                                COURT OF CHANCERY
                                      OF THE
                                STATE OF DELAWARE
MORGAN T. ZURN                                                LEONARD L. WILLIAMS JUSTICE CENTER
VICE CHANCELLOR                                                  500 N. KING STREET, SUITE 11400
                                                                WILMINGTON, DELAWARE 19801-3734


                                       August 7, 2020

    Robert S. Saunders, Esquire                    William M. Lafferty, Esquire
    Edward B. Micheletti, Esquire                  Kevin M. Coen, Esquire
    Skadden, Arps, Slate, Meagher & Flom LLP       Morris, Nichols, Arsht & Tunnell LLP
    One Rodney Square, 920 North King Street       1201 N. Market Street, 16th Floor
    Wilmington, Delaware 19801                     Wilmington, Delaware 19801


         RE: Realogy Holdings Corp., v. SIRVA Worldwide, et al.,
             C.A. No. 2020-0311-MTZ

Dear Counsel:

         Plaintiff Realogy Holdings Corp. (“Realogy” or “Plaintiff”) applied for

certification of an interlocutory appeal from the bench ruling issued July 17, 2020

(the “Bench Ruling”).1 The Bench Ruling dismissed Realogy’s claims for specific

performance because under the governing Purchase and Sale Agreement (“Purchase

Agreement”), the unambiguous contractual conditions on that remedy failed.2 For

the following reasons, I recommend against certifying an interlocutory appeal.




1
    Docket Item (“D.I.”) 78.
2
    D.I. 83 [hereinafter, the “Bench Ruling”].
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           I.   Background

          A. The Parties & Procedural History

          Plaintiff Realogy is a “full-service residential real estate services company,

including brokerage, franchising, relocation, mortgage, and title and settlement

services.”3 Non-party Cartus Corporation (“Cartus”), Realogy’s indirect, wholly-

owned subsidiary, “provides relocation counseling to newly-hired or transferring

employees of large corporations, logistical relocation support, international

assignment compensation services, intercultural and language training, and

consulting solutions.”4

          Defendant SIRVA is a “global relocation and moving service provider,

providing integrated business-to-business mobility solutions for corporations,

government institutions and consumers.”5 SIRVA is a Madison Dearborn Partners,

LLC (“MDP LLC”) portfolio company.6 MDP LLC acquired SIRVA in 2018.7

Defendants Madison Dearborn Capital Partners VII-A, L.P., Madison Dearborn

Capital Partners VII-C, L.P., and Madison Dearborn Capital Partners VII Executive-


3
    D.I. 32 [hereinafter, “Am. Compl.”] ¶ 12.
4
    Am. Compl. ¶ 13.
5
    Id. ¶ 22.
6
    Id. ¶ 24.
7
    Id.
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A, L.P. (collectively, “MDP”) are entities through which MDP LLC conducts

business.8 Defendant North American Van Lines, Inc. (“North American,” and

collectively with SIRVA and MDP, “Defendants”) provides moving services and is

a SIRVA affiliate.9

          Under the November 6, 2019, Purchase Agreement between Realogy and

SIRVA, SIRVA was to purchase all of Cartus’ issued and outstanding shares of

common stock for $400 million.10 MDP provided $125 million in equity financing

and a limited guaranty of a termination fee.11 On December 2, SIRVA and North

American entered into an Assignment and Assumption of Agreement, by which

SIRVA assigned its rights under the Purchase Agreement to North American.12 In

the context of the COVID-19 pandemic, and as the Purchase Agreement’s outside

date neared, the relationship between SIRVA and Realogy fractured.13




8
    Id. ¶ 15.
9
    Id. ¶ 26.
10
     Id. ¶ 9.
11
     Id. ¶¶ 52–53, 94, 99–100,
12
     Id. ¶ 27.
13
     See e.g., Id. ¶¶ 138–141, 148–152.
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          On April 27, 2020, Realogy filed its Verified Complaint for Breach of

Contract (“Original Complaint”).14 The Original Complaint contains the following

counts: (i) breach of contract against SIRVA, seeking specific performance; (ii) in

the alternative, breach of contract against all Defendants, seeking the termination

fee; and (iii) declaratory judgment, seeking, inter alia, declarations that Defendants

breached their obligations under the Purchase Agreement and are not excused from

performing thereunder.15

          The next day, Plaintiff filed a motion to expedite.16 I heard oral argument on

that motion on May 8.17 I granted the motion in part, expediting Defendants’

anticipated motion to dismiss based on the contractual availability of specific

performance to mid-July and expediting trial to November 30 through December 4

of this year.18

          After the hearing on the motion to expedite, on May 17, Plaintiff filed an

Amended Complaint for Breach of Contract (“Amended Complaint”).                     The

Amended Complaint contains the following counts: (i) breach of contract against


14
     D.I. 1 [hereinafter, “Compl.”].
15
     Compl. ¶¶ 92112.
16
     D.I. 2.
17
     D.I. 34 [hereinafter, the “MTE Transcript”].
18
     MTE Transcript at 8082.
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SIRVA seeking specific performance of its reasonable best efforts and “iterative

steps to close”; (ii) breach of contract against SIRVA seeking specific performance

consummating the transaction; (iii) in the alternative, breach of contract against

SIRVA for the termination fee; (iv) declaratory judgment against SIRVA; (v) breach

of the implied covenant of good faith and fair dealing against SIRVA; and (vi) in the

alternative, breach of contract against MDP for the termination fee.19 Notably, the

Amended Complaint did not seek any relief against MDP under the Purchase

Agreement.

         On June 8, Defendants filed an answer to the Amended Complaint and

Verified Counterclaim (“Counterclaim”).20 The next day, Defendants filed a motion

to dismiss Counts I and II of the Amended Complaint (“Motion to Dismiss”).21

Plaintiff answered the Counterclaim on July 10.22 The parties briefed their positions

on the Motion to Dismiss, and I heard argument on July 17. Following argument, I

gave the Bench Ruling granting the Motion to Dismiss Counts I and II. Realogy’s

request for interlocutory appeal followed.



19
     Am. Compl. ¶¶ 185220.
20
     D.I. 44.
21
     D.I. 45.
22
     D.I. 61.
Realogy Holdings Corp., v. SIRVA Worldwide, et al.,
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      B. The Purchase Agreement

      The provisions of the Purchase Agreement most relevant to the Motion to

Dismiss follow.

      In Section 13.8, entitled “Specific Performance and Other Equitable Relief,”

SIRVA and Realogy agreed to several limitations on, and conditions for, obtaining

the remedy of specific performance of the Purchase Agreement.

      (b) Notwithstanding anything to the contrary set forth in this
      Agreement, (i) in no event shall Seller or any of its Representatives
      (including the Acquired Companies prior to the Closing) be entitled to,
      or permitted to seek, specific performance against the Debt Financing
      Sources, except in each case indirectly through the enforcement of
      Buyer’s obligations hereunder, and (ii) Seller shall be entitled to bring
      an Action to specifically enforce Buyer’s obligation to consummate the
      Closing and Buyer’s rights under the Equity Financing Commitments
      to cause the Equity Financing to be funded if (and only if and for so
      long as) (A) all of the conditions set forth in Section 10.1 and Section
      10.2 have been and continue to be satisfied or (to the extent permitted
      by applicable Law) waived (other than those conditions that by their
      terms or nature are to be satisfied at the Closing, each of which shall
      then be capable of being satisfied at the Closing and the date of
      termination) and Buyer fails to consummate the Closing on the date
      required pursuant to the terms of Section 2.3, (B) the proceeds of the
      Debt Financing (or any alternative debt financing) have been funded
      to Buyer or the agent for the Debt Financing Sources under the Debt
      Financing Commitments (or any definitive agreements executed
      pursuant thereto) has irrevocably confirmed in writing to Buyer that
      the Debt Financing will be funded subject only to the funding of the
      Equity Financing, (C) Seller has not terminated this Agreement in
      accordance with Article XI and has irrevocably confirmed to Buyer in
      writing that all of the conditions set forth in Section 10.1 and Section
      10.2 have been and continue to be satisfied or (to the extent permitted
Realogy Holdings Corp., v. SIRVA Worldwide, et al.,
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         by applicable Law) waived (other than those conditions that by their
         terms or nature are to be satisfied by actions to be taken at the Closing,
         each of which shall then be capable of being satisfied at the Closing)
         and that if the Debt Financing and Equity Financing are funded, then
         Seller will consummate the Closing in accordance with the terms of this
         Agreement, and (D) Buyer has failed to consummate the Closing within
         three (3) Business Days after receipt of such irrevocable confirmation.
         For the avoidance of doubt, (a) in no event shall Seller be entitled to
         specifically enforce (or to bring any Action in equity seeking to
         specifically enforce) Buyer’s rights under the Equity Financing
         Commitments to cause the Equity Financing to be funded other than as
         expressly provided in the immediately preceding sentence, and (b) in
         no event shall Seller be entitled to seek to specifically enforce any
         provision of this Agreement or to obtain an injunction or injunctions,
         or to bring any other Action in equity in connection with the
         transactions contemplated by this Agreement, against Buyer other
         than against Buyer and, in such case, only under the circumstances
         expressly set forth in this Section 13.8.23

Thus, Realogy is only entitled to seek specific performance against SIRVA; this

limitation is reinforced by Section 13.16, which states, “This Agreement may be

enforced only against Seller and Buyer.”24 And Realogy may obtain that remedy “if

(and only if and for so long as)” under Section 13.8(b)(ii)(A), all closing conditions

“have been and continue to be satisfied,” and under Section 13.8(b)(ii)(B), the Debt

Financing is funded or “irrevocably confirmed in writing.”25




23
     Am. Compl. Ex. A [hereinafter, the “Purchase Agreement”] § 13.8(b) (emphasis added).
24
     Id. §§ 13.8, 13.16.
25
     Id. §§ 13.8(b)(ii)(A)-(B).
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          Article X sets forth the closing conditions. Under Section 10.2(b), which

Section 13.8(b)(ii)(A) directs must be satisfied for specific performance, the “Seller

shall have performed and complied with, in all material respects, each covenant and

obligation required by this Agreement to be so performed or complied with by Seller

on or before the Closing.”26

          The Purchase Agreement limits the financing SIRVA must seek and provide.

Under Section 6.6(e), “subject in all respects to Article XI and Section 13.8(b),

[Buyer’s] obligations set forth in this Agreement are not contingent or conditioned

upon Buyer’s, its Affiliate’s or any other Person’s ability to obtain financing

(including the Financing or any Alternative Financing) for or in connection with the

Transaction.”27 Section 7.3(c) compels SIRVA to use its reasonable best efforts to

obtain alternative financing if debt financing—but not equity financing—becomes

unavailable.

          If any portion of the Debt Financing becomes unavailable on the terms
          and conditions . . . Buyer shall use its reasonable best efforts to (x)
          arrange and obtain, as promptly as practicable following the occurrence
          of such event, alternative financing from the same or alternative
          sources (the “Alternative Financing”) in an amount sufficient to
          consummate the Transaction with terms and conditions not materially
          less favorable in the aggregate to Buyer than those set forth in the Debt
          Financing Commitments (or replace any unavailable portion of the
26
     Id. § 10.2(b).
27
     Id. § 6.6(e).
Realogy Holdings Corp., v. SIRVA Worldwide, et al.,
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         Financing) and (y) obtain a debt financing commitment letter
         (including any associated fee letter) with respect to such Alternative
         Financing, true, accurate and complete copies of which shall be
         promptly provided to Seller upon execution thereof (which fee letters
         may be redacted with respect to any interest rates, fee amounts, pricing
         caps and other similar economic terms (including flex terms) set forth
         therein). The Alternative Financing (A) shall be sufficient to pay,
         when added to the Equity Financing and the remaining Debt
         Financing (if any), the Required Amount and (B) shall not include
         conditions or contingencies that could reasonably be expected to
         materially impair, delay or prevent or make less likely to occur the
         funding of the Debt Financing (or satisfaction of the conditions to the
         Debt Financing) on the Closing.28

Section 7.3(e) further states,

         Notwithstanding anything contained in this Section 7.3 or anything else
         in this Agreement, in no event shall the reasonable best efforts of Buyer
         be deemed or construed to required Buyer to, and Buyer shall not be
         required to, (x) incur or pay any fees to obtain a waiver or amendment
         of any term of the Debt Financing Commitments or fees (in the
         aggregate) in excess of those contemplated by the Debt Financing
         Commitments as of the date hereof, (y) agree to conditionality or
         economic terms of the Debt Financing Commitments that are less
         favorable than those contemplated by the Debt Financing or related
         fee letter (including any flex provisions therein) as of the date hereof,
         or (z) seek equity financing from a Person other than the Guarantors
         or in an amount in excess of the Equity Financing Commitments as
         of the date hereof.29

         Section 11.3 governs termination of the Purchase Agreement and the

termination fee.


28
     Id. § 7.3(c) (emphasis added).
29
     Id. § 7.3(e) (emphasis added).
Realogy Holdings Corp., v. SIRVA Worldwide, et al.,
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          (a) If this Agreement is terminated (i) by either Seller or Buyer pursuant
          to Section 11.1(a) and all conditions to Closing set forth in Section 10.1
          (other than Section 10.1(a)(i) and other than Section 10.1(b)(to the
          extent arising under Antitrust Laws)) and Section 10.2 are satisfied or
          capable of being satisfied or are waived (other than those conditions
          that by their nature are to be satisfied at the Closing, each of which shall
          be capable of being satisfied at the Closing and the date of termination),
          (ii) by either Seller or Buyer pursuant to Section 11.1(b) and the
          applicable injunction or other order giving rise to such termination right
          arises under Antitrust Laws, or (iii) by Seller pursuant to (x) Section
          11.1(d) or (y) Section 11.1(e), then, in each such case, Buyer shall, no
          later than two (2) Business Days after the date of such termination, pay,
          or cause to be paid, to Seller or its designee an amount equal to thirty
          million dollars ($30,000,000) (the “Termination Fee”) without
          deduction or offset of any kind. Notwithstanding anything to the
          contrary contained in this Agreement, in no event shall Buyer be
          required to pay the Termination Fee on more than one occasion.30

The Limited Guaranty between Realogy and MDP conditionally guarantees the

Termination Fee.31

          Lastly, the Purchase Agreement defines a material adverse event (“MAE”)

and its consequences.32 While this definition plays a role in Plaintiff’s overarching

theory of the case, it does not inform the Motion to Dismiss.




30
     Id. § 11.3.
31
     Am. Compl. Ex. B [hereinafter, the “Limited Guaranty”].
32
     Purchase Agreement § 1.1.
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          C. The Related Agreements

          The Limited Guaranty between Realogy and MDP guarantees the payment of

the Termination Fee if the terms and conditions in Section 11.3 of the Purchase

Agreement are satisfied.33 The Limited Guaranty limits Realogy’s legal recourse

against MDP solely and exclusively to “Retained Claims,” as defined to include

claims for payment of the Termination Fee.34 A claim against MDP to enforce the

Purchase Agreement is a “Non-Retained Claim.”35 While the Limited Guaranty may

terminate upon assertion of a Non-Retained Claim, it permits Realogy to cure that

assertion by dismissing the action within ten business days of receiving a “written

demand for such withdrawal by [SIRVA]” (the “Cure Provision”).36 In this case,

SIRVA never sent Realogy such a written demand because SIRVA believes any

claim against it for the termination fee is not valid.37

          The Equity Financing Commitment Letter (“ECL”) between SIRVA and

MDP establishes that MDP conditionally agreed to purchase up to $125 million of




33
     Limited Guaranty § 1.
34
     Id. § 4.
35
     Id. § 4.
36
     Id. § 6(b).
37
     Bench Ruling at 23–24.
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SIRVA equity to finance the transaction (“Equity Financing”).38 MDP’s funding

obligations terminate “automatically and immediately” upon certain events,

including the filing of an action against MDP for anything other than a Retained

Claim. Section 3 states:

          The obligation of the Investors to fund the Commitment shall, in each
          case, automatically and immediately terminate upon the earliest to
          occur of (a) the Closing. . . (b) the valid termination of the Purchase
          Agreement in accordance with its terms, (c) Seller or any of its
          Representatives asserting, filing or otherwise commencing any Action
          against, any Investor Affiliate (as defined below) relating to this letter
          agreement, the Limited Guaranty (as hereinafter defined), the Purchase
          Agreement, the Debt Financing Commitments or any transaction
          contemplated hereby or thereby other than Retained Claims (as
          defined in, and to the extent permitted under, the Limited Guaranty),
          in each case, subject to all of the terms, conditions and limitations
          herein and therein[.]39

While Realogy is not a party to the ECL, it is explicitly listed as a third-party

beneficiary that can enforce the ECL subject to Section 13.8(b) of the Purchase

Agreement.40 The ECL limits Realogy’s remedies against MDP to those enumerated

in the Limited Guaranty.41


38
     Am. Compl. Ex. C [hereinafter, the “ECL”].
39
     Id. § 3 (emphasis added).
40
     Id. § 7.
41
  Id. § 8 (“Seller’s remedies against the Investors as set forth in Sections 4(c) and 4(d)
under the Limited Guaranty shall, and are intended to, be the sole and exclusive remedy
available to Seller and its Affiliates against the Investors or any of their respective
Affiliates in respect of any liabilities or obligations arising under, or in connection with,
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          Lastly, under the Amended Debt Commitment Letter (“DCL”) between

SIRVA and various lenders, those lenders agreed to fund up to $285 million of the

purchase price (“Debt Financing”).42 The Debt Financing was conditioned on the

Equity Financing.43 The DCL states that “[p]rior to, or substantially concurrently

with,” the funding contemplated by the DCL, “[SIRVA] shall have received the

Equity Contributions.”44 The DCL further provides that the lenders’ obligations to

fund the Debt Financing “automatically terminate … if the initial borrowing

thereunder does not occur on or before 11:59 p.m., New York City time, on the date

that is five business days after the [April 30, 2020] Outside Date[.]”45 The DCL

terminated under that provision on May 7, 2020.

          D. The Timeline of Events

          On April 24, 2020, Realogy sent SIRVA a letter stating that “all of the

conditions set forth in Sections 10.1 and 10.2 of the Purchase Agreement had been

satisfied (with the exception of those conditions that were to be satisfied at closing,



the Purchase Agreement or the Transactions from and after termination of the Purchase
Agreement.”).
42
     Am. Compl. Ex. D [hereinafter, the “DCL”].
43
     Id. ¶ 59.
44
     DCL § 6, Ex. C.
45
     Id. § 10.
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all of which are capable of being satisfied).”46 Realogy also stated “that assuming

the Debt Financing and Equity Financing are funded,” it would “consummate the

Closing on April 29, 2020, the third Business Day following the expiration of the

Marketing Period, in accordance with the terms of the Purchase Agreement.”47

           The same day, Thomas Souleles of MDP LLC called Realogy’s Chief

Executive Officer, Ryan Schneider.48 Schneider was unable to speak at that time

and the two agreed to speak the next morning.49 When they spoke, Souleles

indicated that SIRVA did not agree with Realogy’s April 24 letter, and that SIRVA

did not believe all of the conditions in Sections 10.1 and 10.2 of the Purchase

Agreement had been satisfied.50 SIRVA sought to invoke the Purchase Agreement’s

MAE provision, pointing to the impact of COVID-19 on Cartus’s business.51

SIRVA followed this phone call with a letter claiming the Purchase Agreement’s

MAE provision was triggered because (i) Cartus had been disproportionately




46
     Am. Compl. ¶ 153 (quoting Am. Compl. Ex. E).
47
     Id. ¶ 153 (quoting Am. Compl. Ex. E).
48
     Id. ¶¶ 20, 152, 154.
49
     Id. ¶¶ 152, 154.
50
     Id. ¶ 154.
51
     Id.
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impacted by COVID-1952 and (ii) Realogy will have solvency issues in the future

that will prevent it from performing post-closing obligations.53

         Realogy filed the Original Complaint two days after receiving that letter. The

same day, Realogy released a press release entitled, “Realogy Files Litigation

Against Madison Dearborn Partners and SIRVA Worldwide to Enforce

Commitments Under Purchase Agreement.”54

         On April 28, SIRVA sent Realogy a termination notice stating the Purchase

Agreement was terminated effective immediately.55           SIRVA claimed Realogy

breached the Purchase Agreement by seeking specific performance in the Original

Complaint when the conditions under Section 13.8 had not been satisfied. SIRVA

explained:

         As a result, your filing of the Complaint on April 27, 2020 and the
         allegations made therein constitute a breach (moreover, a Willful
         Breach) of the Purchase Agreement by Seller such that the condition
         set forth in Section 10.2(b) of the Purchase Agreement would not be
         satisfied at the Closing. Moreover, in light of that improper,
         unpermitted filing coupled with your accompanying press release and
         the incalculable harm to SIRVA caused by the many false statements
         contained therein, such failure is incapable of being cured.56

52
     Id. ¶ 156.
53
     Id. ¶ 157.
54
     D.I. 46 at 13, Ex. 5.
55
     Am. Compl. ¶ 166.
56
     Id. Ex. G.
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SIRVA terminated the Purchase Agreement pursuant to Section 11.1(c), which

permits the buyer to terminate the Agreement if “Seller has breached or failed to

comply with any of its obligations under this Agreement such that the condition set

forth in Section 10.2(b) would not be satisfied at the Closing.”57

         April 30 was the Purchase Agreement’s Outside Closing Date.58 On that day,

Realogy sent SIRVA a letter claiming the termination notice was invalid.59 On May

1, SIRVA sent Realogy a supplemental termination notice60 stating that since the

Outside Closing Date had passed, SIRVA was also terminating the Purchase

Agreement under Section 11.1(a).61          This notice once again alleged Realogy

breached the Purchase Agreement by asserting a Non-Retained Claim against

MDP.62




57
     Purchase Agreement § 11.1(c).
58
     Id. § 11.1(a).
59
     Am. Compl. ¶ 168.
60
     Id. ¶ 169, Ex. I.
61
  Purchase Agreement § 11.1 (“This Agreement may be terminated at any time prior to
the Closing: (a) by either Seller or Buyer at or after 11:59 p.m. Eastern Time, on April 30,
2020 (as may be extended pursuant to the immediately following proviso, the “Outside
Date”) unless the Closing has occurred on or prior to the Outside Date. . .”).
62
     Am. Compl. ¶ 169.
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           On May 7, the Debt Financing expired by its own terms.63

           E. The Bench Ruling

           I heard argument on the Motion to Dismiss on July 17. Following argument,

I entered the Bench Ruling granting the Motion to Dismiss. The Bench Ruling

adopted Defendants’ reasoning as presented at oral argument, with two exceptions.64

First, I did not “reach the abstract or doctrinal boundaries of the prevention doctrine

because I believe that Realogy, and not SIRVA, caused the conditions to fail by

filing the Non-Retained Claims.”65 Second, I elaborated upon Section 13.8’s timing

provisions:




63
    DCL at 15 (“This Commitment Letter and the commitments hereunder shall
automatically terminate in the event that (a) in respect of the Incremental Credit Facilities,
if the initial borrowing thereunder does not occur on or before 11:59 p.m., New York City
time, on the date that is five business days after the Outside Date (as defined in the Purchase
Agreement as in effect on the Original Commitment Letter Date, including any extension
of the Outside Date pursuant to the provisio of Section 11.1(a)) thereof (as in effect on the
Original Commitment Letter Date)…”); see also MTE Transcript at 79.
64
     Bench Ruling at 98–99.
65
     Id.
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           I agree with SIRVA’s interpretation of the language “for so long as”
           and its interpretation of the clause “for the avoidance of doubt”
           regarding obtaining an injunction. Reading the provision as Realogy
           suggests would read out the contractual consequences of filing a Non-
           Retained Claim, which I believe would be an absurd result. And more
           globally, reading Section 13.8 to have the narrow window of time that
           Realogy suggests would lead us to the fundamental quandary we
           discussed at the motion to expedite of ordering specific performance
           without the contractually requisite equity financing.66

           The remainder of Defendants’ presentation’s “exposition, explanation, and

reasoning aligned with what I would write in a written opinion.” 67 The Motion to

Dismiss “turns entirely on the plain text of Section 13.8(b) of the [P]urchase

[A]greement, Realogy’s [Original Complaint], and the [ECL]. . . It has nothing to

do with the MAE issues in the case.”68           Dismissal here “is a matter-of-law

determination for the Court based on an unambiguous contract provision and the

direct contractual consequences of what Realogy alleged and requested in its

[Original Complaint].”69

           Section 13.8(b)(ii)(B) precludes specific performance of the Purchase

Agreement because the proceeds of the Debt Financing have not been funded or



66
     Id. at 99.
67
     Id. at 98.
68
     Id. at 4.
69
     Id.
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irrevocably confirmed in writing to Buyer.70 The Debt Financing failed because

Realogy’s Original Complaint terminated the Equity Financing; the Debt Financing

also expired under the DCL’s own terms on May 7th.71

          Realogy asks for leniency in characterizing the Original Complaint, but to

overlook Realogy’s filing would be to “eliminate and change direct contract rights

for [MDP] regarding its obligation to fund the equity, when that obligation, quote,

‘automatically and immediately’ terminated with [the Original Complaint].”72 The

Original Complaint defined “Defendants” as SIRVA and MDP.73 Count III of the

Original Complaint set forth six requests for declaratory judgment.74 The first

request seeks a declaration that “Defendants have breached their obligations under

the Purchase Agreement;” the fifth request seeks a declaration that “SIRVA has no

right to terminate the Purchase Agreement;” and the sixth seeks a declaration that

“the Defendants are not excused from performing their obligations under the

Purchase Agreement.”75 The first and sixth requests thus seek declarations against


70
     Id. at 10–11.
71
     Id. at 11.
72
     Id. 14–15.
73
     Compl. at 1.
74
     Id. ¶ 112.
75
     Id.; Bench Ruling at 15–16.
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MDP under the Purchase Agreement. Additionally, Realogy’s prayer for relief asks

the Court to declare that “SIRVA has no valid basis to terminate the Purchase

Agreement, the Defendants are not excused from performing their obligations under

the Purchase Agreement, and that the Defendants committed material breaches of

the Purchase Agreement.”76 The Original Complaint’s “declaration and requested

relief asking . . . that MDP committed material breaches of the purchase agreement

[is] not a [R]etained [C]laim”77 as defined by the Limited Guaranty.

         Under the ECL, filing a Non-Retained Claim against MDP via the Original

Complaint had immediate consequences. The ECL states that MDP’s equity funding

obligation “automatically and immediately terminate[s]” if and when “Seller or any

of its Representatives assert[s], fil[es] or otherwise commenc[es] any Action against,

any Investor Affiliate (as defined below) relating to this letter agreement, the

Limited Guaranty (as hereinafter defined), the Purchase Agreement, the Debt

Financing Commitments or any transaction contemplated hereby or thereby other




76
     Bench Ruling at 16–17; Compl. at 44–45.
77
     Bench Ruling at 19; see also ECL § 3.
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than Retained Claims.”78 Realogy’s allegations and requested relief against MDP

automatically and immediately terminated the Equity Financing.79

         Under the unambiguous terms of the ECL, DCL, and Purchase Agreement,

the Equity Financing’s termination cascades into precluding specific performance.

“Realogy itself acknowledges . . . that the lenders’ obligations under the [DCL] [are]

subject to the condition that SIRVA receives a $125 million equity commitment

from MDP.”80 The Debt Financing was conditioned on the Equity Financing, which

terminated; and the Debt Financing would have expired on May 7 in any event.

Without the Equity and Debt Financing, the conditions required for specific

performance under Section 13.8(b)(ii)(B) can never be met.

         Realogy’s arguments were peripheral to the core contractual terms. Four

arguments persist in its request for interlocutory appeal. First, it argued it did not

intend to sue MDP under the Purchase Agreement; rather, it simply committed a few

scrivener’s errors by asserting Purchase Agreement claims against “Defendants.”




78
     ECL § 3; see also Bench Ruling at 19.
79
     Bench Ruling at 22–23; see also ECL § 3.
80
     Bench Ruling at 23 (citing Am. Compl. ¶ 59).
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The governing agreements are blind to Realogy’s intent.81 And Realogy’s press

release precludes a forgiving conclusion that Realogy made a typo.

          [Realogy] meant it because they issued a press release on the very same
          moment that they filed it, doubling down on exactly what they say is a
          typographical error. The headline to their press release, issued to the
          media, put out on a website, says, ‘Realogy Files Litigation Against
          Madison Dearborn Partners And SIRVA Worldwide To Enforce
          Commitments Under Purchase Agreement.’ That’s their headline. And
          in the body of the press release it said exactly what it now tells the Court
          was a scrivener’s error. It said, quote, ‘MDP and SIRVA,’ leading again
          with MDP, ‘have made false claims in an attempt to avoid their
          obligations under the purchase agreement.’ And they vowed that they
          will, quote, ‘pursue all legal remedies to ensure that SIRVA and MDP
          honor the commitments made under the purchase agreement.’82

Realogy failed to reconcile its purported scrivener’s errors with its press release.83

Realogy’s Original Complaint comprised a Non-Retained Claim against MDP.84




81
   Id. at 16, 89 (“We think it’s crystal-clear from the April 27 complaint. They can say it’s
a scrivener’s error, they can say they really didn’t mean it, notwithstanding their -- the fact
that they flip back and forth from SIRVA in their press release. Their intent doesn’t matter.
If they filed it, it blew up the equity.”).
82
   Id. at 17 (quoting D.I. 46 Ex. 5). I took judicial notice of Realogy’s press release
announcing the filing of this litigation. See In re Duke Energy Corp. Deriv. Litig., 2016
WL 4543788, at *4 n.34 (Del. Ch. Aug. 31, 2016) (taking judicial notice of a corporate
press release); see also Jimenez v. Palacios, 2019 WL 3526479, at *2 n.3 (Del. Ch. Aug.
2, 2019), as revised (Aug. 12, 2019), aff'd, Jimenez v. Palacios, 2020 WL 4207625 (Del.
July 22, 2020) (taking judicial notice of government press statements and releases).
83
     Bench Ruling at 18.
84
     See id. at 22.
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           Second, Realogy argued that the ECL’s incorporation of the definition of

Retained Claims “as defined in, and to the extent permitted under, the Limited

Guaranty”85 pulls the Limited Guaranty’s Cure Provision into the ECL, such that

Realogy’s amended complaint should obviate its filing of a Non-Retained Claim.

But “[t]he notion of a cure provision is directly contrary and inconsistent with the

automatic and immediate termination language in the ECL.”86 The ECL “doesn’t

have a cure provision:”87         instead, it provides for “automatic and immediate

termination” upon the filing of a Non-Retained Claim.88

           The language Realogy cites does not support incorporation.89 The ECL

addresses “Retained Claims (as defined in, and to the extent permitted under, the

Limited Guaranty), in each case, subject to all of the terms, conditions and

limitations herein and therein.”90 This language incorporates only the Limited

Guaranty’s definition, not the Cure Provision. It does not permit Realogy to file

Non-Retained Claims against MDP, and then invoke the Cure Provision from the


85
     ECL § 3.
86
     Bench Ruling at 20–21; see also id. at 90–92.
87
     Id. at 20.
88
     Id.
89
     Id. at 21–22.
90
     ECL § 3 (emphasis added).
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Limited Guaranty to eliminate the ECL’s plain consequence of automatic and

immediate termination.91 Realogy’s attempt to incorporate the Cure Provision of the

Limited Guaranty into the ECL fails.

         Third, Realogy argued that the Equity and Debt Financing failed because

SIRVA claimed a MAE in a last-minute ambush a few days prior to closing.92 But,

under the ECL’s plain terms, the Equity Financing automatically and immediately

terminated upon filing of the Original Complaint.93

         [W]hen Realogy filed these nonretained claims against MDP, they did
         that on their own, and they blew up the equity and they blew up -- which
         then blew up the debt. And nothing [SIRVA] did caused or prevented
         that from happening. No action [SIRVA] took dictated Realogy’s
         choice of litigation strategy, deciding who to sue for what. There’s no
         line to be drawn, none, between SIRVA sending Realogy a letter about
         concerns of the deal on April 25th and Realogy’s choice to sue Madison
         Dearborn Partners to enforce the purchase agreement on April 27th.
         They promised that they’d never do that ever under any circumstances,
         and they did. They didn’t even have to sue MDP at all. They didn’t have
         to, but they did and they chose that, and that filing had automatic and
         immediate consequences.94




91
     Bench Ruling at 22.
92
     Am. Compl. ¶¶ 158, 160-162, 184.
93
     Bench Ruling at 7.
94
     Id. at 27–28.
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Realogy’s filing of the Non-Retained Claim, not SIRVA’s purported “last-minute

ambush,” terminated the Equity Financing, which caused a condition of the Debt

Financing to fail, as well as the conditions to specific performance.

           Finally, Realogy argued that the Purchase Agreement’s reasonable best efforts

provisions require SIRVA to perform its financing obligations.95 Realogy misreads

the Purchase Agreement. SIRVA is required to use its reasonable best efforts to

arrange and obtain Alternative Financing only in an amount “sufficient to pay . . .

when added to the Equity Financing and the remaining Debt Financing . . . the

Required Amount[.]”96 Because Realogy filed a Non-Retained Claim, “[t]he equity

financing is now gone forever. . . [s]o there’s nothing for alternative financing to be

additive to.”97 Additionally, under Section 7.3(e), SIRVA is not obligated to obtain

new equity financing.98 The “whole notion of alternative financing. . . blew up when

[Realogy] blew up [the] equity. Once [Realogy] filed [a Non-Retained Claim]


95
   In a footnote, Realogy also hints that SIRVA should not be aligned with MDP in this
action because Section 7.3(d) of the Purchase Agreement required SIRVA to use its
reasonable best efforts, including through litigation, to maintain the ECL in effect. D.I. 78
at 14 n.5. But the terms of the ECL itself terminated the Equity Financing automatically
and immediately. Maintaining the ECL in effect is incongruous with overlooking its plain
termination requirements.
96
     Bench Ruling at 25 (citing Purchase Agreement § 7.3(c)(A)).
97
     Id.
98
     Id. (citing Purchase Agreement § 7.3(e)).
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against MDP, that eliminated the equity to the deal, and that equity is a condition of

the debt.”99 In the absence of Equity Financing, SIRVA has no obligation to seek

Alternative Financing.

           II.    Analysis

          Supreme Court Rule 42(b)(i) provides that “[n]o interlocutory appeal will be

certified by the trial court or accepted by [the Supreme] Court unless the order of the

trial court decides a substantial issue of material importance that merits appellate

review before a final judgment.”100 “Interlocutory appeals should be exceptional,

not routine, because they disrupt the normal procession of litigation, cause delay,

and can threaten to exhaust scarce party and judicial resources.” 101 Under Supreme

Court Rule 42(b)(iii), this Court’s analysis should include whether:

           (A) The interlocutory order involves a question of law resolved for the
           first time in this State; (B) The decisions of the trial courts are
           conflicting upon the question of law; (C) The question of law relates to
           the constitutionality, construction, or application of a statute of this
           State, which has not been, but should be, settled by this Court in
           advance of an appeal from a final order; (D) The interlocutory order has
           sustained the controverted jurisdiction of the trial court; (E) The
           interlocutory order has reversed or set aside a prior decision of the trial
           court, a jury, or an administrative agency from which an appeal was
           taken to the trial court which had decided a significant issue and a

99
     Id. at 26.
100
      Supr. Ct. R. 42(b)(i).
101
      Supr. Ct. R. 42(b)(ii).
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           review of the interlocutory order may terminate the litigation,
           substantially reduce further litigation, or otherwise serve considerations
           of justice; (F) The interlocutory order has vacated or opened a judgment
           of the trial court; (G) Review of the interlocutory order may terminate
           the litigation; or (H) Review of the interlocutory order may serve
           considerations of justice.102

After considering the Supreme Court Rule 42(b)(iii) factors and the Court’s “own

assessment of the most efficient and just schedule to resolve the case,” the Court

“should identify whether and why the likely benefits of interlocutory review

outweigh the probable costs, such that interlocutory review is in the interests of

justice. If the balance is uncertain, the trial court should refuse to certify the

interlocutory appeal.”103

          Here, the Bench Ruling does not present any substantial issue of material

importance to merit appellate review before a final judgment. “As a general matter,

issues of contract interpretation are not worthy of interlocutory appeal.”104 The

Motion to Dismiss required me to interpret the unambiguous provisions of the

Purchase Agreement and related agreements. In dismissing Counts I and II, I

determined that Realogy’s assertion of a Non-Retained Claim in the Original


102
      Supr. Ct. R. 42(b)(iii).
103
      Supr. Ct. R. 42(b)(iii).
104
  REJV5 AWH Orlando, LLC v. AWH Orlando Member, LLC, 2018 WL 1109650, at *3
(Del. Ch. Feb. 28, 2018).
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Complaint triggered a series of events culminating in the failure of unambiguous

contractual conditions required for specific performance under the Purchase

Agreement. Standard contract interpretation issues are not suited for interlocutory

appeal.105 As a “mere contract dispute,” that should “end it there.”106 On the

threshold requirement of a substantial issue of material importance, alone, I

recommend against Plaintiff’s application.

       For completeness, I also consider the factors set forth in Supreme Court Rule

42(b)(iii). These factors reinforce my recommendation. Plaintiff addresses only

Supreme Court Rule 42(b)(iii)(A), (B), and (H) as favoring its application. None of

the factors Plaintiff addresses, nor the five others, support an interlocutory appeal.

My analysis follows by factor.

       A.     The appeal does not involve a question of law resolved for the first time


105
    See Lexington Ins. Co. v. Almah LLC, 167 A.3d 499 (Del. 2016) (TABLE) (denying
interlocutory appeal upon noting the “dispute turn[s] on issues of contract
interpretation”); Robino–Bay Court Plaza, LLC v. West Willow–Bay Court, LLC, 941 A.2d
1019 (Del. 2007) (TABLE) (declining to grant interlocutory appeal of this court's
construction of the operative contract); McKnight v. USAA Cas. Ins. Co., 872 A.2d 959
(Del. 2005) (TABLE) (declining interlocutory appeal where “the trial court applied well-
established principles of contract interpretation and thus the case did not involve a matter
of first impression”); Renco Gp., Inc. v. MacAndrews AMG Hldgs. LLC, 2015 WL
1830476, at *2 n.3 (Del. Ch. Apr. 20, 2015) (“The Court's contract interpretation, even if
wrong, would not seem to warrant interlocutory appeal.”).
106
   Steadfast Ins. Co. v. DBi Servs., LLC, 2019 WL 3337127, at *2 (Del. Super. July 25,
2019) (denying application for interlocutory review).
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         in Delaware. The dismissal was based on straightforward interpretations of

         contractual terms and Realogy’s Original Complaint. Realogy argues that no

         “authority supports the notion that even the slightest pleading imprecision can

         cause the avalanche of dire consequences”107 seen here, but this argument

         misconstrues the issues. Realogy’s plain breach of unambiguous contractual

         language pushed over the first domino in a series of contractual consequences.

         Additionally, while Realogy argues that its theory incorporating the Cure

         Provision into the ECL makes this case unique, that argument further

         demonstrates that this is a straightforward contract interpretation case.108

         When, a “trial court applie[s] well-established principles of contract

         interpretation,” “the case [does] not involve a matter of first impression.”109

         This factor weighs against certifying the interlocutory appeal.

         B.      Trial court decisions do not conflict on the substance of the Bench

         Ruling. Plaintiff has not identified any Delaware decision to the contrary.

         The Bench Ruling did not address or rely on Delaware’s pleading standards.

         It traced the direct and immediate contractual consequences of Realogy’s


107
      D.I. 78 ¶ 22.
108
      D.I. 78 ¶ 23.
109
      McKnight v. USAA Cas. Ins. Co., 872 A.2d 959 (Del. 2005) (Table).
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          Original Complaint. Hexion Specialty Chemicals, Inc. v. Huntsman Corp.

          does not conflict with the Bench Ruling.110 In Hexion, the financing had not

          terminated and thus, the transaction could still be consummated.111 But under

          the governing merger agreement, even if all “conditions precedent to closing

          [we]re met, Hexion [would] remain free to choose to refuse to close.”112

          Because the seller had agreed to forego specific performance, the Court

          ordered Hexion “to specifically perform its obligations under the merger

          agreement, other than the obligation to close.”113 This order placed the parties

          in the same situation on closing day as they would have been if all parties had

          performed and satisfied all of the closing conditions. In Hexion, as here, the

          Court considered the seller’s request for specific performance “to the extent



110
      965 A.2d 715 (Del. Ch. 2008).
111
   See id. at 758 (“Thus, if the other conditions to closing are met, Hexion will be obligated
to call upon the lending banks to perform on their funding obligations. In that circumstance,
the banks will then have to choose whether to fund on the basis of the solvency letter
delivered by Huntsman or, instead, reject that letter as unsatisfactory and refuse to fund. If
the lending banks refuse to fund, they will, of course, be opening themselves to the potential
for litigation, including a claim for damages for breach of contract.”).
112
      Id. at 761.
113
   Id. at 761–62 (“The issues in this case relate principally to the cost of the merger and
whether the financing structure Apollo and Hexion arranged in July 2007 is adequate to
close the deal and fund the operations of the combined enterprise. The order the court is
today issuing will afford the parties the opportunity to resolve those issues in an orderly
and sensible fashion.”).
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          permitted by the merger agreement itself.”114

                 But here, SIRVA’s reasonable best efforts to obtain Alternative

          Financing would not and could not lead to closing because Alternative

          Financing alone, without Equity Financing, will not satisfy conditions to

          closing or to specific performance.          The immediate and automatic

          consequences of filing a Non-Retained Claim cannot be undone. SIRVA and

          Realogy cannot possibly be placed in the same situation on closing day as they

          would have been if all parties had performed and satisfied all of the closing

          conditions.

                 Plaintiff also takes issue with the form of the Bench Ruling. In

          resolving a straightforward, but multifaceted, contractual issue, I strove to

          maintain this Court’s commitment to meaningful expedition even during a

          pandemic. I did so by leveraging, and distinguishing, Defendants’ counsel’s

          accurate, organized, and measured explanation.115 I believe the Bench Ruling

          “ma[d]e a record to show what factors [I] considered and the reasons for [my]


114
      Id. at 722, 760.
115
    Compare Ball v. Div. of Child Support Enf’t, 780 A.2d 1101, 1104 (Del. 2001) (rejecting
a trial court order that adopted a brief in fourteen words without comment); B.E.T., Inc. v.
Bd. of Adjustment of Sussex Cty., 499 A.2d 811, 811 (Del. 1985) (rejecting a trial court
order adopting, without further explanation, a brief “in those portions which are appropriate
to adopt”).
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       decision.”116 Based on the nuances of Realogy’s application, it appears

       Realogy understands those factors and reasons. For my part, I do not believe

       the Bench Ruling’s form alone warrants interlocutory appeal, particularly

       where the substance does not.

       C.     The question of law does not relate to the constitutionality,

       construction, or application of a statute of this State, which has not been, but

       should be, settled by the Supreme Court in advance of an appeal from a final

       order, and Plaintiff identifies none. This factor weighs against certifying the

       interlocutory appeal.

       D.     The Bench Ruling does not sustain the controverted jurisdiction of the

       trial court, and Plaintiff does not argue that it does.117 This factor weighs

       against certifying the interlocutory appeal.

       E.     The Bench Ruling does not reverse or set aside a prior decision of the



116
   See B.E.T., Inc., 499 A.2d at 811 (quoting Storey v. Camper, 401 A.2d 458, 466 (Del.
1979); accord, Ball, 780 A.2d at 1104; see also B.E.T., Inc., 499 A.2d at 811 (citing
Ademski v. Ruth, 229 A.2d 837, 838 n.1 (Del. 1967)) (“[a] judge may state [her] reasons
briefly”).
117
    Since I have determined the equitable claims for specific performance fail, the only
remaining issues are legal in nature, and “either party may elect to transfer this matter back
to an appropriate court [i.e. Superior Court].” Draper v. Westwood Development Partners,
LLC, 2010 WL 2432896, at *5 (Del. Ch. June 3, 2010).
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      trial court, a jury, or an administrative agency from which an appeal was taken

      to the trial court which had decided a significant issue and review of the

      interlocutory order will not terminate the litigation, substantially reduce

      further litigation, or otherwise serve considerations of justice. Plaintiff does

      not address this factor. This factor weighs against certifying the interlocutory

      appeal.

      F.    The Bench Ruling does not vacate or open a judgment of the trial court.

      Plaintiff does not address this factor. This factor weighs against certifying the

      interlocutory appeal.

      G.    Review of the Bench Ruling will not terminate the litigation. The Bench

      Ruling disposes of two counts seeking specific performance, but does not

      address the remaining four counts in the Amended Complaint and six counts

      in the Counterclaim still pending in this litigation. An interlocutory appeal

      would not terminate the litigation. This element weighs against certifying the

      interlocutory appeal.

      H.    Considerations of justice will not be served by an interlocutory appeal.

      Contrary to Realogy’s argument, I did not apply a “hyper-technical pleading
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            standard” in the midst of a pandemic.118 I applied well-established principles

            of contractual interpretation to an unambiguous contract.

                  Further, Realogy now claims it needs immediate review of the Bench

            Ruling to avoid injustice from the passage of time.119 But, in opposing the

            Motion to Dismiss, Realogy argued that the Court should “defer consideration

            and determination” of the specific performance issues until after trial to allow

            discovery on liability.120 Realogy’s new desire for speed rings hollow. The

            potential efficiencies or benefits of an interlocutory appeal do not outweigh

            the costs.

Considering all of the factors under Supreme Court Rule 42(b)(iii), I believe the

balance weighs against certifying the interlocutory appeal. I recommend against

certification.




118
      D.I. 78 ¶ 33.
119
      Id.
120
      D.I. 57 at 28.
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      III. Conclusion

       For the following reasons, I recommend against Plaintiff’s application for

certification of an interlocutory appeal. To the extent an order is required to

implement this decision, IT IS SO ORDERED.

                                                    Sincerely,

                                                    /s/ Morgan T. Zurn

                                                    Vice Chancellor



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