IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

CSH THEATRES, L.L.C.,                  )
                                       )
          Plaintiff/Counterclaim       )
          Defendant,                   )
                                       )
    v.                                 )   C.A. No. 9380-VCMR
                                       )
NEDERLANDER OF SAN                     )
FRANCISCO ASSOCIATES,                  )
                                       )
          Defendant/Counterclaim       )
          Plaintiff.                   )
                                       )
                                       )
NEDERLANDER OF SAN                     )
FRANCISCO ASSOCIATES,                  )
                                       )
          Third-Party Plaintiff,       )
                                       )
    v.                                 )
                                       )
CSH CURRAN, LLC, CAROLE                )
SHORENSTEIN HAYS AND JEFF              )
HAYS,                                  )
                                       )
          Third-Party Defendants       )
                                       )
    and                                )
                                       )
SHORENSTEIN HAYS-                      )
NEDERLANDER THEATRES LLC               )
                                       )
          Nominal Defendant.           )

                      MEMORANDUM OPINION

                       Date Submitted: July 19, 2018
                        Date Decided: July 31, 2018
Raymond J. DiCamillo, Susan M. Hannigan, and Sarah A. Galetta, RICHARDS,
LAYTON & FINGER, P.A., Wilmington, Delaware; David B. Tulchin, Brian T.
Frawley, Andrew J. Finn, and Yavar Bathaee, SULLIVAN & CROMWELL LLP,
New York, New York; Attorneys for Plaintiff and Counterclaim Defendant/Third
Party Defendants.

Tammy L. Mercer and Daniel M. Kirshenbaum, YOUNG CONAWAY
STARGATT & TAYLOR, LLP, Wilmington, Delaware; Matthew L. Larrabee,
Michael S. Doluisio, and Benjamin M. Rose, DECHERT LLP, New York, New
York; Attorneys for Defendant and Counterclaim/Third Party Plaintiff.

Elizabeth Wilburn Joyce and Joanne P. Pinckney, PINCKNEY, WEIDINGER,
URBAN & JOYCE LLC, Wilmington, Delaware; Attorneys for Nominal Defendant.

MONTGOMERY-REEVES, Vice Chancellor
      In the 1970s, a real estate tycoon and a magnate of the theater world formed a

partnership to present Broadway-style theater in San Francisco. For almost fifty

years, the families of those two founders continued to operate the company by

presenting Broadway shows in the three theaters they controlled in San Francisco.

One of those theaters was the historic Curran Theatre, which the company leased.

In 2010, the owners of the Curran Theatre decided to sell, and the company

considered buying the Curran. Ultimately, the representatives of the two families

could not come to an agreement about whether to buy the Curran, so one of the

families bought it instead. After the purchase of the Curran, relationships between

the two families became increasingly strained. The owners of the Curran eventually

cut ties with the company and began operating the Curran themselves.

      This lawsuit arises from that series of events, and the parties ask the Court to

determine whether a promise to continue renting the Curran to the company was

broken and whether the purchasers of the Curran have breached their fiduciary duties

to the company. After a five-day trial and based on the findings of fact and legal

analysis below, the Court finds there was no enforceable promise to lease the Curran

to the company, but the owners of the Curran breached certain fiduciary and

contractual duties to the company.




                                          1
I.     BACKGROUND
       The facts in this opinion are my findings based on the parties’ stipulations,

over 500 trial exhibits, and the testimony of eleven live witnesses presented at a five-

day trial in October and November 2017. I grant the evidence the weight and

credibility that I find it deserves.1




1
       Citations to testimony presented at trial are in the form “Tr. # (X)” with “X”
       representing the name of the speaker. After being identified initially, individuals
       are referenced herein by their first names because many of the individuals share last
       names. No disrespect or familiarity is intended. Joint trial exhibits are cited as “JX
       #,” and the Pretrial Stipulation and Order is cited as “PTO #.” Unless otherwise
       indicated, citations to the parties’ briefs are to post-trial briefs. For the sake of
       efficiency, I refer to the counterclaim plaintiff and third-party plaintiff as
       “Counterclaim Plaintiff” and the counterclaim defendant and third-party defendants
       collectively as “Counterclaim Defendants.”

       There are nine objected-to joint exhibits relied on in this memorandum opinion: JX
       202, JX 222, JX 238, JX 242, JX 243, JX 253, JX 263, JX 291, and JX 382.
       Counterclaim Defendants made all the objections. JX 222, JX 238, JX 242, JX 243,
       JX 253, JX 263, and JX 291 are all emails sent from Carole Shorenstein Hays.
       Counterclaim Defendants object to them on the grounds that they are irrelevant,
       relevant but prejudicial, confusing, misleading, or needlessly cumulative, or
       hearsay. I find that all the emails are relevant, that their relevance outweighs any
       prejudice, confusion, or other danger listed in Rule 403 of the Delaware Rules of
       Evidence, and that they are statements by an opposing party under Rule 801 of the
       Delaware Rules of Evidence. Thus, the objections are overruled. JX 382 is Carole
       Shorenstein Hays’s deposition, and Counterclaim Defendants reserved all
       objections. The parts of the deposition used in this memorandum opinion were
       either not objected to or the objections are overruled to the extent necessary to
       address the request for attorneys’ fees. JX 202 is an email from Ray Harris to Robert
       Nederlander with attached notes taken after the January 28, 2014 board meeting.
       Counterclaim Defendants object that it is irrelevant, relevant but prejudicial,
       confusing, misleading, or needlessly cumulative, and contains embedded hearsay. I
       find that the notes are relevant and that their relevance outweighs any prejudice,
       confusion, or other danger listed in Rule 403 of the Delaware Rules of Evidence.
       Further, the embedded statements are not offered to prove the truth of the matter

                                             2
     A.     The Cast: Parties and Relevant Non-Parties
      Shorenstein Hays-Nederlander Theatres LLC (the “Company” or “SHN”) is

a Delaware limited liability company (“LLC”) with its principle place of business in

San Francisco, California.2       CSH Theatres L.L.C. (“CSH Theatres”) and

Nederlander of San Francisco Associates (“NSF Associates”) are both fifty-percent

members of the Company. 3 CSH Theatres, which is controlled by the Shorenstein-

Hays family, is a Delaware LLC with its principle place of business in San Francisco,

California.4 NSF Associates is a California general partnership controlled by Robert

E. Nederlander, Sr. 5

             1.     The Shorensteins

      Walter Shorenstein, the patriarch of the Shorenstein-Hays family, founded the

Shorenstein Real Estate Company, a commercial real estate company. 6 During his

lifetime, Walter set up a series of trusts for the benefit of his daughter, Carole




      asserted in the statements and, thus, are not considered hearsay under Rule 801 of
      the Delaware Rules of Evidence. Therefore, the objection is overruled.
2
      PTO ¶ 1.
3
      Id.
4
      Id. ¶ 2.
5
      Id. ¶ 4.
6
      Tr. 8-9 (Holland).


                                          3
Shorenstein Hays, 7 and her family. 8 The two trusts relevant to this case are CSH

Doule Trust and CJS Trust-A, which have both been directed trusts since 2012.9 The

CSH Family Office and the Investment Committee manage the investments of both

trusts.10 The Investment Committee consists of Carole, her husband Dr. Jeffery

“Jeff” Hays (together with Carole, the “Hayses”), their two children, Wally and

Gracie, and Thomas “Tom” Hart. 11 Tom has worked for the Shorenstein family

since 1982. 12

      CJS Trust-A wholly owns CSH Theatres, and Tom has managed CSH

Theatres since 2010.13 CSH Curran LLC (“CSH Curran”) is a Delaware LLC



7
      Carole has been in the theater business for roughly forty years. Tr. 433 (C. Hays).
      In fact, Walter founded the predecessor to the Company in part because of Carole’s
      love of theater. Tr. 269 (C. Hays). She started her career in the mid-1980s by
      producing the original production of Fences. Tr. 434-36 (C. Hays). Fences went
      on to be an incredible success, winning numerous Tony Awards and a Pulitzer Prize.
      Tr. 441 (C. Hays). Carole’s career followed suit. At the time of trial, twenty of her
      shows had been nominated for Tony Awards, the highest accolade in the theater
      industry, and seven had won either best play, best revival, or best musical. CSH
      Trial Demonstrative 29; Tr. 443 (C. Hays).
8
      Tr. 248-49 (C. Hays); Tr. 682 (Hart).
9
      Tr. 682 (Hart).
10
      Tr. 682-83 (Hart).
11
      Tr. 683-84 (Hart).
12
      Tr. 680 (Hart).
13
      PTO ¶ 2.


                                              4
formed in 2010 with its principle place of business in San Francisco, California.14

CSH Doule Trust wholly owns CSH Curran, and CSH-Doule LLC is CSH Curran’s

“sole controlling member.” 15 CSH Doule Trust controls, and Carole and Tom

manage, CSH-Doule LLC. 16 In 2010, CSH Curran purchased the Curran Theatre

(“the Curran”).17

      Carole served as co-president of the Company from 2000 until June 2, 2014,18

except for the period from January 15, 2013 to March 16, 2013 when she served as

the Company’s sole president.19 Carole also served as CSH Theatre-appointed

director of the Company from 2000 until June 2, 2014.20 Jeff served as CSH Theatre-

appointed director of the Company from 2010 until October 27, 2014.21




14
      Id. ¶ 3.
15
      Id. ¶ 47.
16
      Id.
17
      Id.
18
      Id. ¶ 5. The LLC Agreement (defined below) entitles CSH Theatres and NSF
      Associates to each appoint one co-president and two of the four board members. Id.
      ¶ 17.
19
      Id.
20
      Id.
21
      Id. ¶ 6.


                                          5
             2.    The Nederlanders

      Robert has been NSF Associates-appointed director of the Company since

2000 and co-president of the Company since 2009.22 Since 2012, NSF Associates’

other appointed board member has been Raymond “Ray” Harris (together with

Robert, “the Nederlanders”). 23 James “Jimmy” M. Nederlander, Robert’s brother,

was the original Nederlander involved with the Company and served as the

Nederlander representative until his brother Harry Nederlander was appointed in

1992. 24 In 2000, Harry’s son, Scott Nederlander was appointed co-president of the

Company. 25 Scott served in that role until 2009 when Robert replaced him. 26

      Robert owns a minority interest in, and previously served as president and

chief executive officer (“CEO”) of, the Nederlander Organization, a company

founded by his father David T. Nederlander. 27 The Nederlander Organization is one

of the largest owners and operators of theaters in the United States. 28 It owns and


22
      Id. Robert was not co-president from January 15, 2013 to March 16, 2013. See id.
      ¶ 5.
23
      Id. ¶ 12.
24
      Tr. 451 (C. Hays).
25
      Tr. 459-60 (C. Hays).
26
      Tr. 106-07 (Holland); Tr. 432, 461 (C. Hays).
27
      PTO ¶ 13.
28
      Id.


                                          6
operates nine Broadway theaters in New York City and at least fifteen other theaters

around the United States, including Broadway San Jose, which stages Broadway-

style productions at the San Jose Center for the Performing Arts, less than 100 miles

from San Francisco.29

     B.     Synopsis: The Facts

             1.       Act 1: the beginning

      The predecessor entity to the Company was a partnership called Shorenstein-

Nederlander Productions of San Francisco (the “Partnership”).30 Walter and Jimmy

solidified the Partnership in writing in 1978.31 The Partnership had two general

partners—Nederlander of California, Inc., the Nederlander partner, and CSJ

Trust-A, the Shorenstein partner (collectively, the “Partners”). 32 The original life of

the Partnership was from “November 29, 1977 . . . until the expiration of the Curran

lease on December 31, 1980,” with an option to extend the lease or the life of the

partnership by purchasing the Curran.33 On January 1, 1980, the Partnership entered

into a ten-year, written lease (the “Lurie Lease”) with the Lurie Company (“Lurie”),


29
      Id. ¶¶ 13-14.
30
      JX 493; JX 494.
31
      JX 493; JX 494.
32
      Id.
33
      JX 493-1.


                                             7
the owners of the Curran. 34 The Partners extended the Lurie Lease by written

amendment in February 1989, October 1990, and October 1997.35

      In 1990, the Partners sued one another, alleging breaches of the partnership

agreement.36      In 1992, the Partners settled the litigation and entered into a

supplement to the Partnership agreement. 37 Due to concerns about Nederlander

competition, 38 the supplement included new language:

               Both partners will devote their efforts to maximize the
               economic success of the Partnership and avoid conflicts of
               interest. Neither party will stage any production within
               100 miles of San Francisco unless (i) it has first played in
               a Partnership theatre, or (ii) it has been rejected for
               booking by the other party, or (iii) the Partnership shares
               in the profits and/or losses of such booking pursuant to an
               agreement.39

      On November 6, 2000, the Partnership was converted into the Company by

the filing of a Certificate of Conversion and Certificate of Formation with the

Delaware Secretary of State. 40 On the same day, CSH Theatres and NSF Associates


34
      PTO ¶ 37.
35
      Id. ¶ 39.
36
      JX 495; JX 496.
37
      JX 361.
38
      Tr. 833-34 (R. Nederlander).
39
      JX 361-2.
40
      PTO ¶ 16.


                                            8
entered into the Plan of Conversion and Operating Agreement of the Company (the

“LLC Agreement”). 41

             2.     Act 2: the LLC

      Two articles of the LLC Agreement are relevant to the current dispute: Article

4 and Article 7. Particularly, Section 4.04 Restricted Activities, Section 7.02

Cooperation and Non-Competition, Section 7.04 Nature of Obligations Among

Members, Section 7.06 Outside Activities, and Section 7.09 Confidentiality are most

relevant.

      Section 4.04 requires board approval before the Company can take certain

actions including entering into contracts with Affiliates (as defined in the LLC

Agreement) or theater leases.42 Section 7.02(a) confirms that “the Shorenstein

Entity and the Nederlander Entity” will “maximize the economic success of the




41
      Id. ¶ 17.
42
      JX 10-14 (“[E]xcept to the extent expressly provided for in the Operating Plan,
      without the prior approval of the Board of Directors, the Company shall not, and no
      officer, employee or agent of the Company shall, take any actions with respect
      to . . . (i) the entering into of any theater leases, concession agreements,
      merchandising agreements or ticketing agreements . . . (l) any agreements, contracts
      or transactions (including any amendment, renewal or termination of such
      agreements, contracts or transactions) with any Member or an Affiliate of a
      Member . . . (t) any contract for the lease, as lessor or lessee, of any real or personal
      property, other than office leases entered into by the Company as lessor in the
      ordinary course of business; . . . .”).


                                              9
Company and . . . avoid any conflicts of interests.”43 Section 7.02(b) creates a 100-

mile buffer zone for specific types of competition, 44 while Section 7.06 allows all

other competition. 45

      Section 7.04 states, in part, “Except as otherwise expressly provided herein,

nothing contained in this Agreement shall cause any Member to be deemed or

otherwise treated as an agent or legal representative of the other Members or to


43
      JX 10-24 (“The Shorenstein Entity and the Nederlander Entity hereby agree to
      devote their efforts to maximize the economic success of the Company and to avoid
      any conflicts of interests between the Members. All actions of the Members and
      their representatives with regard to the Company and theater matters will be carried
      out in good faith and in a prompt and expeditious matter.”).
44
      JX 10-25 (“Until the termination of the Company pursuant to this Agreement,
      neither the Shorenstein Entity nor the Nederlander Entity will stage any Production
      that it controls (as defined in Section 7.03) within 100 miles of San Francisco unless
      (i) such Production has first played in one of the Theatres; or (ii) such Production
      has been rejected for bookings at one of the Theatres by the other Member’s
      representative on the Board of Directors; or (iii) the Company shares in the profits
      and/or losses of any booking pursuant to an agreement mutually acceptable to the
      Members.”).
45
      Id. (“Subject to the other provisions of this ARTICLE VII, including Section 7.02,
      any Member, any Affiliate of any Member or any officer or director of the Company
      shall be entitled to and may have business interests and engage in business activities
      in addition to those relating to the Company, and may engage in the ownership,
      operation and management of businesses and activities, for its own account and for
      the account of others, and may (independently or with others, whether presently
      existing or hereafter created) own interests in the same properties as those in which
      the Company or the other Members own an interest, without having or incurring any
      obligation to offer any interest in such properties, businesses or activities to the
      Company or any other Member, and no other provision of this Agreement shall be
      deemed to prohibit any such Person from conducting such other businesses and
      activities. Neither the Company nor any Member shall have any rights in or to any
      independent ventures of any Member or the income or profits derived therefrom.”).


                                           10
create any fiduciary relationship for any purpose whatsoever.” 46 Section 7.09

prohibits the disclosure of confidential information of the Company. 47

      In 2001, the Company hired Greg Holland as CEO “to rebuild the SHN staff,

to create in-house marketing, public relations, [and] promotions department for the

company, to manage their ticketing operations as well as the venue operations, and

book the shows into the theaters.” 48 When Greg took the CEO position, he believed



46
      Id.
47
      JX 10-27 to 10-28 (“Each Member recognizes and acknowledges that confidential
      information of various kinds may exist, from time to time, with respect to the
      business and assets of the Company and of the other Members or their Affiliates.
      Accordingly, except as permitted pursuant to Section 10.03 or 10.07 herein, each
      Member covenants that, except with the prior written consent of the Board of
      Directors (in the case of information relating to the Company) or the other Members
      (in the case of information relating to such other Members or their Affiliates), each
      Member shall at all times keep confidential and not divulge, furnish or make
      accessible to anyone (except such Member’s employees or agents who have a need
      to know and who agree to be bound by the terms of this Section 7.09) any
      confidential information to which such Member has been or shall become privy
      relating to the business or assets of the Company or the other Members or their
      Affiliates. The provisions of this Section 7.09 shall not apply to any information to
      the extent it is or shall become generally known from a source other than a source
      which is known to be the subject of a confidentiality obligation or if disclosure of
      such information is required by applicable law, regulation or stock exchange rule
      (in which case the Member wishing to disclose such information will provide the
      Board of Directors or the other Members, as the case may be, with at least 10 days’
      prior notice and reasonable opportunity to comment upon (but not approve) such
      disclosure) or if disclosure is necessary in connection with an audit of a Member or
      an Affiliate thereof.”).
48
      Tr. 10 (Holland). Quotes from trial testimony and email exhibits are presented in
      their original form except where indicated. I chose not to include sic because it
      would make some of the testimony and emails unreadable.


                                           11
his job was to follow the LLC Agreement.49 But, Greg testified that the LLC

Agreement was often followed in “a more casual manner.” 50 For example, Section

7.01 of the LLC Agreement states, in part, “The [c]o-[p]resident appointed by the

Nederlander Entity will take the lead in identifying and scheduling [p]roductions for

the Theatres . . . .” 51 In reality, however, Carole, the Shorenstein-appointed co-

president, would often identify productions without Robert, the Nederlander co-

president.52

               3.   Act 3: the turmoil begins

                    a.       Scene 1: the purchase of the Curran

      In 2010, the Company operated three theaters in San Francisco: the Golden

Gate, the Orpheum, and the Curran.53 The Company owned, and still owns, the

Golden Gate and the Orpheum, but it rented the Curran from Lurie.54 The Curran

was constructed in 1922 and is located about two blocks west of Union Square in




49
      Tr. 11 (Holland).
50
      Tr. 11-12 (Holland).
51
      JX 10-24.
52
      Tr. 142, 144 (Holland).
53
      PTO ¶ 34.
54
      Id. ¶¶ 35, 37, 39.


                                          12
San Francisco, right in the middle of the “high-end shopping and tourist district.”55

Producers prefer the Curran for “sit-down” productions because it most closely

resembles a traditional Broadway theater. 56

      In 2009, Lurie offered to sell the Curran to the Company for $30 million, and

in January 2010, Lurie lowered the asking price to $17.5 million. 57 Robert was

unwilling to purchase the theater, even at the reduced price, but Carole viewed the

Curran as a special place and decided to purchase the Curran herself. 58 Everyone

agrees that at some point in 2010, Carole asked Robert’s permission to purchase the

Curran and that he gave his approval.59 That is where the agreement ends.60 In

either June or October 2010, either by phone or in person, in either one conversation

or three, Carole sought Robert’s blessing to purchase the Curran. During this/these

conversation(s), Carole asked Robert’s permission to purchase the Curran, Robert




55
      Id. ¶ 36; Tr. 22 (Holland).
56
      Tr. 22 (Holland).
57
      PTO ¶ 42.
58
      Id. ¶¶ 43-44.
59
      Id. ¶ 45.
60
      There is no contemporaneous written evidence that corroborates any particular
      version of events, and no one witness was any more or less credible than another on
      this point during trial.


                                          13
may have said something about the lease of the Curran, and if he did, Carole

responded in the affirmative.

      Robert remembers the conversation(s) (the “Conversation”) as:

             What I said to [Carole] is that if [she] bought the Curran
             Theatre, SHN was necessary that SHN run, operate, the
             theater, and that we would pay [her] a small amount over
             the $350,000, maybe 25 or $30,000 for a period of time,
             an increase over the period. That was what I said we
             would do. Because she had invested so much money in
             there, she’s entitled to something. And she was happy to
             agree to buy it, but -- and I gave permission, provided that
             SHN would run the Curran and the rental would be
             approximately more than 3 -- that the minimum rental
             would be more than 350, maybe like $25,000 or so, plus
             three or four years, five years, going to increase over a
             period of time. And they would also get – we’d have to
             work something -- probably keep the same percentage
             rent.61

Robert also remembers there being “a couple conversations.             Two or three

conversations” 62 on the telephone,63 but he did not “remember the exact date,”64 and

“[t]here was one, and a short time later, maybe three, four weeks later” there was




61
      Tr. 1004 (R. Nederlander).
62
      Tr. 881 (R. Nederlander).
63
      Id.
64
      Tr. 880 (R. Nederlander).


                                         14
another.65 When asked if he mentioned “the phrase ‘percentage rent’” in the

conversation(s), Robert testified, “We talked about minimum rental.”66

      Robert further recalled that Carole called him to say she was going to buy the

Curran for $16 or $17 million, and he told her “[t]hat’s too much money. But if you

do decide – if you do decide to buy it, I give you permission, provided that the theatre

is leased to [SHN].” 67 Robert testified that he “told [Carole] that if she wanted to

buy it, she has my permission, but it’s with the understanding and the promise, and

the promise, that [she] would lease the theater to SHN. Otherwise, [he] wouldn’t

give [her] permission.” 68 “She said, ‘Okay.’” 69 Robert “envisioned maybe another

$25,000 a year for three or four years [in rent]. And . . . [o]therwise, the lease was

the same.” 70

      Carole remembered the Conversation differently. At trial, she confirmed her

deposition testimony that Robert tied his permission to purchase the Curran “with




65
      Tr. 885 (R. Nederlander).
66
      Tr. 1005 (R. Nederlander).
67
      Tr. 851 (R. Nederlander).
68
      Tr. 852 (R. Nederlander).
69
      Id.
70
      Id.


                                          15
something to do with a lease.”71 She testified that the Conversation with Robert

happened “at the very, very end of the board meeting as we all stood up and we were

ready to go.” 72 Carole confirmed at trial her deposition testimony that she asked

Robert, “’We’re going to buy it [the Curran]. You know, is it cool with you?’ and

he said ‘Yep. You’ll keep the lease going?’ I said: ‘Yep.’” 73 She testified that she

was always referring to assuming the exisiting Lurie Lease and never had any

discussion about a new lease, a renewal of the Lurie Lease, any rental amount, or

any term, including duration. 74

      While no one else heard the Conversation between Carole and Robert, other

witnesses at trial testified about what they subsequently were told or experienced.

Ray and Greg both testified that Robert told them about the Conversation with

Carole. Ray testified by attorney-drafted affidavit that he received a phone call from

Robert in the fall of 2010:

             [Robert] said that he agreed to allow [Carole] to buy the
             theatre in exchange for her promise to renew the Curran
             lease to SHN for the life of the Company in accordance
             with the terms of the Lurie [L]ease. I do not recall if
             [Robert] mentioned a specific rental amount, but he did
             say that the rent would be increased in an amount

71
      Tr. 296-97 (C. Hays).
72
      Tr. 297 (C. Hays).
73
      Tr. 429 (C. Hays).
74
      Tr. 430-32, 475-76 (C. Hays).


                                         16
             comparable to the increases under the Lurie Lease.
             [Robert] said that [Carole] agreed to these conditions. 75

When cross-examined in person at trial, Ray said, “[T]he best I can recall is [Robert]

called me and said that Carole had asked if she could buy it personally, as opposed

to SHN purchasing it.” 76 According to Ray, during that phone call, Robert told him,

“he had told [Carole] that he would be okay with that as long as she extended the

lease to SHN for the partnership for as long as we had the partnership.”77 Ray further

testified, “[Robert] had mentioned that we were going to extend the lease that we

had at the Curran Theatre at relatively the same rates,”78 and “we anticipated that the

extension, there would be nominal rent increases based on the rent increases that

we’d experienced in the Lurie [L]ease over the last, you know, ten years.” 79

      Greg recalled, “I received a phone call from Robert Nederlander telling me

that he had just given Carole permission on the phone to purchase the Curran

Theatre, and she would purchase it for SHN and then lease back the Curran to SHN




75
      Harris Aff. ¶ 35.
76
      Tr. 1076 (Harris).
77
      Id.
78
      Tr. 1077 (Harris).
79
      Id.


                                          17
for the life of the company for SHN.” 80 Greg testified that the same day he also

received a phone call from Carole: “Carole Hays called me and said, ‘I’m happy to

tell you I’ve purchased the Curran. I’ve purchased it for SHN. We don’t have to

worry about competitors. We have it to use. And I will turn it over to SHN as a lease

for the life of the company.’” 81

      Tom recalled that at a fall 2010 board meeting, Jeff introduced the topic of

one of Carole’s trusts buying the Curran, and Tom presented the plan to have the

trust do so to the board. 82 Tom remembered, “[Robert] again said that the price was

too high, but he said that if Carole wanted to spend her money, she should go ahead

and purchase the Curran if she wished. [Robert] did not condition his consent in any

way.” 83 Tom testified, “[Robert] asked me during the board meeting what would

happen to the lease if [Carole’s] trust purchased the theatre. I said that the purchaser

would assume the existing lease, and I said nothing at all about any renewed or future




80
      Tr. 23 (Holland).
81
      Tr. 23-24 (Holland).
82
      Tr. 710 (Hart).
83
      Hart Aff. ¶¶ 39-40.


                                          18
lease.”84 CSH Curran closed its purchase of the Curran for $16.6 million on

December 15, 2010.85

      When Carole purchased the Curran, she did so with the best interests of the

Company in mind and with the expectation that she would continue leasing the

Curran to the Company past the December 31, 2014 expiration of the Lurie Lease.86

There was concern that if the Company or Carole did not purchase the Curran, then

a direct competitor, like Disney or Broadway Across America, might purchase it

instead. 87 Carole purchased the Curran, and multiple witnesses testified to the

general expectation by all the principle players that the lease of the Curran would be

renewed. 88 The Curran was rebranded “SHN Curran Theatre,” and the Company

began booking shows at the Curran for after December 31, 2014.89




84
      Id. ¶ 41.
85
      PTO ¶ 49.
86
      Tr. 291 (C. Hays).
87
      Tr. 691-92 (Hart).
88
      Tr. 196, 215 (Holland); Tr. 291 (C. Hays); Tr. 719 (J. Hays); Tr. 869 (R.
      Nederlander); Tr. 1199 (Coleman).
89
      Tr. 37 (Holland); Tr. 342 (C. Hays); JX 175.


                                          19
                   b.      Scene 2: Carole wants control

      After the purchase of the Curran, Carole grew increasingly frustrated with her

business partner. In the wake of her father’s death in 2010, she felt that Robert was

not interested in forming a relationship with her, and her efforts to form a

relationship with him were not reciprocated. 90 Likewise, she was very concerned

about Robert’s succession plans for the Company. 91 She also “felt maligned, and,

indeed, somewhat bullied that [she] was the one who bought [the Curran].” 92 As

this frustration mounted, Carole began to focus on obtaining sole control of the

Company.

      In 2010 or 2011, Carole began instructing Greg to “not communicate with

[Robert] or [Ray], nor meet alone with them unless [the Hayses] were present or part

of the conversation.”93 At this point in time, Carole and Greg were meeting three or

four times a week in San Francisco without any representative of NSF Associates.94

Greg testified that he continued to communicate with Robert and Ray, 95 but he



90
      Tr. 463-64 (C. Hays).
91
      Tr. 466 (C. Hays).
92
      Tr. 485 (C. Hays).
93
      Tr. 48 (Holland).
94
      Id.
95
      Id.


                                         20
“became concerned, because there had been a shift in the direction. [And so he hired

a] personal attorney and paid for [that] personal attorney to advise [him] on the

direction [he] was being given by [Carole].” 96 Greg testified that Carole would often

express the opinion that, “she had created the company, that it was her company,

that it was all her money that had created the company, and that . . . it was really

majority her company.” 97

      Carole testified that she felt she was doing the vast majority of the work, and

despite her continuing efforts, Robert was not involved in the running of the

Company. 98 Carole felt that the LLC Agreement should be changed to reflect that

she “was the one going out and doing all the work, having the relationships with the

producers, directors, creatives.”99


96
      Tr. 49 (Holland).
97
      Tr. 55 (Holland).
98
      Tr. 348-50 (C. Hays) (“There was no working relationship. I was the one who tried
      to work with Mr. Nederlander. Phone calls were never returned. I never -- I met with
      him once in New York, socially at lunch, during this whole time and never once did
      he really talk about business and the issues that I wanted to discuss.”); Tr. 359 (C.
      Hays) (“I was the only person there, in that I never got a phone call back from Mr.
      Nederlander, in that he never went to shows, in that he was unaware of what was
      going on at our office in New York, in London. Whether or not I viewed it as my
      business, that was a fact. He was not there. He was in absentia.”).
99
      Tr. 350 (C. Hays) (“I knew that it was very hard to discuss business with him, and
      I also knew that I was out there identifying the shows, identifying projects before
      they were even happening, trying to explain to Mr. Nederlander the importance of
      being a player on Broadway. And that’s why it's called show business, not just
      waiting for the phone to ring.”).


                                           21
      In a January 2012 email, Carole wrote to Tom, “it just seems that the

partnership has grown and evolved since it was originally drawn up....and goodness,

within me, dare I say, the Organization would be quite different, we should perhaps

look at the whole document....it’s important that I maintain CONTROL . . . so I

might suggest this is the IDEAL time to completely restructure the Partnership

Agreement ....” 100 In October of 2012, Carole emailed Jeff and Tom, suggesting that

the new lease for the Curran “should lead to [a] new management agreement.”101

Carole testified that at the time she considered it “silly business to agree to a lease

without a new management agreement,” but if Robert had come forward when she

purchased the Curran and “said ‘even though I feel you’ve overspent, let’s roll up

our sleeves and do a new lease,’ that would have been great. And none of this would

have been an issue.”102 In January 2013, Carole emailed Tom saying, “I think it is

time together a new management agreement in place, Tom. Succession and fees are




100
      JX 71 (omissions in original); Tr. 351-52 (C. Hays). Somewhat confusingly, at trial,
      Carole testified that she did not want a new agreement to put her in control. Tr. 357
      (C. Hays) (“Q. And all I’m asking you, Mrs. Hays, is: You used the lease as a
      leverage over Mr. Nederlander to help you get the new operating agreement to put
      you in control of SHN; correct? A. Never to put me in control. So incorrect.”).
101
      JX 101; Tr. 353 (C. Hays).
102
      Tr. 558-59 (C. Hays).


                                           22
key. This is the appropriate time to involve [our lawyer] and get clarity. I firmly

believe that to start with the curran lease is foolish. We are in the prime spot.”103

       In addition to tying the Curran lease to a new management agreement, Carole

had other ideas about how to convince Robert to amend the LLC Agreement. In

January 2013, Carole sent several emails discussing the idea of refusing to allow the

Company to make any distributions until a new LLC Agreement was in place. 104 At

trial, Carole refused to acknowledge that she had ever had this idea or made any

suggestion to threaten withholding distributions until a new LLC Agreement was in

place. 105




103
       JX 129.
104
       JX 127 (“[I]t’s just the right time for a new management agreement and new
       structure. And I feel strongly that we stand firm on that and refuse to have a
       distribution til this is all worked out to our satisfaction.”); JX 130 (“I’m just
       wondering if…. Now is the time to put a brief halt to distribution and to tie it all to
       a new operating agreement. There’s just so much that is of a different era, Tom and
       just think that if we don’t tie it to funds then …. Really …. What leverage do we
       have? Just wondering”); JX 131 (“I do feel strongly that the distribution should be
       us subjected to a new operating agreement . . . I say 100% I have grave reservations
       of releasing any funds whatsoever UNTIL a new management agreement is in place
       because…. IF NOT NOW….when”).
105
       Tr. 361 (C. Hays) (“You did say on multiple occasions, Mrs. Hays, that it was your
       firm belief that you would not approve partnership distributions until you got a new
       operating agreement; right? A. There were always distributions made in the end. Q.
       Notwithstanding the fact that on multiple occasions you said it was your firm belief
       those distributions should not occur until you got a new operating agreement;
       correct? A. There were always distributions made.”).


                                             23
      At the January 14, 2013 board meeting, Carole acted on her desire for more

control. Greg testified:

             Carole stood in front of the door and told us that no one
             was leaving until she got what she want -- wanted. And
             then she just started saying that she wanted to control the
             company. No one had thanked her for buying the Curran
             Theater for the company, and she didn’t feel she deserved
             to be treated that way. [Robert] thanked her several times.
             She kept pressing that she -- you know, she deserved to
             have control of the company, that I wasn’t providing her
             information. And after what felt like a long, long period
             of time, [Robert] agreed that she would be the sole
             president of SHN for a 60-day period, and that he wanted
             -- part of that job for her would be that she would increase
             sponsorships and lower costs. 106

                   c.        Scene 3: the lease negotiations
      While Carole was discussing ways to get a new LLC Agreement, Tom and

Ray were negotiating a lease renewal between the Company and CSH Curran. 107 In

August 2012, Tom emailed the Hayses and assured them that they were “entitled to

a fair return on [their] investment of the appropriate $17M in the Curran. Presently

[the] rent return is $350K annually which is approximately 2.05%. I know that

[Robert] would like a new 10-year lease which I believe should reflect a minimum

return to begin of approximately 3% and can scale up in years 5 and beyond to 4%



106
      Tr. 51-52 (Holland).
107
      As of 2011, the staff of the Company were told they would not be involved in the
      discussions about the lease. Tr. 209 (Holland).


                                           24
and 5% returns.”108 A few days later, on August 28, 2012, Tom informed the

Hayses, “I spoke with Robert Nederlander. He asked that he see the Curran lease

proposal prior to the September 11, 2012 SHN Board Meeting.” 109

      On August 29, 2012, Tom, as representative for CSH Theatres and CSH

Curran, sent an email to Ray, as representative for NSF Associates.110 In that email,

Tom outlined the rent terms for a proposed ten-year lease to begin on January 2,

2013. 111 The next day, Ray forwarded that email to Robert. 112 According to the

meeting minutes, the board discussed the “Curran Theatre Lease” at their September

11, 2012 meeting.113 On October 19, 2012, Ray emailed Tom a counterproposal

with rent terms for a twenty-year lease to commence on January 1, 2015. 114 The

minutes from a January 15, 2013 board meeting reflect that the board discussed a

“new lease” for the Curran. 115



108
      JX 84.
109
      JX 87.
110
      PTO ¶ 53.
111
      Id.
112
      Id. ¶ 54.
113
      JX 94.
114
      PTO ¶ 55.
115
      JX 134.


                                         25
        By December 2013, the parties were still working towards agreement on a

lease or lease renewal for the Curran. 116 In October 2013, Tom sent Jeff a draft

proposal to counter the October 19, 2012 proposal.117 On December 20, 2013, Ray

re-sent his October 19, 2012 counterproposal. 118 On January 10, 2014, Tom emailed

the Hayses another draft proposal saying, “On Tuesday I distributed to all of you a

suggested lease renewal scenario for the Curran Theatre and we should review and

discuss with [Ray] and [Robert]. They are prepared to outline the terms of the

renewal prior to the [January 28] board meeting. They would be accepting of a 10

year agreement.”119 The terms in this email were never sent to any representative of

NSF Associates or the Company. 120 The Board of Directors then met on January 28,

2014.

              4.    Act 4: the parting of ways

        The mounting tensions finally reached a breaking point at the January 28,

2014 board meeting. At the January 28 meeting, the last item on the meeting agenda

was the lease for the Curran, which Carole, Jeff, Tom, Robert, and Ray discussed in


116
        JX 249.
117
        JX 173.
118
        PTO ¶ 58; JX 181.
119
        JX 190.
120
        PTO ¶ 60.


                                        26
an “executive session.” 121 During the executive session, the Hayses informed the

Nederlanders that they would not entertain any conversations about the lease of the

Curran until a new LLC Agreement “was contemplated.” 122 Robert was resistant to

the demand, but Carole informed him she would not approve the next year’s

subscription 123 unless a new LLC Agreement was adopted.124 Carole testified that

she wanted a new LLC Agreement because the LLC Agreement needed “to be more

reflective of the time in which [they] lived, in that [Robert] was never in San

Francisco, in that [she] could never get [Robert] on the phone, in that it became

apparent that [Greg and Robert] were in constant communication and aligning.”125

In fact, Carole admitted at trial that if the Nederlanders had agreed to a new LLC

Agreement that gave her control, she would have approved the lease “in a



121
      JX 202-2.
122
      Tr. 378 (C. Hays) (“Q. What you told the Nederlanders at that meeting, you and
      your husband, is, ‘We will not entertain conversations about the lease unless we get
      a new operating agreement;’ correct? A. Correct.”).
123
      “A subscription, really everywhere in the country for Broadway, is five to seven
      shows that are put in a package that you buy at once, similar to a sports season ticket.
      Subscribers get special benefits, typically discounts, opportunity to get gifts, better
      seats than everywhere else.” Tr. 82 (Holland).
124
      Tr. 379 (C. Hays) (“Q. And when Mr. Nederlander resisted, you said you would not
      even approve SHN’s subscription series for the year if you didn’t get a new
      operating agreement; right? A. I said that, and there was a subscription that was
      approved in the end.”).
125
      Tr. 488 (C. Hays).


                                            27
heartbeat.” 126 Greg recalled that on January 28, for the first time ever, no one

reported to him what had happened at the executive session: “Rather than someone

reporting back what had happened in that executive session, I just observed all the

board members leaving and Tom Hart leaving the theater and getting in cars.” 127

      On January 28, at some point after the meeting, Tom emailed the Hayses and

their attorneys about a phone conversation he had just had with Ray regarding the

January 28 board meeting:

            [Ray] indicated that he and Robert didn’t like being
            threatened by either holding the Curran lease renewal over
            their heads or Carol threatening to sabotage the business
            by not approving the 2014 Subscription Series. I assured
            him that the Curran is a separate matter and that there are
            larger problems that we want to address. I said that I
            thought that [Carole] was expressing her frustration with
            this two-headed decision making. [Ray] believes that if
            they were to give up control that it could create
            uncontrolled spending in the business. . . . They were
            offended that we wanted control but offer nothing for it. I
            said that to the contrary, that this could be structured many
            different ways; from a complete buyout to a modification
            of the LLC agreement giving Carole control (with a
            minority right) which could accrue some value to the
            overall business or directly to the Nederlanders. He said
            make us an offer.128




126
      Tr. 379 (C. Hays).
127
      Tr. 58 (Holland).
128
      JX 199.


                                         28
      On February 4, 2014, Ray emailed the Hayses, copying Tom and Greg, to

express his and Robert’s dismay at the events of the January 28 board meeting:

            We were shocked at our last board meeting in San
            Francisco last Tuesday when Jeff informed us in executive
            session that the Shorenstein Group wanted to change the
            company’s operating agreement and give control of the
            company over to the Shorenstein Group. Further, you
            wanted Robert Nederlander to relinquish his Co-
            Presidency of SHN and establish Carole as the sole
            President of the company. Carole also stated that if we
            didn’t agree to these significant changes and give her
            control she would not approve the release of the new
            subscription series. . . . It should be noted that Robert
            Nederlander negotiated long and hard with the sellers of
            the Curran, and then turned the matter over to Carole with
            the understanding that upon the purchase of the Curran by
            Carole she would renew the company’s lease. However,
            given your statements in the meeting, we feel that it is
            highly unlikely that the company will now get a
            satisfactory or timely renewal of the Curran Lease. . . . We
            note that Section 7.02(a) of the operating agreement
            requires each member to “devote their efforts to maximize
            the economic success of the Company and to avoid any
            conflicts of interest between the Members.” This
            requirement must guide all of the partners’ actions relating
            to business decisions. If you insist on taking actions which
            violate your obligations under the operating agreement,
            then we will be forced to evaluate our legal rights and
            remedies. 129




129
      JX 203.


                                        29
      On February 12, the Hayses responded with their position as to control of the

Company and their disagreement with the Nederlanders’ representations about the

Curran:

            It is quite unfortunate if our discussion on January 28 was
            misconstrued as a “demand,” as that certainly was not our
            intention.
            ...
            Our discussion was intended to alert you that we are
            dissatisfied with the arrangement as it exists today. There
            is no clear agreement between the members as to direction
            and the resulting uncertainty is harmful to the Venture and
            very unsettling. We propose to revise the arrangement,
            among other things, by eliminating the notion of shared
            control – which in the current time and with the present
            individuals, is highly inefficient, and, we believe,
            sometimes counterproductive to the Venture’s interests.
            In our view, something has to change. Your memo merely
            confirms the deep-seated differences between the
            members.
            ...
            As for the Curran theatre, here again your memo ignores
            reality. CSH fully supported the proposal that the Venture
            purchase the theatre, and Tom Hart, at our request and
            expense, spent countless time over a period of years trying
            to find terms that would be acceptable to the seller and
            then later to find financing. But, Bob, you ultimately were
            not willing to authorize the Venture to move forward. You
            didn’t “turn over the matter to Carole….”, you simply
            advised that you would not approve the purchase at the
            seller’s price, which meant that the Venture could not
            proceed. At that point, it became possible for the current
            landlord to step up and complete the purchase. As you
            implicitly acknowledged, there was no contractual




                                        30
             undertaking from CSH, or from the ultimate purchaser,
             about terms for a renewal of the lease.130

      On February 18, the Nederlanders responded in part:

             The history that led to the CSH purchase of the Curran is
             important. Walter Shorenstein asked Robert Nederlander
             to negotiate on behalf of the Partnership to extend the
             Lease or purchase the Curran. The owners were asking for
             $30 million. Through strong negotiating, Robert was able
             to reduce the price into a more reasonable range. At that
             point Carole entered the picture and wished to purchase
             the Curran herself. Robert agreed to this only with
             Carole’s promise to extend the Lease to the Partnership for
             the life of the Partnership. 131

      The damage was done. 132 On February 14, Carole emailed Jeff, “I/we want

Freedom from the Nederlanders. And if they are unprepared to sell, then we should

consider the process of selling. This is not a healthy relationship period period period

and a few exclamation points thrown in.”133 On February 24, 2014, the Hayses filed




130
      JX 217.
131
      JX 228.
132
      Tr. 59 (Holland) (“[A]s we went into the spring of 2014, Carole just wasn’t present
      with the company very much [so I asked her], ‘But, Carole, why are we going
      through this?’ And she said, ‘Because I can’t let the Curran Theatre stay with the
      Nederlanders, and I can’t stay in a place where no one appreciates me or thanks
      me.”).
133
      JX 222-3.


                                          31
suit in Delaware seeking a declaratory judgment regarding their rights and

obligations under the LLC Agreement. 134

      The Hayses then actively started planning a new venture at the Curran.135 On

June 2, 2014, Carole resigned as co-president and director of the Company.136

Things continued to deteriorate between the Nederlanders and the Hayses. Carole

testified that she thought the employees of the Company would follow her to the

Curran out of “a sense of loyalty.” 137 Greg testified about a phone call between him

and Tom:

              I think in the spring of 2014, [Tom] asked if I would ever
              go to work at the Curran Theatre. And I told him that I
              didn’t think it was an appropriate conversation for us to be
              having, but that I couldn’t imagine leaving SHN and going
              to manage just the operations at one theater. 138

On August 2, 2014, Carole emailed Jeff some of her “thoughts for today” which

included, “most of all: Going at [Greg] and [Robert] with ‘guns ablaze’ from

others.”139



134
      JX 232.
135
      See, e.g., JX 222; JX 238; JX 242; JX 243; JX 253; JX 263; Tr. 386-87 (C. Hays).
136
      PTO ¶ 61; JX 265.
137
      Tr. 498 (C. Hays).
138
      Tr. 68 (Holland).
139
      JX 291.


                                          32
      Despite the animosity between the parties, and Carole actively competing with

the Company, Jeff remained a director of the Company. He attended a board

meeting on June 24, 2014, after which he sent a summary of the meeting to his

lawyers and copied Carole. 140 The email states:

            Just completed an SHN Board meeting, with Ray Harris,
            Greg Holland, Joe Coleman (CFO) and an outsourced
            young attorney to act as Secretary and take notes (my
            insistence), with Bob Nederlander calling from London.
            I will forward copies of the minutes when they are
            provided,,, highlights included;

            Nederlander asking to alter the Operating Agreement to do
            away with Co-President positions… but that we would
            need to consider any changes to the OA within the context
            of a full review of the Operating Agreement.
            They want me to sign a non-compete document, with
            emphasis on my not disclosing discussions about SHN
            booking negotiations. My response; Glad to consider
            (under advisement) any proposals.

            They want to eliminate Wally’s position… My response;
            That would seem to be between the employee and his
            employer (Greg)… referring to Section 1. Of Greg’s
            contract in which it is stated Executive will have the
            authority to hire, fire, etc. ,,,,and that I defer to Greg’s
            decision.

            They want to fire Paula, Carole’s assistant, from the half-
            time SHN position. My response Again, deferred to
            Greg’s decision.

            Greg plans on informing Curran operations staff that the
            Curran will no longer be under SHN control, and that their

140
      JX 274; Tr. 671 (J. Hays).


                                        33
             employment will be ending. (note… I will ask him for a
             memo on his discussion with staff, so that we can
             determine when/if CSH might offer positions to key
             employees (i.e. House Manager, House Engineer, etc.)…
             We would probably need to hire them, essentially, on a
             retainer until the theatre would be ready for operation
             (perhaps a year or more). They are union members.

             Discussion about liquor licenses… I asked Greg for a full
             memo on ownership, etc of the three licenses.

             Patient in the waiting room….. more later…………..
             thanks…JPH141

On October 27, 2014, Jeff resigned as director of the Company. 142

             5.    Act 5: the new Curran

      On August 1, 2014, Carole, through the entity CSH Productions, LLC,

invested $1 million in the musical Fun Home. 143 As part of her investment she was

given certain rights, including a contractual obligation on the part of Fun Home to

“endeavor to present the opening engagement at the Curran in San Francisco, taking

into consideration the schedule and availability of the Curran. . . . In any event, we

will not present the Play in any other Bay Area theatre without your prior

approval.”144


141
      JX 274 (omissions in original).
142
      PTO ¶ 64.
143
      Id. ¶ 63.
144
      JX 290-3.


                                         34
      The Company’s lease of the Curran expired on December 31, 2014. 145 In

2015, the Hayses embarked on a multi-year, multi-million dollar renovation of the

Curran.146 The Curran reopened in 2017, and CSH Curran presented Tony Award-

nominated Broadway musical Bright Star and Tony Award-winning Broadway

shows Fun Home and Eclipsed.147 CSH Curran also entered into production deals

with The Last Two People on Earth and The Encounter. 148 The Tony Award-

winning play Harry Potter and the Cursed Child will be performing a sit-down

production at the Curran sometime in 2019. 149

II.   ANALYSIS
      “To succeed at trial, ‘Plaintiffs, as well as Counterclaim–Plaintiffs, have the

burden of proving each element . . . of each of their causes of action against each

Defendant or Counterclaim–Defendant, as the case may be, by a preponderance of

the evidence.’” 150 To prove something by a preponderance of the evidence means




145
      PTO ¶ 66.
146
      Tr. 492 (C. Hays).
147
      PTO ¶ 70.
148
      Id. ¶ 71.
149
      Countercl. Pl.’s Letter to the Ct. (July 3, 2018); Countercl. Defs.’ Letter to the Ct.
      (July 13, 2018).
150
      S’holder Representative Servs. LLC v. Gilead Scis., Inc., 2017 WL 1015621, at *15
      (Del. Ch. Mar. 15, 2017) (quoting inTEAM Assocs., LLC v. Heartland Payment Sys.,

                                            35
to prove that something is more likely than not. 151 The claims at issue in this case

fall into three broad categories: (1) those concerning the lease of the Curran; (2)

those concerning breaches of the LLC Agreement; and (3) those concerning

breaches of fiduciary duty. For the reasons set forth below, the Court finds that there

was not an enforceable contract, lease, or promise to lease the Curran to the

Company; that Counterclaim Plaintiff has not shown CSH Curran is breaching the

LLC Agreement, and CSH Curran is allowed to continue to show Broadway-style

shows at the Curran subject to Section 7.02(b) of the LLC Agreement; and that the

Jeff and Carole breached various fiduciary duties that they owed to the Company.

      A.    The Contract or Lease152
      Counterclaim Plaintiff advances four legal theories to support its requests for

specific performance and damages related to its contention that Carole promised to

renew the lease of the Curran: (1) Carole and Robert had an enforceable contract to

renew the lease of the Curran to the Company; (2) Carole and Robert agreed to an




      Inc., 2016 WL 5660282, at *13 (Del. Ch. Sept. 30, 2016), aff’d, 177 A.3d 610 (Del.
      2017).
151
      Id.
152
      The disagreement about the lease of the Curran is a disagreement about a lease of
      real property in California. This implies that California law would apply. The
      parties, however, have briefed this entire issue under Delaware law. Taking my lead
      from the parties, I assume that there are not material differences between California
      and Delaware law, and I apply Delaware law.


                                           36
enforceable oral lease renewal between CSH Curran and the Company; (3) Carole’s

promise to lease the Curran to the Company should be enforced under the doctrine

of promissory estoppel; and (4) Carole made an enforceable promise to negotiate the

lease renewal in good faith. For the reasons set forth below, all of these theories fail.

             1.     Counterclaim Plaintiff has not met its burden to show Carole
                    made the purported promise
      Each legal theory advanced by Counterclaim Plaintiff hinges on the substance

of a discussion between Carole and Robert (defined above as the “Conversation”).

Counterclaim Plaintiff alleges that during the Conversation, Carole promised Robert

she would renew the lease of the Curran after the expiration of the Lurie Lease (the

“Promise”). The parties agree that there is no contemporaneous writing to evidence

the Conversation or the Promise.          Instead, the only evidence submitted is

testimony. 153 For the reasons discussed below, I find that Counterclaim Plaintiff has

failed to meet its burden to show that Carole made the Promise.

      At trial, Robert testified, “I told Carole Shorenstein that if she wanted to buy

[the Curran] she has my permission, but it’s with the understanding and the promise,




153
      PTO ¶ 45. There is also no dispute that no new written lease nor any written
      modification, amendment, or extension of the Lurie Lease was ever signed by the
      Company. Id. ¶ 65.


                                           37
and the promise, that [she] would lease the theater to SHN. Otherwise, I wouldn’t

give [her] permission. . . . She said, ‘Okay.’” 154 He also testified:

             What I said to [Carole] is that if [she] bought the Curran
             Theatre, SHN was necessary that SHN run, operate, the
             theater, and that we would pay [her] a small amount over
             the $350,000, maybe 25 or $30,000 for a period of time,
             an increase over the period. That was what I said we
             would do. Because she had invested so much money in
             there, she’s entitled to something. And she was happy to
             agree to buy it, but -- and I gave permission, provided that
             SHN would run the Curran and the rental would be
             approximately more than 3 -- that the minimum rental
             would be more than 350, maybe like $25,000 or so, plus
             three or four years, five years, going to increase over a
             period of time. And they would also get – we’d have to
             work something -- probably keep the same percentage
             rent.155

      Robert remembers the conversation taking place on the telephone, and there

may have been as many as three different conversations.156 He acknowledged there

was a conversation about the lease after a board meeting in 2010, but all that was

said was “we need to get going on the lease” because the Conversation about

permission had taken place earlier and on the telephone.157




154
      Tr. 852 (R. Nederlander).
155
      Tr. 1004 (R. Nederlander).
156
      Tr. 889 (R. Nederlander).
157
      Tr. 889-90 (R. Nederlander).


                                          38
      Carole testified at trial that she asked Robert’s permission to purchase the

Curran after a board meeting in or around October 2010, but she did not promise to

rent the Curran to the Company after the expiration of the Lurie Lease.158 She also

testified that Robert did not tie his permission to buy the Curran to the lease of the

Curran.159

      Greg testified at trial:

             I recall that I received a phone call from Robert
             Nederlander telling me that he had just given Carole
             permission on the phone to purchase the Curran Theatre,
             and she would purchase it for SHN and then lease back the
             Curran to SHN for the life of the company for SHN.
             Really, the same day Carole Hays called me and said, “I’m
             happy to tell you I’ve purchased the Curran. I’ve
             purchased it for SHN. We don’t have to worry about
             competitors. We have it to use. And I will turn it over to
             SHN as a lease for the life of the company. 160

In his deposition, however, Greg testified that the first time he heard about a promise

to lease the Curran to the Company was in a conversation between Robert and Walter




158
      Tr. 492 (C. Hays).
159
      Tr. 294 (C. Hays).
160
      Tr. 23-24 (Holland).


                                          39
in 2009 or 2010.161 Greg confirmed at trial that his deposition testimony was

accurate.162

       Tom testified at trial that at a board meeting in October 2010, “we were

finishing up with the business and ready to go. We had already discussed the Curran,

the acquisition. And I was getting up and [Robert] was across the table from me, and

he said, ‘What about the lease?’ And I replied, as I was standing up, ‘There is a lease,

and we are going to assume it, as the purchaser.’” 163 Tom also testified that it was

Jeff who asked permission to purchase the Curran at the October 2010 board

meeting.164 Jeff testified at trial that to the “best of his recollection” prior to February

18, 2014, no one, including Robert or Ray, made the assertion that Carole had made

a promise to extend the Lurie Lease. 165

       There are significant, irreconcilable discrepancies in the testimony presented

about the Conversation. Robert could not recall when the purported phone call with

Carole took place, finally settling on June 2010.166 Robert also testified that he spoke



161
       Tr. 201 (Holland).
162
       Tr. 203 (Holland).
163
       Tr. 708, 711-12 (Hart).
164
       Tr. 710 (Hart).
165
       Tr. 678 (J. Hays).
166
       Tr. 885 (R. Nederlander).


                                            40
on the phone with Carole “two or three” different times to give his permission.167

But, Carole testified that the conversation where she asked Robert’s permission took

place after a board meeting in the fall of 2010.168 She readily admits that she asked

his permission,169 but not due to the belief that she had a legal requirement to do so,

merely because she wanted to be a good partner. 170 She also admits that Robert

asked her about the lease, but she thought he meant the existing Lurie Lease, which

still had more than three years left.171 Thus, it is not even clear that Robert and

Carole were discussing the same lease during the Conversation. 172




167
      Id.
168
      Tr. 492 (C. Hays).
169
      Tr. 294 (C. Hays) (“I did speak with [Robert]. I did get permission. I don’t know if
      I was required to.”).
170
      Tr. 335-36 (C. Hays).
171
      Tr. 297, 301, 327 (C. Hays).
172
      At best, Counterclaim Plaintiff has shown that Carole and Robert mutually assented
      to two entirely different things—Carole agreed to assume the Lurie Lease while
      Robert believed he had secured a lease renewal for when the Lurie Lease expired.
      Delaware follows the Restatement Second of Contracts which states that when “a
      mistake of both parties at the time a contract was made as to a basic assumption on
      which the contract was made has a material effect on the agreed exchange of
      performances, the contract is voidable by the adversely affected party unless he
      bears the risk of the mistake.” Restatement (Second) of Contracts § 152 (1981);
      Morgan v. Scott, 2014 WL 4698487, at *3 (Del. Sept. 22, 2014) (TABLE). Neither
      party raised mutual mistake so I do not address it further here.


                                           41
      Written and uncontroverted evidence also exposes certain inaccuracies that

discredit the testimony. For example, Robert testified that Carole made the Promise

in June. 173 Carole testified that she asked permission in or around October.174 Carole

did not purchase the Curran until December.175 Therefore, the Promise and the

purchase did not happen on the same day, making Greg’s account of events

implausible.    Moreover, there are several writings where the absence of any

reference to the alleged contract between Robert and Carole or the Promise is

conspicuous. For example, no one mentions the alleged prior agreement between

Robert and Carole when Ray received Tom’s rent proposal in August 2012 or when

Ray sent his rent counterproposal to Tom in October 2012, despite the fact that both

have significantly different rent and duration terms than Robert claims Carole agreed

to during the Conversation. 176 Likewise, in Ray’s contemporaneous notes about the

events of the January 28, 2014 board meeting, Robert’s response to the Hayses

taking the Curran lease off the table was “that Shorenstein couldn’t unilaterally

change the terms of the partnership.”177 The notes do not show that anyone said


173
      Tr. 885 (R. Nederlander).
174
      Tr. 492 (C. Hays).
175
      PTO ¶ 49.
176
      JX 104.
177
      JX 202-3.


                                          42
anything about a preexisting agreement to renew the lease of the Curran.178 In fact,

the first time that anyone mentions the Conversation is on February 4, 2014, when

Ray emails the Hayses, Tom, and Greg about the January 28 board meeting and says,

“It should be noted that Robert Nederlander negotiated long and hard with the sellers

of the Curran, and then turned the matter over to Carole with the understanding that

upon the purchase of the Curran by Carole she would be renew the company’s

lease.”179 The first time the Nederlanders mentioned the Promise is in a February

18, 2014 letter to the Hayses threatening legal action unless the lease is renewed.180

      Ultimately, all the testimony at trial was given after years of contentious

litigation. Based on the testimony and all the other evidence presented at trial, I find

that Counterclaim Plaintiff has not shown by a preponderance of the evidence that

Carole promised to rent the Curran to the Company after the expiration of the Lurie

Lease.

             2.     Even if Carole made the Promise, there is no enforceable
                    contract due to lack of consideration
      The first legal theory advanced by Counterclaim Plaintiff is that Carole and

Robert had an enforceable contract to renew the lease of the Curran. Even assuming



178
      Id.
179
      JX 206-1.
180
      JX 228-2.


                                          43
that Carole did promise to lease the Curran to the Company after the expiration of

the Lurie Lease, Counterclaim Plaintiff has failed to prove that the exchange formed

an enforceable contract.

      “In Delaware, the formation of a contract requires a bargain in which there is

manifestation of mutual assent to the exchange and consideration.”181 “A valid

contract exists when (1) the parties intended that the contract would bind them, (2)

the terms of the contract are sufficiently definite, and (3) the parties exchange legal

consideration.”182 Counterclaim Plaintiff casts the consideration as the exchange of

Carole’s promise to lease the Curran to the Company for Robert’s permission to

purchase the Curran, which it contends was legally required.            Counterclaim

Defendants argue that Robert’s permission was not required to purchase the Curran;

therefore, his permission cannot constitute consideration.

      Counterclaim Plaintiff argues that “because [Carole’s] purchase [of the

Curran] constituted a related-party transaction whereby [Carole] would own the

landlord and 50% of the tenant, and in light of the LLC Agreement requirement that

Members avoid conflicts,” Carole needed Robert’s approval to purchase the




181
      Ramone v. Lang, 2006 WL 905347, at *10 (Del. Ch. Apr. 3, 2006).
182
      Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1158 (Del. 2010).


                                          44
Curran.183 Counterclaim Plaintiff points to two section of the LLC Agreement to

support this proposition: Section 4.04 and Section 7.02(a).

      Section 4.04 of the LLC Agreement actually works against Counterclaim

Plaintiff for two reasons. First, Section 4.04 lays out a series of “Restricted

Activities” that require prior approval by the Board of Directors before they can be

done on behalf of the Company. 184 These include entering into a theater lease,185

“any agreements, contracts, or transaction (including any amendment renewal or

termination of such agreements, contracts or transactions) with any Member or an

Affiliate of any Member,”186 and “any contract for a lease of any real or personal

property, other than office leases entered into by the Company as lessor in the

ordinary course of business.”187 If the Conversation amounted to a contract to renew

the lease (or an actual renewal of the lease) of the Curran between Robert, acting as

an agent for the Company, and Carole, as an Affiliate of CSH Theatres, then the

contract would have required approval by the Board of Directors.




183
      Countercl. Pl.’s Opening Br. 35.
184
      JX 10-14.
185
      JX 10 § 4.04(i).
186
      Id. § 4.04(l).
187
      Id. § 4.04(t).


                                         45
      Section 4.01 of the LLC Agreement says that each “Member shall appoint two

representatives to the Board of Directors” and “all decisions of the Board of

Directors shall require a majority vote of those present and voting at a meeting.”188

Counterclaim Plaintiff has not argued that the Conversation took place at a board

meeting, nor has it argued that the Conversation between Robert and Carole

constituted board approval. Therefore, under Counterclaim Plaintiff’s theory, the

Conversation would have been insufficient to constitute approval under Section 4.04

and would not be sufficient consideration.

      Second, it was Robert, not Carole, who would have needed permission under

Section 4.04. Robert was the one purporting to act on behalf of the Company and

enter into a contract or renew the lease. Carole was acting on behalf of herself, her

trust, or CSH Curran, not the Company. 189 Thus, Robert’s permission would not be

consideration for Carole’s promise to lease the Curran to the Company.

      Section 7.02(a) is no more useful to Counterclaim Plaintiff. It states, “The

Shorenstein Entity and the Nederlander Entity hereby agree to devote their efforts to

maximize the economic success of the Company and to avoid any conflict of



188
      JX 10-10.
189
      Section 4.04(c) requires board approval before the Company can acquire or lease an
      asset from a third party. JX 10-14. This still would not require that Carole get
      board approval for her purchase of the Curran because it is not the Company making
      the purchase.


                                          46
interests between the Members.”190 But, Section 7.06 of the LLC Agreement

expressly allows “any Member, any Affiliate of any Member, or any officer or

director of the Company . . . [to] own interests in the same properties as those in

which the Company or the other Members own an interest without having or

incurring any obligation to offer any interest . . . to the Company . . . .” 191 Further,

“no other provision of [the LLC Agreement] shall be deemed to prohibit any such

Person from conducting such other businesses and activities.” 192 Counterclaim

Plaintiff does not explain how the purchase of the Curran created a conflict of

interest that is not allowed by Section 7.06.193 Therefore, Counterclaim Plaintiff has

not shown that Robert’s permission was legally required for Carole to purchase the

Curran.




190
      JX 10-24.
191
      JX 10-25.
192
      Id.
193
      Counterclaim Plaintiff argues that this Court previously held that Section 7.02 of
      the LLC Agreement required [Carole] to obtain permission from NSF Associates to
      buy the theatre.” Countercl. Pl.’s Opening Br. 67. This is incorrect. In his Motion-
      to-Dismiss Memorandum Opinion, Vice Chancellor Parsons did not hold that 7.02
      required Carole to have Robert’s permission to purchase the Curran. Vice
      Chancellor Parsons held that at the motion-to-dismiss stage it as reasonably
      conceivable that Counterclaim Plaintiff could, at a later date, show that permission
      was required due to a conflict of interest. CSH Theatres, LLC v. Nederlander of San
      Francisco Assocs., 2015 WL 1839684, at *15 (Del. Ch. Apr. 21, 2015).


                                           47
      The circumstances of this case, where Carole has repeatedly testified that she

only asked permission to “be a good partner,”194 show that Carole asked Robert

about the purchase of the Curran as a courtesy. Counterclaim Plaintiff has given no

reason that the permission would constitute consideration, other than arguing that it

was legally required, which it was not. Therefore, the permission does not constitute

consideration such that a contract was formed.

             3.    Even if Carole made the Promise, there is no enforceable
                   lease renewal because the parties did not intend to be bound
      The second legal theory advanced by Counterclaim Plaintiff is that Carole and

Robert agreed to an enforceable lease renewal. In Osborn ex rel. Osborn v. Kemp,

the Supreme Court of Delaware “set forth the elements of a valid, enforceable

contract. [The Court] explained that ‘a valid contract exists when (1) the parties

intended that the contract would bind them, (2) the terms of the contract are

sufficiently definite, and (3) the parties exchange legal consideration.’” 195 Here,

Counterclaim Plaintiff has failed to show that the parties intended to be bound by a

lease renewal because they never finished negotiating the essential terms of the

renewal.




194
      Tr. 302-03, 325, 336 (C. Hays).
195
      Eagle Force Hldgs., LLC v. Campbell, 2018 WL 2351326, at *1 (Del. May 24,
      2018) (quoting Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010)).


                                         48
      In Leeds, Chancellor Allen observed:

             Until it is reasonable to conclude, in light of all of these
             surrounding circumstances, that all of the points that the
             parties themselves regard as essential have been expressly
             or (through prior practice or commercial custom)
             implicitly resolved, the parties have not finished their
             negotiations and have not formed a contract. Agreements
             made along the way to a completed negotiation, even
             when reduced to writing, must necessarily be treated as
             provisional and tentative.196

The Delaware Supreme Court has stated that “common sense suggests that parties

to . . . any agreement[] would not intend to be bound by an agreement that does not

address all terms that they considered material and essential to that

agreement . . ..” 197 Therefore, “all essential or material terms must be agreed upon

before a court can find that the parties intended to be bound by it and, thus, enforce

an agreement as a binding contract.”198 Delaware law recognizes that “the rental

rate and duration of a lease are essential terms,” 199 and the evidence shows that the

parties considered rent and duration essential terms of their lease renewal. The




196
      Leeds v. First Allied Conn. Corp., 521 A.2d 1095, 1102 (Del. Ch. 1986).
197
      Eagle Force, 2018 WL 2351326, at *16.
198
      Id.
199
      The Liquor Exch., Inc. v. Tsaganos, 2004 WL 2694912, at *4 (Del. Ch. Nov. 16,
      2004).


                                         49
evidence also shows that the parties never came to an agreement about the rent or

duration.200

      Not much is consistent in this case, but the parties have been consistent about

which terms they considered essential: rent and duration. Robert testified that the

Conversation included a discussion of rent and duration. 201 Two years later, when

the parties exchanged their initial draft proposals, the only terms discussed were rent

and duration.202 On August 29, 2012, Tom sent Ray a “new 10 year lease of the

Curran,” which included two minimum rent schedules.203 These rent schedules

included a “significant” increase in minimum rent compared to the Lurie Lease.204

Under the Lurie Lease, the minimum rent for each year from 2010-2014 was




200
      Nor is it clear whether the parties were negotiating a renewal of the Lurie Lease or
      a new lease entirely. Regardless, there is no evidence that the parties discussed
      relevant terms that would have to be changed. For example, Walter, Carole, and
      Robert guaranteed the Lurie Lease, but there was no discussion about who would
      guarantee the lease after December 31, 2014. Tr. 802 (Hart). There were
      discussions about needed renovations for the Curran, but the parties never agreed
      on who would bear the costs of those renovations. JX 104.
201
      Robert’s testimony about whether there was an agreement on rent and duration, and
      the particulars of that agreement was not even consistent with itself, however. This,
      in part, is why I do not find his testimony about the Conversation credible.
202
      JX 88; JX 104.
203
      JX 88-1.
204
      Tr. 1026 (R. Nederlander).


                                           50
$350,000.205 The August 29 proposal had a minimum rent in 2013 of $500,000,

which increased to $800,000 by 2018. 206 Ray received the rent proposal without

commenting on the significant difference between the proposal and the terms Robert

allegedly negotiated with Carole two years earlier. Ray then sent a counterproposal

to Tom on October 19, 2012, which addressed only two terms—rent and duration.

Ray proposed a twenty-year lease with a minimum rent of $375,000 in 2015 that

would increase to $500,000 by 2030. 207

      The October 19, 2012 draft was the last proposal exchanged between the

parties. Ray resent the October 19, 2012 proposal to Tom on December 20, 2013.208

But the Hayses had not agreed between themselves on a counteroffer to the

Nederlander proposal. In October 2013, Tom sent Jeff a draft proposal to counter

the October 19, 2012 proposal.209 This proposal had a minimum rent of $400,000 in

2014, increasing to $600,000 in 2023. 210 Neither party pointed to any evidence that

this proposal was sent to the Nederlanders. On January 10, 2014, Tom sent Jeff



205
      JX 104.
206
      JX 88-4.
207
      JX 104.
208
      JX 181.
209
      JX 173.
210
      JX 173-2.


                                          51
another suggested counterproposal with a minimum rent for 2014 of $420,000 that

increased to $765,000 in 2022. 211      This proposal also was never sent to the

Nederlanders.212 Tom informed the Hayses in January 2014 that the Nederlanders

“would be accepting of a 10 year agreement,”213 but the plan to discuss the renewal

at the January 28, 2014 board meeting ended in disaster.214 All this evidence shows

that the parties never finished their negotiations on duration or the minimum rental

rate, which based on the testimony and negotiations of the parties, were essential

terms. Because the parties never concluded their negotiations on all essential terms,

they did not intend to be bound. 215

      Counterclaim Plaintiff argues that I should ignore the absence of an agreement

on rent because Carole, allegedly, did not consider the rent amount an essential term

due to her significant financial resources. 216 To support this contention, it points to




211
      JX 195.
212
      PTO ¶ 60.
213
      JX 190.
214
      See Section I.B.4.
215
      Eagle Force, 2018 WL 2351326, at *16.
216
      Counterclaim Plaintiffs argue that the parties agreed on the duration of the lease
      renewal because Tom told the Hayses in January 2014 that the Nederlanders “would
      be accepting of a 10 year agreement.” JX 190. This statement by Tom does not
      amount to an agreement between the parties.


                                          52
Carole’s deposition where she testified about the executive session of the January

28, 2014 board meeting:

            That Greg Holland left – well, I recall that before then it
            just, it just was a continuation of badgering about the
            sponsorship, just no, just it being kind of sad. And I think
            at the end and an agreement not being reached, it being so
            hard, it all being so hard to come to an agreement about
            really insignificant amounts of money. And when – and
            I recall just feeling like more in the dog’s house. 217

This deposition testimony does not support Counterclaim Plaintiff’s proposition that

Carole viewed the rent amount to be an insignificant amount of money. This

testimony does not even make it clear that Carole is talking about the lease amount

rather than the sponsorship when she says “really insignificant amounts of money.”

Regardless, I am unware of any rule of Delaware law that states rent cannot be an

essential term when the parties involved have significant personal wealth. Thus,

under Osborn and Eagle Force, there is no enforceable contract.




217
      JX 382, at 200. Counterclaim Plaintiff also points to Carole’s deposition testimony
      that she would have renewed the lease “in a heartbeat” if the Nederlanders had
      agreed to a new management agreement. Id. at 209. This does not mean she would
      have renewed the lease without a rental amount, but merely that she was willing to
      reduce the amount of rent in exchange for other consideration she considered
      valuable.


                                          53
             4.    Even if the parties agreed to an oral lease, Counterclaim
                   Plaintiff has not shown that an exception to the Statue of
                   Frauds applies
The Delaware Statute of Frauds states:

             No action shall be brought to charge any person upon any
             agreement made upon . . . any contract or sale of lands,
             tenements, or hereditaments, or any interest in or
             concerning them, . . . unless the contract is reduced to
             writing, or some memorandum, or notes thereof, are
             signed by the party to be charged therewith, or some other
             person thereunto by the party lawfully authorized in
             writing.218

Because a lease concerns an interest in land,219 the statute of fraud applies, and in

order to enforce a lease, there must be a writing signed by the party against whom

the lease will be enforced. There is no writing, but Counterclaim Plaintiff argues

that two exceptions to the statute of frauds apply: (1) part performance and (2)

promissory estoppel.

                   a.        Part Performance
      “One well-rooted exception to the absolute command of the general statute of

frauds . . . is the equitably-derived principle that a partly performed oral contract

may be enforced by an order for specific performance upon proof by clear and




218
      6 Del. C. § 2714(a).
219
      Hendry v. Hendry, 2006 WL 4804019, at *7 (Del. Ch. May 30, 2006).


                                         54
convincing evidence of actual part performance.”220 “[A] court of equity may decree

specific performance of an oral land contract . . . when there is evidence of actual

part performance of the oral contract.”221

      Despite Counterclaim Plaintiff’s arguments about Robert fully performing by

giving his permission, the contract subject to the statute of frauds is the lease, and

any partial performance must be that of the lease. Counterclaim Plaintiff points to

no evidence that the Company partially performed the lease, such as proof of partial

payment or performance of any other duty under the lease. Thus, this exception to

the statute of frauds does not apply.

                    b.    Promissory Estoppel
      “Delaware courts have countenanced, at least in limited circumstances, the

use of promissory estoppel to avoid application of the statute of frauds.” 222 “The

elements of promissory estoppel must be proved by clear and convincing

evidence.”223 Delaware follows the Restatement Second of Contracts, which states

that “the element of ‘manifest injustice’ is necessary when promissory estoppel is



220
      Shepherd v. Mazzetti, 545 A.2d 621, 623 (Del. 1988).
221
      Id.
222
      Grunstein v. Silva, 2009 WL 4698541, at *9 (Del. Ch. Dec. 8, 2009).
223
      CBA Collection Servs., Ltd. v. Potter, Crosse & Leonard, P.A., 1996 WL 527214,
      at *6 (Del. Super. Aug. 14, 1996), aff’d, 687 A.2d 194 (Del. 1996).


                                         55
used to circumvent the statute of frauds.” 224 In determining whether manifest

injustice would result if the promise is not enforced, significant circumstances

include:

             (a) the availability and adequacy of other remedies,
             particularly cancellation and restitution;
             (b) the definite and substantial character of the action or
             forbearance in relation to the remedy sought;
             (c) the extent to which the action or forbearance
             corroborates evidence of the making and terms of the
             promise, or the making and terms are otherwise
             established by clear and convincing evidence;
             (d) the reasonableness of the action or forbearance;
             (e) the extent to which the action or forbearance was
             foreseeable by the promisor. 225

Each circumstance “relates either to the extent to which reliance furnishes a

compelling substantive basis for relief in addition to the expectations created by the

promise or to the extent to which the circumstances satisfy the evidentiary purpose

of the [s]tatute [of frauds] and fulfill any cautionary, deterrent and channeling

functions it may serve.” 226

      The only reliance Counterclaim Plaintiff has shown by clear and convincing

evidence is that the Curran was rebranded “SHN Curran Theatre” and the Company




224
      Id. at *7.
225
      Restatement (Second) of Contracts § 139 (1981).
226
      Id. at cmt. b.


                                         56
began booking shows at the Curran for after December 31, 2014.227 The rebranding

constituted sending out an email about the purchase, changing the logo of the Curran,

and updating the sales and media kits.228 The Company also booked The Book of

Mormon and Matilda “as just part of the normal booking process” for the 2015

season.229 This reliance is not “definite and substantial” enough to evidence a

contract to lease the Curran to the Company for the life of the Company. Nor does

it “corroborate evidence of the making and terms of the promise” to extend or renew

the lease of the Curran as opposed to merely agreeing to assume the Lurie Lease.

Thus, Counterclaim Plaintiff has not demonstrated the existence of injustice that

would compel the Court to enforce Carole’s purported promise to renew the lease of

the Curran for the life of the Company at an undetermined price notwithstanding

noncompliance with the statute of frauds.

                5.   Even if Carole made the Promise, Counterclaim Plaintiff is
                     not entitled to more than its reliance damages under the
                     theory of promissory estoppel
      The third legal theory Counterclaim Plaintiff puts forward is an alternative

theory of liability under the doctrine of promissory estoppel.230 “In order to establish


227
      Tr. 37 (Holland); Tr. 342 (C. Hays); JX 175.
228
      Tr. 30-35 (Holland); JX 70; JX 175.
229
      Tr. 36.
230
      Counterclaim Plaintiff appears to argue that Carole made the purported promise to
      induce Robert’s permission to purchase the Curran. This is essentially the same

                                            57
a claim for promissory estoppel, a plaintiff must show” each of the elements “by

clear and convincing evidence.” 231 The four elements are:

             (i) a promise was made; (ii) it was the reasonable
             expectation of the promisor to induce action or
             forbearance on the part of the promisee; (iii) the promisee
             reasonably relied on the promise and took action to his
             detriment; and (iv) such promise is binding because
             injustice can be avoided only by enforcement of the
             promise.232

       “[P]romissory estoppel is fundamentally a narrow doctrine, designed to

protect the legitimate expectations of parties rendered vulnerable by the very process

of attempting to form commercial relationships.”233 Therefore, “although it is

permissible to award a party prevailing on a claim for promissory estoppel

expectation damages comparable to . . . the hoped-for contract . . ., the more routine



      argument Counterclaim Plaintiff makes when arguing that an enforceable contract
      was formed, which means it is arguing the Promise and the reliance would constitute
      an exchange of consideration, and promissory estoppel would not be available.
      Frank Invs. Ranson, LLC v. Ranson Gateway, LLC, 2016 WL 769996, at *11 n.99
      (Del. Ch. Feb. 26, 2016) (“A promise supported by consideration cannot form the
      basis for recovery on a theory of promissory estoppel.”). Of course, parties are
      allowed to plead causes of action in the alterative, so I will assume that
      Counterclaim Plaintiff is raising promissory estoppel as an alternative theory of
      recovery in the event its argument about consideration fails.
231
      Lord v. Souder, 748 A.2d 393, 399 (Del. 2000); CBA Collection Servs., Ltd. v.
      Potter, Crosse & Leonard, P.A., 1996 WL 527214, at *6 (Del. Super. Ct. Aug. 14,
      1996), aff’d, 687 A.2d 194 (Del. 1996).
232
      Lord, 748 A.2d at 399.
233
      Ramone v. Lang, 2006 WL 905347, at *14 (Del. Ch. Apr. 3, 2006).


                                          58
role of promissory estoppel should be to assure that those who are reasonably

induced to take injurious action in reliance upon non-contractual promises receive

recompense for that harm.” 234 Even with this careful application, “courts must be

chary about invoking the doctrine lightly, lest the normal failure of parties to reach

a binding contract be penalized by an imprecise judicial cost-shifting exercise.”235

      The only reliance Counterclaim Plaintiff has shown is the rebranding and

booking of shows. The appropriate remedy in this context is to compensate

Counterclaim Plaintiff for the harm actually suffered—the money spent in reliance

on the purported Promise. Counterclaim Plaintiff does not convince me that this

case is one in which the Court should award expectation damages comparable to the

hoped-for contract.

      Moreover, even if I assume that Carole made the purported Promise, and it is

of the type objectively meant to induce reliance, Counterclaim Plaintiff has given

me no information to craft an award based on reliance damages. It has submitted no

evidence as to the costs associated with the rebranding or the booking or rebooking

of The Book of Mormon and Matilda. Therefore, even if it met its burden to show




234
      Id. (emphasis added).
235
      Id.


                                         59
each element of promissory estoppel by clear and convincing evidence, I have no

way of fashioning a remedy that is not pure speculation or conjuncture.236

                6.   Even if Carole made a promise to negotiate the lease renewal
                     in good faith, Counterclaim Plaintiff has not met its burden
                     to show the Hayses failed to negotiate in good faith
       Counterclaim Plaintiff argues, as a fourth and final alternative, that the

Promise was an enforceable agreement to negotiate a lease renewal in good faith,

but for the reasons that follow, Counterclaim Plaintiff fails to show that the Hayses

failed to negotiate the lease renewal in good faith. “Under Delaware law, ‘bad faith

is not simply bad judgment or negligence, but rather it implies the conscious doing

of a wrong because of dishonest purpose or moral obliquity; it is different from the

negative idea of negligence in that it contemplates a state of mind affirmatively

operating with furtive design or ill will.’” 237 Counterclaim Plaintiff has not shown

that the Hayses had the “state of mind affirmatively operating with furtive design or

ill will.”238




236
       See Section II.C.3.
237
       SIGA Techs., Inc. v. PharmAthene, Inc., 67 A.3d 330, 346 (Del. 2013) (quoting
       CNL–AB LLC v. E. Prop. Fund I SPE (MS REF) LLC, 2011 WL 353529, at *9 (Del.
       Ch. Jan. 28, 2011)).
238
       Id. (quoting CNL–AB LLC, 2011 WL 353529, at *9).


                                         60
      The parties exchanged proposals over more than a year. 239            The main

contention between the parties was the rent schedule: minimum rental amount and

duration.240 The evidence submitted by the parties shows that the Hayses were

asking for rent that was higher than the Lurie Lease, but the Hayses proposal was

still at or below market rent. 241 The Nederlanders were attempting to negotiate for

rent that was significantly below market rate. 242 Seeking at or slightly below market

rent for an asset does not amount to a failure to negotiate in good faith. Furthermore,

Carole’s testimony that she would have signed a new lease if the Nederlanders had

agreed to give her control does not amount to a failure to negotiate in good faith in

the circumstances.     If the Nederlanders wanted a lease with rent that was

significantly below market rate, then the Hayses were allowed to negotiate for

something in exchange. Here, they were negotiating for more control of the

Company. This does not amount to a failure to negotiate in good faith.

      B.    Breach of Fiduciary Duties and Breach of Contract
      Counterclaim Plaintiff has brought claims against the Hayses for breach of

their common law fiduciary duties to the Company and their contractual duties under


239
      JX 88; JX 104; JX 181.
240
      JX 190.
241
      Tr. 727-28 (Hart); JX 489-8; JX 174-2.
242
      JX 489-8; JX 174-2.


                                          61
the LLC Agreement.       On the one hand, traditional fiduciary duties apply to

managers. On the other hand, the provisions of the LLC Agreement extend to the

individuals or entities that control CSH Theatres—i.e., the Hayses. Carole and Jeff

acted as both managers of the Company and controllers of CSH Theatres at different

points during the period of contested behavior. In these different capacities, they

each owed different duties at different times. Ultimately, Counterclaim Plaintiff has

not shown that the Hayses breached any duties they owed under the LLC Agreement,

but it succeeded in showing that both of the Hayses breached their fiduciary duties

as managers of the Company.

             1.    The LLC Agreement does not disclaim all common law
                   fiduciary duties for managers
      Managers of a Delaware LLC owe default fiduciary duties. 243 “Drafters of an

LLC agreement ‘must make their intent to eliminate fiduciary duties plain and

unambiguous.’” 244 Here, Counterclaim Defendants argue that the LLC Agreement

disclaims all common law fiduciary duties. Counterclaim Defendants make this

argument based on Section 7.04 of the LLC Agreement. Section 7.04 states, in

relevant part, “Except as otherwise expressly provided herein, nothing contained in

this Agreement shall cause any Member to be deemed or otherwise treated as an


243
      Auriga Capital Corp. v. Gatz Props., 40 A.3d 839, 851 (Del. Ch. 2012), aff’d, 59
      A.3d 1206 (Del. 2012).
244
      Feeley v. NHAOCG, LLC, 62 A.3d 649, 664 (Del. Ch. 2012).


                                         62
agent or legal representative of the other Members or to create any fiduciary

relationship for any purpose whatsoever.”245 This language does not disclaim the

common law duties owed by managers; instead, it clarifies that Members are not

transformed into fiduciaries of one another by way of the LLC Agreement.

       As for the managers of the Company, Section 7.04 does not expressly disclaim

all fiduciary duties. Certain sections of the LLC Agreement do limit certain aspects

of the traditional common law fiduciary duties owed by the managers as is discussed

more fully in Sections II.B.3 and II.B.4 of this memorandum opinion. Except for

those duties explicitly limited by the LLC Agreement, the managers of the Company

still owe all common law fiduciary duties to the Company.

              2.     Contract claims versus fiduciary duty claims
       The same individuals can act in different capacities in relation to the same

entity. For example, the same person can be both a director and stockholder of a

corporation. Likewise, a person can be both a manager and a member of an LLC.

Under Delaware law, the capacity in which that person is acting when they take

certain actions can determine whether those actions are in violation of certain

duties.246



245
       JX 10-25.
246
       See Carr v. New Enter. Assocs., Inc., 2018 WL 1472336, at *22 (Del. Ch. Mar. 26,
       2018) (citing Thorpe v. CERBCO, Inc., 676 A.2d 436, 440-44 (Del. 1996)) (“A
       controlling stockholder has the right to act in its own self-interest when it is acting

                                             63
      Here, the Hayses were managers of the Company, and any actions they took

in their capacity as managers were subject to their common law fiduciary duties as

limited by the LLC Agreement. The Hayses by virtue of their control of CSH

Theatres are also part of the Shorenstein Entity, and any actions they took in their

capacities as controllers of CSH Theatres or CSH Curran were subject to the LLC

Agreement. To determine if any fiduciary or contractual duties were breached, I

must consider what capacity the Hayses were acting in at the time.

             3.    Competition by the Hayses
      Counterclaim Plaintiff contends that the LLC Agreement prohibits the Hayses

from competing with the Company. In fact, the LLC Agreement expressly allows

the Hayses to compete, both in their capacity as managers of the Company and in

their capacity as Affiliates of CSH Theatres. The plain text of the LLC Agreement

and the extrinsic evidence both support this interpretation.

                   a.     The text of the LLC Agreement
      “Limited liability companies are creatures of contract, and the parties have

broad discretion to use an LLC agreement to define the character of the company

and the rights and obligations of its members.”247        When interpreting a LLC



      solely in its capacity as a stockholder. This right must yield, however, when a
      corporate decision implicates a controller’s duty of loyalty.”).
247
      Kuroda v. SPJS Hldgs., L.L.C., 971 A.2d 872, 880 (Del. Ch. 2009).


                                         64
agreement, “Delaware [courts] adhere[] to the ‘objective’ theory of contracts, i.e. a

contract’s construction should be that which would be understood by an objective,

reasonable third party.” 248 Contracts are interpreted as a whole, and each provision

and term will be given effect as to not render any part “mere surplusage” or

“meaningless or illusory.” 249 If a contract is “clear and unambiguous,” then the

Court “will give effect to the plain-meaning of the contract’s terms and

provisions.”250

      Alternatively, “a contract is ambiguous . . . when the provisions in controversy

are reasonably or fairly susceptible of different interpretations or may have two or

more different meanings.”251 If a contract is ambiguous, a “court may then look to

extrinsic evidence to uphold to the extent possible, the reasonable shared




248
      Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010) (quoting NBC
      Universal v. Paxson Commc’ns, 2005 WL 1038997, at *5 (Del.Ch. Apr. 29, 2005)).
      Both parties put an inordinate emphasis on the witnesses’ opinions about various
      legal questions. None of the witnesses are experts on Delaware law, and even if
      they were, questions of legal interpretation are reserved for the Court. Thus, I do
      not allocate weight to the legal opinions of fact witnesses.
249
      Id. at 1160 (quoting Kuhn Constr., Inc. v. Diamond State Port Corp., 2010 WL
      779992, at *2 (Del. Mar. 8, 2010) and Sonitrol Hldg. Co. v. Marceau
      Investissements, 607 A.2d 1177, 1183 (Del. 1992)).
250
      Id. (citing Rhone–Poulenc Basic Chem. Co. v. Am. Motorists Ins. Co., 616 A.2d
      1192, 1195 (Del. 1992)).
251
      Rhone-Poulenc, 616 A.2d at 1196 (citing Hallowell v. State Farm Mut. Auto. Ins.
      Co., 443 A.2d 925, 926 (Del. 1982)).


                                          65
expectations of the parties at the time of contracting.”252 Importantly, however,

“ascertaining the shared intent of the parties does not mandate slavish adherence to

every principle of contract interpretation.”253

             As this Court recently stated: “Contract principles that
             guide the Court—such as the tenet that all provisions of an
             agreement should be given meaning—do not necessarily
             drive the outcome. Sometimes apparently conflicting
             provisions can be reconciled, but in order to prevail on a
             contract claim, a party is not always required to persuade
             the Court that its position is supported by every provision
             or collection of words in the agreement.”254

“In giving effect to the parties’ intentions, it is generally accepted that the parties’

conduct before any controversy has arisen is given ‘great weight.’” 255

                           i.     The Hayses are bound by Section 7.02 because
                                  they are “Affiliates” of the Shorenstein Entity
      The LLC Agreement discusses competition in Sections 7.02 and 7.06. Under

Section 7.02(a), “The Shorenstein Entity and the Nederlander Entity . . . agree to

devote their efforts to maximize the economic success of the Company.” 256 The first


252
      Comrie v. Enterasys Networks, Inc., 837 A.2d 1, 13 (Del. Ch. 2003).
253
      S’holder Representative Servs. LLC v. Gilead Scis., Inc., 2017 WL 1015621, at *16
      (Del. Ch. Mar. 15, 2017), aff’d, 177 A.3d 610 (Del. 2017).
254
      Id. (quoting Cyber Hldg. LLC v. CyberCore Hldg., Inc., 2016 WL 791069, at *7
      (Del. Ch. Feb. 26, 2016)).
255
      Id. (quoting Ostroff v. Quality Servs. Labs., Inc., 2007 WL 121404, at *11 (Del. Ch.
      Jan. 5, 2007)).
256
      JX 10-24.


                                           66
question then is what constitutes “the Shorenstein Entity.” The LLC Agreement

defines the “Shorenstein Entity” as CSH Theatres “together with any Permitted

Transferees.”257   For the Shorenstein Entity, 258 a Permitted Transferee is “an

Affiliate.”259 An Affiliate is “a Person that, directly or indirectly through one or

more intermediaries, Controls, is Controlled by or is under common Control with

the subject Person.”260 Under the LLC Agreement, a Person is “an individual or a

corporation, all types of partnership, trust, unincorporated organization, association,

limited liability company or other entity.” 261 Control, Controls, or Controlled

“means the possession, direct or indirect, of the power to direct or cause the direction

of the management and polices of a Person, whether through the ownership of voting

securities, through contract, or otherwise.”262

      Under these definitions in the LLC Agreement, the Hayses and any entities

they control are Affiliates and part of the Shorenstein Entity and, therefore, are




257
      JX 10-5.
258
      “[I]n the case of a Nederlander Entity,” Permitted Transferee means “a Nederlander
      Controlled Entity or any member of the Nederlander family.” JX 10-8.
259
      Id.
260
      JX 10-6.
261
      JX 10-8.
262
      JX 10-7.


                                          67
bound by Section 7.02(a).263 Jeff, Carole, Wally, Gracie, and Tom are the members

of the CSH Investment Committee, which manages the investments of Carole’s

trusts, including CJS Trust-A and CSH Doule Trust, in conjunction with the CSH

Family Office. CSJ Trust-A owns CSH Theatres, which owns fifty percent of the

Company. CSH Double Trust owns CSH Curran, which in turn owns the Curran.

Thus, the Hayses are Permitted Transferees of CSH Theatres because, through a

series of intermediaries, they ultimately control CSH Theatres. CSH Curran is a

Permitted Transferee of CSH Theatres because, through a series of intermediaries,

CSH Curran and CSH Theatres are under shared control. Because the Hayses and

CSH Curran are Permitted Transferees of CSH Theaters, they are part of the

Shorenstein Entity as defined in the LLC Agreement.




263
      Counterclaim Defendants admit they are Affiliates of the Shorenstein Entity. PTO
      25 (“[T]he LLC Agreement expressly allows ‘Affiliates’ of CSH, such as CSH
      Curran, [Carole], and [Jeff], to compete with [the Company].”).


                                         68
                         ii.   The Hayses are allowed to compete under the
                               LLC Agreement except in the limited
                               circumstances described in Section 7.02(b)
      While Section 7.02(a) requires the “Shorenstein Entity” to “devote their

efforts to maximize the economic success of the Company and avoid any conflicts

of interest between the Members,” 265 Section 7.06 contains an exception to this

broad provision:

            Subject to the other provisions of this ARTICLE VII,
            including Section 7.02, any Member, any Affiliate of
            any Member or any officer or director of the Company
            shall be entitled to and may have business interests and
            engage in business activities in addition to those relating
            to the Company, and may engage in the ownership,
            operation and management of businesses and activities,
            for its own account and for the account of others, and may
            (independently or with others, whether presently existing
            or hereafter created) own interests in the same properties
            as those in which the Company or the other Members own
            an interest, without having or incurring any obligation to
            offer any interest in such properties, businesses or
            activities to the Company or any other Member, and no
            other provision of this Agreement shall be deemed to
            prohibit any such Person from conducting such other
            businesses and activities. Neither the Company nor any
            Member shall have any rights in or to any independent
            ventures of any Member or the income or profits derived
            therefrom. 266




265
      JX 10-24.
266
      JX 10-25 (emphasis added).


                                        70
      This exception is itself limited by Section 7.02(b), which disallows either the

Nederlander or Shorenstein Entities from staging “any Production that it controls (as

defined in Section 7.03) within 100 miles of San Francisco” unless that production

had played at one of the Company’s theaters, the other Member’s representative had

turned down the play, or “the Company shares in the profits and/or losses of any

booking pursuant to an agreement mutually acceptable to the Members.” 267 Section

7.03 defines “control over production” as: “the Person having the ability to

determine where the Production plays and the terms and conditions of said

engagement.” 268 This plain language of the contract, when read through the lens of

generalia specialibus non derogant, creates a detailed scheme governing

competition. 269 “[A]ny Member, any Affiliate of any Member or any officer or

director of the Company” is allowed to compete with the Company, except that they



267
      Id.
268
      Id.
269
      At first glance Section 7.02 and Section 7.06 may appear irreconcilable, but maxims
      of interpretation allow the two to be harmonized. Delaware recognizes the maxim
      of interpretation generalia specialibus non derogant—in the case of any conflict,
      the specific will control the general. See Allen v. State, 970 A.2d 203, 223 (Del.
      2009). As the late Justice Scalia explained, this can be thought of as reading the
      specific as an exception to the general, which allows a harmonizing of otherwise
      conflicting provisions. Antonin Scalia & Bryan A. Garner, Reading Law: The
      Interpretation of Legal Texts 183-88 (2012). Following this maxim allows the Court
      to harmonize the seemingly conflicting provisions Section 7.02 and Section 7.06 of
      the LLC Agreement.


                                          71
cannot stage a production within 100 miles of San Francisco if they have “the ability

to determine where the [p]roduction plays and the terms and conditions of said

engagement.” 270

      Because Section 7.06 explicitly addresses both Affiliates, officers, and

directors, it does not matter what capacity the Hayses are acting in when they

compete. Therefore, when considering the Hayses competition, there is no need to

distinguish between the times when they were acting as managers and when they

were acting as part of the Shorenstein Entity. Regardless of which of their various

capacities the Hayses were operating in, competition was allowed, with the limited

100-mile exception.

      Yet, it appears Carole still managed to violate this broad allowance. In 2014,

after Carole had resigned as director and co-president of the Company, she entered

into an investment agreement with the production Fun Home on behalf of her entity

CSH Productions, LLC. 271 As part of that agreement, Fun Home agreed that if the

production went on tour it would not perform at any other Bay Area theater but the

Curran as it was understood “that an important inducement for [Carole’s] significant

investment in the Broadway Production is to obtain the first right to present the first




270
      Id.
271
      JX 290 (signing in her capacity as Manager of CSH Productions, LLC).


                                          72
commercial production of the Play in the Bay Area, preferably to launch the national

tour.”272 This concession constitutes control over the production as defined in

Section 7.03 because it allows Carole “the ability to determine where the Production

plays and the terms and conditions of said engagement.” 273 Fun Home played at the

Curran in 2017. 274 This means Carole staged a production that she controlled within

100 miles of San Francisco.

      Of course, Section 7.02(b) has its own exception to the 100-mile rule. Section

7.02(b) is not violated if “(i) such Production has first played in one of the

[Company’s] Theatres; or (ii) such Production has been rejected for bookings at one

of the [Company’s] Theatres by the other Member’s representative on the Board of

Directors; or (iii) the Company shares in the profits and/or losses of any booking

pursuant to an agreement mutually acceptable to the Members.” 275 Fun Home did

not play at either of the Company’s theaters, 276 but the post-trial briefs do not point

to any evidence regarding whether the Nederlanders rejected Fun Home for the

Company or if the Company shared in the profits and losses of Fun Home.


272
      JX 290-4.
273
      JX 10-25.
274
      PTO ¶ 70.
275
      JX 10-25.
276
      Tr. 241 (Holland).


                                          73
Counterclaim Plaintiff has the burden to prove its case by a preponderance of the

evidence.277 Even if there is evidence in the record that shows Carole did not adhere

to Section 7.02(b), Counterclaim Plaintiff has not offered any evidence regarding its

damages relating to Fun Home and, thus, has not satisfied the final element for its

breach of contract claim. 278

      Counterclaim Defendants argue that the above interpretation of the LLC

Agreement is “absurd” based on the definition of “Members” in the LLC Agreement.

Members is defined as “the Shorenstein Entity and the Nederlander Entity and any

additional Person who is admitted to the Company as a Member in accordance with

this Agreement and is listed from time to time on the books and records of the

Company.” 279     Counterclaim Defendants argue that this definition requires

“Shorenstein Entity” and “CSH Theatres” to be synonyms and “Nederlander Entity”

and “NSF Associates” to be synonyms. If not, Counterclaim Defendants argue,

provisions of the LLC Agreement that use the term “Members,” like those

concerning distributions, would be absurd. This may well be the case. But if I adopt

Counterclaim Defendants’ interpretation, then all of the above definitions in the LLC

Agreement become mere surplusage. The drafters of the LLC Agreement used


277
      In re Mobilactive Media, LLC, 2013 WL 297950, at *14 (Del. Ch. Jan. 25, 2013).
278
      See Section II.C.3.
279
      JX 10-7.


                                         74
“Members” in certain provisions, and “the Shorenstein Entity and the Nederlander

Entity” in other provisions, which suggests the terms mean different things. Section

7.02 refers expressly to “the Shorenstein Entity” and “the Nederlander Entity.”

Section 7.06 refers expressly to “Affiliates of any Member.”                 It therefore is

unnecessary for me to determine the actual meaning of the term Member under the

contract.280   Nonetheless, at most, Counterclaim Defendants have raised an

ambiguity in the contract that allows me to look at extrinsic evidence, and the

extrinsic evidence supports Counterclaim Plaintiff’s interpretation of Section 7.02.

                    b.     Extrinsic evidence
      “In construing an ambiguous contractual provision, a court may consider

evidence of prior agreements and communications of the parties as well as trade

usage or course of dealing.”281 The parties introduced evidence related to prior

agreements and course of dealing between the parties. Both support Counterclaim

Plaintiff’s interpretation of Section 7.02(b).



280
      Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1196
      (Del. 1992) (“[A] contract is ambiguous only when the provisions in controversy
      are reasonably or fairly susceptible of different interpretations or may have two or
      more different meanings.”); S’holder Representative Servs. LLC v. Gilead Scis.,
      Inc., 2017 WL 1015621, at *16 (Del. Ch. Mar. 15, 2017) (“[I]n order to prevail on
      a contract claim, a party is not always required to persuade the Court that its position
      is supported by every provision or collection of words in the agreement.”), aff’d,
      177 A.3d 610 (Del. 2017).
281
      Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1233 (Del. 1997).


                                            75
      The LLC Agreement had at least two predecessor agreements. Walter and

Jimmy memorialized the first agreement in letters in 1978.282 Walter and Harry

entered into the second agreement in 1992 (the “1992 Agreement”), as part of a

settlement of litigation arising from the Partnership. 283 Walter initiated that litigation

alleging that Jimmy was competing with the Partnership in the areas surrounding

San Francisco. 284 Section 4 of the 1992 Agreement is the predecessor to Section

7.02 of the LLC Agreement. It reads:

             Both partners will devote their efforts to maximize the
             economic success of the Partnership and avoid conflicts of
             interest. Neither party will stage any production within
             100 miles of San Francisco unless (i) it has first played in
             a Partnership theatre, or (ii) it has been rejected for
             booking by the other party, or (iii) the Partnership share in
             the profits and/or losses of such booking pursuant to
             agreement.285

According to Robert, this was the “most important thing in the settlement between

[Walter] and [Jimmy].” 286 Carole testified that she insisted “that a [non-compete]

clause be put in the operating agreement [in 2000] to prevent competition by the



282
      JX 493; JX 494.
283
      JX 261; Tr. 831-32 (R. Nederlander).
284
      JX 495, at 12-13.
285
      JX 361-2.
286
      Tr. 834 (R. Nederlander).


                                            76
Nederlanders” because she was “very concerned about” competition by the

Nederlander family. 287

      Section 7.02 of the LLC Agreement is substantially similar to Section 4,

except that “Shorenstein Entity and Nederlander Entity” replaced “partners,” and

instead of a prohibition on any production within 100 miles, there is only a

prohibition on controlled productions within 100 miles. Section 7.02(b) seems to

strike a balance by applying to more people, 288 but in a more limited way. The only

way Walter and Carole’s fears of competition by the Nederlanders are assuaged is if

Nederlander Entity means more than just NSF Associates, which is consistent with

the definition in the LLC Agreement. Nederlander Entity is defined as NSF

Associates together with any Permitted Transferees, 289 and the Permitted

Transferees of NSF Associates are any “Nederlander Controlled Entity or any

member of the Nederlander Family.” 290 After the 1992 Agreement, Jimmy was no

longer affiliated with NSF Associates or the Company. 291            Thus, if the 1992


287
      Tr. 263 (C. Hays).
288
      Because “partner” is not defined in the 1992 Agreement it is unclear whether
      Section 7.02 actually applies to more people or if the families or “Affiliates” were
      also bound in 1992.
289
      JX 10-5.
290
      JX 10-8.
291
      Tr. 451 (C. Hays); Tr. 831, 892 (R. Nederlander).


                                           77
Agreement or the LLC Agreement only applied to NSF Associates, and not to its

Permitted Transferees too, it would do nothing to limit competition from Jimmy—

“the most important thing” the agreement was meant to do. Thus, the history of the

agreements between the parties, most importantly the history of competition from

the Nederlander family, supports Counterclaim Plaintiff’s interpretation of Section

7.02.

        The course of conduct between the parties also is illustrative. Greg testified

that the Nederlander Affiliate who runs Broadway San Jose made offers to the

Company to participate in some, but not all, individual shows.292 Other Nederlander

Affiliates who controlled theaters in San Francisco did the same. 293 This supports

Counterclaim Plaintiff’s interpretation of the LLC Agreement and is consistent with

the obligation in Section 7.02(b) that only controlled shows, not all shows, must be

offered to the Company. Both the plain meaning of the text and the extrinsic

evidence support the conclusion that the Hayses are Affiliates of CSH Theatres, and

as such, they are permitted to compete with the Company as long as they adhere to

the requirements of Section 7.02(b), which is binding on them as part of the

Shorenstein Entity.




292
        Tr. 131 (Holland).
293
        Tr. 125 (Holland).


                                          78
             4.     Breach of the duty of loyalty by Carole and Jeff
      Both Carole and Jeff breached their fiduciary duty of loyalty while acting in

their capacity as managers. “[T]he traditional duties of loyalty and care . . . are owed

by managers of Delaware LLCs to their investors in the absence of a contractual

provision waiving or modifying those duties.” 294 “The duty of loyalty mandates that

the best interest of the corporation and its shareholders takes precedence over any

interest possessed by a director, officer or controlling shareholder and not shared by

the stockholders generally.” 295 “Corporate officers and directors are not permitted

to use their position of trust and confidence to further their private interests.” 296 Nor

can fiduciaries “intentionally act[] with a purpose other than that of advancing the

best interests of the corporation.”297 Finally, “a fiduciary may not play ‘hardball’

with those to whom he owes fiduciary duties.”298




294
      Auriga Capital Corp. v. Gatz Props., 40 A.3d 839, 843 (Del. Ch.), aff’d, 59 A.3d
      1206 (Del. 2012). Delaware courts “look to the corporation law when assessing the
      extent to which a managing member owes common law fiduciary duties when those
      duties are not clearly defined in the entity’s operating agreement.” A&J Capital,
      Inc. v. Law Office of Krug, 2018 WL 3471562, at *5 (Del. Ch. July 18, 2018).
295
      Cede & Co. v. Technicolor, Inc., 634 A.2d 345, 361 (Del. 1993) (citing Pogostin v.
      Rice, 480 A.2d 619, 624 (Del. 1984)).
296
      Guth v. Loft, Inc., 5 A.2d 503, 510 (Del. 1939).
297
      In re Walt Disney Co. Deriv. Litig., 906 A.2d 27, 67 (Del. 2006).
298
      Auriga Capital, 40 A.3d at 870.


                                           79
      Carole breached her fiduciary duties when, while she was a director and co-

president of the Company, she both placed her own interests above those of the

Company and played “hardball” with the Company. She did this in a few ways.

First, at a board meeting in an executive session, she threatened her fellow board

members with refusing to approve the subscription series, a major generator of

income for the Company, unless Robert agreed to modify the LLC Agreement to

give her more control. 299 Second, she used her fiduciary position to prevent the

Company from pursuing shows she wanted for her competing business. 300 Third,

she instructed the CEO of the Company not to communicate with her co-president

and other board members about Company business.301 In fact, the CEO was so

concerned by her actions that he hired a lawyer, spending thousands of dollars of his

own money, to advise him. 302 These actions all violated her duty of loyalty to the

Company.

      Jeff breached his fiduciary duties when, while he was a director of the

Company, he shared confidential information with a direct competitor of the




299
      Tr. 379 (Carole); JX 127; JX 130; JX 131.
300
      JX 247.
301
      Tr. 48 (Holland).
302
      Tr. 49 (Holland).


                                         80
Company 303 and attempted to secure confidential company information to hire away

employees of the Company. 304 These actions were not in the best interest of the

Company; instead the Hayses took these actions, while acting in their capacities as

fiduciaries of the Company, to advance their own interest at the expense of the

Company.

      Counterclaim Plaintiff also contends that the Hayses used confidential

information they received in their capacity as fiduciaries to compete with the

Company by poaching shows that the Company was interested in booking. While,

if true, this likely would constitute a breach of the duty of loyalty, the evidence does

not support that the Hayses actually used confidential information to compete. At

trial, Counterclaim Plaintiff presented a list of shows allegedly discussed at the

Company while Carole and Jeff were managers. But Greg credibly testified that

everyone “involved in the industry [is] working generally from exactly the same

pool of Broadway titles.”305 Moreover, only two of the shows, Fun Home and Wolf

Hall, played at the Curran, and the evidence about whether those two shows were

discussed while Carole and Jeff were managers is tangential at best. The evidence


303
      JX 274.
304
      Id. (“note… I will ask [Greg] for a memo on his discussion with staff, so that we
      can determine when/if CSH might offer positions to key employees (i.e. House
      Manager, House Engineer, etc.) [of the Curran]”); Tr. 671 (J. Hays).
305
      Tr. 142-43 (Holland).


                                          81
that Fun Home was discussed is (1) an email from Greg to Carole in October 2013

that reads, in its entirety, “I attended FUN HOME last night. Amazing!,”306 and (2)

an email from someone affiliated with Fun Home informing Greg that Carole, after

she had left the Company, was a producing partner on the show. 307 In relation to

Wolf Hall, the evidence that Carole was attempting to secure the show for the Curran,

an email from October 8, 2014, 308 predates the evidence that the show was discussed

by the Company, a CEO report sent from Greg to Jeff on October 11, 2014. 309

      Even assuming that Jeff or Carole received proprietary information about the

rest of the shows discussed at trial while they were on the board of the Company,

the only evidence that they used that information to compete is unconvincing. The

evidence is: (1) emails between the Hayses or between the Hayses and staff where

various shows are discussed in passing; 310 (2) internal emails between Carole, Jeff,

and CSH Curran staff where they discuss the feasibility of having the shows play at

the Curran;311 or (3) letters from Robert, Ray, or Greg accusing the Hayses of



306
      JX 175.
307
      JX 296.
308
      JX 315-4.
309
      JX 309.
310
      E.g., JX 222-4; JX 242-2; JX 331.
311
      E.g., JX 238-3; JX 254; JX 348; JX 357.


                                          82
poaching shows based on accounts from third parties who did not testify at trial.312

Thus, Counterclaim Plaintiff has not met its burden to show the Hayses poached or

attempted to poach shows using confidential information.

      C.    Damages & Remedies
      Counterclaim Plaintiff seeks the following remedies: (1) a declaration that the

Hayses breached fiduciary and contractual obligations; (2) an injunction preventing

“ongoing improper competition” and preventing the Hayses from “obtaining or

disclosing SHN business information;”313 (3) disgorgement of corporate

distributions, mitigation costs, and specific performance of Carole’s promise or an

award of compensatory damages, all related to the purported promise or lease of the

Curran.

             1.       Declaratory Relief
      Counterclaim Plaintiff is entitled to declaratory relief under 10 Del. C. § 6501.

As discussed above, Carole and Jeff each breached their fiduciary duties to the

Company while serving as managers. 314 Also as discussed above, the Hayses are

Affiliates of CSH Theatres and bound by the LLC Agreement as part of the




312
      E.g., JX 313.
313
      Countercl. Pl.’s Opening Br. 71.
314
      See Section II.B.4.


                                           83
Shorenstein Entity. 315 Thus, I grant the requested declaratory judgment as to these

two points.

              2.    Injunctive Relief
      Counterclaim Plaintiff is entitled to some but not all of its requested injunctive

relief. “To demonstrate entitlement to a permanent injunction, a plaintiff must

satisfy three elements; a plaintiff must show (1) actual success on the merits of the

claims; (2) that irreparable harm will be suffered if injunctive relief is not granted;

and (3) that the equities support the relief requested.”316 Counterclaim Plaintiff

seeks an injunction “barring the Hays Group from [(1)] ongoing improper

competition with SHN and [(2)] from obtaining or disclosing confidential SHN

business information.” 317   As for the first permanent injunction, Counterclaim

Plaintiff has not shown success on the merits because, as discussed at length above,

Counterclaim Plaintiff has not shown that the Hayses are improperly competing. 318

      As for the second permanent injunction, Counterclaim Plaintiff has shown that

the Hayses should be enjoined from using confidential SHN business information to



315
      Section II.B.3.
316
      N. River Ins. Co. v. Mine Safety Appliances Co., 2013 WL 6713229, at *7 (Del. Ch.
      Dec. 20, 2013), aff’d, 105 A.3d 369 (Del. 2014).
317
      Countercl. Pl.’s Opening Br. 71.
318
      See Section II.B.3.


                                          84
compete with the Company. 319 Counterclaim Plaintiff has shown that Jeff disclosed

confidential business information to a competitor while still on the board.

Disclosing confidential business information to a direct competitor will irreparably

harm the Company, and the balance of the equities weighs in favor of preventing

fiduciaries from using confidential information to compete. To the extent that

Carole or Jeff are still in possession of confidential information gained while they

were serving as fiduciaries, they are enjoined from using that information to compete

with the Company. To the extent either Carole or Jeff becomes a fiduciary again in

the future, each is enjoined from using confidential information gained in his or her

capacity as a fiduciary to compete with the Company.

             3.     Monetary Damages 320
      “Under Delaware law, plaintiffs must prove their damages with a reasonable

degree of precision and cannot recover damages that are ‘merely speculative or




319
      Counterclaim Plaintiff does not argue that the Hayses breached the confidentiality
      provisions of Section 7.09 of the LLC Agreement. Instead, Counterclaim Plaintiff
      argues that the Hayses’ actions caused CSH Theatres to breach its contractual duties
      of the LLC Agreement. Countercl. Pl.’s Opening Br. 56-58. Counterclaim Plaintiff
      only points to actions the Hayses took in the capacity as fiduciaries of the Company
      and has not offered any explanation for how this behavior would be imputed to CSH
      Theatres.
320
      I do not address Counterclaim Plaintiff’s request for disgorgement of corporate
      distributions, mitigation costs, and specific performance of the Promise or oral lease
      renewal because I find that no contract or lease renewal exists.


                                            85
conjectural.’” 321 Counterclaim Plaintiff represented to the Court that it has “never

alleged specific causes of action for ‘poaching,’ breaches of confidentiality, or

[Carole’s] improper threats.     Instead, [Counterclaim Plaintiff] established this

conduct as part of the Hayses’ larger scheme to take control of SHN and, failing that,

to sabotage the Company, renege on [Carole’s] lease promise, and improperly

compete against SHN.” 322 Counterclaim Plaintiff is allowed to make this strategic

choice to present one unified remedy theory. This choice, however, now prevents

me from awarding damages for the parts of its case that it was able to prove as it has

given me no way to separate the actual harm to the Company from the consequences

of allowed behavior by the Hayses. Counterclaim Plaintiff alleges breaches of both

contractual and fiduciary duties, and this strategic choice has different consequences

for each.

      Counterclaim Plaintiff has not proven its contractual damages by a

preponderance of the evidence, and thus, it has failed to prove its breach of contract

claim. “To prove a breach of contract, a plaintiff must show: ‘the existence of a

contract, the breach of an obligation imposed by that contract, and resulting damages




321
      Kronenberg v. Katz, 872 A.2d 568, 609 (Del. Ch. 2004) (quoting Laskowski v.
      Wallis, 205 A.2d 825, 826 (Del. 1964)).
322
      Countercl. Pl.’s Reply Br. 40-41.


                                          86
to the plaintiff.’” 323 At the post-trial stage, “a claimant asserting a breach of contract

must prove the elements of its claim by a preponderance of the evidence.”324 This

includes “proof of actual damages that flow from the breach.”325

      A plaintiff alleging a breach of fiduciary duty most prove the following

elements by a preponderance of evidence: (i) that a fiduciary duty exists; and (ii)

that a fiduciary breached that duty. 326         Delaware liberally calculates damages

resulting from a breach of the fiduciary duty of loyalty, 327 and “mathematical

certainty” is not required.328 But even this liberal calculation must be based on more

than “speculation” or “conjecture.”329 This Court “cannot create what does not exist

in the evidentiary record, and cannot reach beyond that record when it finds the


323
      Concord Steel, Inc. v. Wilm. Steel Processing Co., 2009 WL 3161643, at *5 (Del.
      Ch. Sept. 30, 2009) (quoting Weichert Co. of Pa. v. Young, 2007 WL 4372823, at
      *2 (Del. Ch. Dec. 7, 2007)), aff’d, 7 A.3d 486 (Del. 2010).
324
      Id. (quoting Estate of Osborn ex rel. Osborn v. Kemp, 2009 WL 2586783, at *4
      (Del. Ch. Aug. 20, 2009)).
325
      SIGA Techs., Inc. v. PharmAthene, Inc., 132 A.3d 1108, 1142 n.31 (Del. 2015)
      (quoting Modern Law of Contracts § 14:6 (2015)).
326
      Heller v. Kiernan, 2002 WL 385545, at *3 (Del. Ch. Feb. 27, 2002) (citing York
      Lingings v. Roach, 1999 WL 608850, at *2 (Del. Ch. July 28, 1999)), aff’d, 806
      A.2d 164 (Del. 2002).
327
      Thorpe by Castleman v. CERBCO, Inc., 676 A.2d 436, 444 (Del. 1996).
328
      Bomarko, Inc. v. Int’l Telecharge, Inc., 794 A.2d 1161, 1184 (Del. Ch. 1999), aff’d,
      766 A.2d 437 (Del. 2000).
329
      Acierno v. Goldstein, 2005 WL 3111993, at *6 (Del. Ch. Nov. 16, 2005).


                                            87
evidence lacking. Equity is not a license to make stuff up.”330 If a plaintiff seeks

more than nominal damages, proof must replace “hypothetical estimates.” 331

      Counterclaim Plaintiff offers the expert report and testimony of Dr. Hekman

as the only evidence of its monetary damages. The report and testimony, however,

are limited to evidence about loss of earnings from the termination of the Curran

lease, loss of earnings from the Hayses’ failure to renew the Curran lease, and loss

of earnings from the Hayses’ ongoing competition. 332 Counterclaim Plaintiff has not

provided the Court with any information about the harm caused to the Company by

(1) the Company’s reliance on the purported promise to lease the Curran to the

Company—e.g., the rebranding of the Curran and the booking of shows into the

Curran after December 31, 2014; (2) the Hayses attempting to steal shows from the

Company; (3) the Hayses presenting shows that violate Section 7.02(b);333


330
      Ravenswood Inv. Co., L.P. v. Estate of Winmill, 2018 WL 1410860, at *2 (Del. Ch.
      Mar. 21, 2018), as revised (Mar. 22, 2018). This is a materially different situation
      than when the Court has some basis in the record to calculate damages, even if the
      damages are uncertain. See Auriga Capital Corp. v. Gatz Props., 40 A.3d 839, 875
      (Del. Ch.) (“[A]mbiguities are construed against the self-conflicted fiduciary who
      created them.”), aff’d, 59 A.3d 1206 (Del. 2012).
331
      Loudon v. Archer-Daniels-Midland Co., 700 A.2d 135, 142 (Del. 1997) (quoting In
      re Tri-Star Pictures, Inc. Litig., 634 A.2d 319, 321 (Del. 1993)).
332
      JX 429.
333
      The Hayses may have presented either Fun Home or Eclipsed in violation of Section
      7.02(b). Dr. Heckman does not address “the exact measure of the operating income
      resulting from these shows . . . because (1) the Hayses refused to produce documents
      related to the terms of Eclipsed and Fun Home and (2) these two production have

                                           88
(4) Carole’s threats and actions that violated her fiduciary duties while she was a

manager of the Company; or (5) Jeff’s disclosure of confidential information to

Carole while he was a manager of the Company. Any attempt by the Court to

determine the harm caused by these actions would be entirely speculative conjecture,

and thus, I award only nominal damages for the breaches of fiduciary duty.

      D.    Attorneys’ Fees as Sanctions
      Both Counterclaim Defendants and Counterclaim Plaintiff have requested

attorneys’ fees incurred during this litigation. Under the so-called “American Rule,”

“each party is normally obliged to pay only his or her own attorneys’ fees, whatever

the outcome of the litigation.”334 Under my equitable powers, however, I may shift

attorneys’ fees and costs in certain limited circumstances,335 including (1) if there is

express statutory authorization or a contractual fee shifting provision; 336 (2) “the




      not yet played at the Curran.” JX 429-20. The documents were subject to a motion
      to compel at the time Dr. Hekman wrote his report, and he “reserve[d] the right to
      revisit and/or amend [his] opinion pending the outcome of the motion to compel.”
      JX 429-20 n.36. The Court ordered the documents produced on November 7, 2016,
      less than a month after Dr. Hekman submitted his report, but no supplemental report
      was ever filed to include the deal information.
334
      Johnston v. Arbitrium (Cayman Islands) Handels AG, 720 A.2d 542, 545 (Del.
      1998).
335
      Scion Breckenridge Managing Member, LLC v. ASB Allegiance Real Estate Fund,
      68 A.3d 665, 686 (Del. 2013).
336
      Id. (quoting Barrows v. Bowen, 1994 WL 514868, at *1 (Del. Ch. Sept. 7, 1994)).


                                          89
presence of a ‘common fund created for the benefit of others;’” 337 (3) “where the

judge concludes a litigant brought a case in bad faith or through his bad faith conduct

increased the litigation’s cost; and”338 (4) “cases in which, although a defendant did

not misuse the ‘litigation process in any way, ... the action giving rise to the suit

involved bad faith, fraud, “conduct that was totally unjustified, or the like” and

attorney’s fees are considered an appropriate part of damages.’” 339 I may also

“award fees in the limited ‘circumstances of an individual case [that] mandate that

the court, in its discretion, assess counsel fees ‘where equity requires.’” 340 “To

justify an award under the bad faith exception, ‘the Court must conclude that the

party against whom the fee award is sought has acted in subjective bad faith.’” 341

      Here, there is no statutory authorization, contractual fee shifting, or common

fund created for the benefit of others. Nor do I find that Counterclaim Plaintiff

brought this case in bad faith or that the underlying actions involved bad faith, fraud,




337
      Id. at 687 (quoting Barrows, 1994 WL 514868, at *1).
338
      Id. (quoting Barrows, 1994 WL 514868, at *1).
339
      Id. (quoting Barrows, 1994 WL 514868, at *1).
340
      Id. (quoting Burge v. Fid. Bond & Mortg. Co., 648 A.2d 414, 421 (Del.1994)).
341
      K&G Concord, LLC v. Charcap, 2018 WL 3199214, at *1 (Del. Ch. June 28, 2018)
      (quoting In re Del Monte Foods Co. S’holders Litig., 2011 WL 2535256, at *6 (Del.
      Ch. June 27, 2011)).


                                          90
                                              342
totally unjustified conduct, “or the like.”         I do find, however, that Carole’s

behavior during her deposition, where she willfully gave nonsensical and

nonresponsive answers, constitutes bad faith litigation tactics.

      I have included a selection of Carole’s testimony deposition to illustrate this

finding.

             Q. Have you ever been deposed before?
             A. Yes.
             Q. How many times?
             A. Once.
             Q. When?
             A. I believe it was a while ago.
             Q. What was the matter about?
             A. It was a difference of opinions.
             Q. I’m sorry, go ahead. Were you done with your answer?
             A. Yes.
             Q. A difference of opinion about what?
             A. How best to proceed in one’s lives.
             Q. Was it involving a lawsuit?
             A. Oh, definitely. 343

             Q. Did you ever meet with your counsel in advance of this
             deposition?
             A. Oh, absolutely.
             Q. How much time did you spend with your counsel to
             prepare for the deposition?
             A. Sufficient.
             Q. How much is sufficient?
             A. The appropriate amount needed.
             Q. Can you give me an estimate of the amount of time?
             A. It was completely enjoyable.


342
      Scion Breckenridge, 68 A.3d at 687 (quoting Barrows, 1994 WL 514868, at *1).
343
      JX 382, at 6-7.

                                         91
             Q. How many times did you meet with your counsel to
             prepare for the deposition?
             A. Preparation is always a good thing.
             Q. That wasn’t my question. How many times did you
             meet with your counsel to prepare for the deposition?
             A. I met with them – I’m not understanding the question.
             Q. You told me you met with your counsel to prepare for
             the deposition.
             A. Sure.
             Q. How many times?
             A. Well, see, I think of time as a continuum. So I think I
             met with them from the beginning to the end. And the
             beginning was the start, and then there was the rehearsal,
             and then there was the preview, and now it’s what I think
             of as the performance. So, in my mind, I’m answering
             what you’re asking. If you could be more specific. Do you
             want hours?
             Q. Yes.
             A. Oh, I don’t wear a watch. So I know the sun coming up
             in the morning and the moon coming up at night.
             Q. Can you tell me the number of times that you met with
             your counsel to prepare for the deposition? I’m looking for
             a number.
             A. Well, I gave you that.
             Q. What was the number?
             A. The number was the beginning to the end.
             Q. How many times?
             A. You know, I think – I don’t recall. 344

             Q. Did you go to college?
             A. Well, yes.
             Q. Where?
             A. I mean tuition was paid.
             Q. Where did you go?
             A. Oh, I had books from a lot of different places.
             Q. Did you enroll at any of those places?
             A. Oh, sure.
             Q. Where did you enroll?

344
      Id. at 11-13.

                                         92
             A. Many, many universities – not that many – a few.
             Q. So you enrolled in a few universities?
             A. Throughout my years, sure.
             Q. Which universities?
             A. Well, one was here, NYU.
             Q. Any others?
             A. Stanford. I don’t recall.
             Q. Did you graduate from NYU?
             A. No.
             Q. Did you –
             A. Well, maybe. It’s unclear.
             Q. You’re not sure?
             A. You mean do I have a diploma? No. Did I receive
             enough credits to graduate, is that your question?
             Q. That’s a question, that’s fine.
             A. Is that your question?
             Q. Sure.
             A. You know, it’s been said that I have –
             Q. It’s been said that you have what? That you have
             graduated?
             A. It’s been said that.
             Q. Do you have a degree from NYU?
             A. Do I have something like a piece of parchment?
             Q. No. Did you finish the requirements –
             A. Did I receive –
             Q. If you could wait until I finish my question.
             A. Sorry.
             Q. Did you complete the coursework and earn enough
             degrees to earn a degree? I don’t care if you have a piece
             of paper on your wall. I want to know, did you earn a
             degree?
             A. I don’t recall.
             Q. You don’t recall whether you have a degree from
             NYU?
             A. Correct. 345

             Q. When did you attend NYU?

345
      Id. at 15-18.


                                        93
             A. Oh, goodness. You see, definitely, definitely in my
             youth.
             Q. Can you be more specific?
             A. No.
             Q. For how many years did you attend NYU?
             A. Again, time is a compendium. So I was there a while.
             Q. Can you be more specific?
             A. No. 346

             Q. Since you completed your studies at NYU, have you
             had employment anywhere?
             A. How do you define “employment”?
             Q. You’ve never used the word employment in your life?
             A. I’m just wondering how you define
             Q. Have you used the word employment in your life, ever?
             A. I’m asking you.
             Q. You don’t get to ask the questions. I get to ask the
             questions.
             A. Oh, sorry.
             Q. Have you ever used the word employment in your life?
             A. I’ve used many words.
             Q. Have you used the word employment in your life?
             A. It’s a word I’m familiar with.
             Q. What is your understanding of the word employment?
             A. Well, I think it has to do with – I’m not sure.
             Q. You’re not sure what the word employment means?
             A. Yeah.
             Q. Have you ever worked for any kind of company or
             somebody who might be referred to as an employer?
             A. Possibly.
             Q. You’re not sure?
             A. I would say sure.
             Q. Who have you worked for? And if you could give this
             to me in chronological order.
             A. Oh, that’s – I could give it to you as best I could.
             Q. Sure.


346
      Id. at 18-19.


                                       94
             A. Okay. So I’ve worked – just in terms of work or in
             terms of remuneration?
             Q. Work.
             A. So you – well, I’ve worked on political campaigns.
             Q. And you consider those political campaigns to be your
             employer?
             A. Well, I – I considered it to be work. That to me was the
             question posed to me.
             Q. Let’s see if we can state again.
             A. Okay.
             Q. I’m looking for your employment history. This isn’t a
             trick question. Are you able to give me your employment
             history?
             A. I don’t know. 347

             Q. Have you ever worked at SHN?
             A. I have a deep association with it, yes.
             Q. When you say “a deep association,” have you ever
             worked at SHN?
             A. That’s my answer.
             Q. Yes or no, have you worked at SHN? I don’t understand
             your answer.
             A. I answered the question.
             Q. I don’t understand your answer. Can you please answer
             it again?
             A. I’m comfortable with my answer.
             Q. Okay. So you’re unwilling to tell me whether you’ve
             ever worked at SHN?
             A. My answer reflects the question posed to me.
             Q. I don’t even know what that means. My question is,
             have you ever worked at SHN, yes or no?
             A. I find my answer to be most inclusive.
             Q. I don’t understand that.
             A. And embracing. 348


347
      Id. at 18-21.
348
      Id. at 21-22.


                                         95
             Q. Have you ever been arrested?
             A. I don’t recall.
             Q. You might have been arrested and you just don’t
             remember?
             A. I’ve led a long life, very colored.
             Q. Sitting here today, can you tell me whether any of that
             color involved being arrested?
             A. I don’t recall. 349

             Q. Do you know what SHN is?
             A. They’re letters in the alphabet.
             Q. Do you know of a company that goes by SHN?
             A. I certainly have a deep, deep association with it.
             Q. What is SHN, beyond letters in the alphabet? I’m
             referring to the company.
             A. It’s a company – it’s a company.
             Q. Is it in the theatre business?
             A. It’s a company that has people associated with it.
             Q. Is it in the theatre business?
             A. How do you define “theatre”?
             Q. I just want to make clear, I’m asking you if SHN is in
             the theatre business, and you can’t answer that question
             without further explanation?
             A. Can you ask the question again?
             Q. Sure. Is SHN in the theatre business?
             A. There’s many different types of theatres. Are we today
             in the theatre business? This is perhaps a piece of theatre
             that’s being recorded. So I think, again, I need more
             context. 350

             Q. When was SHN founded?
             A. At the beginning.
             Q. In what year?
             A. The year it was founded.
             Q. Can you give me a year?

349
      Id. at 23.
350
      Id. at 23-24.


                                         96
             A. No. 351

             Q. Who founded it?
             A. I was there.
             Q. What do you mean when you say you were there?
             A. I was there at the very beginning when it was – at the
             very day one.
             Q. Does that make you a founder?
             A. Does giving birth to a child make you a mother?
             Q. Yes, but that wasn’t my question. My question was, the
             fact that you were there, does that make you a founder?
             A. I believe it’s semantics.
             Q. Yeah, well, we’re here today about semantics and
             words matter.
             A. Sure.
             Q. So my question is, was your father a founder of SHN?
             A. My – I am the daughter of my father.
             Q. By definition, you are the daughter of your father. My
             question was, is your father a founder of SHN?
             A. My father and my mother raised me in an environment
             to have a great love and appreciation of the arts and
             introduced me to many, many people.
             Q. My question was, is your father a founder of SHN?
             A. That wasn’t close, that wasn’t close, the answer?
             Q. No.
             A. No?
             Q. No.
             A. Tell me again, was my father –
             Q. Was your father, Walter Shorenstein, a founder of
             SHN?
             A. He certainly cleared a path for me, and I can’t – I don’t
             know what that word means.
             Q You don’t know what the word founder means?
             A. No. 352


351
      Id. at 24-25.
352
      Id. at 25-27.


                                         97
             Q. No, my question is specific to this meeting. Did you say
             during this meeting that you were underappreciated?
             A. Well, I think when you ask for a thank you and you
             don’t get a thank you – so under-appreciated is so –
             Q. Mrs. Hays, my question isn’t about what the word
             means. My question is, at this meeting, did you –
             A. You’re getting yourself agitated.
             Q. Did you say the words – and please stop commenting
             on me – did you say the words I’m unappreciated or
             underappreciated? That’s my question. Did you say I’m
             unappreciated, I’m not getting enough appreciation? Did
             you say something like that?
             A. You’re smiling, so I’ll answer it. Sure, I did. 353

             Q. Then you write: “Feeling duped by the Stuart
             Thompsons.” Who is Stuart Thompson?
             A. A person who works in the business.
             Q. What does he do?
             A. He’s a general manager and producer.
             Q. Of what shows?
             A. Many shows.
             Q. Can you give me his most successful shows?
             A. No.
             Q. Can you give me any of the shows?
             A. I don’t recall.
             Q. You don’t recall any shows that Mr. Thompson has
             produced? Is that a no? You were shaking your head.
             A. I don’t recall.
             Q. Okay. Had you been duped by Stuart Thompson?
             A. I don’t recall.
             Q. It refers to Oskars, O-S-K-A-R-S. What is that a
             reference to?
             A. I don’t recall.
             Q. And feeling I was just a slob with Felix. Who is Felix?
             A. I don’t recall.
             Q. You understand you’re under oath, right?
             A. I recall.

353
      Id. at 157-58.


                                         98
             Q. You recall that you’re under oath?
             A. I recall.
             Q. And you’re going to tell me you don’t know – you
             can’t tell me a single show that Stuart Thompson has
             produced?
             A. Something. I’m sure would be in the deep recesses of
             my mind. Should we sit and tell – would that be a value
             to why we’re here? Would you like me to do that?
             Because I can.354

             Q. Why did you write “Yipppppe de da”?
             A. I like using that word.
             Q. What meaning were you trying to convey?
             A. Yipppppe de da, doo da, you know, a jazz term.
             Q. And what does that mean when it’s used in an e-mail
             like this?
             A. Different beats along the way.
             Q. That’s what you meant to convey –
             A. Trumpets, yeah.
             Q. You meant to convey to your husband trumpets?
             A. Sure.
             Q. And what was the significance of trumpets?
             A. Good tone.
             Q. What does it have to do with Bullets over Broadway?
             A. Bullets over Broadway is very, very interesting,
             because you know what, I was wrong. So when I said more
             often than not I’m right, here is an example where I’m
             wrong. It closed on Broadway and lost its 12 to $15
             million investment. So I think the Nederlanders should be
             more than elated that I’m not part of their esteemed
             venerable organization of picking hits, because had I done
             it, whoa, Yipppppe de da. 355

             Q. And is it right that the plan is for the season to include
             Broadway-style shows?

354
      Id. at 282-85.
355
      Id. at 310-11.


                                          99
             A. Those were her words. This was a proposal.
             Q. Was that – I’m sorry?
             A. This was a proposal.
             Q. Was that your plan, to show Broadway-style shows?
             A. I’m always open to ideas.
             Q. Is Fun Home a Broadway-style show?
             A. I’m always open to ideas, and I’m always open to great
             art, and I’m always open to great artists, and I always work
             in a way when the art is first – when it’s not evident. So I
             maintain that what I personally do or what one does in life
             is with the artist, and whether it’s within 10 blocks in New
             York City, or downtown, or in Berlin, or London, as long
             as what I, Carole Shorenstein Hays, do, is immaterial to
             any of this.356

             Q. After that conversation before it is opened, have you
             ever discussed with anyone the idea of bringing Hamilton
             to the Curran Theatre?
             A. You know, I would love everything that I love to be at
             the Curran. So would I have loved Hamilton to be at the
             Curran, you betcha.
             Q. Did you talk to anyone about it?
             A. I talked to the butcher, the baker, the candlestick maker.
             Q. But did you talk to the people who have any connection
             with Hamilton?
             A. I talk. I talk. You know, I talk. Hamilton went where it
             went. So I think that I am doing right by me and SHN is
             doing right by them. And this idea of scorched earth and
             I’m not allowed to talk to certain people is really kind of
             un-American.357

             Q. What other plays that we haven’t discussed have you
             tried to bring to the Curran?
             A. I’m always in conversation and none – and I stand by
             what I say, that I wish everyone, everyone well and my

356
      Id. at 327-28.
357
      Id. at 357-58.


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             success is no reflection on SHN’s successor failure. They
             truly maintain that I had nothing whatsoever to do with
             this business. So why are you so focused on who I am? I
             just find it really fascinating that on the one hand I know
             nothing, but on the other hand everything I know is stolen,
             perched, poached. So I think you better really think about
             the questions in a crisper way. 358

             Q. And tell me about the shows that, are there any shows
             that you’re in discussions with now that have not yet been
             announced?
             A. For?
             Q. The Curran. And again, we can limit this to Broadway.
             A. That will be announced at –you know, it’s all
             subjection, isn’t it? Because these are shows, and this is
             what I do and have always done with my own personal
             money, I invest in artists, I nurture them. They come to
             Broadway, they work, they go over places. It’s
             interesting how you just said Broadway. See, it’s such a
             Nederlander thing, because I am like in Brooklyn,
             downtown, and you don’t ask me about that. You
             wouldn’t ask me about Hamilton if when I had the
             conversation with Oskar Eustis – so it’s a very
             Nederlander mindset that suddenly what is on Broadway
             is their fiefdom – and I say, whoa, wait a second, bring it
             on then, you guys tell me because, you know what –
             Q. Mrs. Hays, I’m just trying to get a list. I started with
             Broadway because you told me earlier my question was
             too broad. I know that Fun Home is playing. I know
             Eclipsed is playing. We’ve talked about a number of other
             shows. Are there other Broadway-style shows that you
             have had conversations with people about bringing them
             to the Curran?
             A. I always have conversations –
             Q. What shows?
             A. – with people. There are numerous shows.
             Q. Tell me.

358
      Id. at 360.


                                        101
A. I don’t want to. I don’t think it’s any of your business
whatsoever. I am pleased to answer the question. I am not
hiding information. But it’s my own money. I’m like free
and clear. Why do I have to keep answering when I’ve
just simply tried to get from Bob Nederlander who is
behind him, who the successors are, and suddenly you
have the right, the glee, the kaboom to ask me to go is that
your personal e-mail – yes, we’re going to emotionally
water board you, we’re going to keep you is down as far
as you can go, as though that’s like what we do under the
name of the law that’s what you went to law school for
and that you will go home and tell your wife you had a
great day – that’s what we’re doing?
I’m just simply trying to do my life at the Curran, and to
do community programs. Let’s talk about that. Let’s talk
about things that I wanted to do at SHN that I couldn’t,
because they weren’t interested in.
I will be having – the reason I’m doing Eclipsed is
because it has, it is about the Liberian kidnapped girls.
Do you know about that? I’m sure you’ve heard about
that. This is a show that no one would bring to Broadway
except someone like me who believed in it, and it’s a
show that my son has really picked up, and it’s about art
and activism, and we at the Curran, we at the Curran are
going to open our doors to bring in school kids to see
shows maybe for the first time, to see, to do that.
That’s what I want to do, and that’s what I want to talk
about. And you want to just take me, me and my and just
keep bashing it against the wall, and I’m happy to stay
until the lights come up and the lights go down. Don’t
bother me at all. Because I’ve been doing this 30 years.
And you know what, I’m like Judy Garland, I can keep,
keep, keep, – I got another song in me, and I know when
I walk throughout the community, they’re thrilled of what
I’m doing.
It’s – they don’t look at me as being combative. They’re
thrilled I have a love of the Curran. I’ve never – I’ve
never and I’ve always said to Bob Nederlander and to




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             Greg Holland and to everyone else, this is a wonderful,
             wonderful, wonderful, business.359

      Based on these answers, among others, I find that Carole willfully partook in

bad faith litigation tactics that unnecessarily increased the cost of this litigation. I

therefore award Counterclaim Plaintiff its attorneys’ fees and costs incurred in

connection with taking Carole’s deposition.

      E.    Relief Requested Post-Trial
      On June 28, 2018, Counterclaim Plaintiff learned that Counterclaim

Defendants had “booked Harry Potter and the Cursed Child (“Harry Potter”) into the

Curran Theatre.” 360 On June 29, Counterclaim Plaintiff reached out to Counterclaim

Defendants requesting information on whether Counterclaim Defendants disclosed

this litigation to the producers and agents of Harry Potter and the deal terms of the

production of Harry Potter at the Curran. 361 Counterclaim Defendants did not

respond to the June 29 letter.

      On July 3, 2018, Counterclaim Plaintiff filed a letter requesting that the Court

order Counterclaim Defendants “to confirm that they have disclosed to the Harry

Potter producers and agents the following: (i) the pending litigation and the nature



359
      Id. at 364-68.
360
      Countercl. Pl.’s Letter 1 (July 3, 2018).
361
      Id. at Ex. B.


                                           103
of the remedies that are currently under consideration by the Court and (ii) that such

remedies, if awarded, could preclude presenting Harry Potter at the Curran.”362

Counterclaim Plaintiff asserts that this relief is necessary to “ensure Harry Potter’s

producers and agents are not harmed by any future Court ruling, and to protect

SHN’s goodwill with those producers and agents, in the event the Court awards NSF

[Associates] and SHN access to the Curran Theatre.”363 Counterclaim Defendants

responded by letter on July 13, 2018, arguing that the requested relief is procedurally

and substantively improper. Counterclaim Plaintiff submitted a reply by letter on

July 19, 2018. In light of the rulings contained in this memorandum opinion, I

DENY the requested relief as moot.

III.   CONCLUSION
       For the foregoing reasons, I grant a declaratory judgment that the Hayses

breached their fiduciary duties as managers of the Company and are bound by the

LLC Agreement as “Affiliates” of CSH Theaters and part of “the Shorenstein

Entity;” enjoin Carole and Jeff from using confidential information they received or

receive in their capacities as fiduciaries of the Company; award nominal damages

for breaches of fiduciary duties; and award attorneys’ fees and costs for Carole’s

deposition.        All other relief is DENIED.    The parties shall submit a joint


362
       Id. at 4.
363
       Id.


                                         104
implementing form of order and final judgment within ten days of this memorandum

opinion.

      IT IS SO ORDERED.




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