     IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

GARY D. VOIGT, Individually and on Behalf      )
of All Others Similarly Situated and           )
Derivatively on Behalf of Nominal Defendant    )
NCI BUILDING SYSTEMS, INC.,                    )
                                               )
            Plaintiff,                         )
                                               )
       v.                                      )   C.A. No. 2018-0828-JTL
                                               )
JAMES S. METCALF, DONALD R. RILEY,             )
NATHAN K. SLEEPER, WILLIAM R.                  )
VANARSDALE, JONATHAN L. ZREBIEC,               )
KATHLEEN J. AFFELDT, JAMES G.                  )
BERGES, LAWRENCE J. KREMER,                    )
GEORGE MARTINEZ, GEORGE L. BALL,               )
GARY L. FORBES, JOHN J. HOLLAND,               )
CLAYTON, DUBILIER & RICE FUND VIII,            )
L.P., and CLAYTON, DUBILIER & RICE,            )
LLC,                                           )
                                               )
            Defendants,                        )
                                               )
      and                                      )
                                               )
NCI BUILDING SYSTEMS, INC., a Delaware         )
corporation,                                   )
                                               )
            Nominal Defendant.                 )

                           MEMORANDUM OPINION

                         Date Submitted: November 12, 2019
                          Date Decided: February 10, 2020
Peter B. Andrews, Craig J. Springer, David M. Sborz, ANDREWS & SPRINGER LLC,
Wilmington, Delaware; Jeremy S. Friedman, David F.E. Tejtel, FRIEDMAN OSTER &
TEJTEL PLLC, Bedford Hills, New York; D. Seamus Kaskela, KASKELA LAW LLC,
Newtown Square, Pennsylvania; Counsel for Plaintiff.

Gregory P. Williams, Brock E. Czeschin, RICHARDS, LAYTON & FINGER, P.A.,
Wilmington, Delaware; Rachelle Silverberg, Caitlin A. Donovan, Drew C. Harris,
WACHTELL, LIPTON, ROSEN & KATZ, New York, New York; Counsel for
Defendants James S. Metcalf, Donald R. Riley, Kathleen J. Affeldt, Lawrence J. Kremer,
George Martinez, George L. Ball, Gary L. Forbes, and John J. Holland and Nominal
Defendant NCI Building Systems, Inc.

David J. Teklits, Thomas P. Will, MORRIS, NICHOLS, ARSHT & TUNNELL, LLP,
Wilmington, Delaware; Shannon Rose Selden, Susan R. Gittes, Zachary H. Saltzman,
DEBEVOISE & PLIMPTON LLP, New York, New York; Counsel for Defendants
Clayton, Dubilier & Rice, Fund VIII, L.P., Clayton, Dubilier & Rice, LLC, Nathan K.
Sleeper, William R. VanArsdale, Jonathan L. Zrebiec, and James G. Berges.

LASTER, V.C.
       The plaintiff owns common stock in NCI Building Systems, Inc. (the “Company”),

a publicly traded Delaware corporation. The plaintiff alleges that the private equity firm

known as Clayton, Dubilier & Rice (“CD&R”) controls the Company, citing indicia that

include CD&R’s control over 34.8% of its voting power, the presence of four CD&R

insiders on the Company’s twelve-member board of directors (the “Board”), relationships

of varying significance with another four directors, and a stockholders agreement that gives

CD&R contractual veto rights over a wide range of actions that the Board could otherwise

take unilaterally.

       In July 2018, the Company acquired Ply Gem Parent, LLC (“New Ply Gem”). The

acquisition was structured as a direct merger of New Ply Gem with and into the Company.

As a result of the merger, the equity interests in New Ply Gem were converted into

sufficient shares to result in the Company’s post-transaction equity being split equally

between the former owners of the two pre-transaction entities. This merger is the

transaction that the plaintiff challenges in this litigation (the “Challenged Transaction”).

       Just three months before the Challenged Transaction, CD&R created New Ply Gem

by completing a leveraged buyout of its publicly traded predecessor, Ply Gem Holdings,

Inc. (“Old Ply Gem”), then combining Old Ply Gem with a portfolio company owned by

Golden Gate Capital (the “Precedent Transaction”). After the Precedent Transaction,

CD&R owned 70% of New Ply Gem and had the right to appoint a majority of its directors.

       In Counts I and II of the currently operative complaint, the plaintiff asserts that

CD&R and the members of the Board breached their fiduciary duties in connection with

the Challenged Transaction. The plaintiff maintains that because CD&R controlled both

                                              1
the Company and New Ply Gem, the defendants must establish that the Challenged

Transaction was entirely fair. According to the plaintiff, it is reasonably conceivable that

the Challenged Transaction was not entirely fair, because when negotiating the deal,

CD&R insisted on terms that valued the equity of New Ply Gem at nearly $1.236 billion.

Yet just three months earlier, when completing the Precedent Transaction, CD&R and

Golden Gate agreed that the value of New Ply Gem’s equity was $638 million. As the

plaintiff sees it, the Company paid CD&R and Golden Gate a 94% premium, amounting to

a $600 million windfall, for their three-month investment. The plaintiff contends that the

Challenged Transaction also benefitted CD&R because New Ply Gem was highly

leveraged, and through the Challenged Transaction, the Company took on New Ply Gem’s

debt. In Count III of the complaint, the plaintiff contends that CD&R was unjustly enriched

by the Challenged Transaction.

       The defendants moved to dismiss the complaint for failing to state a claim on which

relief can be granted. They maintain that the plaintiff has not plead facts sufficient to

support a reasonable inference that CD&R controlled the Company. As a result, they

contend that either the traditional business judgment rule applies or, under Corwin v. KKR

Financial Holdings LLC, 125 A.3d 304 (Del. 2014), an irrebutable version of the business

judgment rule governs. Either would result in dismissal. Seven of the individual defendants

argue that even if the transaction is subject to review for entire fairness, they should be

dismissed because they have been granted exculpation. Four argue that they should be

dismissed because they abstained from voting on the Challenged Transaction. The



                                             2
defendants further argue that Count III of the complaint fails to state a claim for unjust

enrichment.

       This decision largely denies the motions to dismiss. At the pleading stage, it is

reasonably conceivable that CD&R controlled the Company, subjecting the Challenged

Transaction to review under the entire fairness standard. The valuation gap between the

Challenged Transaction and the Precedent Transaction is sufficiently large, and the

temporal gap sufficiently short, to support a pleading-stage inference of unfairness. Counts

I and II therefore state claims for breach of fiduciary duty.

       Four of the seven individual defendants who rely on exculpation are entitled to

dismissal. As to the other three, it is reasonably conceivable that they may have acted to

serve CD&R’s interests, giving rise to a non-exculpable claim. The four individual

defendants who rely on abstention are not entitled to dismissal at this stage.

       The motion to dismiss Count III is also denied. Although the claim for unjust

enrichment is likely duplicative, the plaintiff is entitled to plead in the alternative.

                           I.      FACTUAL BACKGROUND

       The facts are drawn from the currently operative complaint and, by agreement of

the parties, documents that the plaintiff obtained using Section 220 of the Delaware

General Corporation Law, 8 Del. C. § 220. Citations in the form “Ex. — at — ” refer to

these documents, which the defendants attached as exhibits to their briefs. See Dkts. 48–

56, 69. At this stage of the proceedings, the complaint’s allegations are assumed to be true,

and the plaintiff receives the benefit of all reasonable inferences, including inferences

drawn from documents.

                                               3
A.     CD&R Acquires Control Of The Company.

       The Company manufactures metal products for the North American commercial

building industry. During the Great Recession, the Company became financially distressed.

       In October 2009, CD&R acquired control of the Company by causing Clayton,

Dubilier & Rice Fund VIII, L.P. (“Fund VIII”) to purchase 250,000 shares of a newly

created series of convertible preferred stock. Among other rights, the shares carried 68.4%

of the Company’s voting power.1

       As part of the October 2009 transaction, all but three of the incumbent members of

the Board resigned. The three incumbent directors who remained were Norman C.

Chambers, the Company’s CEO, and Gary L. Forbes and George Martinez, both outside

directors. As part of the transaction, the incumbent directors appointed to the Board three

individuals designated by CD&R: Nathan K. Sleeper and James G. Berges, both CD&R

partners, and Lawrence J. Kremer, an individual with longstanding ties to CD&R.

       Later that month, the Board appointed two additional directors designated by

CD&R: Jonathan Zrebiec, another CD&R partner, and Kathleen Affeldt, another

individual with longstanding ties to CD&R. In an information statement dated October 30,

2009, the Company disclosed that with CD&R’s five designees on the Board, “the CD&R




       1
         Clayton, Dubilier & Rice LLC (the “CD&R Investment Advisor”) acts as the
investment advisor for Fund VIII. It is reasonable to infer at this stage that within the
CD&R private equity complex, Fund VIII and the CD&R Investment Advisor are, at a
minimum, affiliates and under the common control of CD&R’s principals. For simplicity,
this decision refers generally to CD&R.

                                            4
Funds will have the ability, subject to the fiduciary duties of the individual directors, to

control the decisions of the Board.” Ex. 2 at 3. The Company thus regarded Affeldt and

Kremer as directors who, subject to their fiduciary duties, were subject to CD&R’s control.

All five of the original CD&R designees continued to serve on the Board throughout the

events giving rise to this litigation.

       In connection with the October 2009 investment, CD&R and its affiliates entered

into a stockholders agreement with the Company. See Ex. 4 (“Stockholders Agreement” or

“SA”). The information statement described it as giving CD&R “substantial governance

rights.” Ex. 2 at 3.

       Among other things, the Stockholders Agreement gave CD&R certain ongoing

rights with respect to the composition of the Board:

              As long as CD&R held 10% or more of the Company’s voting power, CD&R
               could designate a number of “Investor Directors” proportionate to its voting
               interest, rounded to the nearest whole number. SA § 3.1(b)(i).

              As long as CD&R held 20% or more of the Company’s voting power, CD&R
               could designate one of the Investor Directors as either the Board’s “Lead
               Director” or the Chairman of the Executive Committee. Id. § 3.1(b)(v).

              CD&R was entitled to representation on committees proportionate to its
               voting interest, including having at least one CD&R designee on each
               committee on the Board, except if CD&R or the designee would be in a
               conflict position on a special committee. Id. § 3.1(d).

       The Stockholders Agreement also granted CD&R contractual consent rights over a

wide range of significant corporate and finance matters, including decisions that the Board

otherwise would be able to take without needing any stockholder-level approvals. The

decisions included:


                                             5
             Acquiring or divesting assets worth more than 10% of the Company’s total
              asset value. Id. §§ 6.1(a)(i) & (ii).

             Granting stock options exceeding $5 million in a single year. Id. §
              6.1(a)(iii).

             Redeeming more than $10 million in stock. Id. § 6.1(a)(iv).

             Declaring dividends. Id. § 6.1(a)(v).

             Guaranteeing debt exceeding $35 million. Id. § 6.1(a)(vi).

             Engaging in a material new business. Id. § 6.1(a)(vii).

             Adopting a plan of complete or partial liquidation. Id. § 6.1(a)(viii).

             Increasing the number of directors on the Board. Id. § 6.1(a)(ix).

             Amending the bylaws. Id. § 6.1(a)(x).

             Issuing additional stock. Id. § 6.1(b).

CD&R retains its veto over issuances of additional stock as long as it owns shares carrying

20% or more of the Company’s voting power. Id. CD&R retains the other rights as long as

it owns shares carrying 25% or more of the Company’s voting power. Id. § 6.1(a).

       The Stockholders Agreement also contained counterbalancing provisions. As long

as stockholders unaffiliated with CD&R held at least 5% of the Company’s outstanding

voting power, then the Stockholders Agreement designated at least three seats on the Board

for individuals who were not Investor Directors. One seat was reserved for the Company’s

CEO. The other two seats were reserved for “Unaffiliated Shareholder Directors.” See id.

§ 3.1(c)(i). Without CD&R’s consent, there could not be more than two Unaffiliated

Shareholder Directors on the Board. See id.




                                              6
       The Unaffiliated Shareholder Directors had to be “Independent Directors,” defined

in simplified terms as an individual who would qualify as independent under the New York

Stock Exchange rules without giving consideration to the individual’s service on any board

of a CD&R portfolio company. See id. at 8-9. They also had to be “Independent Non-

Investor Directors,” i.e. Independent Directors whom CD&R had not designated. Id. §

3.1(c)(i); see id. at 9. If CD&R designated any Independent Directors, then they were

defined as “Investor Independent Directors.” See id. at 9.

       Initially, Forbes and Martinez were the Unaffiliated Shareholder Directors. The

Stockholders Agreement called for the Unaffiliated Shareholder Directors to nominate

their successors and fill any vacancies in their seats. See id. §§ 3.1(c)(ii) & (iii). In any

election for Unaffiliated Shareholder Directors, CD&R committed to vote its shares for the

Unaffiliated Shareholder Directors proportionately with the votes of the unaffiliated shares.

See id. § 3.1(c)(iv). CD&R also committed that no Unaffiliated Shareholder Director would

be removed except by the affirmative vote of unaffiliated shareholders holding 80% of the

unaffiliated voting power. To implement this protection, CD&R committed to vote against

removal unless holders of unaffiliated shares representing 80% of the unaffiliated voting

power voted in favor of removal, in which case CD&R would vote its shares

proportionately with the unaffiliated holders. See id. § 3.1(c)(v). In the Stockholders

Agreement, the parties agreed that each committee of the Board would have at least one

Unaffiliated Shareholder Director as a member. See id. § 3.1(d).

       If CD&R’s ownership stake fell below 50%, then CD&R undertook additional

voting commitments:

                                             7
                CD&R would cause its shares to be present in person or by proxy at all
                 meetings of stockholders for purposes of establishing a quorum.

                CD&R would vote in favor of all candidates nominated by the Board.

                CD&R would vote as recommended by the Board on any proposals relating
                 to compensation or equity incentives for directors, officers, or employees,
                 subject to CD&R’s ability to exercise its contractual consent rights as
                 applicable.

                On any issue where CD&R had a contractual consent right, CD&R would
                 vote its shares as recommended by the Board only if the recommendation
                 was consistent with CD&R’s exercise of its consent right. In other words,
                 CD&R could vote its shares as it wished.

See id. § 3.2.

       The Stockholders Agreement contained a standstill agreement limiting CD&R’s

ability to buy additional shares of the Company, but it expired in 2012. From that point on,

the Stockholders Agreement did not impose any limitations on CD&R’s ability to purchase

shares. See id. § 3.3.

B.     The Expanded Board

       After CD&R’s investment, additional directors joined the Board. In November

2009, John J. Holland joined as an Independent Non-Investor Director. In February 2014,

George Ball joined as an Independent Non-Investor Director. The five original CD&R

appointees (Sleeper, Berges, Zrebiec, Affeldt, and Kremer) and the two original

Unaffiliated Shareholder Directors (Forbes and Martinez) continued to serve.

       In 2016, CD&R started reducing its holdings in the Company. By the end of 2016,

its equity stake stood at 42%.

       During 2017, there were additional changes in the Board. In April 2017, CD&R

added William VanArsdale, an operating advisor who provides consulting services to
                                               8
CD&R and its funds, as an Investor Director. In May 2017, James Metcalf joined as an

Independent Non-Investor Director.

       The seat on the Board reserved for the CEO passed to Donald Riley. The Company

hired Riley as a senior executive in December 2014, while CD&R held an outright majority

interest in the Company. In July 2017, the Board named Riley as CEO, appointed him to

the Board, and made him a member of the Executive Committee.

       In December 2017, CD&R again sold shares in a secondary offering. By the end of

the year, its stake had declined to 34.7%.

       In late 2016, after CD&R’s holdings dropped below 50%, the Board began to

consider strategic alternatives. During 2017, the Company contacted several potential

transaction partners, but received only one indication of interest. The valuation was not

attractive, and the process ended.

C.     Old Ply Gem And Atrium Conduct Sale Process.

       Meanwhile, during late 2016, Old Ply Gem had started exploring strategic

alternatives as well. Old Ply Gem was a leading North American manufacturer of products

for the residential building industry whose shares traded on the New York Stock Exchange.

       Throughout 2017, Old Ply Gem fielded numerous inquiries, including from CD&R.

Old Ply Gem conducted a competitive process, and CD&R’s bid prevailed. On January 31,

2018, CD&R and Old Ply Gem announced that CD&R would pay $21.64 per share to

acquire Old Ply Gem in a leveraged buyout. The merger consideration reflected a premium

of approximately 20% over Old Ply Gem’s closing stock price on the day before the

announcement. To fund the acquisition, Clayton, Dubilier & Rice Fund X, L.P. (“Fund X”)

                                             9
contributed equity of $425.2 million, and Old Ply Gem borrowed approximately $2,453.7

million in debt.2

       On the same day that it announced its acquisition of Old Ply Gem, CD&R also

announced that it had entered into an agreement to combine Old Ply Gem with Atrium

Windows & Doors, Inc. (“Atrium”), a portfolio company owned by Golden Gate Capital.

New Ply Gem would emerge as the surviving company.

       On April 12, 2018, CD&R both acquired Old Ply Gem and combined it with Atrium

to form New Ply Gem, thereby completing the Precedent Transaction. When negotiating

the Precedent Transaction, CD&R and Golden Gate agreed to value Old Ply Gem’s equity

at $425.2 million and Atrium’s equity at $212.8 million, resulting in an agreed-upon equity

value for New Ply Gem of $638 million. After the Precedent Transaction, CD&R owned

70% of New Ply Gem’s equity and had the right to appoint a majority of its directors.

       New Ply Gem assumed Atrium’s debt of $610.6 million. When combined with Old

Ply Gem’s existing borrowings, New Ply Gem carried approximately $3 billion in debt.

D.     The Company Expresses Interest In New Ply Gem.

       On January 1, 2018, Metcalf took over as Chairman of the Board. On February 27,

Metcalf and Riley told their fellow directors that a merger between the Company and New




       2
         The CD&R Investment Advisor is the investment advisor for Fund X. It is
reasonable to infer at this stage that within the CD&R private equity complex, Fund VIII,
Fund X, and the CD&R Investment Advisor are, at a minimum, affiliates and under the
common control of CD&R’s principals. For simplicity, this decision continues to refer
generally to CD&R.

                                            10
Ply Gem—i.e., the Challenged Transaction—was the Company’s “most promising

potential opportunity.” Ex. 1 at 48. Metcalf and Riley made this statement just one month

after CD&R had announced its intent to complete the Precedent Transaction.

      On April 24, 2018, less than two weeks after the Precedent Transaction closed,

Metcalf and Riley met with CD&R to discuss a merger between the Company and New

Ply Gem. The CD&R delegation included Sleeper, Berges, and Zrebiec, the three CD&R

partners who served on the Board. During the meeting, Metcalf and Riley gave a

presentation about a business combination between the Company and New Ply Gem and

told CD&R that the Company was hiring a financial advisor to explore a potential deal.

See Compl. ¶ 73.

E.    The Committee

      During a meeting of the Board on May 1, 2018, the directors discussed a potential

combination between the Company and New Ply Gem. The four CD&R representatives on

the Board participated in the discussion. VanArsdale remained present for the entire

meeting. Sleeper, Zrebiec, and Berges remained present for the majority of the meeting.

The Board reached a “consensus . . . that a merger with Ply Gem was the most promising

potential opportunity” for the Company. Ex. 8 at 2.

      During the May 1 meeting, the Board created a special committee (the

“Committee”) to review and evaluate the Challenged Transaction. The Board did not

empower the Committee to look at other possible transactions. The Board did give the

Committee the power to veto the Challenged Transaction, resolving that the Board “will

not recommend, authorize, approve or otherwise endorse, effect or cause or allow to be

                                           11
effected a Potential Transaction unless such transaction has been recommended to the

Board by the Special Committee.” Ex. 8 at 4.

      The Committee had five members: Ball, Forbes, Holland, Martinez, and Metcalf.

The resolutions gave the Committee the power to retain financial and legal advisors, but

Metcalf and Company management had gotten out in front of the Committee on that issue.

During the May 1 meeting, the Company’s Chief Financial Officer, Mark E. Johnson,

reported that at Metcalf’s request, he had already contacted Evercore Inc. about acting as

the Committee’s financial advisor. He explained that he had also discussed with Evercore

the personnel who would lead the engagement. Johnson represented that Evercore had no

conflicts of interest vis-à-vis CD&R or New Ply Gem. Ex. 8 at 2. At the time, Evercore

was working as a restructuring advisor for another CD&R portfolio company.

      On May 3, 2018, the Committee convened for the first time. The Committee

resolved to retain Evercore as its financial advisor. The Committee also chose to use the

Company’s existing outside counsel, Wachtell, Lipton, Rosen & Katz, as its legal advisor.

F.    Evercore’s Initial Valuation

      On May 10, 2018, Evercore contacted CD&R to obtain information about New Ply

Gem. During a meeting on May 14, Evercore gave the Committee its initial impressions.

Evercore recommended using Company common stock as an acquisition currency and

advised that the Company’s stockholders should end up owning approximately two-thirds

of the combined entity, with New Ply Gem’s stockholders owning the rest. This outcome

would be achieved by exchanging New Ply Gem’s equity for Company shares worth

approximately $638 million.

                                           12
      In reaching these recommendations, Evercore valued New Ply Gem’s equity using

the amounts that CD&R and Golden Gate had negotiated when agreeing to the Precedent

Transaction. Evercore observed that the relative valuations for the Precedent Transaction

were struck at multiples in line with public peers, and Evercore used the same approach

when analyzing the Challenged Transaction. Evercore explained that this approach was

arguably generous to New Ply Gem, because its peer company multiples had declined since

the announcement of the Precedent Transaction, and there was likely not another strategic

buyer for New Ply Gem. Evercore also noted that combining the Company with New Ply

Gem would benefit CD&R and Golden Gate by de-leveraging New Ply Gem’s post-buyout

capital structure. Under Evercore’s analysis, CD&R and Golden Gate would not receive a

premium for immediately flipping New Ply Gem to another CD&R portfolio company.

G.    The Negotiations

      The Committee instructed Evercore to engage in valuation discussions with CD&R.

On May 17, 2018, Evercore met with Sleeper and Zrebiec. They pushed Evercore to value

New Ply Gem’s equity at $1.26 billion, a 97.5% premium to the value established by the

Precedent Transaction.

      On May 21, 2018, the Committee met to decide whether it should proceed with

negotiations. Evercore reported that CD&R had proposed a valuation for New Ply Gem

that was approximately “$600mm higher than the combined transaction value” from the

Precedent Transaction. Ex. 16 at 18. Evercore then presented a wide range of possible ways

to look at the possible combination and the relative contributions of the two companies.



                                           13
See id. at 19–33. Riley provided the Committee with a management presentation that

supported the Challenged Transaction. Compl. ¶ 85.

       The next day, the full Board met. Sleeper gave a presentation in which he argued

that the equity of the combined company should be allocated so that the Company’s

stockholders received 49% to 50% and New Ply Gem’s stockholders received 50% to 52%.

To justify this split, Sleeper cited:

       [New] Ply Gem’s improved operating outlook and 2019 projected
       performance as well as the value that was expected to be created from
       synergies that were being generated from the [Precedent Transaction]; the
       value created by the flexible, attractive long-term capital structure that
       CD&R implemented at [New] Ply Gem in connection with [the Precedent
       Transaction] which could remain in place on favorable terms following a
       transaction with the Company; the likelihood that the greater scale, scope and
       growth prospects of [New] Ply Gem, given the [Precedent Transaction],
       would have the potential to increase the combined company’s cash-earnings-
       per share multiple; that the combined company would be an industry leader,
       and a better platform for growth, including inorganic growth through mergers
       and acquisitions.

Ex. 18 at 7–8. Sleeper asserted that the Challenged Transaction was also good for the

Company’s stockholders because it was “highly unlikely” that the Company could “find

another well-positioned business of scale” and that “[t]his is realistically the only window

for [the Company] and [New Ply Gem] to come together.” Compl. ¶ 88.

       After the Board adjourned, the Committee met, and its members decided to engage

in negotiations with CD&R. The Committee also discussed that “should the proposed

merger be . . . completed, . . . Metcalf should serve as the chief executive officer of the

combined company,” an issue discussed at the earlier Board meeting. Compl. ¶ 87 (internal

quotation marks omitted); see Ex. 13 at 3.


                                             14
       By May 31, 2018, the Committee and CD&R had agreed to an ownership split in

which the Company’s stockholders would receive 53% of the post-transaction equity and

New Ply Gem’s stockholders would receive 47%. The split valued New Ply Gem’s equity

at $1.154 billion, an 81% premium over the value established by the Precedent Transaction.

       Over the next two weeks, the Committee and CD&R devoted significant resources

to negotiating a new stockholders agreement that would impose “voting and transfer

restrictions and limitations[] intended to restrict the ability of [CD&R] to control [the

Company]” after the Challenged Transaction. Ex. 1 at 49; accord Ex. 1 at 52. The new

stockholders’ agreement preserves CD&R’s consent rights but prevents CD&R from

acquiring a majority of the Company’s equity or from electing more directors than one less

than half the Board. See Ex. 31 §§ 3.3(a)(i), 6.1.

H.     Approval Of The Challenged Transaction

       Towards the end of the negotiations, the Committee asked CD&R to condition the

Challenged Transaction on a majority-of-the-minority vote. CD&R rejected that term.

       During a meeting on July 17, 2018, Evercore opined that terms of the Challenged

Transaction were fair from a financial point of view to the Company and its stockholders.

At that point, the negotiated equity split implicitly valued New Ply Gem’s equity at $1.236

billion, a 94% premium over the value established by the Precedent Transaction just three

months before. The Committee resolved to recommend the transaction to the Board. Later

that day, the Board approved it. Ex. 30.

       The Company announced the Challenged Transaction and noted that Metcalf would

become Chairman and CEO of the combined entity. After the announcement, the

                                             15
Company’s stock price plummeted. By July 24, 2018, it had fallen 24% to $15.75 per share.

On January 10, it closed at $7.80 per share, a 62% decline. Analysts questioned the

valuation and the strategic rationale. See Compl. ¶¶ 106–07.

      The Company’s stockholders approved the Challenged Transaction during a

meeting on November 15, 2018. In advance of the meeting, the Company disseminated a

proxy statement in which the Board recommended that stockholders vote in favor of the

Challenged Transaction. Ex. 1 (the “Proxy Statement”).

      On the record date for the meeting, there were 66,203,841 shares of Company

common stock that were issued and outstanding. Of those shares, 64.6% (or 42,747,820

shares) were held by stockholders unaffiliated with CD&R or the Company’s officers and

directors. Of the unaffiliated shares, 55% (or 23,662,900 shares) voted in favor of the

Challenged Transaction. On November 16, 2018, the Challenged Transaction closed.

I.    This Litigation

      On November 14, 2018, the plaintiff filed this lawsuit. Before filing suit, the

plaintiff used Section 220 of the Delaware General Corporation Law, 8 Del. C. § 220, to

obtain books and records. The books and records appear to have consisted of the formal

Board and Committee-level documents relating to the Challenged Transaction, such as the

minutes of meetings, agendas for meetings, and presentations made during meetings. The

plaintiff does not appear to have had access to internal communications or documents from

CD&R.

      The currently operative Complaint spans seventy-two pages and contains 162

numbered paragraphs. It contains three counts:

                                           16
             Count I asserts a claim for breach of fiduciary duty against CD&R in its
              capacity as the Company’s controlling stockholder. The specific CD&R
              parties named as defendants for purposes of this claim are Fund VIII and the
              CD&R Investment Advisor. The count is plead both as a direct claim and as
              a derivative claim.

             Count II asserts a claim for breach of fiduciary duty against the “Director
              Defendants.” The complaint elsewhere defines this term to include Metcalf,
              Riley, Sleeper, VanArsdale, Zrebiec, Affeldt, Berges, Kremer, Martinez,
              Ball, Forbes, and Holland. This count is plead both as a direct claim and as a
              derivative claim.

             Count III asserts a claim for unjust enrichment against CD&R. This count is
              plead in the alternative as a means of reaching Fund VIII and the CD&R
              Investment Advisor in the event Count I falls short.

       The defendants moved to dismiss the Complaint. For purposes of briefing their

motions, the defendants organized themselves differently. Fund VIII, the CD&R

Investment Advisor, Sleeper, Berges, Zrebiec, and VanArsdale (collectively, the “CD&R

Defendants”) filed one set of briefs. The other directors (collectively, the “Company

Defendants”) filed a second set of briefs.

                              II.      LEGAL ANALYSIS

       The defendants have moved to dismiss the complaint under Rule 12(b)(6) for failing

to state a claim on which relief can be granted. When considering such a motion the court

(i) accepts as true all well-pleaded factual allegations in the complaint, (ii) credits vague

allegations if they give the opposing party notice of the claim, and (iii) draws all reasonable

inferences in favor of the plaintiffs. Central Mortg. Co. v. Morgan Stanley Mortg. Capital

Hldgs. LLC, 27 A.3d 531, 535 (Del. 2011). When applying this standard, dismissal is




                                              17
inappropriate “unless the plaintiff would not be entitled to recover under any reasonably

conceivable set of circumstances.” Id.3

       When briefing the motions to dismiss, the defendants attached and relied on sixty-

three exhibits. Many were materials that the Company produced in response to the Section

220 demand, which the parties agreed would be incorporated by reference in any eventual

complaint. See Ex. 36 ¶ 14. Relying on these documents, the defendants asked the court to

draw inferences in their favor, treating the motion to dismiss as if the court could weigh

evidence and make findings of fact. Examples include the following:

             “The pleadings and documents before this Court on a motion to dismiss
              confirm that the [Challenged] Transaction was the culmination of a
              thoughtful and proper process . . . .” Dkt. 45 at 2.

             “After careful investigation during 2017 and early 2018, [the directors]
              identified a new possibility: the combination with [New] Ply Gem that
              Plaintiff now seeks to challenge.” Id. at 3.




       3
          The defendants also moved to dismiss the complaint pursuant to Rule 23.1 for
failing to make demand or plead demand futility, but they invested so little in those
arguments that they can be regarded as waived. The Company Defendants simply said that
“[f]or the same reasons set forth above in Point I.C, plaintiff has failed to” show demand
futility. Dkt. 47 at 59. The CD&R Defendants devoted two sentences to their Rule 23.1
argument. Dkt. 45 at 51–52. For their demand futility argument, they relied on the
Company Defendants’ brief. See id. at 48-49 (“All of the derivative claims fail for the
reasons set forth in detail in the [Company] brief – beginning with the threshold failure to
properly plead that demand was excused as futile such that Plaintiff has standing to assert
these claims.”). Because the defendants did not meaningfully argue demand futility, this
decision does not reach the parties’ debate over whether the claims are derivative, direct,
or dual-natured. Assuming for the sake of argument that the claims are derivative, the
plaintiffs can assert them because the defendants have not made meaningful arguments
under Rule 23.1.

                                            18
             “The Board and [Company] management carefully examined the Company’s
              strategic options, including but not limited to a potential [t]ransaction with
              [New] Ply Gem, with the assistance of Bain Consulting.” Id.

             “Once it became clear that the analysis supported pursuing the [Challenged]
              Transaction with [New] Ply Gem, the NCI Board – with the endorsement of
              CD&R and CD&R-affiliated directors – immediately implemented the
              processes required by Delaware law so that the Board could evaluate the
              potential [t]ransaction free from the influence of CD&R.” Id. at 4.

             “The Special Committee drove a hard bargain.” Id.

             The Committee’s initial discussions “elicited a favorable offer from [New]
              Ply Gem under which each company would contribute 50% of the equity,
              that is, a 50/50% sharing ratio.” Id. at 5.

             “After robust negotiations, the parties ultimately agreed on a 53/47% sharing
              ratio.” Id.

Assertions that the process was “thoughtful and proper,” the investigation and examination

“careful,” the transaction “free of influence,” and the negotiations “robust” are

characterizations that would require drawing inferences in favor of the defendants.

       The incorporation-by-reference doctrine does not enable a court to weigh evidence

on a motion to dismiss. It permits a court to review the actual documents to ensure that the

plaintiff has not misrepresented their contents and that any inference the plaintiff seeks to

have drawn is a reasonable one.4 The doctrine limits the ability of a plaintiff to take

language out of context, because the defendants can point the court to the entire document.

But the doctrine does not change the pleading standard that governs a motion to dismiss.




       4
        See In re General Motors (Hughes) S’holder Litig., 897 A.2d 162, 169–70 (Del.
2006); In re Santa Fe Pac. Corp. S’holder Litig., 669 A.2d 59, 70 (Del. 1995); In re
Gardner Denver, Inc., 2014 WL 715705, at *2 & n.17 (Del. Ch. Feb. 21, 2014).

                                             19
If there are factual conflicts in the documents or the circumstances support competing

interpretations, and if the plaintiff had made a well-pled factual allegation, then the

allegation will be credited. See Savor, Inc. v. FMR Corp., 812 A.2d 894, 896 (Del. 2002).

The plaintiff also remains entitled to “all reasonable inferences.” Id. at 897. Consequently,

if a document supports more than one possible inference, and if the inference that the

plaintiff seeks is reasonable, then the plaintiff receives the inference. Id.

A.     CD&R’s Status As A Controller

       The headline issue for purposes of the motions to dismiss is whether the plaintiff

has pled facts that make it reasonably conceivable that CD&R controlled the Company.

The outcome of this issue ripples through the analysis of the breach of fiduciary duty claims

asserted in Counts I and II.

       For purposes of the claim against CD&R in Count I, CD&R’s status as a controller

is potentially dispositive. A stockholder that does not control the corporation is not a

fiduciary and cannot be held liable for breaching non-existent duties. Basho Techs. Holdco

B, LLC v. Georgetown Basho Inv’rs, LLC, 2018 WL 3326693, at *25 (Del. Ch. July 6,

2018), aff’d sub nom. Davenport v. Basho Techs. Holdco B, LLC, 221 A.3d 100 (Del. 2019)

(TABLE). If it is not reasonably conceivable that CD&R was a controller, then Count I

must be dismissed.

       For purposes of both Counts I and II, CD&R’s status as a controller affects the

standard of review. “When a transaction involving self-dealing by a controlling shareholder

is challenged, the applicable standard of judicial review is entire fairness, with the

defendants having the burden of persuasion.” Ams. Mining Corp. v. Theriault, 51 A.3d

                                              20
1213, 1239 (Del. 2012). The defendants did not follow the MFW blueprint by conditioning

the Challenged Transaction upfront on both the approval of a committee and a favorable

vote by a majority of the unaffiliated shares. See Kahn v. M&F Worldwide Corp., 88 A.3d

635 (Del. 2013), overruled on other grounds by Flood v. Synutra, Int’l, Inc., 195 A.3d 754

(Del. 2018). Consequently, if it is reasonably conceivable that CD&R is a controller, then

entire fairness provides the operative standard of review for purposes of the motion to

dismiss. See Tornetta v. Musk, 2019 WL 4566943, at *4, *8–12 (Del. Ch. Sept. 20, 2019).

       By contrast, if it is not reasonably conceivable that CD&R controlled the Company,

then under Corwin, an irrebutable version of the business judgment rule will govern unless

the plaintiff can plead a reasonably conceivable breach of the duty of disclosure. See In re

Volcano Corp. S’holder Litig., 143 A.3d 727, 746 (Del. Ch. 2016), aff’d, 145 A.3d 697

(Del. 2017) (TABLE). If Corwin applies, then the only remaining basis to contest the

Challenged Transaction would be waste, a claim that the complaint does not assert and

which is available only in theory, because the fact of stockholder approval indicates that

the Challenged Transaction was on terms that persons of ordinary, sound judgment could

accept. See Singh v. Attenborough, 137 A.3d 151, 152 & n.3 (Del. 2016) (ORDER).

       Moreover, if it is not reasonably conceivable that CD&R controlled the Company

and Corwin is not available because of a well-pled disclosure claim, then the traditional

rebuttable version of the business judgment rule will govern unless it is reasonably

conceivable that when approving the Challenged Transaction, the Board lacked a

disinterested and independent majority. And even if the Board did lack a disinterested and

independent majority, then the business judgment rule would still apply if the Board relied

                                            21
on the Committee’s recommendation, unless the Committee itself lacked a disinterested

and independent majority. See In re Orchard Enters., Inc. S’holder Litig., 88 A.3d 1, 24–

29 (Del. Ch. 2014).

       The Committee had five members, and the Complaint only challenges the

independence of Metcalf. Consequently, if it is not reasonably conceivable that CD&R

controlled the Company, then the business judgment rule will apply, resulting in the

dismissal of the claims for breach of fiduciary duty asserted in Counts I and II.

       1.     The Test For Controlling Stockholder Status

       “Delaware law imposes fiduciary duties on those who effectively control a

corporation.” Quadrant Structured Prods. Co. Ltd. v. Vertin, 102 A.3d 155, 183–84 (Del.

Ch. 2014); see S. Pac. Co. v. Bogert, 250 U.S. 483, 487–88 (1919). One method of pleading

control sufficient to impose fiduciary duties is to allege that a defendant has the ability to

exercise a majority of the corporation’s voting power.5 At the time of the Challenged




       5
         See Kahn v. Lynch Commc’n Sys., Inc., 638 A.2d 1110, 1113 (Del. 1994)
(observing that a stockholder becomes a fiduciary if it “owns a majority interest in . . . the
corporation” (internal quotation marks omitted)); In re PNB Hldg. Co. S’holders Litig.,
2006 WL 2403999, at *9 (Del. Ch. Aug. 18, 2006) (“Under our law, a controlling
stockholder exists when a stockholder . . . owns more than 50% of the voting power of a
corporation . . . .”); Williamson v. Cox Commc’ns, Inc., 2006 WL 1586375, at *4 (Del. Ch.
June 5, 2006) (“A shareholder is a ‘controlling’ one if she owns more than 50% of the
voting power in a corporation . . . .”).


                                             22
Transaction, CD&R controlled 34.8% of the Company’s voting power, so the Complaint

does not support an inference of control under that standard.6

       Another means of pleading control is to allege facts that support a reasonable

inference that the defendant in fact “exercise[d] control over the business affairs of the

corporation.” Lynch, 638 A.2d at 1113 (internal quotation marks omitted). A plaintiff can

plead that a defendant had the ability to exercise actual control by alleging facts that support

a reasonable inference of either (i) control over the corporation’s business and affairs in

general or (ii) control over the corporation specifically for purposes of the challenged

transaction.7

       To plead that the requisite degree of control exists generally, a plaintiff may allege

facts supporting a reasonable inference that a defendant or group of defendants exercised




       6
         Fund VIII owned shares comprising 34.4% of the Company’s voting power.
Sleeper, Zrebiec, and Berges each held 34,630 shares, bringing the total to 34.6%. The
CD&R Investment Advisor owned another 101,251 shares, 2,637 unvested restricted
shares, and 16,738 unvested restricted stock units, bringing the total to 34.8%.
       7
         See Basho, 2018 WL 3326693, at *25 (“The requisite degree of control can be
shown to exist generally or with regard to the particular transaction that is being
challenged.” (internal quotation marks omitted)); In re Primedia Inc. Deriv. Litig., 910
A.2d 248, 257 (Del. Ch. 2006) (“[T]he plaintiffs need not demonstrate that KKR oversaw
the day-to-day operations of Primedia. Allegations of control over the particular transaction
at issue are enough.”); Williamson, 2006 WL 1586375, at *4 (“Plaintiff can survive the
motion to dismiss by alleging actual control with regard to the particular transaction that is
being challenged.”). See generally Am. L. Inst., Principles of Corporate Governance:
Analysis and Recommendations § 1.10(a) (1994) (defining controlling stockholder as a
person who has the power to vote more than 50% of the voting equity or “[o]therwise
exercises a controlling influence over the management or policies of the corporation or the
transaction or conduct in question” (emphasis added)).

                                              23
sufficient influence “that they, as a practical matter, are no differently situated than if they

had majority voting control.” PNB Hldg., 2006 WL 2403999, at *9. One means of doing

so is to plead that the defendant, “as a practical matter, possesses a combination of stock

voting power and managerial authority that enables him to control the corporation, if he so

wishes.” In re Cysive, Inc. S’holders Litig., 836 A.2d 531, 553 (Del. Ch. 2003).

       To plead that the requisite degree of control existed for purposes of a particular

transaction or decision, a plaintiff does not have make such a pervasive showing. See

Superior Vision Servs., Inc. v. ReliaStar Life Ins. Co., 2006 WL 2521426, at *4 (Del. Ch.

Aug. 25, 2006) (“[P]ervasive control over the corporation’s actions is not required.”).

Rather, the plaintiff must plead facts supporting a reasonable inference that the defendant

in fact exercised actual control “with regard to the particular transaction that is being

challenged.” Id. See generally 1 Stephen A. Radin, The Business Judgment Rule 1129 (6th

ed. 2009).

       “The question whether a shareholder is a controlling one is highly contextualized

and is difficult to resolve based solely on the complaint.”8 “[T]here is no magic formula to



       8
          Williamson, 2006 WL 1586375, at *6; accord In re Tesla Motors, Inc. S’holder
Litig., 2018 WL 1560293, at *13 (Del. Ch. Mar. 28, 2018) (“Whether a large blockholder
is so powerful as to have obtained the status of a ‘controlling stockholder’ is intensely
factual and it is a difficult question to resolve on the pleadings” (internal quotation marks
and alterations omitted)), appeal refused sub nom. Musk v. Arkansas Teacher Ret. Sys.,
184 A.3d 1292 (Del. 2018) (TABLE); In re Cysive, Inc. S’holders Litig., 836 A.2d 531,
550–51 (Del. Ch. 2003) (same); see In re Zhongpin Inc. S’holders Litig., 2014 WL
6735457, at *9 n.33 (Del. Ch. Nov. 26, 2014) (“Whether or not a particular CEO and
sizeable stockholder holds more practical power than is typical should not be decided at
the motion to dismiss stage if a plaintiff pleads facts sufficient to raise the inference of

                                              24
find control; rather, it is a highly fact specific inquiry.”9

       2.      Potential Sources Of Control

       It is impossible to identify or foresee all of the possible sources of influence that

could contribute to a finding of actual control. See Basho, 2018 WL 3326693, at *26.

Examples include, but are not limited to, (i) relationships with particular directors, (ii)

relationships with key managers or advisors, (iii) the exercise of contractual rights to

channel the corporation into a particular outcome, and (iv) the existence of commercial

relationships that provide the defendant with leverage over the corporation, such as status

as a key customer or supplier. See id. (collecting authorities).

       Broader indicia of effective control also play a role. Id. at *27. Examples include,

but are not limited to, ownership of a significant equity stake (albeit less than a majority),

the right to designate directors (albeit less than a majority), decisional rules in governing

documents that enhance the power of a minority stockholder or board-level positon, and

the ability to exercise outsized influence in the board room or on committees, such as

through high-status roles like CEO, Chairman, or founder. See id. (collecting authorities).




control.”), rev’d on other grounds sub nom. In re Cornerstone Therapeutics Inc, S’holder
Litig., 115 A.3d 1173 (Del. 2015).
       9
         Calesa Assocs., L.P. v. Am. Capital, Ltd., 2016 WL 770251, at *11 (Del. Ch. Feb.
29, 2016) (citing In re Crimson Expl. Inc. S’holder Litig., 2014 WL 5449419, at *10 (Del.
Ch. Oct. 24, 2014)); Zhongpin, 2014 WL 6735457, at *6–7 (noting the inquiry of “whether
or not a stockholder’s voting power and managerial authority, when combined, enable him
to control the corporation . . . is not a formulaic endeavor and depends on the particular
circumstances of a given case”).

                                               25
       “Invariably, the facts and circumstances surrounding the particular transaction will

loom large.” Id. at *28. A plaintiff may allege facts indicating that a defendant insisted on

a particular course of action even though other fiduciaries or advisors resisted or had

second thoughts. Or a plaintiff may allege that the defendant engaged in pressure tactics

that went beyond ordinary advocacy to encompass aggressive, threatening, disruptive, or

punitive behavior.

       “Rarely (if ever) will any one source of influence or indication of control, standing

alone, be sufficient to make the necessary showing. . . . [A] reasonable inference of control

at the pleading stage[] typically results when a confluence of multiple sources combines in

a fact-specific manner to produce a particular result.” Id. Sources of influence and authority

must be evaluated holistically, because they can be additive. Different sources of influence

that would not support an inference of control if held in isolation may, in the aggregate,

support an inference of control.10



       10
          The Federal Reserve’s recently adopted regulations on when a rebuttable
presumption of control arises for a bank holding company provide a helpful illustration of
how different sources of influence can interact. The regulations consider holistically factors
such as the potential controller’s level of stock ownership, the number of its representatives
who serve on the board, whether a representative serves as board chair, the potential
controller’s level of representation on board committees, the number of its representatives
who serve in senior management positions, whether a representative serves as CEO, the
existence of any significant business or commercial relationships, and the existence of any
significant contractual rights, such as veto rights that limit board discretion. See Fed.
Reserve Sys., Control and Divestiture Proceedings, No. R-1662, at 16–56 (Jan. 30, 2020)
(effective April 1, 2020) (to be codified at 12 C.F.R. pts. 225 &
238), https://www.federalreserve.gov/aboutthefed/boardmeetings/files/control-rule-fr-
notice-20200130.pdf.


                                             26
       3.     The Complaint’s Allegations Regarding CD&R

       The Complaint’s allegations support a reasonable pleading-stage inference that

CD&R exercised control over the Company. No one source of influence is dispositive.

Collectively, they support a reasonable pleading-stage inference of control.

                     a.     Board Composition

       An obvious source of influence that can lead to an inference of actual control is

existence of relationships between the alleged controller and members of a company’s

board of directors.11 In this case, the nature of the relationships between CD&R and a

majority of the directors contributes to a reasonable inference of control.

       As a threshold matter, the ability of an alleged controller to designate directors

(albeit less than a majority) is an indication of control.12 Under the Stockholders




       11
          See, e.g., Tesla., 2018 WL 1560293, at *17 (considering defendant’s relationships
with directors as factor supporting reasonable inference of control); Calesa, 2016 WL
770251, at *11 (Del. Ch. Feb. 29, 2016) (finding allegations supported inference defendant
was a controlling stockholder where it was reasonably conceivable “to infer that a majority
of the Board was not independent or disinterested, but rather was under the influence of,
or shared a special interest with,” the defendant); Thermopylae Capital P’rs, L.P. v. Simbol,
Inc., 2016 WL 368170, at *14 (Del. Ch. Jan. 29, 2016) (recognizing defendant can exercise
control over a decision if defendant “had achieved control or influence over a majority of
directors through non-contractual means, such as affiliation or aligned self-interest”); N.J.
Carpenters Pension Fund v. infoGROUP, Inc., 2011 WL 4825888, at *11 (Del. Ch. Oct.
6, 2011) (drawing inference of control where defendant dominated majority of directors);
Williamson, 2006 WL 1586375, at *4 (“The fact that an allegedly controlling shareholder
appointed its affiliates to the board of directors is one of many factors Delaware courts
have considered in analyzing whether a shareholder is controlling.”).
       12
         See, e.g., Lynch, 638 A2d at 1112, 1114–15 (considering right of Alcatel U.S.A.
Corporation to designate five of eleven directors of Lynch Communications Systems, Inc.
during course of affirming trial court’s finding of actual control); In re Loral Space &

                                             27
Agreement, as long as CD&R controlled at least 10% of the Company’s voting power, then

CD&R could nominate a proportionate number of directors to the Board, rounded to the

nearest whole number. See SA § 3.1(b)(i). From December 2017 through the Challenged

Transaction, this provision gave CD&R the right to nominate four of the Board’s twelve

directors, comprising one-third of the seats. CD&R filled those seats with four individuals

that it controlled.

       In addition to the directors it controlled, CD&R had longstanding ties with Affeldt

and Kremer. Delaware courts have recognized that past relationships and payments can

support “a reasonable inference of ‘owningness’ sufficient to create a reasonable doubt”

about a director’s ability to act independently.13 “Although mere recitation of the fact of




Commc’ns Inc., 2008 WL 4293781, at *20 (Del. Ch. Sept. 19, 2008) (applying entire
fairness where stockholder controlling 36% of voting power appointed three of eight
directors and had relationships with two others); Williamson, 2006 WL 1586375, at *4
(considering that stockholders collectively holding a 17.1% interest could nominate two of
five directors when drawing an inference of control); Friedman v. Beningson, 1995 WL
716762, at *5 (Del. Ch. Dec. 4, 1995) (considering Chairman, CEO, and President who
held 36% of voting power in public company and could influence a second director;
observing that “[f]rom a practical perspective, this confluence of voting control with
directoral and official decision making authority . . . is . . . itself quite consistent with
control of the board”). Cf. Donnelly v. Keryx Biopharm., Inc., 2019 WL 5446015, at *5
(Del. Ch. Oct. 24, 2019) (finding for purposes of Section 220 inspection that there was a
credible basis to infer that the beneficial owner of approximately 39% of a company’s
common stock with a contractual right to appoint one director and one observer to a seven-
director board was a de facto controller); Kosinski v. GGP Inc., 214 A.3d 944, 953 (Del.
Ch. 2019) (finding for purposes of Section 220 inspection that there was a credible basis
to infer that stockholder with a 34% interest and power to replace one-third of the board
of directors “was a de facto controller”).
       13
         In re Ezcorp Inc. Consulting Agreement Deriv. Litig., 2016 WL 301245, at *42
(Del. Ch. Jan. 25, 2016); see Sandys v. Pincus, 152 A.3d 124, 134 (Del. 2016) (inferring

                                             28
past business or personal relationships will not make the Court automatically question the

independence of a challenged director, it may be possible to plead additional facts




that two directors were not independent of a controller for purposes of Rule 23.1 where
they had “a mutually beneficial network of ongoing business relations” based on past
investments and service on company boards); Primedia, 910 A.2d at 261 n. 45 (holding on
motion to dismiss that directors who had “substantial past or current relationships, both of
a business and of a personal nature, with [a controller]” were not independent); In re
Freeport-McMoran Sulphur, Inc. S’holder Litig., 2005 WL 1653923, at *12 (Del. Ch. June
30, 2005) (“Latiolais had worked for the Common Directors for almost twenty years and
had become a wealthy individual in their employ. To argue that Latiolais was independent
of the Common Directors because he formally severed ties with some Freeport entities
does not take into account the nature and extent of his overwhelming, career-long
involvement with Freeport entities, including the entire span of MOXY’s life. Delaware
law recognizes that such extensive ties can operate as an exception to the general rule that
past relationships do not call into question a director’s independence.”); Emerald P’rs v.
Berlin, 2003 WL 21003437, at *3 (Del. Ch. Apr. 28, 2003) (holding in post-trial opinion
that director who had been an employee of controller for more than ten years was not
disinterested and independent in decision to evaluate controller’s proposed merger), aff’d,
840 A.2d 641 (Del. 2003) (TABLE); In re The Ltd., Inc., 2002 WL 537692, at *7 (Del. Ch.
Mar. 27, 2002) (“One may feel ‘beholden’ to someone for past acts as well. It may
reasonably be inferred that Mr. Wexner’s gift of $25 million to Ohio State was, even for a
school of that size, a significant gift. While the gift was not to Gee personally, it was a
positive reflection on him and his fundraising efforts as university president to have
successfully solicited such a gift. In this context, even though there can be no ‘bright line’
test, a gift of that magnitude can reasonably be considered as instilling in Gee a sense of
‘owingness’ to Mr. Wexner.” (footnote omitted)); In re Ply Gem Indus., Inc. S’holders
Litig., 2001 WL 1192206, at *1 (Del. Ch. Sept. 28, 2001) (recognizing that “past benefits
conferred by [the allegedly dominating director], or conferred as the result of [that
director’s] position with Ply Gem, may establish an obligation or debt (a sense of
‘owingness’) upon which a reasonable doubt as to a director’s loyalty to a corporation may
be premised”); In re New Valley Corp. Deriv. Litig., 2001 WL 50212, at *8 (Del. Ch. Jan.
11, 2001) (observing when considering allegations of interest and lack of independence
that “[t]he facts alleged in the complaint show that all the members of the current Board
have current or past business, personal, and employment relationships with each other and
the entities involved”); Int’l Equity Capital Growth Fund, L.P. v. Clegg, 1997 WL 208955,
at *5–7 (Del. Ch. Apr. 22, 1997) (holding on a motion to dismiss that directors were not
independent based on history of dealing and overlapping governance relationships).

                                             29
concerning the length, nature or extent of those previous relationships that would put in

issue that director’s ability to objectively consider the challenged transaction.” Orman v.

Cullman, 794 A.2d 5, 27 n.55 (Del. Ch. 2002). In other words, “the plaintiff cannot just

assert that a close relationship exists, but when the plaintiff pleads specific facts about the

relationship—such as the length of the relationship or details about the closeness of the

relationship—then [the trial court] is charged with making all reasonable inferences from

those facts in the plaintiff’s favor.” Marchand v. Barnhill, 212 A.3d 805, 818 (Del. 2019)

(discussing more onerous pleading standard under Rule 23.1).

       The Company’s own disclosures recognized CD&R’s influence over Affeldt and

Kremer. When CD&R initially invested in the Company, it bargained for the right to place

three directors immediately on the Board and named Sleeper, Berges, and Kremer. Shortly

after the transaction closed, CD&R exercised its right to add two more directors and named

Zrebiec and Affeldt. Although Kremer and Affeldt were nominally independent, the

Company disclosed that with the appointment of the two additional directors, “[t]he CD&R

Funds will have the ability, subject to the fiduciary duties of the individual directors, to

control the decisions of the Board.” Ex. 2 at 3. The disclosure thus described Kremer and

Affeldt as directors who, subject to their fiduciary duties, were subject to CD&R’s control

for purposes of Board-level decisions. The defendants argue that this description merely

recognized CD&R’s ownership at the time of a mathematical majority of the Company’s

voting power, and that is one possible reading, but the description focuses on Board-level

decisions and Board-level control. At the pleading stage, the plaintiff is entitled to the

benefit of the inference that the disclosure meant what it said by describing CD&R as

                                              30
exercising control at the Board level through the five directors it had appointed, including

Affeldt and Kremer.

       In addition to this description, the Complaint pleads other facts that contribute to a

reasonable pleading-stage inference that Affeldt was subject to CD&R’s influence and

control. Affeldt has worked for CD&R portfolio companies or served on their boards for

twenty-seven years. In 1991, CD&R hired Affeldt to work at Lexmark, one of its portfolio

companies, in the human resources department. In 1996, Affeldt was promoted to head that

department. Since leaving Lexmark in 2003, Affeldt has predominantly worked as a CD&R

director appointee at CD&R portfolio companies, for which she has received at least $2.45

million. In addition to the Company, CD&R appointed Affeldt to serve on the boards of

SIRVA, Inc., Sally Beauty Holdings, and HD Supply Holdings, all of which were CD&R-

portfolio companies when CD&R placed Affeldt on the board.

       At the pleading stage, the extent of Affeldt’s relationship with CD&R is sufficient

to support an inference of beholden-ness. The defendants argue that some of the

relationships between CD&R and Affeldt are stale. To the contrary, the history of

connections between CD&R and Affeldt suggests a persistent and ongoing relationship.

The defendants also argue that the plaintiff has not pled sufficient facts to support an

inference that Affeldt’s remuneration from positions which inferably flowed from her

relationship with CD&R is material to her. Specific information about the wealth of

particular individuals is not generally available and is also not something that can usually

be obtained using Section 220, so the plaintiffs have not been able to frame their allegations

about Affeldt’s financial circumstances using dollars and cents. Nevertheless, the

                                             31
magnitude of the remuneration she has received is sufficiently large to support an inference

of materiality at the pleading stage, particularly given the allegation in the complaint that

most, if not all, of Affeldt’s income has come from entities affiliated with CD&R since her

retirement from Lexmark in 2003.14



       14
          See Del. Cty. Empls. Ret. Fund v. Sanchez, 124 A.3d 1017, 1020–21 (Del. 2015)
(inferring at pleading stage that director fees of $165,000 were material where they
allegedly constituted 30% to 40% of defendant’s total annual income); Kahn v. Tremont
Corp., 694 A.2d 422, 430 (Del. 1997) (finding after trial that director was beholden to
interested party because of prior one-year consultancy during which he received $10,000
per month and more than $325,000 in bonuses); Rales v. Blasband, 634 A.2d 927, 937
(Del. 1993) (inferring at pleading stage that compensation of $300,000 was material); In
re Oracle Corp. Deriv. Litig., 2018 WL 1381331, at *17 (Del. Ch. Mar. 19, 2018)
(inferring at pleading stage that director fees of $468,645 were material); Cumming ex rel.
New Senior Inv. Gp., Inc. v. Edens, 2018 WL 992877, at *17 (Del. Ch. Feb. 20, 2018)
(inferring at pleading stage that fees constituting 60% of director’s identifiable income
were material); Kahn v. Portnoy, 2008 WL 5197164, at *8–9 (Del. Ch. Dec. 11, 2008)
(inferring at pleading stage that director fees of $160,000 were material); In re Emerging
Commc’ns, Inc. S’holders Litig., 2004 WL 1305745, at *34 (Del. Ch. May 3, 2004, revised
June 4, 2004) (finding after trial that consulting and director fees totaling $150,000 in one
year and $170,000 in another were material); In re eBay, Inc. S’holders Litig., 2004 WL
253521, at *2–3 (Del. Ch. Jan. 23, 2004) (inferring at pleading stage that option awards
worth “potentially millions of dollars” dependent on whether defendant “retains his
position as a director” were material); The Ltd., 2002 WL 537692, at *4 (inferring at
pleading stage that consulting fees of $150,000 were material to a university administrator);
Orman, 794 A.2d at 30 (inferring at pleading stage that consulting fees of $75,000 were
material); In re Ply Gem, 2001 WL 755133, at *8–9 (inferring at pleading stage that
consulting fees of $91,000 were material); Beningson, 1995 WL 716762, at *5 (inferring
at pleading stage that consulting fees of $48,000 were material); In re MAXXAM,
Inc./Federated Dev. S’holders Litig., 659 A.3d 760, 774 (Del. Ch. 1995) (declining to
approve settlement and noting that consulting fees of $250,00 were likely material to a
defendant who “recently emerged from personal bankruptcy”); see also Shaev v. Saper,
320 F.3d 373, 378 (3d Cir. 2003) (inferring at pleading stage that consulting fees of
$135,500 plus a discretionary bonus of $25,000 were material); cf. Kahn v. Dairy Mart
Convenience Stores, Inc., 1996 WL 159628, at *6 (Del. Ch. Mar. 29, 1996) (denying
summary judgment based on dispute of fact as to whether consulting fees were material);
In re NVF Co. Litig., 1989 WL 146237, at *4 (Del. Ch. Nov. 22, 1989) (inferring at

                                             32
       For similar reasons, the Complaint pleads facts sufficient to support a reasonable

pleading-stage inference that Kremer was subject to CD&R’s influence and control. In

addition to the Company’s description of Kremer to that effect, Kremer worked for years

at Emerson Electric Co., where Berges was President and Vice Chairman. Since retiring

from Emerson in 2007, Kremer’s only employment has been as a director, and the

Company is the only public company where Kremer has served. From 2009 through the

Challenged Transaction, Kremer received approximately $1 million from his directorship.

At the pleading stage, it is reasonable to infer that this remuneration constituted a material

portion of Kremer’s income as a retiree.

       The Complaint’s allegations about Metcalf also contribute to a reasonable pleading-

stage inference of control, even though they reduce to just one potentially compromising

relationship. Early on during the negotiations surrounding the Challenged Transaction,

Metcalf understood that he would become Chairman and CEO of the combined company.

It is reasonable to infer at the pleading stage that the prospect of serving as Chairman and

CEO of the combined company induced Metcalf to favor the Challenged Transaction. See

Caspian Select Credit Master Fund Ltd. v. Gohl, 2015 WL 5718592, at *7 (Del. Ch. Sept.

28, 2015) (considering fact that interested party had nominated directors to current board

and other boards and inferring that the directors could “expect to be considered for

directorships in companies the [interest party] acquire[s] in the future”). The defendants




pleading stage that director fees received other companies controlled by interested party
were sufficient to establish a lack of independence).

                                             33
argue that the decision to appoint Metcalf to this position was made too late in the process

to have influenced any of his actions, but it is reasonable to infer at the pleading stage that

the prospect of the appointment was discussed or foreseeable during earlier phases.

       The parties have debated Riley’s independence. At the time of the Challenged

Transaction, Riley was the Company’s CEO. He was hired as a senior executive at the

Company in December 2014 when CD&R owned 57% of the Company’s stock and

controlled a majority of its Board seats. In July 2017, Riley was named CEO and appointed

to the Board and to the Executive Committee. For the years 2015, 2016 and 2017, Riley

received total compensation of $2,153,961, $2,299,276 and $2,511,814, respectively—

amounts that can reasonably be inferred to have comprised the bulk of his income.

       From these facts, it is reasonable to infer at the pleading stage that Riley would feel

a sense of owing-ness to CD&R. Moreover, if other factors point in favor of a reasonable

inference that CD&R is a controller, then Riley’s presence on the Board will reinforce that

inference rather than undermine it. Under the great weight of Delaware precedent, senior

corporate officers generally lack independence for purposes of evaluating matters that

implicate the interests of a controller.15 In those circumstances, a reasonable doubt exists



       15
         Rales, 634 A.2d at 937 (holding that President and CEO of corporation could not
impartially consider a litigation demand which, if granted, would have resulted in a suit
adverse to significant stockholders); In re The Student Loan Corp. Deriv. Litig., 2002 WL
75479, at *3 (Del. Ch. Jan. 8, 2002) (“In the case of [the CEO], to accept such a [litigation]
demand would require him to decide to have Student Loan sue Citigroup, an act that would
displease a majority stockholder in a position to displace him from his lucrative CEO
position.”); Mizel v. Connelly, 1999 WL 550369, at *3 (Del. Ch. July 22, 1999) (observing
that President and CEO of corporation whose position constituted his principal

                                              34
as to whether the officer “can impartially consider a demand” that would involve taking

action “materially adverse to [the controller’s] interests.” Mizel, 1999 WL 550369, at *3.

When officers “derive their principal income from their employment,” that fact

“powerfully strengthens the inference” that the officers could not consider a demand on the

merits, because “it is doubtful that they can consider the demand . . . without also pondering

whether an affirmative vote would endanger their continued employment.” Id. If the other

dimensions of the multi-factor analysis support an inference that CD&R is a controller,

then Riley is not independent.

       At the other end of the spectrum, the Complaint does not identify any compromising

relationships or sources of influence between CD&R and Martinez, Ball, Forbes, and

Holland. These directors are independent and disinterested for pleading-stage purposes.




employment was not independent for demand-futility purposes where underlying
transaction was between corporation and its controller); Steiner v. Meyerson, 1995 WL
441999, at *10 (Del. Ch. July 19, 1995) (“The facts alleged appear to raise a reasonable
doubt that Wipff, as president, chief operating officer, and chief financial officer, would be
unaffected by [the CEO and significant stockholder’s interest] in the transaction that the
plaintiff attacks.”); see Bakerman v. Sidney Frank Importing Co., 2006 WL 3927242, at *9
(Del. Ch. Oct. 10, 2006, revised Oct. 16, 2006) (holding that reasonable doubt existed as
to ability of insider managers of LLC to address a litigation demand focusing on the entity’s
controllers); see also MCG Capital Corp. v. Maginn, 2010 WL 1782271, at *20 (Del. Ch.
May 5, 2010) (“There may be a reasonable doubt about a director’s independence if his or
her continued employment and compensation can be affected by the directors who received
the challenged benefit.”); In re Cooper Cos., Inc. S’holders Deriv. Litig., 2000 WL
1664167, at *6–7 (Del. Ch. Oct. 31, 2000) (finding reasonable doubt existed as to ability
of two directors to consider litigation demand addressing alleged misconduct by other
directors where both reported to board as officers, one as CFO and Treasurer and the other
as Vice President and General Counsel).

                                             35
       CD&R’s control over four directors and its relationships with four others contribute

to a reasonable inference that CD&R exercised actual control over the Company. This

decision need not and does not hold that the relationships standing alone would support a

reasonable inference of control. In conjunction with other indicators of control, however,

the relationships support the necessary pleading-stage inference.

                     b.      Block Size

       Another obvious factor that can contribute to an inference of actual control is the

size of the equity stake that the alleged controller holds. The search for guidance on this

issue can be unsatisfying, because the interaction of block size with other factors prevents

clear patterns from emerging. After reviewing a non-exhaustive list of ten significant cases,

a prior decision failed to reveal “any sort of linear, sliding scale approach where by a larger

share percentage makes it substantially more likely that the court will find the stockholder

was a controlling stockholder.” Crimson Expl., 2014 WL 5449419, at *10. Illustrating the

point, the decision noted that “[i]n Cysive, Chief Justice Strine, writing as a Vice

Chancellor, found a 35% stockholder controlled the corporation, while, in Western

National, Chancellor Chandler held that a 46% stockholder was not a controller.” Id. The

decision concluded that “the scatter-plot nature of the holdings highlight[ed] the

importance and fact-intensive nature” of the analysis. Id. It is often the case that “the level

of stock ownership is not the predominant factor.”16



       16
        FrontFour Capital Gp. LLC v. Taube, 2019 WL 1313408, at *21 (Del. Ch. Mar.
11, 2019); see Tesla, 2018 WL 1560293, at *14 (“[T]here is no absolute percentage of

                                              36
       All else equal, a relatively larger block size should make an inference of actual

control more likely, even though the interplay with factors makes the correspondence

difficult to perceive. The relationship derives from simple mathematics. A stockholder who

owns a mathematical majority of the corporation’s voting power has the ability to exercise

affirmative control. As a result, “[i]n the absence of devices protecting the minority

stockholders, stockholder votes are likely to become mere formalities where there is a

majority stockholder.” Paramount Commc’ns Inc. v. QVC Network Inc., 637 A.2d 34, 42

(Del. 1994). Under the Delaware General Corporation Law, the most fundamental changes

can be effectuated only if approved by a majority of the outstanding voting power. See 8

Del. C. § 242(b)(1) (charter amendment); id. § 251(c) (merger); id. § 275(b) (dissolution).

A stockholder with mathematical-majority control can deliver that vote. The stockholder

can also take action by written consent, which functionally converts votes that otherwise

would require a lesser level of voting power into votes that require a majority of the

outstanding voting power. See id. § 228(a) (requiring a consent “signed by the holders of

outstanding stock having not less than the minimum number of votes that would be

necessary to authorize or take such action at a meeting at which all shares entitled to vote

thereon were present and voted”). A stockholder with mathematical-majority control can

act by consent to remove directors and fill the resulting vacancies with new ones. See id.

§§ 141(k), 211(b), 216(2).




voting power that is required in order for there to be a finding that a controlling stockholder
exists.” (quoting PNB Hldg., 2006 WL 2403999, at *9).

                                              37
       Once the stockholder’s holdings dip below a majority, the stockholder needs the

votes of other investors to take action by written consent or to obtain a vote that requires a

majority of the outstanding shares. But a large stockholder with less than a majority of the

voting power retains considerable flexibility to take action at a meeting. In that context,

once a quorum is present, the general standard for taking action is the affirmative vote of a

majority of the shares present and entitled to vote. See id. § 216(2). For the election of

directors, the general standard is a plurality of the shares present and entitled to vote. See

id. § 216(3). Meetings typically attract participation from just under 80% of the outstanding

shares.17 At that level, the holder of a 40% block can deliver the vote needed to prevail at

a meeting.

       The power conferred by a large block extends further because stockholders who

oppose the blockholder’s position can only prevail by polling votes at supermajority rates.

See Mizel, 1999 WL 550369, at *3 n.1. The following table shows the effect that illustrative



       17
          See Kobi Kastiel & Yaron Nili, In Search of the “Absent” Shareholders: A New
Solution to Retail Investors’ Apathy, 41 Del. J. Corp. L. 55, 61 (2016) (finding that overall
“the total percentage of shares that were not voted in each of the matters standing for a vote
at S&P 500 companies” in 2015 was 21.7%); Simon Lesmeister, Peter Limbach, & Marc
Goergen, Trust and Shareholder Voting 31, 53 (July 22, 2018, revised Sept. 14, 2019)
(European Corporate Governance Institute (ECGI) – Finance Working Paper No.
569/2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3216765 (finding that
average voter participation at annual meetings for U.S. Russell 3000 firms from 2003 to
2015 was 79%); Dragana Cvijanović, Moqu Groen-Xu, & Konstantinos E. Zachariadis,
Free-riders and Underdogs: Participation in Corporate Voting 4, 11 (May 2019)
(Working Paper), http://abfer.org/media/abfer-events-2019/annual-conference/corporate-
finance/AC19P2056_Free-riders_and_Underdogs.pdf (finding that average total voter
participation for Russell 3000 firms from 2003 to 2013 was 77%).


                                             38
levels of block ownership have on voting outcomes, assuming a meeting where holders

with 80% of the voting power turn out, and the standard is a majority of the shares present

and entitled to vote.18 Under these assumptions, anything over 40% of the voting power is

sufficient to prevail.

 Block Unaffiliated      % of Unaffiliated % of Unaffiliated Vote for Blockholder If
 Size    Shares          That Blockholder  That Opponents      Unaffiliated Splits
        Present           Needs To Win      Need To Win               50/50
    35           45                    13%              91%                     72%
    30           50                    22%              82%                     69%
    25           55                    29%              75%                     66%
    20           60                    35%              68%                     63%
    10           70                    44%              58%                     56%

       In other words, if the holder of a 35% block favors a particular outcome at a meeting,

then the blockholder will win as long as holders of 1-in-7 shares vote the same way. The

opponents must garner over 90% of the unaffiliated shares to win.19 This court has



       18
          For simplicity, the calculations assume a company with one class of common
stock and 100 shares outstanding. The blockholder owns the designated number of shares
with unaffiliated holders owning the rest. The assumption of 80% turnout means that 80
shares are present and entitled to vote at the meeting and the affirmative vote of 41 shares
is required to prevail.
       19
           It is likely that turnout would rise if the opponents of a measure ran a proxy
contest. See, e.g., Unitrin, Inc. v. Am. Gen. Corp., 651 A.2d 1361, 1382–83 (Del. 1995)
(assuming a 90% turnout in a contested election involving a high concentration of
institutional investors); Chesapeake Corp. v. Shore, 771 A.2d 293, 340 (Del. Ch. 2000)
(finding that a turnout of 90% in a contested solicitation at a public company would be
realistic); Robert M. Bass Gp., Inc. v. Evans, 552 A.2d 1227, 1244 (Del. Ch. 1988)
(crediting testimony that 80–83% of eligible shares tend to vote in contested matters). The
larger number of unaffiliated shares present at the meeting increases the absolute number
of votes needed to win. At the same time, the larger number of unaffiliated shares in the
denominator affects the percentages needed to win. The change does not significantly
undermine the blockholder’s advantage. For example, with a 35% blockholder and 90%

                                             39
described disinterested majorities of 60% and 66 2/3% as “more commonly associated with

sham elections in dictatorships than contested elections in genuine republics.” Chesapeake,

771 A.2d at 342; see Air Prods. & Chems., Inc. v. Airgas, Inc., 16 A.3d 48, 117 (Del. Ch.

2011) (noting that no insurgent had ever achieved a 67% vote and that polling votes at this

level was not realistically attainable).


       Based on the math alone, large blocks at levels of 35% and below carry significant

influence. A large block also gives its owner additional rhetorical cards to play in the

boardroom, particularly if the owner can claim to have the most at stake. Taking into

account the influence that a large block carries, the pled fact of CD&R’s 34.8% contributes

to a reasonably conceivable inference that CD&R exercised actual control over the

Company at the time of the Challenged Transaction.20




turnout, the number of votes needed to win rises to 46, the percentage of the unaffiliated
that the blockholder needs to win rises to 20% (11/55), and the percentage of the
unaffiliated that the opponents need to win falls to 84% (46/55). At the other end of the
spectrum, with a 10% blockholder and 90% turnout, the number of votes needed to win
remains 46, the percentage of the unaffiliated that the blockholder needs creeps up to 45%
(36/80), and the percentage of the unaffiliated that the opponents need to win creeps down
to 57.5% (46/80).
       20
          See Robbins & Co. v. A.C. Israel Enters., Inc., 1985 WL 149627, at *5 (Del. Ch.
Oct. 2, 1985) (recognizing that “[t]his Court and others have recognized that substantial
minority interests ranging from 20% to 40% often provide the holder with working control”
and collecting authorities); see also 8 Del. C. § 203(c)(4) (“A person who is the owner of
20% or more of the outstanding voting stock of any corporation, partnership,
unincorporated association or other entity shall be presumed to have control of such entity,
in the absence of proof by a preponderance of the evidence to the contrary”); Am. L. Inst.,
Principles of Corporate Governance: Analysis and Recommendations § 1.10(b) (1994)

                                            40
                     c.     The Voting Rights And Restrictions In The Stockholders
                            Agreement

       In this case, CD&R’s ownership of 34.8% of the equity and its ability to exercise

those rights as a stockholder must be evaluated in conjunction with the rights and

restrictions that appear in the Stockholders Agreement. The provisions in that agreement

cut in both directions. Some of the provisions give CD&R greater rights than a stockholder

that controlled a majority of the outstanding voting power would possess. Other provisions

limited CD&R’s ability to exercise its voting power for purposes of electing directors.

       As discussed in the Factual Background, the Stockholders Agreement granted

CD&R a lengthy list of consent rights that enabled CD&R to block actions that the Board

otherwise would have the ability to take unilaterally, without stockholder approval. The

consent rights encompassed both significant corporate and financing transactions, as well

as more basic corporate governance issues like increasing the size of the Board or

amending the bylaws. These blocking rights weigh in favor of an inference that CD&R

exercised control over the Company generally by giving CD&R power over the Company

beyond what the holder of a mathematical majority of the voting power ordinarily could

wield. The holder of a majority of the outstanding voting power could vote against

transactions that required stockholder approval, but it could not exercise a stockholder level

veto over actions that the board of directors could take unilaterally. To intervene on those




(recommending a rebuttable presumption of control when a person directs more than 25%
of a corporation’s voting power).

                                             41
issues, the holder of a mathematical majority of the voting power would need to act through

director representatives on the board who would be clearly acting as fiduciaries when

making decisions. The blocking rights in the Stockholders Agreement empowered CD&R

to limit a range of board actions at the stockholder level and to do so by exercising contract

rights that CD&R could argue did not implicate fiduciary duties. See Odyssey P’rs, L.P. v.

Fleming Cos., Inc., 735 A.2d 386, 415 (Del. Ch. 1999).

       Contractual rights that do not amount to a significant source of general control can,

depending on the circumstances, give rise to an inference of transaction-specific control,

because the holder of the contract rights can use them to channel a corporation into a

particular outcome by blocking other paths.21 Although a blocking right standing alone is

unlikely to support a reasonable inference of control,22 in the context of a particular factual



       21
           See Williamson, 2006 WL 1586375, at *4 (noting that “board veto power in and
of itself” does not give rise to control but that defendants’ “veto power is significant for
analysis of the control issue” because it indicated that defendants “had the ability to shut
down the effective operation of the At Home board of directors by vetoing board actions”);
Joseph W. Bartlett & Kevin R. Garlitz, Fiduciary Duties in Burnout/Cramdown
Financings, 20 J. Corp. L. 593, 601 (1995) (discussing role of blocking rights as source of
control for venture capital funds over portfolio companies).
       22
           See Thermopylae Capital, 2016 WL 368170, at *13 (“Under Delaware law,
however, contractual rights held by a non-majority stockholder do not equate to control,
even where the contractual rights allegedly are exercised by the minority stockholder to
further its own goals.”); see also id. at *14 (“[A] stockholder who—via majority stock
ownership or through control of the board—operates the decision-making machinery of the
corporation, is a classic fiduciary; in controlling the company he controls the property of
others—he controls the property of the non-controlling stockholders. Conversely, an
individual who owns a contractual right, and who exploits that right—even in a way that
forces a reaction by a corporation—is simply exercising his own property rights, not that
of others, and is no fiduciary.”). Compare Superior Vision, 2006 WL 2521426, at *5 (“In

                                              42
scenario, it can be a highly effective form of control. The paradigmatic example involves

a cash-burning, asset-light company that does not yet generate sufficient revenue to finance

its business plan and has reached the point where it requires external financing. See Basho,

2018 WL 3326693, at *29. Under those circumstances, a party that has a veto right over

the company’s access to financing can “sit on the company’s lifeline, with the ability to

turn it on or off.”23 When cash is like oxygen, the ability to choke off the air supply is a

strong indicator of control, particularly if there are factual allegations (and later evidence)

that the party holding the veto right used it to force the company into a vulnerable position.

Basho, 2018 WL 3326683, at *29–31.

       In this case, the Complaint does not plead that CD&R used blocking rights to cut

off other alternatives or that CD&R threatened to do so. Nor does the pleading suggest that




sum, a significant shareholder, who exercises a duly-obtained contractual right that
somehow limits or restricts the actions that a corporation otherwise would take, does not
become, without more, a ‘controlling shareholder’ for that particular purpose.”) with id.
(“There may be circumstances where the holding of contractual rights, coupled with a
significant equity position and other factors, will support the finding that a particular
shareholder is, indeed, a ‘controlling shareholder,’ especially if those contractual rights are
used to induce or to coerce the board of directors to approve (or refrain from approving)
certain actions.”).
       23
           Bartlett & Garlitz, supra, at 601; see Manuel A. Utset, Reciprocal Fairness,
Strategic Behavior & Venture Survival: A Theory of Venture Capital-Financed Firms,
2002 Wis. L. Rev. 45, 66 (“A venture capitalist’s leverage is further strengthened by
contract provisions giving it a monopoly over future financing.”). There is extensive
literature that discusses the use of staged financing as a control device. See, e.g., Darian M.
Ibrahim, The (Not So) Puzzling Behavior of Angel Investors, 61 Vand. L. Rev. 1405, 1413
(2008) (summarizing role of staged financing); Paul A. Gompers & Josh Lerner, The
Venture Capital Cycle 139 (2000) (describing staged financing as “the most potent control
mechanism a venture capitalist can employ”).

                                              43
the shadow of the blocking rights led the directors to act differently than they would have.

CD&R’s blocking rights instead weigh in favor of an inference that CD&R exercised

control over the Company generally by giving CD&R power over the Company beyond

what the holder of a mathematical majority of the voting power ordinarily would possess.

See Loral, 2008 WL 4293781, at *21 (weighing large stockholder’s “blocking power”

when making post-trial finding of control).

       Importantly, the Stockholders Agreement also contained counter-balancing

provisions. As long as stockholders unaffiliated with CD&R held at least 5% of the

outstanding voting power, then the Stockholders Agreement required that there be two

Unaffiliated Shareholder Directors on the Board. See SA § 3.1(c)(i). The Stockholders

Agreement granted the Unaffiliated Shareholder Directors the power to nominate their

successors, required CD&R to vote for them, and prevented CD&R from acting to remove

them unless holders of 80% of the unaffiliated shares wanted them removed. See id. §

3.1(c)(v). Once CD&R’s ownership fell below 50%, the Stockholders Agreement obligated

CD&R to cause its shares to be present at stockholder meetings and vote them in favor of

the Board’s nominees. Id. § 3.2. CD&R also was obligated to vote its shares as

recommended by the Board on all proposals relating to compensation or incentives for

directors, officers, or employees of the Company, unless the vote involved an issue where

CD&R had a contractual consent right. See id.

       CD&R’s contractual obligations to keep the Unaffiliated Shareholder Directors on

the Board and, once CD&R’s ownership stake CD&R’s ownership fell below 50%, its

obligation to support the candidates nominated by the Board limited CD&R’s ability to

                                              44
retaliate against non-Investor Directors by voting against their re-election or measures that

would affect their compensation. These restrictions mitigated the threat of the most blatant

form of controller influence, namely a controller’s ability to take retributive action against

outside directors if they do not support the controller’s preferred course of action.24

       These restrictions do not foreclose a pleading-stage inference of control given the

multiple sources of influence at issue in the case. First, CD&R did not give up its ability to

vote its shares on issues other than the re-election of directors or matters relating to director,

officer, and employee compensation. As to all other issues, CD&R could vote as it wished.

CD&R could also vote as it wished on compensation issues if the matter implicated one of

CD&R’s contractual consent rights.

       Second CD&R did not give up its contractual rights. Through these rights, CD&R

enjoyed more stockholder-level authority than a controller that held a majority of the

outstanding voting power would possess.

       Third, under Delaware Supreme Court precedent, the protection given to the non-

Investor Directors does not materially change the calculus. The Delaware Supreme Court

has made clear that controlling stockholder status does not, standing alone, give rise to

pleading-stage concern about the independence or disinterestedness of outside directors.



       24
            See, e.g., Tremont, 694 A.2d at 428 (describing the inherent coercion present
when a controlling stockholder is on the other side of a transaction as involving the “risk .
. . that those who pass upon the propriety of the transaction might perceive that disapproval
may result in retaliation by the controlling shareholder”); In re Cox Commc’ns, Inc.
S’holders Litig., 879 A.2d 604, 617–19 (Del. Ch. 2005) (describing case law); In re Pure
Res., Inc., S’holders Litig., 808 A.2d 421, 436 (Del. Ch. 2002) (same).

                                               45
See Cornerstone, 115 A.3d at 1183. In other words, the fact that a controller has sufficient

voting power to remove a director or effectively block the director’s re-election is not

sufficient by itself to call into question the outside directors’ independence. The court does

not assume that the controller would take punitive action against an outside director that

acted contrary to the controller’s wishes or interests, just as the court similarly does not

assume that the outside directors harbor concern about potentially losing their directorships

to a degree that would influence their decision making. See Aronson v. Lewis, 473 A.2d

805, 815–16 (Del. 1984) (subsequent history omitted).

       Given these legal principles, the voting restrictions in the Stockholders Agreement

do not neutralize an otherwise operative assumption that the controller would engage in

retribution. They instead are consistent with the baseline expectation that the controller will

not engage in retribution. The plaintiff does not allege that CD&R actually made retributive

threats against the directors, which could make the voting restrictions more relevant. The

plaintiff instead asserts that CD&R exercised Board-level influence through its

relationships with directors and by rewarding them.

       The voting rights and restrictions in the Stockholders Agreement thus do not

undermine the other factors that support a pleading-stage inference of control. It remains

reasonably conceivable at the pleading stage that CD&R controlled the Company through

a combination of levers.

                     d.      Other Sources Of Board-Level Influence

       Another source of influence that can lead to an inference of actual control is the

roles that an alleged controller or its representatives play in the boardroom. In this case,

                                              46
CD&R possessed additional sources of Board-level influence that contribute to a

reasonable inference that CD&R exercised actual control over the Company.

       In addition to the contractual right to proportionate representation on the Board, the

Stockholders Agreement gave CD&R the right to proportionate representation on each

committee of the Board, except when service by a CD&R appointee would result in a

conflict. SA § 3.1(d)(i). Through this right, CD&R was assured of proportionate

representation on key committees, such as the Executive Committee and the Nominating

and Corporate Governance Committee (the “Nominating Committee”). The Stockholders

Agreement notably gave CD&R the right to select the Chairman of the Executive

Committee or the Board’s “Lead Director.” Id. § 3.1(b)(v). CD&R had the power to

exercise these rights as long as it held a voting interest of 20% of more. Id.

       Here again, the Stockholders Agreement contained counter-balancing provisions.

As long as stockholders unaffiliated with CD&R held at least 5% of the outstanding voting

power, the Stockholders Agreement required that there be at least two Unaffiliated

Shareholder Directors on the Board and that every committee contain at least one

Unaffiliated Shareholder Director. See id. §§ 3.1(c)(i) & 3.1(d). The requirement to have

an Unaffiliated Shareholder Director on each committee mitigated somewhat CD&R’s

right to proportionate representation on committees.

       On balance, CD&R’s right to proportionate representation combined with its

connections with Kremer and Affeldt support a pleading-stage inference of significant

influence. For example, through its right to proportionate representation on committees,

CD&R had the power to designate two of the six members of the Nominating Committee,

                                             47
and it filled those seats with Berges and VanArsdale. In addition to the CD&R executives.

Kremer served on the Nominating Committee, and Kremer had a longstanding relationship

with CD&R. Berges served as Chair of the Nominating Committee.

       “As the nominating process circumscribes the range of choice to be made, it is a

fundamental and outcome-determinative step in the election of officeholders.” Harrah’s

Entm’t, Inc. v. JCC Hldg. Co., 802 A.2d 294, 311 (Del. Ch. 2002) (internal quotation marks

omitted) (quoting Durkin v. Nat’l Bank of Olyphant, 772 F.2d 55, 59 (3d Cir. 1985)). As

Boss Tweed famously said, “I don’t care who does the electing, so long as I get to do the

nominating.” Lawrence A. Hamermesh, Director Nominations, 39 Del. J. Corp. L. 117,

117 (2014) (internal quotation marks omitted). The composition of the Nominating

Committee meant that CD&R could determine its agenda and count on three of six votes.

It is therefore reasonable to infer that that the Nominating Committee would not nominate

anyone whom CD&R opposed and would support anyone that CD&R supported. It is

reasonable to infer that CD&R’s influence over the Nominating Committee gave CD&R

significant influence over the composition of the Board.

       CD&R’s Board-level rights contribute to a reasonable inference that CD&R

exercised actual control over the Company. This decision does not consider whether these

rights, standing alone, would support a reasonable inference of control. In conjunction with

other indicators of control, however, they support the necessary pleading-stage inference.

                     e.     Relationships With Key Executives And Advisors

       Another source of influence that can lead to an inference of actual control is the

existence of relationships between the alleged controller and the key managers or advisors

                                            48
who play a critical role in providing directors with alternatives, providing information

about the available options, and making recommendations as to what course to follow.25 In

this case, the plead relationships are relatively weak, but they add to the overall picture.

       This decision has already discussed CD&R’s relationship with Riley. He and

Metcalf proposed pursuing the Challenged Transaction, and Riley and his management

team gave presentations that advocated for the deal. In the abstract, of course, there is

nothing wrong with that. Indeed, management presentations about a deal are invariably

part of the process, and it would be surprising not to have them. But for purposes of

evaluating whether CD&R had the ability to exercise influence and control over the deal

process, CD&R’s relationship with Riley is a factor.

       CD&R also had an existing relationship with Evercore, the Committee’s banker.

The Committee did not interview bankers and select its own. Instead, the Company’s CFO

contacted Evercore and vetted the individuals who would lead the engagement. The

Company’s CFO represented that Evercore had no conflicts of interest vis-à-vis CD&R or

New Ply Gem, but at the time, Evercore was working as a restructuring advisor for another

CD&R portfolio company. The Committee also did not interview and hire its own law firm,

opting to hire the Company’s existing counsel.




       25
          See OTK Assocs., LLC v. Friedman, 85 A.3d 696, 706–07 (Del. Ch. 2014)
(considering defendant’s relationship with management, including tips received by
defendant from company’s officers that provided negotiating leverage, as supporting
reasonable inference of control); see also Hollinger Int’l, Inc. v. Black, 844 A.2d 1022,
1061 (Del. Ch. 2004) (discussing interactions between board chairman and banker).

                                              49
       CD&R’s relationships with management and the Company’s advisors contribute to

a reasonable inference that CD&R exercised actual control at the time of the Challenged

Transaction. Standing alone, these relationships would not support a reasonable inference

of control. In conjunction with other indicators of control, however, they support the

necessary pleading-stage inference.

              f.     The Pleading-Stage Conclusion

       Based on the foregoing factors, considered in the aggregate, the Complaint alleges

facts sufficient to support a reasonable inference that CD&R controlled the Company.

Whether a constellation of facts supports an inference of control is a fact-specific inquiry,

and different constellations of facts can lead to different outcomes. See, e.g., In re Rouse

Props., Inc., Fiduciary Litig., 2018 WL 1226015, at *11–20 (Del. Ch. Mar. 9, 2018);

Sciabacucchi v. Liberty Broadband Corp., 2017 WL 2352152, at *16–20 (Del. Ch. May

31, 2017). This also is a pleading-stage inference, where the plaintiff receives the benefit

of the doubt in a close case. The evidence at a later stage may prove that the inference is

unwarranted. See Dole, 2015 WL 5052214, at *16 (“Before trial, Conrad’s role as Chair

was not a reassuring fact. . . . But after hearing Conrad testify and interacting with him in

person at trial, I am convinced that he was independent in fact.”).

B.     Count I: Breach Of Fiduciary Duty Against CD&R

       Count I asserts a claim for breach of fiduciary duty against CD&R in it capacity as

the Company’s controlling stockholder. Because CD&R also controlled New Ply Gem, it

stood on both sides of the Challenged Transaction and must establish that the Challenged

Transaction was entirely fair. See Ams. Mining, 51 A.3d at 1239. To survive a pleading-

                                             50
stage motion to dismiss, a plaintiff must plead facts from which it is reasonably conceivable

that the Challenged Transaction was not entirely fair.

       When entire fairness applies, the defendants must establish “to the court’s

satisfaction that the transaction was the product of both fair dealing and fair price.”

Cinerama, Inc. v. Technicolor, Inc., 663 A.2d 1156, 1163 (Del. 1995). “Not even an honest

belief that the transaction was entirely fair will be sufficient to establish entire fairness.

Rather, the transaction itself must be objectively fair, independent of the board’s beliefs.”

Gesoff v. IIC Indus., Inc., 902 A.2d 1130, 1145 (Del. Ch. 2006).

       “The concept of fairness has two basic aspects: fair dealing and fair price.”

Weinberger v. UOP, Inc., 457 A.2d 701, 711 (Del. 1983). Fair dealing “embraces

questions of when the transaction was timed, how it was initiated, structured, negotiated,

disclosed to the directors, and how the approvals of the directors and the stockholders were

obtained.” Id. Fair price “relates to the economic and financial considerations of the

proposed merger, including all relevant factors: assets, market value, earnings, future

prospects, and any other elements that affect the intrinsic or inherent value of a company’s

stock.” Id. Although the two aspects may be examined separately, “the test for fairness is

not a bifurcated one as between fair dealing and price. All aspects of the issue must be

examined as a whole since the question is one of entire fairness.” Id.

       At the pleading stage, the Complaint’s allegations call into question the Challenged

Transaction for purposes of the fair price aspect of the entire fairness test. A large valuation

gap exists between the agreed-upon equity value of New Ply Gem that CD&R and Golden

Gate established for purposes of the Precedent Transaction and the value implied by the

                                              51
equity split that CD&R obtained in the Challenged Transaction. That gap is sufficient to

support a pleading-stage inference of financial unfairness.

       At the pleading stage, the Complaint’s allegations also call into question the

Challenged Transaction for purposes of the fair process aspect of the entire fairness test.

The Committee opted to rely on Evercore, even though it is reasonable to infer for pleading

purposes that management selected the bank and picked the personnel who would work on

the deal. Management represented that Evercore did not have any conflicts of interest, yet

Evercore was advising another CD&R portfolio company while working for the

Committee. Evercore initially analyzed the combination using the agreed-upon equity

value from the Precedent Transaction as the equity value for New Ply Gem, which

supported a post-transaction ownership structure in which the Company’s former

stockholders would own two-thirds of the equity. After meeting with CD&R, however,

Evercore revised its valuation methodologies and provided analyses that justified a less

favorable split. The defendants have offered reasons why Evercore’s actions were

reasonable and proper, but the court cannot make the necessary determinations on a motion

to dismiss.

       The plaintiffs have also pointed to disclosure issues. In Weinberger, the Delaware

Supreme Court held that the entire fairness standard requires compliance with the duty of

disclosure and incorporated this principle into the fair dealing aspect of the test. See id. at




                                              52
710.26 On the facts of the case, the Weinberger court held that “[m]aterial information,

necessary to acquaint [the minority] shareholders with the bargaining positions of [the

majority stockholder], was withheld under circumstances amounting to a breach of

fiduciary duty.” 457 A.2d at 703. The Delaware Supreme Court “therefore conclude[d] that

this merger does not meet the test of fairness.” Id. at 703; accord Rabkin v. Philip A. Hunt

Chem. Corp., 498 A.2d 1099, 1104 (Del. 1985) (“[The] duty of fairness certainly

incorporates the principle that a cash-out merger must be free of fraud or

misrepresentation.”).

       The Proxy Statement failed to disclose adequately that when CD&R purchased New

Ply Gem only months previously, CD&R and Golden Gate valued New Ply Gem’s equity

at $638 million. This information was material because it directly addressed the fairness of

the Challenged Transaction. See, e.g., Gilmartin v. Adobe Res. Corp., 1992 WL 71510, at

*10 (Del. Ch. Apr. 6, 1992) (“It is axiomatic that [disclosure concerning the] fairness of

the consideration offered in a merger . . . is material . . . .”). This information should have

appeared “in plain English” in the section on the “Background of the Merger” and the



       26
          The Weinberger decision referred to the duty of disclosure as the “duty of
candor.” Id. at 711. The Delaware Supreme Court coined this phrase in Lynch v. Vickers
Energy Corp. (Vickers I), 383 A.2d 278, 279, 281 (Del. 1977). Delaware decisions used it
consistently until Stroud v. Grace, 606 A.2d 75 (Del. 1992), when the Delaware Supreme
Court criticized the term as potentially misleading. The Stroud court clarified that the duty
of candor “represents nothing more than the well-recognized proposition that directors of
Delaware corporations are under a fiduciary duty to disclose fully and fairly all material
information within the board’s control when it seeks shareholder action.” Id. at 84. After
Stroud, the prevailing Delaware terminology shifted from the “duty of candor” to the “duty
of disclosure.”

                                              53
discussion of the Challenged Transaction’s financial fairness. See Vento v. Curry, 2017

WL 1076725, at *3 (Del. Ch. Mar. 22, 2017).

       The defendants point out that the inputs for calculating the $638 million valuation

appear in the Proxy Statement, but they are buried in note 7 to the allocation of the purchase

price, where the Proxy Statement refers on page 120 to “equity contribution of $425.2

million by Sponsor Fund X Investor” and on page 121 to “$212.8 million of non-cash

consideration in the form of an equity rollover by Golden Gate Capital.” Ex. 1 at 120–21.

When summed, these figures produce the equity valuation of $638 million. The Proxy

Statement also discloses the precise figure of $637,911,000, without context, on page 111

as “Additional Paid-In Capital” on the Company’s pro forma balance sheet. Id. at 111.

       Delaware law requires that plainly material information be disclosed in a “clear and

transparent manner.” Vento, 2017 WL 1076725, at *4. “A stockholder should not have to

go on a scavenger hunt,” then “piece together the answer from information buried” in a

lengthy proxy statement. Id. at *3–4. At the pleading stage, under the “buried facts”

doctrine, it is reasonable to infer that the agreed-upon valuation for New Ply Gem was not

adequately disclosed.

       It is thus reasonably conceivable that the Challenged Transaction was not entirely

fair because of shortcomings in both price and process. Count I therefore states a claim on

which relief can be granted.

C.     Count II: Breach Of Fiduciary Duty Against The Director Defendants

       Count II asserts a claim for breach of fiduciary duty against the director defendants

for approving the Challenged Transaction. Absent additional pleading-stage obstacles, this

                                             54
count would state a claim against the director defendants for the same reasons that it states

a claim against CD&R. But the director defendants invoke two doctrines that CD&R does

not have available: exculpation and abstention.

       1.      Exculpation

       Affeldt, Kremer, Ball, Forbes, Holland, Martinez, and Riley argue that any claim

against them should be dismissed because the Company’s certificate of incorporation

contains a provision that exculpates directors to the fullest extent permitted by Delaware

law. Section 102(b)(7) of the Delaware General Corporation Law authorizes the certificate

of incorporation to contain a provision

       eliminating or limiting the personal liability of a director to the corporation
       or its stockholders for monetary damages for breach of fiduciary duty as a
       director, provided that such provision shall not eliminate or limit the liability
       of a director: (i) For any breach of the director’s duty of loyalty to the
       corporation or its stockholders; (ii) for acts or omissions not in good faith or
       which involve intentional misconduct or a knowing violation of law; (iii)
       under § 174 of this title; or (iv) for any transaction from which the director
       derived an improper personal benefit.

8 Del. C. § 102(b)(7). An exculpatory provision shields the directors from personal liability

for monetary damages for a breach of fiduciary duty, except liability for the four identified

categories. “The totality of these limitations or exceptions . . . is to . . . eliminate . . . director

liability only for ‘duty of care’ violations. With respect to other culpable directorial actions,

the conventional liability of directors for wrongful conduct remains intact.” 1 David A.

Drexler et al., Delaware Corporation Law and Practice, § 6.02[7], at 6-18 (2013 & Supp.

Dec. 2019). An exculpatory provision therefore “will not place challenged conduct beyond

judicial review.” Id. at 6-19.


                                                  55
       When a corporation’s charter contains an exculpatory provision,

       [a] plaintiff seeking only monetary damages must plead non-exculpated
       claims against a director who is protected by an exculpatory charter provision
       to survive a motion to dismiss, regardless of the underlying standard of
       review for the board’s conduct—be it Revlon, Unocal, the entire fairness
       standard or the business judgment rule.

Cornerstone, 115 A.3d at 1175–76 (footnotes omitted). To state a claim against each

individual director, the Complaint must “plead[] facts supporting a rational inference that

the director harbored self-interest adverse to the stockholders’ interest, acted to advance

the self-interest of an interested party from whom they could not be presumed to act

independently, or acted in bad faith.” Id. at 1179–80. “[E]ach director has a right to be

considered individually,” and “the mere fact that a director serves on the board of a

corporation with a controlling stockholder does not automatically make that director not

independent.” Id. at 1182–83.

       “[T]o plead a claim that [the defendant] did not act in good faith, [the plaintiff] must

plead facts supporting an inference that [the defendant] did not reasonably believe that the

. . . transaction was in the best interests of the [Company].” Brinckerhoff v. Enbridge

Energy Co., 159 A.3d 242, 260 (Del. 2017). An all-too-human trial judge lacks the ability

to read a defendant’s mind and discern the defendant’s true intentions. As the Delaware

Supreme Court trenchantly observed, “the members of the Court of Chancery cannot peer

into the hearts and souls of directors.” Allen v. Encore Energy P’rs, L.P., 72 A.3d 93, 106

(Del. 2013) (footnote and internal quotation marks omitted). Even after discovery and a

trial, a judge may need to make a credibility determination about a defendant’s state of

mind, drawing on a combination of direct evidence, indirect evidence, and circumstantial

                                              56
evidence. See id.; cf. State v. Anderson, 74 A. 1097, 1099 (Del. 1910) (recognizing that

intent “may be found by direct evidence, such as the admissions or declarations of the

accused, or by indirect evidence; that is by the rational inferences to be drawn from what

the accused is proven to have done or said, and from all the facts and circumstances

involved in the transaction”).

       At the pleading stage, the trial court must draw reasonably conceivable inferences

in favor of the plaintiff based on what the allegations of the complaint suggest, recognizing

that “it may be virtually impossible for a . . . plaintiff to sufficiently and adequately describe

the defendant’s state of mind at the pleadings stage.” See Desert Equities, Inc. v. Morgan

Stanley Leveraged Equity Fund, II, L.P., 624 A.2d 1199, 1208 (Del. 1993). Because “any

attempt to require specificity in pleading a condition of mind would be unworkable and

undesirable,” a defendant’s state of mind and knowledge may be averred generally. Id. A

court can therefore consider “relevant circumstantial facts that bear on scienter, which

include the substance and effects of the defendants’ conduct.” Prod. Res. Gp. L.L.C. v.

NCT Gp., Inc., 863 A.2d 772, 800 n.85 (Del. Ch. 2004). The facts alleged need only support

a litigable inference of disloyalty or bad faith. See Gelfman v. Weeden Inv’rs, L.P., 792

A.2d 997, 989–90 (Del. Ch. 2001). The inference need not be the only possible inference,

nor even the most likely inference. The inference need only be reasonably conceivable.

       The plaintiff alleges that the directors approved purchasing a company from a

controlling stockholder at a 94% premium to the arms’-length price from three months

earlier. They allege that the resulting valuation gap is sufficiently large, and the temporal



                                               57
gap sufficiently short, to support a litigable inference that the directors may have acted to

benefit the controller, rather than the Company and its stockholders.27

        The defendants contend that the valuation gap was justified by synergies, both those

created in the creation of New Ply Gem and those that would be generated through the

Challenged Transaction. Disagreeing with the Complaint’s allegation that New Ply Gem’s

high levels of debt were a problem for CD&R and Golden Gate, the defendants maintain

that the debt’s terms were so loose as to provide an advantageous capital structure for the

combined entity. The defendants also cite amendments to the Stockholders Agreement,

which they say conferred value on the Company. They even point to a decline in the

Company’s stock price after the Challenged Transaction was announced, which in turn

reduced the value of the shares that the Company issued as consideration. Assessing these

justifications would require factual assessments that the court cannot make at the pleading

stage. Crediting the defendants’ arguments would require drawing inferences in favor of

the defendants, rather than the plaintiff.




       27
          See Morris v. Spectra Energy P’rs (DE) GP, LP, 2017 WL 2774559, at *14 (Del.
Ch. June 27, 2017) (explaining that “[q]uibbles with a valuation methodology, alone, are
not sufficient” for “pleading subjective bad faith,” but “when the well pled allegations . . .
show that an asset’s market value is $1.5 billion, specific allegations demonstrate that the
[controller] knew of that implied value, and the Complaint alleges that the asset was
surrendered for less than $1 billion in consideration, subjective bad faith can be inferred at
the pleading stage”); see also Encore Energy, 72 A.3d at 107 (“It may also be reasonable
to infer subjective bad faith in less egregious transactions when a plaintiff alleges objective
facts indicating that a transaction was not in the best interests of the [company] and the
directors knew of those facts.”).

                                              58
       The Complaint does not identify any compromising relationships or sources of

influence between CD&R and Martinez, Ball, Forbes, and Holland. Other than their

decision to approve the Challenged Transaction on terms that the Complaint depicts as

overly generous to CD&R, there is not any plead basis to infer that these defendants acted

disloyally or in bad faith. Given the pled facts, it is not reasonably conceivable that they

could be held liable. These defendants are entitled to dismissal under Section 102(b)(7).

       Kremer and Affeldt have longstanding ties to CD&R. The combination of their

connection to CD&R and the large valuation gap supports a pleading-stage inference that

they potentially acted to serve CD&R’s interest. This is only a pleading-stage inference.

Other inferences are possible, but at the pleading stage, the plaintiff receives the benefit of

any reasonable inferences that favor the plaintiffs’ claim.

       Riley cannot obtain dismissal because he may have acted out of loyalty to CD&R

and because it is possible that he could have breached his duties in his capacity as an officer.

Section 102(b)(7) does not authorize exculpation for officers. See Gantler v. Stephens, 965

A.2d 695, 709 n.37 (Del. 2009) (“Although legislatively possible, there currently is no

statutory provision authorizing comparable exculpation of corporate officers.”). The

Complaint contains allegations that could support potential misconduct by Riley in his

capacity as an officer, such as when providing his assessment of the Challenged

Transaction to the Board and advocating in favor of the deal. It is therefore reasonably

conceivable that Riley acted in his capacity as CEO and cannot rely on the protection of

Section 102(b)(7).



                                              59
       2.     Abstention

       Sleeper, Berges, Zrebiec, and VanArsdale argue that they cannot be liable because

they recused themselves from participating as directors in the discussion of the Challenged

Transaction. They also abstained from voting on the deal. Although this defense may

ultimately prevail, it would be premature to rule on it at the pleading stage.

       “A director can avoid liability for an interested transaction by totally abstaining

from any participation in the transaction.”28 “Delaware law clearly prescribes that a director

who plays no role in the process of deciding whether to approve a challenged transaction

cannot be held liable on a claim that the board’s decision to approve that transaction was

wrongful.” In re Tri-Star Pictures, Inc., Litig., 1995 WL 106520, at *2 (Del. Ch. Mar. 9,

1995). But this is “not an invariable rule.”29




       28
           In re Pilgrim’s Pride Corp. Deriv. Litig., 2019 WL 1224556, at *15 (Del. Ch.
Mar. 15, 2019); see Weinberger, 457 A.2d at 710–11 (“[I]ndividuals who act in a dual
capacity as directors of two corporations, one of whom is parent and the other subsidiary,
owe the same duty of good management to both corporations, and in the absence of . . . the
directors’ total abstention from any participation in the matter, this duty is to be exercised
in light of what is best for both companies.” (emphasis added)); see also Propp v. Sadacca,
175 A.2d 33, 39 (Del. Ch. 1961) (concluding that a conflicted director was not legally
responsible for unfair aspects of the transaction where he “abstained from voting in good
faith because he honestly believed that if he were to become involved in consideration of
[the transactions], his duties as a director would somehow come in conflict with his own
self-interest” because it was not “the type of corporate act for which a director may clearly
be held liable . . . ”), aff’d in part and rev’d in part on other grounds sub nom. Bennett v.
Propp, 187 A.2d 405 (Del. 1962).
       29
          Valeant Pharm. Int’l v. Jerney, 921 A.2d 732, 753 (Del. Ch. 2007); see Tri-Star
Pictures, 1995 WL 106520, at *3 (“[N]o per se rule unqualifiedly and categorically relieves
a director from liability solely because that director refrains from voting on the challenged
transaction.”); Dairy Mart, 1999 WL 350473, at *1 n.2 (explaining that “mere abstinence

                                                 60
       One might, for example, imagine a scenario in which certain members of the
       board of directors conspire with others to formulate a transaction that is later
       claimed to be wrongful. As part of the conspiracy, those directors then
       deliberately absent themselves from the directors’ meeting at which the
       proposal is to be voted upon, specifically to shield themselves from any
       exposure to liability. In such circumstances it is highly unlikely that those
       directors’ “nonvote” would be accorded exculpatory significance.

Tri-Star Pictures, 1995 WL 106520, at *3. “Similarly, an absent director . . . who

knowingly accepts a personal benefit flowing from a self-interested transaction and refuses

to return it upon demand, can be thought to have ratified the action taken by the board in

his absence and, thus, share in the full liability of his fellow directors.” Valeant, 921 A.2d

at 753–54; see also Oracle, 2018 WL 1381331, at *21. Or a court might hold a director

liable, even if the director abstained from the formal vote to approve the transaction, if the

director was “closely involved with the challenged [transaction] from the very beginning”

and the transaction was rendered unfair “based, in large part,” on the director’s

involvement. Gesoff, 902 A.2d at 1166 n.202. More generally, this court may hold an

absent director liable if the director “play[ed] a role in the negotiation, structuring, or




from a vote does not, in the ordinary course, shield or absolve directors from liability”
because “[i]t would hardly seem appropriate for directors, by their own choosing, to decide
to abdicate [their affirmative fiduciary] duties by not forming an opinion about a board
decision”); 1 R. Franklin Balotti & Jesse A. Finkelstein, Delaware Law of Corporations
and Business Organizations, § 4.16[A], at 4-150 (3d ed. 1998 & Supp. 2019) (“Typically,
directors who did not attend or participate in the board’s deliberations on, or approval of,
a transaction will not be held liable for that transaction. But an absent director ‘who
knowingly accepts a personal benefit flowing from a self-interested transaction and refuses
to return it upon demand, can be thought to have ratified the action taken by the board in
his absence and, thus, share in the full liability of his fellow directors.’” (footnote omitted)
(quoting Valeant, 921 A.2d at 753–54)).


                                              61
approval of the proposal.”30 “Given the factual nuances underlying this rule, it is no surprise

that the leading cases have not addressed the issue at the pleadings stage, but rather in post-

trial rulings or on a motion for summary judgment.”31

       Sleeper, Berges, Zrebiec, and VanArsdale recused themselves from the Board’s

final vote on the Challenged Transaction, but that cookie-cutter step is not sufficient to

establish a successful abstention defense. The CD&R representatives did not absent

themselves from the process entirely. In April 2018, Riley and Metcalf discussed a

potential merger with a CD&R team that included Sleeper, Berges, and Zrebiec. On May

1, Sleeper, Berges, Zrebiec, and VanArsdale participated in the discussions that led to the

Board reaching a consensus that a merger with New Ply Gem was the Company’s most

promising business opportunity. After the Board established the Committee, Sleeper and

Zrebiec met with Evercore, and Sleeper presented the Board with CD&R’s views on the

valuation and argued for an equity split that favored CD&R.




       30
         Valeant, 921 A.2d at 753; see In re Ebix, Inc. S’holder Litig., 2018 WL 3545046,
at *12 (Del. Ch. Jul. 17, 2018); Frederick Hsu Living Tr. v. ODN Hldg. Corp., 2017 WL
1437308, at *38 (Del. Ch. Apr. 14, 2017, revised Apr. 24, 2017); see also Cambridge Ret.
Sys. v. DeCarlo, C.A. No. 10879-CB, at 44–48 (Del. Ch. June 16, 2016) (TRANSCRIPT)
(explaining that plaintiffs alleged sufficient participation by a conflicted director where
complaint stated the director attended a meeting where the board of directors failed to fully
consider a decision and another meeting where the special committee approved an
apparently “prebaked” deal).
       31
          Pilgrim’s Pride, 2019 WL 1224556, at *17; see Weinberger, 457 A.2d at 710–11
(post-trial); Emerald P’rs v. Berlin, 2001 WL 115340, at *19–20 (Del. Ch. Feb. 7, 2001)
(post-trial), rev’d on other grounds, 787 A.2d 85 (Del. 2001); Tri-Star, 1995 WL 106520,
at *1 (summary judgment); Citron v. E.I. Du Pont de Nemours & Co., 584 A.2d 490, 492
(Del. Ch. 1990) (post-trial).

                                              62
       Sleeper, Berges, Zrebiec, and VanArsdale contend that their participation as

representatives of CD&R should not count for purposes of the abstention analysis. It is not

clear at this stage precisely when the CD&R directors were participating solely as

representatives of CD&R. For some of the interactions, the answer seems straightforward,

but making the capacity determination that the CD&R directors request would require

drawing inferences in favor of the defendants, rather than the plaintiff.

       The analysis is also complicated because of the pleading-stage inference that CD&R

controlled the Company. Once in that framework, CD&R would need to have implemented

both of MFW’s protective mechanisms to obtain a pleading-stage determination that it did

not stand on both sides of the transaction and influence its terms. In this case, CD&R did

not follow MFW. As a result, it is reasonably inferable that CD&R owed duties to the

Company and its stockholders throughout the transaction process and that entire fairness

provides the operative standard of review. As dual fiduciaries for both the Company and

CD&R, the CD&R directors likewise continued to owe duties to the Company and its

stockholders throughout the transaction process. Given this legal framework, it seems

unlikely that the CD&R directors could have participated in the process on behalf of CD&R

and yet obtain pleading-stage dismissal under an abstention theory. Whether the CD&R

directors complied with their fiduciary duties instead requires fact-specific analyses that

cannot be conducted on a motion to dismiss.

D.     Count III: Unjust Enrichment

       Count III of the Complaint asserts that the Challenged Transaction resulted in

CD&R being unjustly enriched. The elements of unjust enrichment are: (1) an enrichment,

                                             63
(2) an impoverishment, (3) a relation between the enrichment and impoverishment, (4) the

absence of justification, and (5) the absence of a remedy provided by law. Nemec v.

Shrader, 991 A.2d 1120, 1130 (Del. 2010).

       The unjust enrichment claim is predominantly a fallback claim. If the plaintiff were

able to prove that one or more of the directors breached their fiduciary duties under Count

II, but somehow were not able to prove that CD&R breached its fiduciary duties under

Count I, then CD&R could have been unjustly enriched to the extent it received benefits

from the Challenged Transaction that flowed from a breach of duty. If so, then the

Company would have suffered an impoverishment that corresponded to CD&R’s

enrichment. Because of the breach of duty by the directors, the enrichment would not be

justified, but because of the lack of a viable claim for breach of fiduciary duty against

CD&R, there would not be an adequate remedy at law. Under those circumstances, it is

possible that the unjust enrichment claim could provide a viable means of relief. See Hsu

Living Tr., 2017 WL 1437308, at *43.

       It seems unlikely that this set of circumstances would come to pass. If CD&R is not

found to be a controller, then the business judgment rule is likely to protect the Challenged

Transaction, removing the predicate breach of duty necessary for the enrichment to be

unjust. The only doctrinal path that seems viable for the plaintiff is to establish that CD&R

controlled the Company, in which case the claim for unjust enrichment becomes redundant

and superfluous.

       Although Count III is likely duplicative of Count I, “Delaware law does not appear

to bar bringing both claims.” Dubroff v. Wren Hldgs., LLC, 2011 WL 5137175, at *11 (Del.

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Ch. Oct. 28, 2011). While there ultimately will be only one recovery, at the pleading stage

it is possible that “factual circumstances [might exist] in which the proofs for a breach of

fiduciary duty claim and an unjust enrichment claim are not identical.” MCG Capital, 2010

WL 1782271, at *25 n.147; accord Tornetta, 2019 WL 4566943, at *15. The motion to

dismiss Count III is therefore denied.

                                III.     CONCLUSION

       The motions to dismiss Counts I and Count III are denied. The motion to dismiss

Count II is granted as to defendants Martinez, Ball, Forbes, and Holland. Otherwise, the

motion to dismiss Count II is denied.




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