Del. Ch. May
21, 2013) (explaining the Aronson and Rales tests are “complementary versions of the same
inquiry”); Guttman v. Huang, 823 A.2d 492, 500 (Del. Ch. 2003) (stating “the differences
between the Rales and the Aronson tests in the circumstances of this case are only subtly
different, because the policy justification for each test points the court toward a similar
analysis”).
104
   Defendants initially argued Rales applied because only the Special Committee, and not
the full board, approved the Challenged Transactions. D.I. 28 at 29. At oral argument,
Defendants informed the Court that after further review, they agreed with Plaintiff that
Aronson applies because the full board (of either five or seven) approved the Challenged
Transactions. D.I. 92 at 27.
105
      Citigroup, 964 A.2d at 120 (quoting Brehm, 746 A.2d at 253).

                                             37
       “[D]emand futility analysis is conducted on a claim-by-claim basis.”106 I turn

first to Plaintiff’s claim that the board breached their fiduciary duties in approving

the Preferred Stock, and then to the Equity Grants.

              1.      Demand Is Excused Concerning The Preferred Stock.
       Plaintiff focused his arguments that demand is excused on the

disinterestedness and independence of the board.107 “At the pleading stage, a lack

of independence turns on ‘whether the plaintiffs have pled facts from which the

director’s ability to act impartially on a matter important to the interested party can

be doubted because that director may feel either subject to the interested party’s

dominion or beholden to that interested party.’”108 “Independence is a fact-specific



106
   Cambridge Ret. Sys. v. Bosnjak, 2014 WL 2930869, at *4 (Del. Ch. June 26, 2014); see
also Baiera, 119 A.3d at 67 (Del. Ch. 2015) (stating “neither the presence of a controlling
stockholder nor allegations of self-dealing by a controlling stockholder changes the
director-based focus of the demand futility inquiry”).
107
    At argument, Plaintiff touched briefly upon the second Aronson prong as to the
substance of the Preferred Stock. D.I. 92 at 74. This argument was not briefed, and alleged
in conclusory fashion in the Complaint. Compl. ¶¶ 120, 144. Plaintiff did not meet the
high burden of satisfying this prong. See Kahn v. Tremont Corp., 1994 WL 162613, at *6
(Del. Ch. Apr. 21, 1994) (“The second prong of Aronson is, I suppose, directed to extreme
cases in which despite the appearance of independence and disinterest a decision is so
extreme or curious as to itself raise a legitimate ground to justify further inquiry and judicial
review. The test for [establishing demand futility on this ground] is thus necessarily high,
similar to the legal test for waste.”).
108
   Sandys v. Pincus, 152 A.3d 124, 128 (Del. 2016) (quoting Sanchez, 124 A.3d at 1023
n.25); see also Beam v. Stewart, 845 A.2d 1040, 1049 (Del. 2004) (“the independence
inquiry requires us to determine whether there is a reasonable doubt that any one of these
three directors is capable of objectively making a business decision to assert or not assert
a corporate claim”).

                                               38
determination made in the context of a particular case. The court must make that

determination by answering the inquiries: independent from whom and independent

for what purpose?”109 Here, the inquiry is whether each director is independent from

Steel Holdings for the purpose of evaluating a demand relating to the Preferred

Stock.

         Defendants have conceded that Lichtenstein, Howard, and Fejes were not

independent and disinterested with respect to either the Preferred Stock or the Equity

Grants.110 This gives Plaintiff three of the four directors he must compromise to

show demand would have been futile.

         Fenton, Lengyel, and Wald are the three members of the Special Committee.

Plaintiff asserts only a conclusory challenge to their independence and

disinterestedness. Plaintiff alleges that “they face a substantial likelihood of liability

for having improperly approved” the Challenged Transactions.111 But “the fact that

a director previously approved a challenged transaction is one of many factors that

‘standing alone’ or ‘without more’ will not call into question a director’s ability to

consider a demand.”112 Nor is it enough that the members of the Special Committee



109
      Beam, 845 A.2d at 1049-50.
110
      D.I. 28 at 30; D.I. 58 at 14-19; D.I. 92 at 26-27.
111
      D.I. 50 at 51; Compl ¶ 143.
112
    EZCORP, 2016 WL 301245, at *39; see also Aronson, 473 A.2d at 817 (“mere
directorial approval of a transaction, absent particularized facts supporting a breach of
                                                39
received a $25,000 fee for their services. Plaintiff has not shown that was a material

amount.113   Plaintiff has not raised a reasonable doubt about these directors’

independence.

      That leaves Kassan, the seventh and final director, as the director that will tip

the scales for demand futility. Kassan’s connections to Steel Holdings, apart from

his roles at the Company, date back to 1999 and are set forth in the following chart.

  Steel Holdings Affiliate                          Position(s)
Steel Services                   Employee                Current
HNH                              CEO                     Oct. 2005 – Dec. 2012
                                 Vice Chairman of        Oct. 2005 – May 2015
                                 Board of Directors
                                 Member of Board of      July 2005 – May 2015
                                 Directors
SL Industries                    Member of Board of      Jan. 2002 – June 2016
                                 Directors
                                 President               Feb. 2002 – Aug. 2005
                                 Chairman of Board of    May 2008 – June 2016
                                 Directors
                                 Interim CEO             June 14-29, 2010
                                 Interim CFO             June 14 – Aug. 30, 2010
WebFinancial Corporation         Vice President          June 2000 – Apr. 2007
(predecessor to Steel            CFO                     June 2000 – Apr. 2007
Holdings)                        Secretary               June 2000 – Apr. 2007




fiduciary duty claim, or otherwise establishing the lack of independence or
disinterestedness of a majority of the directors, is insufficient to excuse demand”).
113
    See Parnes v. Bally Entm’t Corp., 2001 WL 224774, at *9 (Del. Ch. Feb. 23, 2001)
(stating there was no evidence “that the $50,000 fee was enough to constitute a material
interest to any of the” directors), aff’d, 788 A.2d 131 (Del. 2001).

                                          40
         At the Company, Kassan was one of the first directors Steel Holdings

nominated to the board in 2013 under the settlement agreement. He became Vice

Chairman of the Company’s board in May 2014, and served as Chief Administrative

Officer between May 2014 and January 2015. He is considered “a member of the

Section 13(d) group”114 along with Lichtenstein, Howard, and Fejes, HNH, and

numerous other Steel Holdings affiliates.115 The Company has disclosed that he is

“affiliated with Steel Holdings,”116 and warned he may face conflicts of interest with

Steel Holdings.117 He was not an independent director under NASDAQ rules. As

of December 2017, Kassan’s “principal occupation” was “serving as an employee

of Steel Services, Ltd., a subsidiary of Steel Holdings.” 118

         The parties dispute Kassan’s recent history with Steel Holdings. Plaintiff’s

Complaint alleges Kassan’s recent roles to be only his seat on the board, his role

with SL Industries that ended in June 2016, and his continued employment by Steel



114
      D.I. 28 Ex. 15 at 52.
115
      See generally D.I. 28 Ex. 14.
116
      D.I. 28 Ex. 15 at 53 & 54.
117
    ModusLink Glob. Solutions, Inc., Annual Report (Form 10-K) at 14 (Oct. 14, 2016).
(“Members of our Board of Directors also have significant interests in Steel Partners and
its affiliates, which may create conflicts of interest. . . . As a result, these individuals may
face potential conflicts of interest with each other and with our stockholders. They may be
presented with situations in their capacity as our directors that conflict with their fiduciary
obligations to Steel Partners and its affiliates, which in turn may have interests that conflict
with the interests of our other stockholders.”).
118
      D.I. 28 Ex. 14 at 14.

                                              41
Services. At argument, defendants argued Kassan was “semiretired,” that his

connections to Steel Holdings varied in duration but generally ended in 2016, and

that Plaintiff did not allege “he is someone who is now drawing significant amounts

of his livelihood from” Steel Holdings.119 This led to competing letters after

argument.120 Plaintiff points out that the Schedule 13D filed on March 7, 2019,

reiterated the previously disclosed facts that Kassan is “an employee of a subsidiary

of Steel Holdings” and that his “principal occupation” was still “serving as an

employee of Steel Services, Ltd., a subsidiary of Steel Holdings.”121 The Steel

Holdings Defendants responded that Kassan left “full-time employment in 2015”

and since that time

          his responsibilities at Steel Services, Ltd., have involved responding to
          requests from the companies with which he had served in the past, and
          providing information and insights drawing on his experience. He is
          paid the minimum necessary to enable him to participate in Steel
          Services’ medical plan: $23,659.92 gross pay in 2018.122

This information was not in the record or the Company’s public filings.

          For purposes of defendants’ motion to dismiss, even under Rule 23.1, Plaintiff

is entitled to all reasonable inferences from facts that are pled or subject to judicial




119
      D.I. 92 at 21.
120
      D.I. 90 & 91.
121
      D.I. 90 Ex. A at 15.
122
      D.I. 91 at 5.

                                             42
notice. On those facts, Plaintiff has sufficiently alleged that Kassan would not be

disinterested and independent in evaluating a demand concerning the Preferred

Stock. As listed above, Kassan has had numerous roles, including roles such as

CEO, President, and CFO that warrant significant compensation, for four entities

within the Steel Holdings family. According to public disclosures, as of both

December 2017 and March 2019, his “principal occupation” was working for Steel

Services, which is the Steel Holdings affiliate that provides the Company services

under the Management Services Agreement.

      The Preferred Stock increased Steel Holdings’ ownership in the Company.

The nature and number of roles Kassan has had with Steel Holdings and its affiliates,

and the length of his service, create a reasonable doubt as to his independence for

evaluating whether to pursue claims related to the Preferred Stock. As a result, the

scales tip in Plaintiff’s favor. Demand was futile, and so excused, for the claims

challenging the issuance of the Preferred Stock.

             2.    Demand Is Excused Concerning The Equity Grants.
      To Plaintiff, the Equity Grants are both unfair and a violation of the 2010 Plan.

Like the Preferred Stock, the Equity Grants were given to Steel Holdings affiliates.

The Equity Grants, together with the Preferred Stock, gave Steel Holdings and its

affiliates majority voting control of the Company. Under the first prong of Aronson,

demand for Plaintiff’s claim that the board breached their fiduciary duties in


                                         43
approving the Equity Grants is excused. For the reasons stated above, four of the

seven members of the board (Fejes, Howard, Kassan, and Lichtenstein) cannot

impartially consider whether to pursue claims relating to the Equity Grants.

            Another aspect of Plaintiff’s claim concerning the Equity Grants implicates

the second prong of Aronson. Plaintiff alleges the Director Defendants breached

their fiduciary duties by approving and/or accepting the Equity Grants in knowing

violation of the 2010 Plan. He cites Pfeiffer v. Leedle123 and Sanders v. Wang124 to

argue the decision to award the Equity Grants in violation of the 2010 Plan was not

the product of a valid exercise of business judgment. “The business judgment

standard is not appropriate, and demand will be excused . . . when a plaintiff pleads

particularized facts that indicate that the board knowingly or deliberately failed to

adhere to the terms of a stock incentive plan.”125 “One way that a plaintiff can allege

sufficiently a knowing and deliberate failure on the part of a board is by

demonstrating that the alleged action was a clear and unambiguous violation of the

company’s stock incentive plan.”126 Defendants contend Plaintiff has not shown that




123
      2013 WL 5988416 (Del. Ch. Nov. 8, 2013).
124
      1999 WL 1044880 (Del. Ch. Nov. 8, 1999).
125
      Pfeiffer, 2013 WL 5988416, at *5.
126
      Id.

                                             44
the board violated an unambiguous provision, or that the violation was knowing or

deliberate.

      Plaintiff believes the Equity Grants violated the 2010 Plan because they

exceeded the number of Full Value Awards the 2010 Plan permitted. The issue turns

on an interpretation of Section 3.1 of the 2010 Plan. For ease of reference, it is

reproduced again, with emphases added:

      (a) Subject to Section 13.2 and Section 3.1(b), the aggregate number of
      Shares which may be issued or transferred pursuant to Awards under
      the Plan is (i) 5,000,000 plus (ii) any Shares which are subject to
      awards under the Prior Plans which after the Effective Date are
      forfeited or lapse unexercised or are settled in cash and are not issued
      under the Prior Plans; provided, that subject to Section 13.2 and, with
      respect to Full Value Awards that terminate, expire or lapse or for
      which shares of Common Stock are tendered or withheld, Section
      3.1(b) the aggregate number of shares of Common stock which may
      be issued or transferred pursuant to Full Value Awards under the
      Plan is 3,000,000. No more than 5,000,000 Shares may be issued upon
      the exercise of Incentive Stock Options. After the Effective Date, no
      awards may be granted under any Prior Plan, however, any awards
      under any Prior Plan that are outstanding as of the Effective Date shall
      continue to be subject to the terms and conditions of such Prior Plan.

Plaintiff reads the provision as imposing a hard limit of 3,000,000 on all Full Value

Awards. Under Plaintiff’s reading, the Company violates the Plan if it awards more

than 3,000,000 Full Value Awards without seeking stockholder approval.

Defendants read the provision as limiting only a subset of the Full Value Awards:

the Recycled Awards.




                                         45
          Based on these competing interpretations alone, it would be difficult to excuse

demand because the Company’s Compensation Committee had the authority to

interpret the Plan.127 The problem for defendants is that the Company agreed with

Plaintiff’s reading of Section 3.1 in a previous proxy. When stockholders approved

the 2010 Plan, the proxy they received stated, “The Plan provides that no more than

3,000,000 shares will be granted as ‘full value awards.’”128 Nothing in the 2010

Proxy hints that the 3,000,000 limit on Full Value Awards is limited to Recycled

Awards.

          In arguing that they did not violate an unambiguous compensation plan

provision, the Director Defendants attempt to disavow the disclosures in the 2010

Proxy because they were not on the board at that time. Under defendants’ argument,

the 2010 Proxy is irrelevant to whether the 2010 Plan is ambiguous and whether the

directors violated it.

          Delaware law does not support ignoring previous disclosures.          In both

Friedman v. Khosrowshahi129 and Sanders, this Court looked to the company’s

disclosures about the compensation plan, or lack thereof, to determine whether the



127
   ModusLink Glob. Solutions, Inc., Definitive Proxy Statement (Schedule 14A)
Appendix I § 12.2 (Oct. 26, 2010).
128
      Id. at 12.
129
   2014 WL 3519188 (Del. Ch. July 16, 2014), aff’d, 2015 WL 1001009 (Del. Mar. 6,
2015).

                                            46
directors had knowingly violated the governing plan. In Friedman, the company’s

interpretation of the plan was “consistent with disclosures contained in the

Company’s 2013 proxy statement” concerning a previous compensation committee

decision.130 In Sanders, then-Vice Chancellor Steele rejected an argument that the

awards “carrie[d] out the ‘fundamental and unambiguous’ intent” of awarding stock

at certain performance levels because

            [t]he defendants admit[ted] that they never explained this
            ‘unambiguous’ intent to shareholders when seeking approval for the
            Plan. Further, nothing in the documents I have reviewed shows that
            this was the case, though it seems it would have been simple enough
            for the Plan’s proponents to describe this “fundamental” feature of the
            Plan, either in the text of the Plan itself, or, at minimum, in the proxy
            materials.131

Both cases support looking to the company’s previous disclosures about its

compensation plan to evaluate a board’s decision about the plan’s meaning.

            Here, the Company told stockholders in 2010 that the 2010 Plan limited Full

Value Awards to three million. But in 2017, the Company awarded more than three

million Full Value Awards outright. This constitutes a violation of the 2010 Plan as

described in the Company’s clear and unambiguous previous disclosures, meaning

Plaintiff has adequately pled that the board knowingly or deliberately failed to

adhere to the terms of the 2010 Plan. Demand is thus excused.


130
      Id.
131
      Sanders, 1999 WL 1044880, at *8.

                                               47
          E.     Plaintiff Has Adequately Pled A Derivative Claim Against The
                 Special Committee Defendants With Regard To The Equity
                 Grants, But Not With Regard To The Preferred Stock.
          The Company’s certificate of incorporation contains an exculpatory provision

as authorized by 8 Del. C. § 102(b)(7).132 Under In re Cornerstone Therapeutics

Inc. Shareholder Litigation, “plaintiffs must plead a non-exculpated claim for breach

of fiduciary duty against an independent director protected by an exculpatory charter

provision, or that director will be entitled to be dismissed from the suit.”133 This

“rule applies regardless of the underlying standard of review for the transaction.”134

Just because “a plaintiff is able to plead facts supporting the application of the entire

fairness standard to the transaction, and can thus state a duty of loyalty claim against

the interested fiduciaries” does not mean the plaintiff states a claim against a

non-interested fiduciary.135 A “plaintiff must well-plead a loyalty breach against

each individual director; so-called ‘group pleading’ will not suffice.”136

          Plaintiff does not adequately plead a non-exculpated claim against the Special

Committee Defendants as to the Preferred Stock. Plaintiff does not allege that they

received any unique benefit from the Preferred Stock. As discussed earlier, Plaintiff


132
      D.I. 28 Ex. 1, art. EIGHTH.
133
      115 A.3d 1173, 1180 (Del. 2015).
134
      Id. at 1179.
135
      Id. at 1180.
136
      In re Tangoe, Inc. S’holders Litig., 2018 WL 6074435, at *12 (Del. Ch. Nov. 20, 2018).

                                              48
has not pled that the Special Committee Defendants lack independence, even for

transactions with a controlling stockholder.137           There are no non-conclusory

allegations of bad faith.138 And Plaintiff has not pled the “extreme factual scenario”

to state a claim for waste.139 Accordingly, the Special Committee Defendants are

entitled to dismissal as to claims that they breached their fiduciary duties in

approving the Preferred Stock.140


137
   The inverse is true for Kassan, who moved to dismiss on the basis that he is exculpated
because he was “not alleged to have any current ties to Steel Holdings or its subsidiaries
and affiliates apart from his seat on the Company Board.” D.I. 28 at 35. As explained
above, Kassan is not disinterested or independent concerning the Challenged Transactions
and cannot impartially consider a demand. He therefore faces an adequately pled duty of
loyalty claim. See In re Oracle Corp. Deriv. Litig., 2018 WL 1381331, at *22 (Del. Ch.
Mar. 19, 2018) (concluding that directors lacked independence with respect to decision for
same reasons they lacked “independence for demand-futility purposes”); Cumming v.
Edens, 2018 WL 992877, at *25 (Del. Ch. Feb. 20, 2018) (ruling directors that were in
“conflicted state” in approving challenged transactions could not consider demand
meaning the “breach of loyalty claims cannot be extinguished at the pleading stage under
Section 102(b)(7)”); TVI Corp. v. Gallagher, 2013 WL 5809271, at *14 (Del. Ch. Oct. 28,
2013) (“A director will be considered conflicted with respect to a board decision if (i) the
director stands to receive a benefit that is not shared by the corporation’s stockholders as a
whole, or (ii) the director is controlled by or beholden to another party. This is coextensive
with the test for interestedness and lack of independence under the first prong of
Aronson.”).
138
   Plaintiff’s bad faith allegations boil down to the accusation that the Challenged
Transactions were “drastically unfair.” D.I. 50 at 33.
139
   Feuer, 2018 WL 1870074, at *10. Though Plaintiff complains the Special Committee
should have bargained for better terms, the Challenged Transactions are not so “egregious
or irrational that [they] could not have been based on a valid assessment” of the best
interests of the Company. White v. Panic, 783 A.2d 543, 554 n.36 (Del. 2001).
140
    Plaintiff argues he seeks equitable and non-monetary relief that allows it to bypass the
exculpatory clause. But he does not explain why that relief would run to the Special
Committee Directors, or why they must be parties for the Court to award the requested
relief.

                                             49
            The Equity Grants are different. “Knowing or deliberate violations of a

stockholder approved stock plan implicate the duty of loyalty, and breaches of the

duty of loyalty cannot be exculpated[.]”141 “Therefore, because demand is excused

under the second prong of Aronson due to conduct that conceivably cannot be

exculpated,” Plaintiff has adequately pled a non-exculpated claim regarding the

Equity Grants against the Special Committee Defendants.142 In a world without the

2010 Plan, the Special Committee Defendants would be exculpated from the claim

that they breached their fiduciary duties merely by approving the Equity Grants, as

they were with the Preferred Stock. But Plaintiff has pled the non-exculpated claim

that the Special Committee Defendants knowingly approved the Equity Grants in

violation of the 2010 Plan, preventing dismissal.

            F.    Plaintiff’s Aiding And Abetting Claims Are Dismissed.
            Plaintiff pleads that the Entity Defendants aided and abetted the alleged

breaches of fiduciary duties. The elements of an aiding and abetting a breach of

fiduciary duty claim are “(i) the existence of a fiduciary relationship, (ii) a breach of

the fiduciary’s duty, (iii) knowing participation in that breach by the defendants, and

(iv) damages proximately caused by the breach.”143 “Prior decisions of this court



141
      Pfeiffer, 2013 WL 5988416, at *9.
142
      Id.
143
      RBC Capital Mkts., LLC v. Jervis, 129 A.3d 816, 861 (Del. 2015).

                                             50
have validated the unsurprising proposition that an aiding and abetting claim

premised on a derivative cause of action is necessarily derivative itself.”144 Count

III, the direct aiding and abetting claim, is therefore dismissed.

         The Entity Defendants also moved to dismiss Count IV, Plaintiff’s derivative

aiding and abetting claim, based on supposed shortcomings in Plaintiff’s pleading.145

Plaintiff did not address aiding and abetting at all in his brief or at argument. By

failing to respond, Plaintiff abandoned this claim.146 It is dismissed.

         G.      Plaintiff States Claims Under Rule 12(b)(6).
         Having established that Steel Holdings was a controlling stockholder, that

Plaintiff’s claims are derivative, and that demand is excused, I turn to whether

Plaintiff’s remaining claims may proceed under Court of Chancery Rule 12(b)(6).




144
   Feldman, 956 A.2d at 662; see also In re Alloy, Inc., 2011 WL 4863716, at *14 (Del.
Ch. Oct. 13, 2011) (“As a matter of law and logic, there cannot be secondary liability for
aiding and abetting an alleged harm in the absence of primary liability.”).
145
      D.I. 28 at 45-47.
146
    See, e.g., MHS Capital LLC v. Goggin, 2018 WL 2149718, at *16 (Del. Ch. May 10,
2018) (ruling plaintiff’s failure to respond to arguments raised in support of motion to
dismiss meant it “abandoned every claim” not addressed); Capano v. Capano, 2014 WL
2964071, at *16 (Del. Ch. June 30, 2014) (“Defendants argue that the Court lacks
jurisdiction to grant Joseph punitive damages and that some of Joseph’s claims are
derivative claims which he cannot assert after the Merger. Joseph did not respond to these
arguments in his answering briefs or at oral argument and thus he has abandoned those
claims.”); see also Emerald Pr’s v. Berlin, 726 A.2d 1215, 1224 (Del. 1999) (“Issues not
briefed are deemed waived.”).

                                           51
                1.     Plaintiff’s Claims Pertaining To The Preferred Stock May
                       Proceed Under The Entire Fairness Standard.
         “Delaware courts examine the merits of a claim for breach of fiduciary duty

through one of (primarily) three doctrinal standards of review: business judgment,

enhanced scrutiny, and entire fairness.”147 The business judgment rule is the default

standard of review. It presumes that “in making a business decision the directors of

a corporation acted on an informed basis, in good faith and in the honest belief that

the action taken was in the best interests of the company.” 148 When the business

judgment rule applies, the result is usually dismissal.

         Entire fairness, on the other hand, is “Delaware’s most onerous standard,

[and] applies when the board labors under actual conflicts of interest.”149 “A primary

focus of our corporate jurisprudence has been ensuring that controlling stockholders

do not use the corporate machinery to unfairly advantage themselves at the expense

of the minority.”150 Yet “controlling stockholders are not automatically subject to

entire fairness review when a controlled corporation effectuates a transaction.




147
      Calma, 114 A.3d at 577.
148
      Aronson, 473 A.2d at 812.
149
      In re Trados Inc. S’holder Litig., 73 A.3d 17, 44 (Del. Ch. 2013).
150
      In re Synthes, Inc. S’holder Litig., 50 A.3d 1022, 1039 (Del. Ch. 2012).

                                              52
Rather, the controller also must engage in a conflicted transaction for entire fairness

to apply.”151

            “Conflicted transactions come in many forms.”152 The issue often arises in

relation to mergers or acquisitions, but our “courts also have applied [the entire

fairness framework] more broadly to transactions in which a controller extracts a

non-ratable benefit.”153

            “The disposition of defendants’ motion to dismiss this claim under Rule

12(b)(6) turns on what standard of review applies to the claim.” 154 “The possibility

that the entire fairness standard of review may apply tends to preclude the Court

from granting a motion to dismiss under Rule 12(b)(6) unless the alleged controlling

stockholder is able to show, conclusively, that the challenged transaction was

entirely fair based solely on the allegations of the complaint and the documents

integral to it.”155

            Here, the conflict and non-ratable benefit from the Preferred Stock are clear.

Steel Holdings was the Company’s controlling stockholder. It stood on both sides



151
   IRA Tr. FBO Bobbie Ahmed v. Crane, 2017 WL 7053964, at *6 (Del. Ch. Dec. 11, 2017)
(quoting Crimson, 2014 WL 5449419, at *12).
152
      Id.
153
      EZCORP, 2016 WL 301245, at *11.
154
      Klein, 2018 WL 6719717, at *14.
155
      Hamilton P’rs, 2014 WL 1813340, at *12.

                                              53
of the Preferred Stock transaction. Plaintiff pleads the Preferred Stock had terms

favorable to Steel Holdings at the Company’s expense, including its dividend, and

alleges the $1.96 conversion price was set too low, particularly in light of the

expected price bump from announcing the IWCO acquisition. Plaintiff compares

the financing terms to alternative sources of funding, including other portions of the

financing the Company secured to fund the IWCO acquisition. And Plaintiff attacks

the process by which the Special Committee tested the terms and other available

options.

      As pled, the Preferred Stock transaction was thus conflicted and gave Steel

Holdings and its affiliates a non-ratable benefit. Entire fairness applies, and the Steel

Holdings Defendants have failed to show that the transaction was entirely fair.

Plaintiff’s breach of fiduciary duty claim regarding the Preferred Stock survives

dismissal under Rule 12(b)(6).

             2.     Plaintiff Has Adequately Pled A Breach Of Fiduciary Duty
                    Concerning The Equity Grants.
      Like the Preferred Stock, the Equity Grants benefitted Steel Holdings

affiliates. And as with the Preferred Stock, Plaintiff alleges an improper benefit from

the expected stock bump from the IWCO acquisition: because the Equity Grants

were set at the current trading price of $1.49, their value “ballooned” by more than




                                           54
40% when the Company announced the IWCO acquisition.156 Plaintiff also alleges

the size of the Equity Grants was “grossly unfair,” particularly compared to awards

given to the Company’s other directors and officers, and by the Company’s peers.157

Plaintiff adds the Equity Grants to the Preferred Stock and concludes Steel Holdings

and its affiliates received $48.7 million worth of stock for only $35 million. 158 Those

underpriced shares represented approximately 17% of the Company’s outstanding

shares. By acquiring them, Steel Holdings obtained a majority of the Company’s

outstanding stock. For the reasons explained in connection with the Preferred Stock,

Plaintiff’s claim that the board breached its fiduciary duties in approving the Equity

Grants survives dismissal and proceeds under the entire fairness standard.

         In addition to that entire fairness analysis, and as explained above in finding

demand was futile, Plaintiff has pled that the board knowingly violated the 2010

Plan in approving the Equity Grants. Because the standard under Rule 12(b)(6) is

less stringent than under Rule 23.1, “where plaintiff alleges particularized facts

sufficient to prove demand futility under the second prong of Aronson, that plaintiff

a fortiori rebuts the business judgment rule for the purpose of surviving a motion to




156
      Compl. ¶¶ 75, 77.
157
      Id. ¶¶ 82-86.
158
   This number accounts for only the vested portion of the Equity Grants. Including all of
the Equity Grants increases the value to over $51 million.

                                           55
dismiss pursuant to Rule 12(b)(6).”159 Plaintiff has pled that demand for a claim

relating to violating the 2010 Plan is futile under Aronson’s second prong. The claim

therefore also survives the 12(b)(6) motion.

                3.     Plaintiff Has Adequately Pled An Unjust Enrichment
                       Claim.
         Plaintiff’s unjust enrichment claim is brought against Steel Holdings, SPH,

Lichtenstein, Fejes, and Howard. Plaintiff alleges the same “grossly unfair” terms

of the Preferred Stock and “unauthorized financial benefits” from the Equity Grants,

as its breach of fiduciary duty claims.160 I therefore reach the same conclusion as I

did for the breach of fiduciary duty claim: Plaintiff’s unjust enrichment claim is

derivative under Tooley.161

         “To state a claim, the complaint must allege sufficient facts plausibly to show:

(1) an enrichment, (2) an impoverishment, (3) a relation between the enrichment and

impoverishment, (4) the absence of justification, and (5) the absence of a remedy




159
      Ryan v. Gifford, 918 A.2d 341, 357 (Del. Ch. 2007).
160
      Compl. ¶¶ 187-88.
161
   See Reiter v. Fairbank, 2016 WL 6081823, at *14 (Del. Ch. Oct. 18, 2016) (dismissing
derivative breach of fiduciary duty and unjust enrichment claims under Rule 23.1); Metro.
Life Ins. Co. v. Tremont Gp. Hldgs., Inc., 2012 WL 6632681, at *9 (Del. Ch. Dec. 20, 2012)
(classifying unjust enrichment claim as derivative and dismissing along with breach of
fiduciary duty claim); MCG Capital Corp. v. Maginn, 2010 WL 1782271, at *23-24 (Del.
Ch. May 5, 2010) (ruling unjust enrichment claim was derivative and dismissing for failure
to make demand).

                                             56
provided by law.”162 The Entity Defendants argue “[i]t is a well-settled principle of

Delaware law that a party cannot recover under a theory of unjust enrichment if a

contract governs the relationship between the contesting parties that gives rise to the

unjust enrichment claim.”163 The Entity Defendants invoke this principle because a

Preferred Stock Purchase Agreement governs the Company’s sale of the Preferred

Stock. “But when a plaintiff alleges that ‘it is the [contract], itself, that is the unjust

enrichment,’ the existence of the contract does not bar the unjust enrichment

claim.”164 Defendants contend this angle “only works if Plaintiff’s underlying

fiduciary duty claims have any merit, which they do not.”165 For the reasons

explained above, defendants are wrong about the merit of Plaintiff’s underlying

claim. And though defendants argue an unjust enrichment claim usually fails along

with a fiduciary duty claim,166 the two claims can also survive together.167


162
    Narrowstep, Inc. v. Onstream Media Corp., 2010 WL 5422405, at *16 (Del. Ch. Dec.
22, 2010). Plaintiff cited only Delaware law in support of his unjust enrichment claim and
I therefore assume Delaware law governs this claim.
163
  D.I. 28 at 48 (quoting Vichi v. Koninklijke Philips Elecs. N.V., 62 A.3d 26, 58 (Del. Ch.
2012)).
164
   RCS Cred. Tr. v. Schorsch, 2018 WL 1640169, at *7 (Del. Ch. Apr. 5, 2018) (alteration
in original) (quoting McPadden, 964 A.2d at 1276).
165
      D.I. 58 at 32-33.
166
      Id. at 33-34.
167
    See Calma, 2015 WL 1951930, at *20 (viewing unjust enrichment as duplicative of
breach of fiduciary duty claim where plaintiff alleged no “unjust enrichment separate or
distinct from the alleged breach of fiduciary duty” and concluding that because party
adequately pled breach of fiduciary duty it was reasonably conceivable the plaintiff could
recover for unjust enrichment); Frank v. Elgamal, 2012 WL 1096090, at *11 (Del. Ch.
                                            57
         Some clarity as to the proper defendants is needed. Plaintiff did not specify

how different defendants were unjustly enriched. Defendants correctly identify that

Plaintiff fails to plead an enrichment by all identified parties for both the Preferred

Stock and the Equity Grants. Plaintiff did not allege or argue that Fejes, Howard, or

Lichtenstein benefited at all from the Preferred Stock. Thus, the Preferred Stock

portion of the claim is dismissed as to Fejes, Howard, and Lichtenstein.

         Steel Holdings and SPH assert Plaintiff has failed to plead they were unjustly

enriched by the Equity Grants. The amounts of the Equity Grants are included in

Steel Holdings’ 13(d) ownership, with Fejes, Howard, or Lichtenstein retaining sole

beneficial ownership over those shares.168 Plaintiff’s theory that giving the Equity

Grants to its affiliated directors gave Steel Holdings majority voting control over the

Company runs throughout Plaintiff’s case.169 That theory survived the motion to

dismiss Plaintiff’s breach of fiduciary duty claim, and survives on unjust enrichment



Mar. 30, 2012) (“A plaintiff will only receive, at most, one recovery, but, at least at this
procedural juncture, [it] may simultaneously assert a claim for breach of fiduciary duty and
a claim for unjust enrichment.”); MCG Capital Corp., 2010 WL 1782271, at *25 n.147
(“In this case, then, for all practical purposes, the claims for breach of fiduciary duty and
unjust enrichment are redundant. One can imagine, however, factual circumstances in
which the proofs for a breach of fiduciary duty claim and an unjust enrichment claim are
not identical, so there is no bar to bringing both claims against a director.”).
168
    Ex. 14 at 9, 11, 12 (showing these individuals have sole voting power and sole
dispositive power over number of shares they beneficially own); id. at 13 (stating each
individual “disclaim[ed] beneficial ownership of the Shares owned directly by another
Reporting Person, except to the extent of his or its pecuniary interest therein.”).
169
      Compl. ¶ 187.

                                             58
as well. But Plaintiff alleges no connection between SPH and the Equity Grants,

other than SPH’s affiliation with Steel Holdings. The Equity Grant portion of Count

VI is dismissed only as to SPH.

                4.     Plaintiff Stated A Disclosure Claim.
         While Plaintiff’s direct breach of fiduciary duty claim seeking to rescind the

Challenged Transactions was dismissed in favor of his derivative claim, Count I also

alleges a claim of the breach of the duty of candor against the Director Defendants

for disclosure violations in the Company’s 2017 Proxy. A board’s obligation to fully

and fairly disclose all material information “attaches to proxy statements and any

other disclosures in contemplation of shareholder action.”170 “When directors speak

out about their own compensation, or that of company managers, shareholders have

a right to the full, unvarnished truth.”171 Thus, where stockholder approval of a plan

of compensation is involved, the “disclosure or fair summary of all of the relevant

terms and conditions of the proposed plan of compensation, together with any

material extrinsic fact within the board’s knowledge bearing on the issue,” is

required.172




170
      Arnold v. Soc’y for Sav. Bancorp, Inc., 650 A.2d 1270, 1277 (Del. 1994).
171
      In re Tyson Foods, Inc., 2007 WL 2351071, at *4 n.18 (Del. Ch. Aug. 15, 2007).
172
      Lewis v. Vogelstein, 699 A.2d 327, 333 (Del. Ch. 1997).

                                             59
          In Proposal No. 7 in the 2017 Proxy, the Company sought stockholder

approval to amend the Plan to permit the Equity Grants.173 The Plan was to be

amended to increase the number of shares available for issuance and to eliminate the

limit on the number of “Full Value Awards” that can be issued under the Plan.

Plaintiff alleges a number of alleged disclosure deficiencies, including:

            (1)    the Company did not disclose the full number of Equity Grants;

            (2)    the Company did not disclose the existing limit, of three million
                   Full Value Awards, that it sought to eliminate;

            (3)    the Company affirmatively misrepresented the existing three
                   million limit for Full Value Awards by stating the limit applied only
                   to shares that were originally issued under the Company’s
                   compensation plans prior to the Plan and were forfeited, lapsed, or
                   settled in cash after the effective date of the Plan and were recycled
                   for use under the Plan;

            (4)    the Company had given the Equity Grants but there were
                   insufficient shares available under the Plan to cover them; and

            (5)    the Company breached the Plan, and ran out of shares under the
                   2010 Plan because the Company used almost all of the shares for
                   the Equity Grants.

These allegations turn on the interpretation of Section 3.1 of the 2010 Plan discussed

above.

         In the 2017 Proxy, stockholders were asked whether to “increase the shares

available under the 2010 Plan in an amount sufficient to permit” awards listed for



173
      D.I. 28 Ex. 15 at 37.

                                            60
Lichtenstein, Fejes, and Howard.174        But that only covered 1,050,000 of the

5,500,000 million shares175 covered by the Equity Grants.            Under Plaintiff’s

interpretation of Section 3.1, which the Company adopted in the 2010 Proxy, the

difference between the remaining Equity Grants and the three million cap also

required approval. Stockholders were not told that. And because the Company did

not include the full number of Equity Grants awarded, a stockholder could not do

the math for herself to understand what she was being asked to approve.

         Plaintiff also alleges the 2017 Proxy does not disclose that the board granted

Lichtenstein, Howard, and Fejes more Full Value Award shares than the 2010 Plan

allowed. Instead, Plaintiff alleges, the board affirmatively misrepresented the three

million limit by stating it applied only to Recycled Shares. Furthermore, the 2017

Proxy did not mention the 2010 Proxy’s disclosure that all Full Value Awards were

capped at three million. Finally, Plaintiff asserts the 2017 Proxy did not disclose

why the Company had run out of shares. According to Plaintiff, the Company

exceeded the 2010 Plan’s original limit of five million shares because the board used

83.9% of the available shares to issue the Equity Grants.176



174
      D.I. 28 Ex. 15 at 46.
175
   The grants were both “Stock Payments” and “Restricted Stock.” The reference to
“shares” is an attempt to simplify the discussion here.
176
  Plaintiff calculates this based on the number of shares available as of July 31, 2017.
Compl. ¶ 116.

                                           61
       It is reasonably conceivable that a stockholder considering whether to approve

those amendments would want to know (a) that the Company previously believed

the 2010 Plan limited Full Value Awards at three million shares; and (b) the size of

the Equity Grants relative to that limit.     Plaintiff’s disclosure claim survives

dismissal.

III.      CONCLUSION

       For the foregoing reasons, the motions to dismiss filed by the Steel Holdings

Defendants and the Special Committee Defendants are GRANTED IN PART and

DENIED IN PART. Count I is dismissed, with the exception of the direct disclosure

claim as against all the Director Defendants. Count II is dismissed as against the

Special Committee Defendants with regard to the Preferred Stock, but may proceed

against them with regard to the Equity Grants, and may also proceed against the

other Director Defendants with regard to the Preferred Stock and Equity Grants.

Counts III and IV, for aiding and abetting, are dismissed. Count V may proceed as

a derivative claim against Steel Holdings. Count VI, for unjust enrichment, is

dismissed as against SPH with regard to the Equity Grants, and is dismissed as

against Lichtenstein, Fejes, and Howard with regard to the Preferred Stock. Steel

Holdings’ motion is denied with regard to Count VI.

       IT IS SO ORDERED.




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