      IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

 IN RE CVR REFINING, LP                  )   CONSOLIDATED
 UNITHOLDER LITIGATION                   )   C.A. No. 2019-0062-KSJM

                         MEMORANDUM OPINION
                         Date Submitted: July 30, 2019
                         Date Decided: January 31, 2020
Joel Friedlander, Jeffrey M. Gorris, Christopher P. Quinn, FRIEDLANDER &
GORRIS, P.A., Wilmington, Delaware; Mark Lebovitch, Adam Wierzbowski,
David Wales, BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP, New
York, New York; Lawrence Deutsch, Michael Dell’Angelo, BERGER
MONTAGUE PC, Philadelphia, Pennsylvania; Counsel for Plaintiffs.
Srinivas M. Raju, Matthew W. Murphy, Nicole M. Henry, RICHARDS, LAYTON
& FINGER, P.A., Wilmington, Delaware; Herbert Beigel, LAW OFFICES OF
HERBERT BEIGEL, Tucson, Arizona; Counsel for Defendants CVR Refining, LP,
CVR Energy, Inc., CVR Refining Holdings, LLC, CVR Refining GP, LLC, Icahn
Enterprises, L.P., Carl C. Icahn, Sunghwan Cho, Jonathan Frates, David L. Lamp,
Andrew Langham, Louis J. Pastor, Kenneth Shea, Jon R. Whitney, and Glenn R.
Zander.



McCORMICK, V.C.
      The plaintiffs allege that entities controlled by Carl Icahn engaged in a multi-

step scheme culminating in the exercise of a call right to buy out the minority

unitholders of CVR Refining, L.P. (the “Partnership”) at an unfair price. According

to the plaintiffs, the idea for this scheme came from a similar buyout at an unrelated

entity, Boardwalk Pipeline Partners, L.P. (“Boardwalk”). Just prior to the events

relevant to this litigation, Boardwalk’s general partner exercised a call right that was

subject to a trailing-market-based exercise price. After Boardwalk’s general partner

announced that it was “seriously considering” exercising the call right, it waited as

Boardwalk’s unit price fell by over 16%, then exercised the call right at the lower

price. Analysts criticized the Boardwalk process as designed to lower the market

price of the public units prior to exercise, thus lowering the cost of the buyout and

conferring a windfall to the option holder.

      The plaintiffs alleged that the events at Boardwalk created a playbook for the

Icahn entities. To implement a similar scheme at the Partnership, the Icahn entities

first needed to increase their collective equity stake to achieve the contractually

designated threshold for exercising the call right. Therefore, in May 2018, defendant

CVR Energy, Inc. (“CVR Energy”) launched a partial exchange offer at $27.63 per

common unit. The board of directors of the general partner, comprising persons

closely affiliated with Icahn, determined not to make a recommendation concerning




                                           1
the exchange offer and publicly disclosed their non-recommendation. After the

exchange offer closed, Icahn entities controlled over 84.5% of the Partnership.

      In public filings made contemporaneously with the launch of the exchange

offer, Icahn entities disclaimed any intention to exercise the call right after

consummating the exchange offer. Nevertheless, analysts publicly speculated that

the entities would do so. This speculation drove down the price of the Partnership’s

common units. As analysts predicted, CVR Energy ultimately announced that it was

“contemplating” exercising the call right.        CVR Energy then waited as the

Partnership’s unit price plummeted before exercising the call right at $10.50 per unit.

If the call right had been exercised at the exchange offer price, CVR Energy would

have paid an additional $393 million.

      In their complaint, the plaintiffs claim that the exchange offer was the

beginning of a multi-step scheme designed to lower the cost of the buyout. They

allege that aspects of this scheme would constitute breaches of an express provision

of the partnership agreement requiring that the general partner act in good faith.

They further claim that the defendants breached an implied covenant in the call right,

which prohibited the defendants from manipulating the trading price of the

Partnership’s units to subvert the price protections in the call right. To reach the

defendants who were not parties to the partnership agreement, the plaintiffs claim

that those defendants tortiously interfered with the plaintiffs’ contractual rights.


                                           2
      The defendants have moved to dismiss the complaint.                   Because the

partnership agreement at issue eliminates all fiduciary duties owed by the

defendants, the primary question before this Court is whether the defendants’ alleged

scheme, if proven as true, breaches any express or implied provision of the

partnership agreement.      This decision dismisses certain claims as to certain

defendants but otherwise denies the motion. The complaint alleges a reasonably

conceivable basis from which the Court can infer that the general partner’s non-

recommendation breached the partnership agreement’s express requirement that the

general partner act in good faith. The complaint also alleges that the general partner

breached the implied covenant in connection with the call right, and that certain

defendants tortiously interfered with the plaintiffs’ contractual rights.

      Adding a wrinkle to the scheme, a contractual price protection required that

the call right exercise price be no less than any amount paid by an affiliate of the

general partner in the 90 days preceding the call right. The plaintiffs allege that an

executive vice president of the general partner, who purchased limited partnership

units within the 90-day window for $16.7162, was an affiliate whose purchase

triggered the price protection. This decision additionally holds that it is reasonably

conceivable that defendants breached the partnership agreement by not setting the

exercise price at the price paid by the vice president.




                                           3
I.       FACTUAL BACKGROUND
         When consolidating six separate actions, 1 the Court deemed the Verified

Class Action Complaint filed in C.A. No. 2019-0210 as the operative complaint (the

“Complaint”).2 The background facts are drawn from the Complaint, documents it

incorporates by reference, and judicially noticeable facts.

         A.    The Partnership
         Before being involuntarily bought out, the plaintiffs owned common units in

the Partnership, a Delaware master limited partnership whose common units were

traded on the NYSE under the symbol “CVRR.” The Partnership was in the business

of refining oil and marketing transportation fuels. CVR Refining GP, LLC is the

general partner (the “General Partner”) of the Partnership. CVR Energy is the

General Partner’s indirect parent, and its stock trades on the NYSE under the symbol

“CVI.” Icahn Enterprises, L.P. (“Icahn Enterprises”) controls the General Partner

through its 82% interest in CVR Energy.




1
 C.A. No. 2019-0062-KSJM Docket (“Dkt.”) 47, Order Appointing a Leadership Structure
¶ 4.
2
    C.A. No. 2019-0210-KSJM Dkt. 1, Verified Class Action Compl. (“Compl.”).

                                           4
     The following diagram depicts the relationships between these entities:




     During time periods relevant to this litigation, Icahn and eight of his current

and former business associates comprised the Board of Directors of the General




                                        5
resigned from those positions “due to his extremely busy schedule,” but the plaintiffs

allege that he resigned to distance himself from an ongoing call right exercise

scheme. 4

          The Partnership is governed by the First Amended and Restated Agreement

of Limited Partnership of CVR Refining, LP (the “Partnership Agreement”). The

Partnership Agreement eliminates traditional fiduciary duties and imposes

contractual duties. 5

          Section 7.9 of the Partnership Agreement imposes two contractual standards

of conduct on the General Partner, one when the General Partner is acting in its

official capacity as the general partner of the Partnership, and the other when the

General Partner is acting solely in its individual capacity.

          Section 7.9(a) of the Partnership Agreement provides that when acting in its

official capacity as the general partner of the Partnership, the General Partner “shall

not make such determination, or take or omit to take such action, in Bad Faith.”6

“Bad Faith” is defined as “the belief that such determination, action or omission was

adverse to the interest of the Partnership.” 7 “Good Faith” is defined as “not taken in




4
    Compl. ¶¶ 22, 93.
5
    See P’ship Agreement § 7.2.
6
    Id. § 7.9(a).
7
    Id. § 1.1.

                                            7
Bad Faith.”8 “In any proceeding brought by or on behalf of the Partnership, . . . the

Person bringing or prosecuting such proceeding shall have the burden of proving

that such determination, action or omission was not in Good Faith.”9

          Section 7.9(b) of the Partnership Agreement provides that when not acting in

its capacity as the general partner of the Partnership, the General Partner is “entitled,

to the fullest extent permitted by law, to make such determination or to take or omit

to take such action free of any fiduciary duty or duty of Good Faith.”10

Section 7.9(c) further specifies that when acting in its contractually delegated “sole

discretion,” the General Partner is “acting in its individual capacity” and not “acting

in its capacity as the general partner of the Partnership.”11

          The Partnership Agreement does not impose a separate standard of conduct

for conflict transactions, 12 although Section 7.9(d) provides optional safe harbors


8
    Id.
9
    Id. § 7.9(a).
10
     Id. § 7.9(b).
11
     Id. § 7.9(c).
12
   Compare id. § 7.9(d) (providing that “the General Partner may in its discretion submit
any resolution, course of action with respect to or causing such conflict of interest or
transaction (i) for Special Approval or (ii) for approval by the vote of a majority of the
Common Units (excluding Common Units owned by the General Partner and its
Affiliates”), with Bandera Master Fund LP v. Boardwalk Pipeline P’rs, LP, 2019
WL 4927053, at *11 (Del. Ch. Oct. 7, 2019) (partnership agreement providing that “the
General Partner or its Affiliates in respect of such conflict of interest shall be permitted and
deemed approved by all Partners, and shall not constitute a breach of this Agreement . . .
or of any duty stated or implied by law or equity, if the resolution or course of action in
respect of such conflict of interest is (i) approved by Special Approval, (ii) approved by
                                               8
that the General Partner may apply in its discretion. The General Partner did not

invoke Section 7.9(d) in connection with the events giving rise to this litigation.

       B.     The Call Right
       Section 15.1(a) of the Partnership Agreement grants the General Partner or its

assignee the right to purchase common units held by unaffiliated limited partners

(the “Call Right”):

              Notwithstanding any other provision of this Agreement, if
              at any time the General Partner and its Affiliates hold more
              than 95% of the total Limited Partner Interests of any class
              then Outstanding, the General Partner shall then have the
              right, which right it may assign and transfer in whole or in
              part to the Partnership or any Affiliate of the General
              Partner, exercisable in its sole discretion, to purchase all,
              but not less than all, of such Limited Partner Interests of
              such class then Outstanding held by Persons other than the
              General Partner and its Affiliates, at the greater of (x) the
              Current Market Price as of the date three days prior to the
              date that the notice described in Section 15.1(b) is mailed
              or (y) the highest price paid by the General Partner or any
              of its Affiliates for any such Limited Partner Interest of
              such class purchased during the 90-day period preceding
              the date that the notice described in Section 15.1(b) is
              mailed. Notwithstanding the foregoing, if, at any time, the
              General Partner and its Affiliates hold less than 70% of the
              total Limited Partner Interests of any class then
              Outstanding then, from and after that time, the General
              Partner’s right set forth in this Section 15.1(a) shall be

the vote of a majority of the Common Units (excluding Common Units owned by the
General Partner and its Affiliates), (iii) on terms no less favorable to the Partnership than
those generally being provided to or available from unrelated third parties or (iv) fair and
reasonable to the Partnership, taking into account the totality of the relationships between
the parties involved (including other transactions that may be particularly favorable or
advantageous to the Partnership)”).

                                             9
                 exercisable if the General Partner and its Affiliates
                 subsequently hold more than 80% of the total Limited
                 Partner Interests of such class. 13

           Section 15.1(a) thus has two conditions, one of which must be met before the

General Partner can exercise the Call Right. One condition is satisfied when the

General Partner and its Affiliates hold more than 95% of a class of units. The other

condition is satisfied when the General Partner and its Affiliates increase their

holdings from “less than 70% of the total Limited Partner Interests” to “more than

80% of the total Limited Partner Interests.”14

           The Call Right provides limited partners with two price-setting provisions.15

The 90-day provision (the “90-day Provision”) prevents minority unitholders from

having their units called at a price below what the General Partner or its Affiliates

paid to purchase any units within the preceding 90 days of the date of exercise.16

The 20-day provision (the “20-day Formula”) calls for the price to be “the average




13
     P’ship Agreement § 15.1(a).
14
     Id.
15
  Id. (explaining the exercise price shall be “the greater of (x) the Current Market Price as
of the date three days prior to the date that the notice . . . is mailed or (y) the highest price
paid by the General Partner or any of its Affiliates for any such Limited Partner Interest of
such class purchased during the 90-day period preceding the date that the notice . . . is
mailed); id. § 1.1 (definition of “Current Market Price”).
16
     Id. § 15.1(a).

                                               10
of the daily Closing Prices per Partnership Interest of such class for the 20

consecutive Trading Days immediately prior to such date.”17

          C.      The Scheme
          As discussed at the outset of this decision, the plaintiffs posit the existence of

a “Boardwalk playbook” that sets out “how the controller of an MLP could

weaponize a call right with a trailing-market-price-based buyout price by artificially

manipulating the stock price.”18           They say that sophisticated investors and

investment banking analysts observed the Boardwalk scheme as it played out in

April and May of 2018 and published commentary predicting the outcome in real

time.

          During the same month that analysts were publicly criticizing the Boardwalk

call right process, the plaintiffs allege that the defendants conceived of a similar

“multi-step plan to buy out the Partnership’s public unitholders on the cheap.”19

According to the plaintiffs, the steps went as follows:

                  First, propose a partial exchange offer to the Board.
                  Second, launch a partial exchange offer to acquire
                  sufficient Partnership common units to satisfy the Call
                  Trigger.



17
     Id. § 1.1.
18
  Dkt. 55, Pls.’ Answering Br. in Opp’n to Defs.’ Mot. to Dismiss (“Pls.’ Ans. Br.”) at 12;
see id. at 12–13 (discussing required steps taken to carry out scheme).
19
     Compl. ¶ 58.

                                              11
                 Third, wait for the 90-day price protection period of
                 Section 15.1(a) to expire and conceal or disclaim any
                 intent to exercise the Call Right during that period.
                 Fourth, announce that it was considering exercising the
                 Call Right, which would prompt the trading price to drop.
                 Fifth, exercise the Call Right at an artificially low price.20

                 1.    CVR Energy Proposes the Exchange Offer.
          On April 30, 2018, Boardwalk’s controller had announced that it was

“seriously considering” exercising the call right.21 On May 10, 2018, Barclays

issued a report titled “Digging deeper into call rights,” which analyzed the call rights

for numerous MLPs and criticized Boardwalk’s controller for teasing the market.22

On May 15, 2018, JP Morgan issued an analyst report regarding Boardwalk and

noting the “perception of securities manipulation.”23

          Two days later, on May 17, 2018, representatives of CVR Energy and the

Partnership met to discuss a partial exchange offer that would position CVR Energy

to exercise the call right (the “Exchange Offer”). At the time, Icahn Enterprises was

poised to take advantage of the lower Call Right condition, having lowered its

interests in 2016 to below 70%.24 The May 17 meeting discussed a partial exchange


20
     Pls.’ Answering Br. at 12–13.
21
     Compl. ¶ 53.
22
     Id. ¶ 56.
23
     Id. ¶ 57.
24
  The contemporaneous SEC filings disclosed that the sale “was to reduce the Call Right
Trigger percentage by reducing the ownership interests of the General Partner and its
                                              12
offer that would allow CVR Energy to acquire over 80% of Partnership units,

thereby satisfying the condition to exercising the Call Right. Because each of the

Partnership’s executive officers is also an executive officer of CVR Energy, the

plaintiffs describe this May 17 “meeting” as a check-the-box exercise of no real

consequence. On May 24, 2018, the Board met to discuss the Exchange Offer. At

the time, the Board comprised Icahn, four Icahn Enterprises employees (Cho, Frates,

Langham, and Pastor), the CEO of CVR Energy (Lamp), two board members with

long-term ties to Icahn (Shea and Zander), and Whitney. Despite Icahn’s significant

ties to the overwhelming majority of the Board, the Board did not refer the decision

to a conflicts committee or otherwise invoke any safe harbor provisions of the

Partnership Agreement.

          Four days later, the Board determined that it would not make a

recommendation for or against the Exchange Offer. The Board’s official position—

reflected in the Schedule 14D-9 it caused the Partnership to file with the SEC—was

that it was “expressing no opinion” 25 because the decision to participate in the

Exchange Offer was “a personal investment decision dependent upon each

individual limited partner’s particular investment objectives and circumstances and



Affiliates below 70% of the common units.” Compl. ¶ 49. After this sale, “the General
Partner and its affiliates (including the Reporting Persons . . .) collectively own[ed] 69.99%
of the Common Units.” Id.
25
     Id. ¶ 79.

                                             13
their own consideration and evaluation of all of the Partnership’s publicly available

information.”26

                 2.   CVR Energy Launches the Exchange Offer.
          On May 29, 2018, CVR Energy launched the Exchange Offer at a price of

$27.63, which represented a 25% premium to the pre-announcement unit price. The

Exchange Offer expired on July 27, 2018. Holders of nearly half of the outstanding

minority units tendered, increasing Icahn Enterprises and its affiliates’ ownership to

approximately 84.5% of the Partnership’s units.

                 3.   CVR Energy Lets 90 Days Expire While the Market
                      Predicts that CVR Energy Will Exercise the Call Right.
          In public filings made contemporaneously with the launch, Icahn Enterprises

and CVR Energy disclaimed any intention to exercise the Call Right. 27 Despite these

public statements, analysts remained skeptical. Analysts predicted that the prospect

of the Icahn-related entities satisfying the Call Right condition “would depress the

market price of the common units.”28 On May 29, 2018, Barclays issued a report

opining that the results of the Exchange Offer would be an “ongoing overhang for

the [Partnership] unitholders.” 29 Macquarie Research issued a report the next day



26
     Id. ¶ 81.
27
     Id. ¶ 72.
28
     Id. ¶ 84.
29
     Id. ¶ 85.

                                           14
positing that the Exchange Offer was the first step in CVR Energy and its affiliates’

plan to exercise the Call Right.

           The SEC was also skeptical, inquiring on June 5, 2018 “whether or not this

tender offer constitutes the first step in a series of transactions that ultimately could

produce one of the two specified going private effects.” 30 CVR Energy responded

that it “view[ed] the offer as a discrete transaction and not the first step in a series of

transactions that may occur in the future.” 31

           During the Partnership’s July 26, 2018 earnings call, multiple analysts

expressed concern regarding the effects of the Exchange Offer.32 In a July 27, 2018,

research report, Barclays noted that positive second quarter 2018 results would have

only a “neutral impact” on the price of Partnership units because of the “privatization

risk” associated with the Call Right.33 On August 1, 2018, Macquarie Research

published a report noting how the prospect of a potential exercise of the Call Right

could “decrease unit holder[s’] ability to capture the long term underlying asset


30
     Id. ¶ 68.
31
     Id.
32
   Id. ¶ 87 (alleging that a Goldman Sachs analyst characterized the Exchange Offer as
“very unusual” and asked Defendant Lamp about its “strategic rationale” and what it
“represents on a go-forward basis”); id. ¶ 88 (alleging that an analyst from Tudor,
Pickering, Holt & Co. asked Lamp: “If the exchange offer is successful, though, are you
worried about how the remaining units of [the Partnership] will trade? You are looking at
a stock with potentially a very low float, this call option from [CVR Energy].”).
33
  Id. ¶ 89 (explaining that the majority unitholder could buy out the minority “without the
need to pay any premium above their current share prices”).

                                            15
value.”34 Also on August 1, 2018, Icahn Enterprises and CVR Energy filed an

amended Schedule 13D reiterating that the “Reporting Persons and the Issuer have

no current plans to exercise the call right at this time.” 35

          On October 24, 2018, the Partnership reported favorable third quarter 2018

results. According to Barclays, the “existence of the call option by the parent

corporation . . . will likely mute the market response” to these positive results

because “privatization risk still serves as an overhang to any potential upside.”36

During the Partnership’s October 25, 2018 earnings call, CVR Energy’s CEO, who

served on the Board, again denied that CVR Energy had plans to exercise the Call

Right.      The next day, Barclays again noted its pessimism about the price of

Partnership units “so long as the . . . call option risk lingers.” 37 Macquarie’s

contemporaneous analyst report likewise added that the “potential removal of a

takeover premium make[s] [the Partnership] a less favorable vehicle.”38 Meanwhile,

the price of Partnership units fell while the price of CVR Energy units rose.




34
     Id. ¶ 92.
35
     Id. ¶ 94.
36
     Id. ¶ 97.
37
     Id. ¶ 101.
38
     Id. ¶ 102.

                                            16
                  4.   CVR Energy Publicly Announces That It Might Exercise
                       the Call Right.
         Ninety days and one month after closing the Exchange Offer, on

November 29, 2018, Icahn Enterprises and CVR Energy filed an amended

Schedule 13D disclosing that CVR Energy was “now contemplating” an exercise of

the Call Right. 39 The price of Partnership units at that time was approximately

$17.16. The trading price of CVR’s common units fell precipitously thereafter.

                  5.   CVR Energy Exercises the Call Right.
         On January 17, 2019, the Call Right price as determined by the 20-day

Formula was $10.50 per unit, $17.13 lower than the Exchange Offer price. The

Partnership and CVR Energy announced that the General Partner had assigned the

Call Right to CVR Energy and that CVR Energy would exercise the Call Right.

         D.       An Additional Wrinkle: An Alleged Affiliate Purchases
                  Partnership Units Within 90 Days of the Call Right Exercise.
         Recall that the 90-day Provision required the party exercising the Call Right

to pay “the highest price paid by the General Partner or any of its Affiliates for any

such Limited Partner Interest of such class purchased during the 90-day period

preceding.”40 On November 14, 2018, Janet T. DeVelasco, the Vice President of

Environmental, Health, Safety and Security at CVR Energy and the General Partner,



39
     Id. ¶ 103.
40
     P’ship Agreement § 15.1(a) (emphasis added).

                                            17
purchased Partnership units at a price of $16.7162. In addition to serving as an

officer of CVR Energy and the General Partner, DeVelasco is featured on the CVR

Energy website as a member of CVR Energy and the General Partner’s “Executive

Team.” DeVelasco’s promotion to her current role required the Partnership and

CVR Energy to file a Form 8-K, an SEC filing required to announce “major events

shareholders should know about.” 41

         The plaintiffs allege that DeVelasco is an “Affiliate” of the General Partner

as defined in Section 1.1 of the Partnership Agreement such that the Call Right price

should have been at least $16.7162.

         E.      This Litigation
         This action consolidated multiple suits filed within the weeks after the CVR

Energy’s exercise of the Call Right. On April 4, 2019, the Court entered an order

appointing co-lead counsel and designating an operative complaint.42              The

Complaint alleges three Counts:

              • Count I for breach of the Partnership Agreement against the
                Partnership, the General Partner, CVR Holdings, and CVR Energy;
              • Count II for breach of the implied covenant of good faith and fair
                dealing embedded in the Partnership Agreement against the
                Partnership, the General Partner, CVR Holdings, and CVR Energy; and
              • Count III for tortious interference with the Partnership Agreement
                against CVR Energy, Icahn Enterprises, and the Individual Defendants.


41
     Compl. ¶ 118.
42
     Dkt. 47, Order Appointing a Leadership Structure.

                                             18
The defendants filed a motion to dismiss on May 31, 2019. 43 The parties fully

briefed the motion by July 18, 2019,44 and the Court heard oral arguments on

July 30, 2019.45

         While the defendants’ motion was pending, Vice Chancellor Laster issued his

decision on a pending motion to dismiss in the case challenging the exercise of the

call right in Boardwalk, Bandera Master Fund LP v. Boardwalk Pipeline Partners,

LP (“Boardwalk”). 46 The parties then submitted supplemental briefing on the effect

of that decision on the pending motion.47

II.      LEGAL ANALYSIS
         The defendants have moved to dismiss the Complaint pursuant to Court of

Chancery Rule 12(b)(6). Under Rule 12(b)(6), the Court may grant a motion to

dismiss if the complaint “fail[s] to state a claim upon which relief can be granted.”48

“[T]he governing pleading standard in Delaware to survive a motion to dismiss is




43
     Dkt. 52, Defs.’ Mot. to Dismiss Verified Class Action Compl.
44
 Defs.’ Opening Br.; Pls.’ Answering Br.; Dkt. 59, Reply Br. in Further Supp. of Defs.’
Mot. to Dismiss (“Defs.’ Reply Br.”).
45
     Dkt. 62, Oral Arg. on Defs.’ Mot. to Dismiss.
46
     2019 WL 4927053 (Del. Ch. Oct. 7, 2019).
47
 Dkt. 64, Lead Pl.’s Supp. Br.; Dkt. 65, Supp. Submission on the Appl. of the Boardwalk
Mem. Op. in Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Supp. Br.”).
48
     Ct. Ch. R. 12(b)(6).

                                             19
reasonable ‘conceivability.’” 49 When considering such a motion, the Court must

“accept all well-pleaded factual allegations in the [c]omplaint as true . . . , draw all

reasonable inferences in favor of the plaintiff, and deny the motion unless the

plaintiff could not recover under any reasonably conceivable set of circumstances

susceptible of proof.” 50       The Court, however, need not “accept conclusory

allegations unsupported by specific facts or . . . draw unreasonable inferences in

favor of the non-moving party.” 51 The defendants seek dismissal of each of the

plaintiffs’ three Counts.

         A.     Breach of the Partnership Agreement
         In Count I, the plaintiffs claim that the Partnership, the General Partner, CVR

Holdings, and CVR Energy breached the Partnership Agreement twice: first in

connection with the Exchange Offer, and second by setting the exercise price of the

Call Right at an amount lower than the price DeVelasco paid. Count I states a claim

upon which relief can be granted.




49
  Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531, 537 (Del.
2011).
50
     Id. at 536 (citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002)).
51
   Price v. E.I. du Pont de Nemours Co., Inc., 26 A.3d 162, 166 (Del. 2011) (citing Clinton
v. Enter. Rent-A-Car Co., 977 A.2d 892, 895 (Del. 2009)).

                                             20
         Principles of contract interpretation govern this analysis. 52 Delaware law

“construe[s] limited partnership agreements in accordance with their terms in order

to give effect to the parties’ intent.”53 This Court “will give priority to the parties’

intentions as reflected in the four corners of the agreement, construing the agreement

as a whole and giving effect to all its provisions.” 54 Words are given “their plain

meaning unless it appears that the parties intended a special meaning.” 55

         If contractual terms are ambiguous, “the interpreting court must look beyond

the language of the contract to ascertain the parties’ intentions.” 56 But “[a] contract

is not ambiguous ‘simply because the parties do not agree upon its proper

construction,’ but only if it is susceptible to two or more reasonable

interpretations.”57 At the motion to dismiss stage, “the trial court cannot choose




52
   6 Del. C. § 17-1101(c) (noting the Delaware Revised Uniform Limited Partnership Act
is intended to give “maximum effect to the principle of freedom of contract and the
enforceability of partnership agreements”).
53
  Allen v. Encore Energy P’rs, L.P., 72 A. 3d 93, 104 (Del. 2013) (citing Norton v. K-Sea
Transp. P’rs L.P., 67 A.3d 354, 360 (Del. 2013)).
54
  In re Viking Pump, Inc., 148 A.3d 633, 648 (Del. 2016) (citing Salamone v. Gorman,
106 A.3d 354, 368 (Del. 2014)).
55
  Encore Energy, 72 A.3d at 104 (citing AT&T Corp. v. Lillis, 953 A.2d 241, 252 (Del.
2008)).
56
   Eagle Indus., Inc. v DeVilbiss Health Care, Inc., 702 A.2d 1228, 1232 n.8 (Del. 1997)
(citing Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1196
(Del. 1992)).
57
     Norton, 67 A.3d at 354 (quoting AT&T, 953 A.2d at 253).

                                            21
between two differing reasonable interpretations of ambiguous provisions.”58

Dismissal is appropriate on a Rule 12(b)(6) motion “only if the defendants’

interpretation is the only reasonable construction as a matter of law.” 59

                 1.    The Exchange Offer
           The defendants argue that dismissal of Count I’s challenge to the Exchange

Offer is warranted because the Exchange Offer was a “voluntary, unitholder-level”

transaction.60 They note that the Partnership Agreement is “wholly silent and

imposes no role or obligation on the General Partner with respect to a tender offer

or an exchange offer,” 61 which is technically true. They observe that unlike mergers,

tender and exchange offers do not require the involvement or consent of a general

partner. From the lack of affirmative contractual obligations specific to an exchange

offer, the defendants deduce that no defendant could have breached the Partnership

Agreement in connection with the Exchange Offer.

           The defendants’ argument ignores that the General Partner took action in

connection with the Exchange Offer. The Board met to discuss the offer. Shortly

thereafter, it determined that the General Partner would not make any


58
  VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 615 (Del. 2003) (citing
Vanderbilt Income & Growth Assocs. v. Arvida/JMB Managers, Inc., 691 A.2d 609, 613
(Del. 1996)).
59
     Id.
60
     Defs.’ Reply Br. at 7.
61
     Id.

                                           22
recommendation to unitholders.          The General Partner then disclosed its non-

recommendation determination as part of Schedule 14D-9 filed on behalf of the

Partnership. 62 The focus is thus not whether the General Partner was contractually

obligated to act, but rather, whether the actions taken by the General Partner

breached the Partnership Agreement.

         As discussed above, the Partnership Agreement imposes different contractual

standards of conduct on the General Partner depending on whether the General

Partner acted in an official capacity. To resolve the current issue, the Court must

first determine whether the General Partner acted in its official capacity.

         The non-recommendation determination was made in the General Partner’s

official capacity. A Schedule 14D-9 is an official document that discloses, among

other things, a statement of a target company’s position concerning a tender offer.63

Thus, the non-recommendation determination disclosed in the Schedule 14D-9 was

the official position of the Partnership concerning the Exchange Offer. The General

Partner acted in its official capacity when the Board deliberated and then made the

non-recommendation determination.

         The disclosure of the non-recommendation determination also constituted an

action by the General Partner in its official capacity.           Section 7.9(c) of the


62
     Compl. ¶¶ 79–80.
63
     17 C.F.R. § 240.14d-9(g); see also Morrison v. Berry, 191 A.3d 268, 272 (Del. 2018).

                                             23
Partnership Agreement provides that the General Partner acts in its official capacity

when “the General Partner exercise[es] its authority as a general partner under this

Agreement, other than when it is ‘acting in its individual capacity.’” 64 For avoidance

of doubt, Section 7.9(c) continues to state that “‘acting in its individual capacity’

means: (A) any action by the General Partners or its Affiliates other than through

the exercise of the General Partner of its authority as a general partner under this

Agreement.” 65 Section 7.1(a) then enumerates specific authority possessed by the

General Partner, which includes the power to make public filings on behalf of the

Partnership. 66 It is therefore reasonably conceivable that by filing the 14D-9 on

behalf of the Partnership, the General Partner exercised its authority under the

Partnership Agreement and thus acted in an official capacity.

         Because the General Partner was acting in an official capacity, the good faith

standard of Section 7.9(a) applies to the non-recommendation determination and

disclosure.      Section 7.9(a) requires the General Partner “not to make such

determinations, or take or omit to take such action, in Bad Faith,” 67 with Bad Faith

defined as the “belief that such determination, action or omission was adverse to the


64
     P’ship Agreement § 7.9(c).
65
     Id. (emphasis added).
66
  Id. § 7.1(a)(ii) (giving the General Partner power over “the making of . . . regulatory and
other filings, or rendering of periodic or other reports to governmental or other agencies
having jurisdiction over the business or assets of the Partnership”).
67
     P’ship Agreement § 7.9(a).

                                             24
Partnership.” 68 This definition implies a subjective standard.69 To plead subjective

bad faith, a plaintiff must plead facts to show that the defendants subjectively

believed that an action was “against the partnership’s best interests” or that the

defendants “failed intentionally to act in the face of a known duty.” 70

           Although “the subjective good faith standard remains distinct from an

objective, ‘reasonable person’ standard,” the objective reasonableness of a

transaction may weigh in the Court’s analysis of whether the defendants subjectively

acted in bad faith. 71 “The directors’ personal knowledge and experience will be

relevant to a subjective good faith determination, which must focus on measuring

the directors’ approval of a transaction against their knowledge of the facts and

circumstances surrounding the transaction.” 72 The Delaware Supreme Court has

explained that it may be “reasonable to infer subjective bad faith . . . when a plaintiff

alleges objective facts indicating that a transaction was not in the best interests of

the partnership and that the directors knew of those facts.”73



68
     Id. § 1.1.
69
  See Encore Energy, 72 A.3d at 104 (“This definition distinguishes between ‘reasonably
believes’ and ‘believes’ and eschews an objective standard when interpreting the
unqualified term ‘believes.’”); Norton, 67 A.3d at 360.
70
     Encore Energy, 72 A.3d at 105.
71
     Id. at 107.
72
     Id.
73
     Id.

                                           25
         When considering whether a transaction is in the “best interests of the

partnership,” the Court generally takes a holistic approach, considering the effects

on the partnership as an entity. 74 This perspective affords a general partner the

“discretion to consider the full range of entity constituencies in addition to the

limited partners, including but not limited to employees, creditors, suppliers,

customers, and the General Partner itself.”75 However, “[a] transaction that is in the

best interests of the Partnership logically should not be ‘highly unfair to the limited

partners,’” 76 particularly where no offsetting benefits to the partnership are

apparent.77

         In this case, it is reasonably conceivable that the Board believed that the

Exchange Offer was adverse to the interests of the limited partners with no offsetting

benefits, and, thus, adverse to the Partnership as a whole.

         It is reasonably conceivable that the Exchange Offer was adverse to the

interests of the limited partners because it triggered speculation about the Call Right,



74
     Norton, 67 A.3d at 367.
75
     Boardwalk, 2019 WL 4927053, at *15.
76
  Dieckman v. Regency GP LP, 2018 WL 1006558, at *4 (Del. Ch. Feb. 20, 2018) (citing
Allen v. El Paso Pipeline GP Co., 113 A.3d 167, 181 (Del. Ch. 2014)).
77
   See Boardwalk, 2019 WL 4927053, at *16 (declining to dismiss when it “is not
intuitively apparent how the Potential-Exercise Disclosure would have had offsetting
positive effects on the Partnership’s business, employees, customers, suppliers, or the
communities in which it operates”); see also Norton, 67 A.3d at 367 (holding that “best
interests of the Partnership,” which included “the general partner and the limited partners”).

                                             26
which “depress[ed] the market price of the common units” 78 and caused an “ongoing

overhang for the Partnership unitholders.”79 As discussed above, these effects raised

concern among analysts, evidenced by questions during the Partnership’s July 2018

earnings call. One analyst asked about the “strategic rationale” for the Exchange

Offer. 80 Another analyst expressed apprehension about the Partnership’s low float

and whether the units would be able to remain in the Alerian MLP index, “the

leading gauge of energy Master Limited Partnerships.”81          Yet another analyst

reported around the same time period that “given the majority shareholder’s right to

force the privatization of the remaining shares anytime . . . , without the need to pay

any premium above their current share prices, we believe [the Partnership] will

remain on the sidelines for any remaining prospective investors.”82          Analysts

continued to identify “privatization risk” as an overhang on the trading price even

after the Partnership announced positive third quarter 2018 results.83

          It is also reasonably conceivable that the Exchange Offer was detrimental to

the Partnership as a whole. After the Exchange Offer, the trading price for common



78
     Compl. ¶ 84.
79
     Id. ¶ 85.
80
     Id. ¶ 87; see supra note 32.
81
     Id. ¶ 88.
82
     Id. ¶ 89.
83
     Id. ¶ 97.

                                           27
units dropped, increasing the Partnership’s cost of equity and, therefore, its cost of

capital. The Partnership expressly acknowledged in its annual report that “[t]o the

extent we are unable to finance our growth externally, the growth in our business,

and our liquidity, may be negatively impacted.” 84 An increased cost of equity

increases the cost of raising external capital needed to finance growth. Thus, the

facts alleged support a reasonably conceivable inference that the Exchange Offer

was adverse to the interests of the Partnership as a whole, not just the remaining

unaffiliated limited partners.

         It is further reasonable to infer that the Board actually knew of these

potentially harmful effects when it made and disclosed the non-recommendation

determination. Obtaining units sufficient to exercise the Call Right was a condition

to the Exchange Offer, as the Board disclosed.85 Thus, the Board was aware that

CVR Energy would be in a position to exercise it after the Exchange Offer. The

Board comprised “savvy and sophisticated parties” within the energy MLP sector,86

and thus it is reasonable to infer that its members were knowledgeable about the

highly publicized events at Boardwalk. As discussed above, analysts and the SEC



84
  CVR Refining, LP, Annual Report (Form 10-K) (Feb. 19, 2019), at 67; see In re Kinder
Morgan Inc. Corp. Reorganization Litig., 2015 WL 4975270, at *8 (Del. Ch. Aug. 20,
2015) (describing concerns related to cost of capital).
85
     Compl. ¶ 69.
86
     Defs.’ Reply Br. at 27.

                                         28
similarly saw the writing on the wall, questioned whether the Exchange Offer was

the first step in a series of transactions that would lead to a Call Right exercise, and

noted their concerns regarding the issue. If non-insiders can deduce the possible

detrimental effects posed by the Exchange Offer, it is reasonably conceivable that

savvy insiders knew what they were doing when they launched it in the first place.

         In sum, the plaintiffs have alleged facts sufficient to show that the Board and

the General Partner knew of the risks to the Partnership associated with the Exchange

Offer. 87     They nevertheless made and disclosed the non-recommendation

determination. These allegations are sufficient to state a breach of contract claim as

to the General Partner.       They are also sufficient to state a claim against the

Partnership, because the General Partner controlled the Partnership and caused it to

issue the no-determination disclosure.88


87
     Encore Energy, 72 A.3d at 107.
88
   See Boardwalk, 2019 WL 4927053, at *21 (remarking that “it is not clear the extent to
which the Partnership could be liable for breach of its Partnership Agreement if the breach
was committed by the General Partner,” but reasoning that “it would be premature to
dismiss the claim for breach of contract against the Partnership when the Partnership was
a party to the operative contract (the Partnership Agreement), when the General Partner
controlled the Partnership and caused it to take actions that are challenged in the case (such
as the issuance of the disclosure), and where a potential remedy may involve the
Partnership”); see also El Paso Pipeline GP Co. v. Brinckerhoff, 152 A.3d 1248, 1265 (Del.
2016) (finding claims were derivative in nature when limited partners alleged that general
partner breached standard of care and thus entity could not be held liable); Gerber v. EPE
Hldgs., LLC, 2013 WL 209658, at *12 (Del. Ch. Jan. 18, 2013) (“Even if [the plaintiff’s]
claims could be viewed as based on the [agreement], in addition to, or apart from,
traditional fiduciary duties, that a claim is based on contract does not necessarily make it a
direct claim.”).

                                             29
       This aspect of Count I does not state a claim against CVR Holdings in

connection with the Exchange Offer. Although CVR Holdings is a party to the

Partnership Agreement, CVR Holdings is not the subject of a single allegation in the

Complaint.89 This aspect of Count I also does not state a claim for breach of contract

against CVR Energy, which was not a party to the Partnership Agreement at the time

of the Exchange Offer and did not become bound by its terms until the General

Partner assigned the Call Right in January 2019.90

              2.     The Exercise Price
       Count I also claims that CVR Energy breached the Partnership Agreement

when it exercised the Call Right at a price lower than what DeVelasco paid. The

defendants respond that DeVelasco is not actually an Affiliate of the General Partner

and that, even if she were, a trust purchased the units.

       Under Section 15.1(a) of the Partnership Agreement, the General Partner must

exercise the Call Right at the “highest price paid by the General Partner or any of its


89
  While it is conceivable that “a party who wishes to have a parent corporation backstop
the obligations of its subsidiary can do so by contract . . . by making the parent a party to
the agreement,” NAMA Hldgs., LLC v. Related WMC LLC, 2014 WL 6436647, at *26 (Del.
Ch. Nov. 17, 2014), the plaintiffs do not pursue this theory or otherwise explain how CVR
Holdings could be held liable.
90
   See P’ship Agreement § 16.3 (providing that the Partnership Agreement “shall be
binding upon and inure to the benefit of the parties hereto and their heirs, executors,
administrators, successors, legal representatives and permitted assigns.”); El Paso
Pipeline, 113 A.3d at 178 (“It is a general principle of contract law that only a party to a
contract may be sued for breach of that contract.” (citing Gotham P’rs, L.P. v. Hallwood
Realty P’rs, L.P., 817 A.2d 160, 172 (Del. 2002))).

                                             30
Affiliates for any such Limited Partner Interest of such class purchased during the

90-day period preceding” the notice of the exercise of the Call Right. 91 The Call

Right was exercised on January 17, 2019.           The preceding 90 days began on

October 19, 2018. DeVelasco purchased units on November 14, 2018, within the

relevant timeframe. The only question is whether the plaintiffs have alleged that

DeVelasco is an Affiliate of the General Partner.

           The Partnership Agreement defines Affiliate as “with respect to any Person,

any other Person that directly or indirectly through one or more intermediaries

Controls, is Controlled by or is under common Control with, the Person in

question.” 92 “Control” is defined as “the possession, direct or indirect, of the power

to direct or cause the direction of the management and policies of a Person, whether

through ownership of voting securities, by contract or otherwise.” 93 The defendants

contend that the plaintiffs have not pled a sufficient factual basis for the Court to

reasonably infer that DeVelasco is covered by the Affiliate clause. 94

           It is reasonably conceivable that DeVelasco’s role as the Vice President of

Environmental, Health, Safety and Security at CVR Energy and the General Partner

affords her the power to direct management and policies at these entities. DeVelasco


91
     P’ship Agreement § 15.1(a).
92
     Id. § 1.1.
93
     Id.
94
     Defs.’ Opening Br. at 38.

                                            31
is held out as an “executive officer” on CVR Energy’s website, in press releases, and

in SEC filings. 95 Federal regulations define an executive officer as a “president, any

vice president of the registrant in charge of a principal business unit, division or

function (such as sales, administration or finance), any other officer who performs a

policy making function or any other person who performs similar policy making

functions for the registrant.”96 The defendants argue that under the Partnership

Agreement, an Affiliate “must have the actual ‘power to direct or cause the direction

of the management and policies.’” 97 But the word “actual” does not appear in the

Partnership Agreement, and the Court will not read in superfluous language.

         The defendants’ proposed interpretation is arguably belied by their own

treatment of DeVelasco in prior SEC filings related to the Call Right.                  In

August 2016, when Icahn Enterprises sold enough units to take advantage of the

lower Call Right condition, it announced that the total holdings of “the General

Partner and its affiliates” had been lowered to 69.99% even though Icahn-controlled

entities only owned 69.8% of the outstanding Partnership common units.98 The delta


95
     Compl. ¶ 118.
96
  17 C.F.R. § 240.3b-7; see In re Good Tech. Corp. S’holder Litig., 2018 WL 3649449, at
*2 (Del. Ch. July 31, 2018) (“[W]hen sophisticated parties in corporate litigation use
[“affiliate” and “associate”], they base their understanding on the widely used definitions
adopted by the federal securities laws.”).
97
  Defs.’ Opening Br. at 38 (emphasis supplied by the defendants) (citing P’ship Agreement
§ 1.1).
98
     Compl. ¶ 49 (emphasis added).

                                            32
was owned by “directors and executive officers of the General Partner,” including

DeVelasco.99

           Events related to this litigation further support the conclusion that DeVelasco

could be considered an Affiliate. Two days after the first complaint challenging the

Call Right Exercise was filed, DeVelasco filed an SEC Form 4 to clarify that the

units she purchased were held by a trust for which she serves as a co-trustee.

Notwithstanding the defendants’ claims that they were correcting an erroneous SEC

filing, it is reasonable to infer from the defendants’ conduct that they were aware

that DeVelasco could be considered an Affiliate and that her purchase would trip

Section 15.1(a).

           The defendants also argue that DeVelasco is not truly the owner of the units

at issue, but this fallback position turns on a factual dispute.           The plaintiffs

adequately plead that DeVelasco “purchased through a dividend reinvestment

236.2019 units of the Partnership” on November 14, 2018.

           In the end, it might be that the definition of “Affiliate” in the Partnership

Agreement sufficiently differs from the other definitions to warrant excluding

DeVelasco. It could also be that DeVelasco did not purchase or own the units. But

for the purpose of this motion, it is reasonably conceivable that DeVelasco was an

Affiliate and purchased the units.

99
     Id.

                                             33
         Accordingly, the plaintiffs have stated a claim against the General Partner for

breaching its contractual obligations to set the exercise price of the Call Right. By

this time, CVR Energy was a party to the Partnership Agreement, and thus the

plaintiffs have also stated a claim against CVR Energy for breach of the Partnership

Agreement.

         This aspect of Count I does not state a claim against the Partnership because

the General Partner did not cause the Partnership to take any action in connection

with the Call Right. Nor does this aspect of Count I state a claim against CVR

Holdings, which is not the subject of a single allegation in the Complaint.100

         B.     Breach of the Implied Covenant
         In Count II, the plaintiffs claim that the Partnership, the General Partner, CVR

Holdings, and CVR Energy breached the implied covenant of good faith and fair

dealing by undermining the price-setting mechanisms contained in the Call Right.101

The plaintiffs have stated a claim upon which relief can be granted.

         In Dieckman, the Delaware Supreme Court articulated the principles

governing the application of the implied covenant in the MLP context as follows:

                The implied covenant is inherent in all contracts and is
                used to infer contract terms “to handle developments or
                contractual gaps that the asserting party pleads neither
                party anticipated.” It applies “when the party asserting the
                implied covenant proves that the other party has acted
100
      See supra note 89 and accompanying text.
101
      Pls.’ Answering Br. at 41–46.

                                            34
                arbitrarily or unreasonably, thereby frustrating the fruits of
                the bargain that the asserting party reasonably expected.”
                The reasonable expectations of the contracting parties are
                assessed at the time of contracting. In a situation like this,
                involving a publicly traded MLP, the pleading-stage
                inquiry focuses on whether, based on a reading of the
                terms of the partnership agreement and considerations of
                the relationship it creates between MLPs investors and
                managers, the express terms of the agreement can be
                reasonably read to imply certain other conditions, or leave
                a gap, that would prescribe certain conduct, because it is
                necessary to vindicate the apparent intentions and
                reasonable expectations of the parties.102

         The implied covenant is a limited remedy 103 whose application is a “cautious

enterprise.”104 Plaintiffs cannot “re-introduce fiduciary review through the backdoor

of the implied covenant.” 105 Nor can they seek to “rebalanc[e] economic interests

after events that could have been anticipated but were not, that later adversely

affected one party to a contract.”106 “[T]he implied covenant ‘does not apply when

the contract addresses the conduct at issue,’ but only ‘when the contract is truly



102
   Dieckman, 155 A.3d at 367 (quoting Nemec v. Shrader, 991 A.2d 1120, 1125, 1126
(Del. 2010)).
103
  Oxbow Carbon & Minerals Hldgs. v. Crestview-Oxbow Acq., LLC, 202 A.3d 482, 507
(Del. 2010) (quoting Nemec, 991 A.2d at 1128).
104
      Nemec, 991 A.2d at 1125.
105
      Lonergan v. EPE Hldgs., LLC, 5 A.3d 1008, 1019 (Del. Ch. 2010).
106
   Boardwalk, 2019 WL 4927053, at *22 (citing Nemec, 991 A.2d at 1128); see also
Winshall v. Viacom Int'l, Inc., 55 A.3d 629, 636–37 (Del. Ch. 2011), aff’d, 76 A.3d 808
(Del. 2013) (The implied covenant “should not be applied to give plaintiffs contractual
protections that ‘they failed to secure for themselves at the bargaining table.’” (quoting
Aspen Advisors LLC v. United Artists Theatre Co., 861 A.2d 1251, 1260 (Del. 2004))).

                                             35
silent’ concerning the matter at hand.”107 “Even where the contract is silent, ‘[a]n

interpreting court cannot use an implied covenant to re-write the agreement between

the parties’” 108 because “express contractual provisions ‘always supersede’ the

implied covenant.”109

            Dieckman is particularly instructive. In that case, two limited partnerships in

the same MLP family sought to merge in a conflicted transaction. 110 The limited

partnership agreement afforded the general partner a safe harbor for conflicted

transactions if the transaction was approved by a fully independent special

committee or by a majority vote of unaffiliated unitholders. 111 To obtain the latter

protection, the general partner distributed a proxy statement describing at length the

planned merger, even though the express terms of the partnership agreement

required a disclosure of only a summary of the merger agreement.112 The lengthy

proxy statement did not disclose, however, that one member of the two-member




107
    Oxbow, 202 A.3d at 507 (first quoting Nationwide Emerging Managers, LLC v.
Northpointe Hldgs. LLC, 112 A.3d 878, 896 (Del. 2015); then quoting Allied Capital Corp.
v. GC-Sun Hldgs., L.P., 910 A.2d 1020, 1033 (Del. Ch. 2006)).
108
      Oxbow, 202 A.3d at 507 (quoting Nationwide, 112 A.3d at 896).
109
   Boardwalk, 2019 WL 4927053, at *22 (citing Gerber v. Enter. Prods. Hldgs., 67 A.3d
400, 419 (Del. 2013)).
110
      Dieckman, 155 A.3d at 360.
111
      Id.
112
      Id. at 365.

                                              36
special committee had “alleged overlapping and shifting allegiances” that might

have called into question his independence.113

            The plaintiffs challenged the transaction, claiming in part that the general

partner “failed to satisfy the [u]naffiliated [u]nitholder [a]pproval safe harbor

because the general partner made false and misleading statements in the proxy

statement to secure that approval.”114          The defendants moved to dismiss the

complaint, claiming that “in the absence of express contractual obligations not to

mislead investors or to unfairly manipulate the . . . process, the general partner need

only satisfy what the partnership agreement expressly required.” 115 Put differently,

the defendants argued that “only the express requirements of the partnership

agreement controlled and displaced any implied obligations not to undermine the

protections afforded unitholders by the safe harbors.”116

            At the trial level, the Court of Chancery granted the motion to dismiss based

on the safe harbor.117 The Court “held that, even though the proxy statement might

have contained materially misleading disclosures, fiduciary duty principles could

not be used to imply disclosure obligations on the general partner beyond those in


113
      Id. at 366.
114
      Id. at 360.
115
      Id.
116
      Id.
117
      Id. at 361.

                                              37
the partnership agreement, because the partnership agreement disclaimed fiduciary

duties.”118 The Court concluded that the general partner had complied with an

express provision in the partnership agreement, which required the general partner

to provide only a summary of the merger agreement.119 The Court explained that

this express provision foreclosed any implied contractual duty to disclose material

facts about the process. 120

            On appeal, the Delaware Supreme Court reversed. The Court reasoned that

although the implied covenant cannot supplant express contractual provisions, the

trial court “focused too narrowly on the partnership agreement’s disclosure

requirements.”121 The Supreme Court instead trained its sights on the safe harbor

provision, which encouraged the general partner to establish procedural mechanisms

designed to protect the minority unitholders in the event of a conflicted transaction:

                 We find that implied in the language of the LP
                 Agreement’s conflict resolution provision is a requirement
                 that the General Partner not act to undermine the
                 protections afforded unitholders in the safe harbor process.
                 Partnership agreement drafters, whether drafting on their
                 own, or sitting across the table in a competitive
                 negotiation, do not include obvious and provocative
                 conditions in an agreement like “the General Partner will
                 not mislead unitholders when seeking Unaffiliated
                 Unitholder Approval” or “the General Partner will not
118
      Id.
119
      Id.
120
      Id.
121
      Id.

                                             38
                subvert the Special Approval process by appointing
                conflicted members to the Conflicts Committee.” But the
                terms are easily implied because “the parties must have
                intended them and have only failed to express them
                because they are too obvious to need expression.” Stated
                another way, “some aspects of the deal are so obvious to
                the participants that they never think, or see no need, to
                address them.” 122

         The Boardwalk decision relied on Dieckman to deny a motion to dismiss a

similar implied covenant claim. After reviewing contractual price protections

similar to those at issue in this case, the Vice Chancellor held that “it is reasonable

to infer at the pleading stage that the parties had a reasonable expectation that the

General Partner would notify unitholders about its exercise of the Call Right in a

manner that would not affect the call price.” 123 In that case, as here, the general

partner disclosed that it was “seriously considering” exercising the call right. 124 In

response to that disclosure, which the Vice Chancellor dubbed the “Potential-

Exercise Disclosure,” Boardwalk’s unit price traded down during the trading




122
   Id. at 368 (first quoting Danby v. Osteopathic Hospital Ass’n of Del., 101 A.2d 308,
313–14 (Del. Ch. 1953), aff’d, 104 A.2d 903 (Del. 1954); and then quoting In re El Paso
Pipeline P’rs, L.P. Deriv. Litig., 2014 WL 2768782, at *16 (Del. Ch. June 12, 2014), rev’d
on other grounds sub nom. El Paso Pipeline GP Co. v. Brinckerhoff, 152 A.3d 1248 (Del.
2016)); see also id. (holding that “[t]he implied covenant is well-suited to imply contractual
terms that are so obvious—like a requirement that the general partner not engage in
misleading or deceptive conduct to obtain safe harbor approvals—that the drafter would
not have needed to include the conditions as express terms in the agreement”).
123
      Boardwalk, 2019 WL 4927053, at *23.
124
      Id.; see Compl. ¶ 5.

                                             39
window relevant to the price-protection mechanism. 125              The Vice Chancellor

concluded that this sequence of events “support[ed] a reasonable inference that the

defendants manufactured a basis to make the Potential-Exercise Disclosure because

they believed doing so would drive down the call price.”126

          Dieckman leads to the same result in this action. In Dieckman, the Supreme

Court focused on the reasonable meaning of the safe harbor protections. In this case,

the plaintiffs focus on the reasonable meaning of contractual provisions designed to

protect minority unitholders—the 90-day Provision and the 20-day Formula. 127 The

90-day Provision prevents minority unitholders from having their units called at a

price below what the General Partner or its Affiliates paid to purchase any units

within the 90 days preceding the exercise date. 128 The 20-day Formula calls for the

price to be “the average of the daily Closing Prices per Partnership Interest of such

class for the 20 consecutive Trading Days immediately prior to such date,” which




125
      Boardwalk, 2019 WL 4927053, at *5.
126
      Id. at *23.
127
   See Dieckman, 155 A.3d at 367 (focusing the implied covenant analysis on the safe
harbor provision and “what its terms reasonably mean”).
128
   P’ship Agreement § 15.1(a) (“the greater of (x) . . . or (y) the highest price paid by the
General Partner or any of its Affiliates for any such Limited Partner Interest of such class
purchased during the 90-day period preceding the date [of the mailing of the Notice of
Election to Purchase].”).

                                             40
appears designed to ensure the exercise of the Call Right at a price unaffected by the

public announcement of the exercise. 129

          In Dieckman, the Supreme Court held that it is reasonably conceivable that

“implied in the language of the LP Agreement’s conflict resolution provision is a

requirement that the General Partner not act to undermine the protections afforded

unitholders in the safe harbor process.” 130 In this case, it is reasonably conceivable

that implied in the language of the Call Right provision is a requirement that the

defendants not act to undermine the protections afforded to unitholders by the price-

protection mechanisms. Just as it would be “obvious” and “provocative” to demand

the inclusion of an express condition that a general partner not subvert a safe harbor

protection through materially misleading disclosures, it would be “obvious” and

“provocative” to demand the inclusion of an express condition that a general partner

and its affiliates not subvert price-protection mechanisms through a multi-step

scheme designed to manipulate the unit price.131

          In Dieckman, the Supreme Court held that the plaintiffs alleged facts to show

that it was reasonably conceivable that certain of the defendants breached the

implied covenant. 132 In this case, the plaintiffs have likewise alleged facts to show


129
      Id.; id. § 1.1 (definition of “Current Market Price”).
130
      Dieckman, 155 A.3d at 360.
131
      Id. at 368.
132
      Id. at 369.

                                                41
that it was reasonably conceivable that certain of the defendants breached the

implied covenant.

         In their primary response to these points, the defendants argue that because

CVR Energy made the allegedly manipulative disclosures, and because CVR Energy

was not a party to the Partnership Agreement at the time, Dieckman and Boardwalk

are distinguishable. This argument would require the Court to reject the reasonable

inference that the defendants carried out the related steps of the transaction as a

coordinated scheme.

         To the contrary, it is reasonably conceivable that the General Partner worked

with CVR Energy to frustrate the Call Right’s price-protection mechanisms. Each

Board member had strong ties to Icahn and Icahn Enterprises, the ultimate controller

of CVR Energy. 133 Half of the Board also served of the board of CVR Energy. One

Board member was CVR Energy’s CEO; others were dependent on different Icahn

entities for employment. Given their status within the industry, it is reasonably

conceivable that the Board followed analyst coverage of the Boardwalk call right in

real time. The first meeting to consider the Exchange Offer occurred only two days

after JP Morgan’s report on the Boardwalk process. The Board’s significant ties to

CVR Energy and Icahn generally, their knowledge of the events at Boardwalk, and

the temporal proximity of the relevant events, together give rise to a reasonably

133
      Icahn Enterprises, L.P. actually controls CVR Energy through its 82% ownership stake.

                                             42
conceivable inference that the General Partner worked with CVR Energy to frustrate

the Call Right’s price protections.

         The defendants further argue that they did not breach the implied covenant

because “CVR Energy may well have been legally required to issue the updated

discovery in November 2018.” 134 The defendants stop short of arguing that CVR

Energy was in fact legally required to disclose that it was “considering” exercising

the Call Right, and thus their argument lacks any real heft at the pleadings stage. At

this stage, it is reasonable to infer the defendants may not have been legally required

to issue the disclosure, and that the disclosure’s sole purpose was to drive down the

trading price of the common units in advance of exercising the Call Right.

         Notwithstanding this analysis, some defendants named in Count II are not

bound by the implied covenant. CVR Energy was not bound by the terms of the

Partnership Agreement at any point in time covered by the plaintiffs’ allegations.

Thus, CVR Energy is dismissed from Count II. CVR Holdings is also dismissed

from Count II because there are no facts pled specific to its role in the scheme.135

The motion to dismiss Count II is denied as to the Partnership for the same reasons

discussed in connection with the Count I Exchange Offer claim. 136



134
      Defs.’ Opening Br. at 47 (emphasis added, original emphasis omitted).
135
      See supra note 89 and accompanying text.
136
      See supra note 88 and accompanying text.

                                             43
         C.     Tortious Interference with Contract
         In Count III, the plaintiffs claim that CVR Energy, Icahn Enterprises, and the

Individual Defendants tortiously interfered with the Partnership Agreement. Such a

claim requires (1) a contract, (2) about which the particular defendant knew, (3) an

intentional act that is a significant factor in causing the breach of such contract, (4)

without justification, and (5) which causes injury. 137 A defendant can be liable for

tortious interference if there is an underlying breach of an express or implied

contractual obligation. 138

         The defendants do not directly dispute that the plaintiffs have adequately pled

each of the five elements. Instead, they assert that there was no underlying breach.139

They alternatively rely on the “stranger rule,” which says that only strangers to a

contract can tortiously interfere with that contract.140 Having found it reasonably

conceivable that certain defendants breached the express and implied terms of the

Partnership Agreement, the Court focuses on the “stranger rule.”




137
   WaveDivision Hldgs., LLC v. Highland Capital Mgmt., L.P., 49 A.3d 1168, 1174
(Del. 2012) (citing Restatement (Second) of Torts § 766 (1979)).
138
  See NAMA Hldgs., LLC v. Related WMC LLC, 2014 WL 6436647, at *25 (Del. Ch.
Nov. 17, 2014).
139
      Defs.’ Opening Br. at 50–51; Defs.’ Reply Br. at 29–30; Defs.’ Supp. Br. at 8.
140
      Defs. Opening Br. at 51–53; Defs.’ Reply Br. at 29–30.

                                              44
         Boardwalk is again instructive. That decision identified doctrinal dissonance

between the stranger rule as applied a handful of times by this Court,141 on the one

hand, and the Restatement’s multi-factor standard adopted by the Delaware Supreme

Court, on the other hand.142

         As Boardwalk explained, the stranger rule was originally imported into

Delaware law in 2007 from jurisdictions that have adopted an “absolute affiliate”

privilege.143 That privilege flows from the premise that “a parent and its wholly

owned subsidiaries constitute a single economic unit” such that “‘interference’ from

a parent in the performance of contractual obligations of its wholly owned

subsidiary, no matter how aggressive, is not actionable.” 144 Wherever possible,

Delaware law tends to steer clear of bright line rules like this, which ignore the

corporate form. 145



141
  See Boardwalk, 2019 WL 4927053, at *27 n.14 (collecting Court of Chancery cases in
which the stranger rule has been applied or cited).
142
   WaveDivision, 49 A.3d at 1174; ASDI, Inc. v. Beard Research, Inc., 11 A.3d 749, 751 (Del.
2010).
143
   Boardwalk, 2019 WL 4927053, at *27 (identifying Tenneco Auto., Inc. v. El Paso Corp.,
2007 WL 92621, at *5 (Del. Ch. Jan. 8, 2007), as the original adopter of the stranger rule,
and explaining that the germ came from a Georgia decision, Atlanta Mkt. Ctr. Mgmt., Co.
v. McLane, 503 S.E.2d 278, 283–84 (Ga. 1998)).
144
      Id. at *27–28 (quoting Shearin v. E.F. Hutton Gp., 652 A.2d 578, 590 (Del. Ch. 1994)).
145
   See, e.g., Pauley Petroleum, Inc. v. Cont’l Oil Co., 231 A.2d 450, 452–54 (Del. Ch.
1967), aff’d, 239 A.2d 629 (Del. 1968); Shearin, 652 A.2d at 590 n.13 (citing Pauley and
concluding that the limited privilege theory “is more consistent with the traditional respect
accorded to the corporate form by Delaware law”).

                                              45
          In fact, when considering the appropriate standard for a claim of tortious

interference, the Delaware Supreme Court adopted the Restatement’s more nuanced,

“limited privilege” approach.146 The Restatement recognizes that parties can take

action that technically interferes with the contracts of others if done in the spirit of

genuine economic competition, and the relevant inquiry is therefore whether the

interference was “improper” or unjustified. 147 Toward that end, the Restatement

establishes a multi-factored balancing test, 148 which considers the “relations between

the parties”149 and “‘the significant economic interests of a parent corporation in its

subsidiary,’ but does so without foreclosing potential liability on the sole basis of

related-party status.”150

          Because the bright-line “absolute privilege” of the stranger rule threatens the

nuanced “limited privilege” approach endorsed by the Delaware Supreme Court, the

Court in Boardwalk concluded that “[i]t would be inconsistent . . . to layer on the




146
      WaveDivision, 49 A.3d at 1174; ASDI, 11 A.3d at 751 (Del. 2010).
147
      Shearin, 652 A.2d at 589.
148
    WaveDivision, 49 A.3d at 1174 (identifying the Restatement factors as “(a) the nature
of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the
actor’s conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social
interests in protecting the freedom of action of the actor and the contractual interests of the
other, (f) the proximity or remoteness of the actor’s conduct to the interference, and (g) the
relations between the parties” (citing Restatement (Second) of Torts § 767)).
149
      Id. (identifying “the relations between the parties” as factor “(g)”).
150
      Boardwalk, 2019 WL 4927053, at *28.

                                                46
stranger rule as an additional element of the analysis.”151 That well-reasoned

conclusion compels the Court to reject CVR Energy and Icahn Enterprises’ stranger-

rule defense.        Further, under the Restatement, justification is a “fact-specific

inquiry,” 152 and the defendants have not offered arguments for why any alleged

interference was justified in this case.

            To be sure, Boardwalk’s discussion of the stranger rule only addressed entity

defendants, and the plaintiffs bring Count III against the Individual Defendants as

well. In Shearin, a case heavily relied upon in Boardwalk, Chancellor Allen left

untouched the reasoning that “‘employees . . . of a contracting corporation cannot be

held personally liable for inducing a breach of contract by their corporations when

they act within their given role.’” 153 This is because “Delaware law adheres to this

general rule of imputation—of holding a corporation liable for the acts and

knowledge of its agents—even when the agent acts fraudulently or causes injury to

third persons through illegal conduct.”154

            There are exceptions to this general rule of imputation, including “when the

corporate agent responsible for the wrongdoing was acting solely to advance his own


151
      Id.
152
      Id. at *29.
153
  OptimisCorp v. Waite, 2015 WL 5147038, at *76 n.602 (Del. Ch. Aug. 26, 2015) (citing
Shearin, 652 A.2d at 590), aff’d, 137 A.3d 970 (Del. 2016).
154
  Stewart v. Wilm. Tr. SP Servs., Inc., 112 A.3d 271, 303 (Del. Ch. 2015), aff’d, 126 A.3d
1115 (Del. 2015).

                                              47
personal financial interest, rather than that of the corporation itself.” 155 “Because

most instances of fraud or illegal misconduct by corporate actors confer at least some

benefit on the corporation, the adverse interest exception may not apply even when

the ‘benefit’ enjoyed by the corporation is outweighed by the long-term damage that

is done when the agent’s mischief comes to light.”156 “Stated differently, ‘an officer

or director may be held personally liable for tortious interference with a contract of

the corporation if, and only if, said director exceeds the scope of his agency in doing

so.’” 157

         The plaintiffs have not alleged that the Individual Defendants exceeded the

scope of their agency in this case. The plaintiffs argue that the directors “signed

fraudulent securities filings . . . , chose not to seek financial advice or to negotiate

the terms of the partial exchange offer,” and made various public, allegedly

misleading announcements regarding the Call Right. 158 All of these acts are within

the purview of the directors of an entity and cannot serve as the basis for an argument

that the Board “exceeded the scope of its agency.” Thus, Count III is dismissed as



155
   In re Am. Int’l Gp., Inc., Consol. Deriv. Litig., 976 A.2d 872, 891 (Del. Ch. 2009), aff’d
sub nom. Teachers’ Ret. Sys. of La. v. Gen. Re Corp., 11 A.3d 228 (Del. 2010).
156
      Stewart, 112 A.3d at 303.
157
   OptimisCorp, 2015 WL 5147038, at *76 n.602 (citing Int’l Ass’n of Heat & Frost
Insulators & Asbestos Workers Local Union 42 v. Absolute Envtl. Servs., Inc., 814 F. Supp.
392, 400 (D. Del. 1993)).
158
      Pls.’ Answering Br. at 48–49.

                                             48
to the directors. However, Icahn served as a director only through the day before

the Exchange Offer closed in July 2018. The plaintiffs’ allegations that Icahn used

his control over the Partnership and General Partner to cause those entities to breach

the express and implied provisions of the Partnership Agreement stretch beyond July

2018. Thus, the motion to dismiss Count III is denied as to Icahn.

III.   CONCLUSION
       The defendants’ motion to dismiss is GRANTED in part and DENIED in part.

The Count I Exchange Offer claim is dismissed as to CVR Energy and CVR

Holdings. The Count I Exercise Price claim is dismissed as to the Partnership and

CVR Holdings. Count II is dismissed as to CVR Energy and CVR Holdings.

Count III is dismissed as to each of the Individual Defendants except Icahn. In all

other respects, the motion to dismiss is denied.




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