   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN RE STRAIGHT PATH                    )
COMMUNICATIONS INC.                    )    C.A. No. 2017-0486-SG
CONSOLIDATED STOCKHOLDER               )
LITIGATION                             )

                       MEMORANDUM OPINION

                      Date Submitted: March 2, 2018
                       Date Decided: June 25, 2018

Ned Weinberger and Thomas Curry, of LABATON SUCHAROW LLP,
Wilmington, Delaware; OF COUNSEL: Mark Lebovitch, Edward Timlin, John
Vielandi, and David MacIsaac, of BERNSTEIN LITOWITZ BERGER &
GROSSMANN LLP, New York, New York; Vincent R. Cappucci and Joshua K.
Porter, of ENTWISTLE & CAPPUCCI LLP, New York, New York, Attorneys for
Plaintiffs JDS1, LLC and The Arbitrage Fund.

Rudolf Koch, Kevin M. Gallagher, Sarah A. Clark, and Anthony M. Calvano, of
RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware; OF COUNSEL:
William Ohlemeyer, Edward Normand, and Jason Cyrulnik, of BOIES SCHILLER
FLEXNER LLP, Armonk, New York, Attorneys for Defendants IDT Corporation,
Howard Jonas, and The Patrick Henry Trust.

Kevin G. Abrams, Michael A. Barlow, and April M. Kirby, of ABRAMS &
BAYLISS LLP, Wilmington, Delaware; OF COUNSEL: Greg A. Danilow, Seth
Goodchild, and Thomas G. James, of WEIL, GOTSHAL & MANGES LLP, New
York, New York, Attorneys for Defendant Davidi Jonas and Nominal Defendant
Straight Path Communications Inc.




GLASSCOCK, Vice Chancellor
      When the controller of a company improperly uses his control to enter a

transaction with the company at the expense of the minority, the resulting cause of

action for breach of fiduciary duty is an asset of the company, which stockholders

typically can pursue only derivatively. When the company is sold, the litigation

asset, like the other assets, passes to the purchaser. However, when a controller

improperly uses her control to extract a special benefit in the sale itself, at the

expense of the consideration received by stockholders in exchange for their interest

in the company, the injury, and the recovery, run directly to the former stockholders;

thus, they may sue directly.

      This matter presents a twist on that rather simple dichotomy. Here, a holding

company was for sale. It was subject to a fine which would be levied by the federal

government upon sale of assets that made up the vast bulk of company value, as a

percentage of the sale price. It held as an asset an indemnification right for the

amount of that fine, against an entity affiliated with the controller. The outside

directors were concerned that the value of the indemnification right could not be

adequately monetized through the sale of the company. They were thus considering

putting the indemnification claim into a litigation trust, the benefit of which would

be received by stockholders—along with the consideration paid by the buyer—when

the claim ripened upon the sale of the company. The stockholders’ Complaint here

alleges that, when the controller caught wind of the proposed litigation trust, he used


                                          1
his control to purchase the indemnification asset instead, for a price manifestly

unfair. After the sale, $614 million of the consideration was diverted to pay the fine,

but the company only received $10 million (plus a portion of the proceeds from

certain intellectual property-related assets) from the controller for release of the

claim. The stockholders have sued the controller, and others, directly for breach of

fiduciary duty.

      The Defendants argue that this is a classic derivative claim; the controller

allegedly purchased an asset of the company at an unfair price, that cause of action

passed to the purchaser, and the claim of the former stockholders must be dismissed.

I agree with the Plaintiffs, however, that under this unique factual scenario, the claim

is direct. Here, the indemnification right did not fully ripen until the sale, and the

leverage used by the controller included a threat to nix the transaction unless

corporate assets were first transferred to his affiliates for a manifestly unfair price,

but for which the consideration received by the stockholders upon sale would have

included both the price paid by the purchaser and the beneficial ownership of the

litigation trust. I find the transfer of the indemnification claim to the controller here

to be sufficiently intertwined with the sale of the company and the assets received

by stockholders therefrom to state a claim that the sales transaction was unfair. That

claim is direct and may proceed.

      My reasoning follows.


                                           2
                                   I. BACKGROUND1

       A. Parties

       Nominal Defendant Straight Path Communications Inc. is a Delaware

corporation headquartered in Glen Allen, Virginia.2               Straight Path owns two

subsidiaries: (i) Straight Path Spectrum, Inc., which holds fixed wireless spectrum

through its wholly owned subsidiary Straight Path Spectrum, LLC, and (ii) Straight

Path IP Group, which owns a majority stake in intellectual property related to

internet communications.3 When the Complaint in this action was filed, Straight

Path’s securities traded on the New York Stock Exchange under the ticker symbol

“STRP.”4

       Defendant IDT Corporation is a telecommunications company. 5 IDT was

Straight Path’s parent until July 31, 2013, when Straight Path was spun off from

IDT.6 As part of the spinoff, Straight Path and IDT entered into a Separation and

Distribution Agreement under which IDT agreed to indemnify Straight Path for any

liabilities stemming from pre-spinoff conduct.7




1
  The facts, drawn from the Complaint and other material I may consider on a motion to dismiss,
are presumed true for purposes of evaluating the Defendants’ Motions to Dismiss.
2
  Compl. ¶ 16.
3
  Id.
4
  Id.
5
  Id. ¶ 17.
6
  Id.
7
  Id.

                                              3
       Defendant Howard Jonas founded IDT in 1990 and has served as its Chairman

since then.8 He was IDT’s CEO from December 1991 to July 2001, and again from

October 2009 to December 2013.9 IDT’s CEO is now Shmuel Jonas, one of

Howard’s sons.10 Howard was the controlling stockholder of Straight Path and IDT,

owning over 70% of both companies’ voting stock.11 As of November 2016,

Howard held 17.6% of Straight Path’s equity,12 and as of October 2016, he held

11.3% of IDT’s equity.13 Howard’s stock in Straight Path was owned by Defendant

The Patrick Henry Trust, of which Howard was the beneficiary.14 Nevertheless,

Howard retained certain consent rights with respect to Straight Path.15 Specifically,

Howard’s consent was necessary to consummate significant transactions that

required approval by Straight Path’s stockholders, including a merger or a sale of all

assets.16

       Defendant Davidi Jonas, another one of Howard’s sons, has served as Straight

Path’s CEO and President since April 2013.17 Davidi has also served as a Straight




8
  Id. ¶ 18.
9
  Id.
10
   Id. ¶ 19.
11
   Id. ¶ 18. To the extent I use first names here, it is to avoid confusion; no disrespect is meant.
12
   Id. ¶ 38.
13
   Clark Aff. Ex. D, at 14.
14
   Compl. ¶ 21.
15
   Id.
16
   Id. ¶ 39.
17
   Id. ¶ 20.

                                                  4
Path director since that time, and on August 1, 2013, he became the company’s

Chairman.18 Davidi and his siblings own over 10% of IDT’s equity.19

        Plaintiff JDS1, LLC is an investment vehicle that held Straight Path common

stock at all relevant times.20 Plaintiff The Arbitrage Fund is a mutual fund that also

held Straight Path common stock at all relevant times.21

        B. Factual Background

                1. Straight Path’s Business and the Spinoff

        Straight Path began as a subsidiary of IDT.22 Straight Path holds two sets of

assets: 39 GHz and 28 GHz wireless spectrum licenses (the “Spectrum Assets”), and

intellectual property related to communications over the internet (the “IP Assets”).23

The Spectrum Assets, which IDT controlled before the spinoff,24 are particularly

valuable. Straight Path owns 70% of the 39 GHz licenses in the United States, and

telecommunications companies view these licenses as essential to developing the

next generation of wireless networks.25 The IP Assets likewise hold significant

value. For example, Straight Path received $18.25 million in proceeds from July




18
   Id.
19
   Id.
20
   Id. ¶ 14.
21
   Id. ¶ 15.
22
   Id. ¶¶ 28, 34.
23
   Id. ¶¶ 16, 28, 31.
24
   Id. ¶ 35.
25
   Id. ¶¶ 29–30.

                                            5
2013 to February 2015 as a result of its efforts to prosecute its patent rights.26

Moreover, the IP Assets have recently increased in value due to a string of favorable

administrative and court rulings.27

       On July 31, 2013, IDT spun off Straight Path via a pro rata distribution of

Straight Path common stock to IDT stockholders.28 Following the spinoff, Straight

Path maintained a dual-class capital structure in which Howard Jonas, through The

Patrick Henry Trust, retained majority voting control while holding only 17.6% of

the company’s equity.29 IDT had (and continues to have) a similar capital structure,

in which Howard Jonas holds a majority of voting stock while owning only 11.3%

of the equity.30

       As part of the spinoff, Straight Path and IDT negotiated a Separation and

Distribution Agreement.31 That Agreement obligates IDT to indemnify Straight Path

for any liabilities arising from or related to the period before the spinoff.32 Straight


26
   Id. ¶ 31.
27
   Id. ¶ 32.
28
   Id. ¶ 36.
29
   Id. ¶¶ 37–38.
30
   Id. ¶¶ 18, 37; Clark Aff. Ex. D, at 14.
31
   Compl. ¶ 36.
32
   Id. Specifically, the Separation Agreement provides that “[o]n and after the Distribution Date,
IDT shall indemnify, defend and hold harmless SPCI and its subsidiaries and each of their
respective directors, officers, employees and agents (the ‘SPCI Indemnitees’) from and against any
and all Indemnifiable Losses incurred or suffered by any of the SPCI Indemnitees and arising out
of, or due to, (a) the failure of IDT or any member of the IDT Group to pay, perform or otherwise
discharge, any of the IDT Liabilities, and (b) any breach by IDT or any member of the IDT Group
of this Agreement.” Clark Aff. Ex. B, § 6.02. The Agreement defines “IDT Liabilities” to include,
among other things, “any Liabilities of SPCI or its subsidiaries arising, or related to the period,
prior to the Effective Time.” Id. at 5.

                                                6
Path’s public filings acknowledge this obligation, stating that “[t]he Separation and

Distribution Agreement includes, among other things, that IDT is obligated to

reimburse [Straight Path] for the payment of any liabilities arising or related to the

period prior to the Spin-Off.”33 Notably, the indemnification right covers liabilities

stemming from pre-spinoff conduct related to the Spectrum Assets.34

               2. The FCC Dings Straight Path for Pre-Spinoff Misconduct

       Under Federal Communications Commission (“FCC”) regulations, holders of

39 GHz licenses are required to submit substantial service filings at the end of each

license’s term.35 In these filings, license holders must demonstrate that they have

taken steps to construct systems for making use of their spectrum.36 Failure to

submit substantial service filings may lead to termination of the licenses. 37 In

November 2015, Sinclair Upton Research issued a report alleging that IDT had

defrauded the FCC when it sought renewal of its 39 GHz licenses in 2011 and 2012.38

Specifically, Sinclair claimed that almost none of the 39 GHz systems IDT had

purportedly constructed were operational at the time of the report.39




33
   Compl. ¶ 36 (second alteration in original).
34
   Id.
35
   Id. ¶ 41.
36
   Id. ¶ 43.
37
   Id. ¶ 41.
38
   Id. ¶ 42.
39
   Id. ¶ 45.

                                                  7
        After the Sinclair report came out, Straight Path hired Morgan, Lewis &

Bockius LLP to conduct an internal investigation.40 Morgan Lewis confirmed

Sinclair’s finding that IDT had failed to comply with the FCC’s substantial service

requirements.41 The FCC also began its own investigation.42 On September 20,

2016, IDT received a letter of inquiry from the FCC requesting information relevant

to the investigation.43 About a month later, IDT filed a Form 10-K in which it

disclosed that due to the FCC’s investigation, IDT could face a claim from Straight

Path related to any fines or penalties the FCC imposed on Straight Path for violations

that took place when IDT controlled the Spectrum Assets.44

        On January 11, 2017, Straight Path entered into a Consent Decree with the

FCC.45 The Consent Decree has three primary components. First, Straight Path

agreed to forfeit approximately 20% of its spectrum licenses.46 Second, Straight

Path was required to submit an application to sell its remaining spectrum licenses

within one year of the Consent Decree and to pay 20% of the sales proceeds to the

FCC.47 Third, Straight Path agreed to pay a $100 million fine, with the first $15




40
   Id. ¶ 47.
41
   Id.
42
   Id. ¶ 49.
43
   Id. ¶ 50.
44
   Id.
45
   Id. ¶ 52.
46
   Id. ¶ 53.
47
   Id. ¶ 54.

                                          8
million due in installments over a nine-month period.48 If Straight Path sold its

remaining spectrum licenses to a third party within one year and gave 20% of the

proceeds to the FCC, it would not have to pay the balance of the fine.49 On the other

hand, if Straight Path failed to sell its spectrum, it would have to pay the $85 million

and take the risk that the FCC would later seek to cancel the licenses as well.50

Finally, if Straight Path neither sold the spectrum nor paid the $85 million, it would

be required to forfeit its licenses to the FCC.51 The upshot of the Consent Decree

and the Sinclair Upton report was that Straight Path had no practical choice but to

sell itself.52

        Soon after the Consent Decree was entered, IDT acknowledged that it could

face liability on account of the penalties the FCC had just imposed on Straight Path.53

In a Form 10-Q for the period ending January 31, 2017, IDT stated that it “could be

the subject of a claim from Straight Path for indemnification related to its liability

related to the consent decree.”54 The basis for this disclosure was presumably that

the fraudulent renewals took place in 2011 and 2012, before Straight Path was spun




48
   Id. ¶ 55.
49
   Id.
50
   Id.
51
   Id.
52
   Id. ¶¶ 54, 60, 63.
53
   Id. ¶ 58.
54
   Id.

                                           9
off from IDT.55 To repeat, the Separation Agreement requires IDT to indemnify

Straight Path for any liabilities incurred pre-spinoff.56

               3. Straight Path Sells Itself

       Even before the Consent Decree (but after the Sinclair report), Straight Path

was considering a sale of either the whole company or the Spectrum Assets.57 In the

summer of 2016, Straight Path held discussions with four interested parties,

including AT&T.58 In September 2016, AT&T submitted a term sheet to acquire the

company for $400 million, and Davidi Jonas, Straight Path’s CEO, retained Evercore

as the company’s financial advisor.59 AT&T raised its offer in November 2016, but

the Straight Path board—which at the time consisted of Davidi Jonas, William F.

Weld, K. Chris Todd, and Fred S. Zeidman60—decided to defer the sales process

until the FCC’s investigation concluded.61 When the investigation wrapped up and

the Consent Decree was entered, Straight Path’s only real option was to sell itself.62

Indeed, the Straight Path board later advised Evercore that “it was in the best




55
   Id. ¶ 57.
56
   Id. ¶ 36.
57
   Id. ¶ 60.
58
   Id.
59
   Id. ¶ 61.
60
   Id. ¶¶ 20, 22–24.
61
   Id. ¶ 62.
62
   Id. ¶ 63.

                                               10
interests of the holders of Straight Path common stock for Straight Path to pursue a

competitive process to sell Straight Path.”63

        The sales process began in earnest in February 2017, when the Board told

Evercore to reach out to twenty potential bidders.64 In its first-round bid instruction

letter, Evercore informed potential bidders of the 20% penalty owed to the FCC

under the Consent Decree.65 Bidders were told to take the penalty into account in

formulating their bids.66 The result was that Straight Path’s stockholders were bound

to receive less in a sale than they would have if the FCC had not penalized the

company.67

        On February 6, 2017, the Straight Path board formed a Special Committee

made up of all directors save Davidi Jonas.68 The Special Committee’s initial task

was to evaluate options for divesting the IP Assets, which both the board and Howard

Jonas thought bidders were not interested in.69 About a week after its formation,

however, the Special Committee began discussing Straight Path’s indemnification

claim against IDT.70 Specifically, the Special Committee considered “the feasibility

of asserting an indemnification claim on behalf of Straight Path against IDT in


63
   Clark Aff. Ex. C, at 60.
64
   Compl. ¶ 65.
65
   Id. ¶ 66; Clark Aff. Ex. C, at 39.
66
   Compl. ¶ 66.
67
   Id.
68
   Id. ¶ 69.
69
   Id. ¶¶ 68–69.
70
   Id. ¶ 71.

                                          11
relation to the FCC consent decree and Straight Path’s related liabilities in

connection with the Straight Path board’s evaluation of Straight Path’s strategic

alternatives.”71 After a February 14 meeting, the Special Committee unanimously

decided to preserve and pursue the indemnification claim for the benefit of Straight

Path’s stockholders.72

       On February 28, the Special Committee’s lawyers from Shearman & Sterling

LLP told Straight Path’s counsel at Weil, Gotshal & Manges LLP that the Special

Committee intended to preserve the indemnification claim. 73 Shearman told Weil

that the Special Committee was exploring several options, including selling only the

Spectrum Assets or assigning the indemnification claim to a litigation trust.74 Either

option would enable Straight Path to pursue the claim against IDT post-closing.75

       The next month, on March 8, the Special Committee met, with Weil and

Straight Path’s General Counsel in attendance.76 The Special Committee “expressed

and discussed concerns that bidders for Straight Path would not have interest in

vigorously pursuing a potential indemnity claim against IDT and thus would not

ascribe appropriate value to such claim in their bids to acquire Straight Path.”77 The



71
   Clark Aff. Ex. C, at 39–40.
72
   Compl. ¶ 71.
73
   Id. ¶ 72.
74
   Id.
75
   Id.
76
   Id. ¶ 73.
77
   Clark Aff. Ex. C, at 40.

                                         12
Special Committee then considered the feasibility of separating the indemnification

claim from any sale of Straight Path or, alternatively, negotiating a settlement of the

claim.78 Around this time, the Special Committee instructed its counsel to start

planning for the establishment of a litigation trust that could pursue the

indemnification claim against IDT post-closing.79

       The Special Committee met again on March 13; Evercore, Straight Path’s

General Gounsel, and Weil were in attendance.80 At this meeting, the Special

Committee unanimously determined that it was in the best interests of Straight Path

and its stockholders to exclude the indemnification claim from any sale of the

company; it also asked that potential bidders be told about this in the second-round

bid instruction letter.81 The letter was sent out the next day.82

       Davidi Jonas did not attend these Special Committee meetings, but by

February 28, he had likely learned of the Committee’s interest in preserving the

indemnification claim.83 It is also reasonable to infer that, shortly after the March

13 meeting, Davidi learned of the Committee’s definitive plan to exclude the claim

from any sale.84 After all, that meeting (along with the February 28 meeting) was



78
   Id.
79
   Compl. ¶ 74.
80
   Id. ¶ 75.
81
   Id.
82
   Id.
83
   Id. ¶ 76.
84
   Id. ¶ 77.

                                          13
attended by Weil, which represents Davidi in this litigation.85 In any case, Davidi

almost certainly became aware of the Special Committee’s intentions by March 14,

when Evercore, at the board’s direction, sent out the second-round bid instruction

letter informing potential bidders of the carve-out.86

       Davidi recognized that pursuing the indemnification claim against IDT could

harm him and his family.87 If Straight Path successfully enforced its indemnification

right, IDT—which has a market capitalization of less than $350 million—would

likely go bankrupt.88 Shmuel Jonas, Davidi’s brother, is IDT’s CEO, and Howard

Jonas is its Chairman and controlling stockholder.89 Moreover, Davidi and his

siblings own over 10% of IDT’s outstanding equity.90 Thus, the Plaintiffs infer that

Davidi, understanding the threat posed by the preservation of the indemnification

claim, tipped off his father about the Special Committee’s plan.91        That is a

reasonable inference. Howard Jonas was not a member of Straight Path’s board, and

there is no indication that he was granted access to confidential information about

the sales process.92 Yet, as detailed below, Howard intervened in the process on

March 14, almost immediately after his son likely learned of the Special


85
   Id. ¶¶ 76–77.
86
   Id. ¶ 77.
87
   Id. ¶ 78.
88
   Id. ¶¶ 8, 78.
89
   Id. ¶ 78.
90
   Id.
91
   Id. ¶ 79.
92
   Id.

                                          14
Committee’s definitive plan to separate the indemnification claim from any sale of

the company.93

       Howard Jonas did not want the indemnification claim to survive a sale and be

pursued against IDT.94 While he held a greater equity stake in Straight Path than in

IDT, successful pursuit of the claim could bankrupt IDT, in which Howard’s

children held a 10% equity interest.95 Moreover, the size of the indemnification

claim was increasing as the bidding for Straight Path heated up. By the time the

second-round bid instruction letter was sent out, Verizon had expressed a willingness

to acquire Straight Path for up to $750 million.96 Thus, at this point in the sales

process, the portion of the indemnification claim related to the 20% penalty alone

was worth over $100 million.97 Notably, the Special Committee and its lawyers at

Shearman appear to have read the Separation Agreement to mean that IDT would be

on the hook for the 20% penalty.98


93
   Id.
94
   Id. ¶ 81.
95
   Id. ¶¶ 78, 82
96
   Id. ¶ 81.
97
   Id.
98
   See Clark Aff. Ex. C, at 47 (“Also on April 8, 2017, at a telephonic meeting of the special
committee, at which representatives of Shearman participated, the special committee instructed
representatives of Shearman to seek additional settlement consideration from IDT in light of the
substantially increased bids for Straight Path received since the settlement in principle was reached
on March 29, 2017, and in light of the increased amount that Straight Path would accordingly have
to pay to the FCC under the terms of the FCC consent decree.”); id. (“On the same date, a
representative of Shearman informed a representative of Boies Schiller that, because the bids for
Straight Path had climbed to a substantially higher level, the value of the potential indemnification
claim had increased significantly, and the special committee was requesting that IDT increase the
settlement consideration in light of the significant change in circumstances.”).

                                                 15
        As soon as he learned of the Special Committee’s plan, Howard Jonas took

action. On March 14 and 15, Howard personally contacted each member of the

Committee and threatened to blow up the sales process if the Committee stuck to its

plan of preserving the indemnification claim. 99 Howard’s threat was credible

because he was Straight Path’s controlling stockholder, making his consent

necessary to consummate any sale of the company.100 During these conversations

or on other occasions around this time, Howard, per the Complaint, also “personally

threatened” the Special Committee members in an effort to get them to waive the

indemnification claim for a nominal settlement amount.101

        On March 15, an IDT representative told Straight Path that Howard Jonas was

interested in acquiring the IP Assets as part of a settlement of the indemnification

claim.102 Two days later, Weil met with Howard Jonas and his lawyers from Boies,

Schiller & Flexner LLP.103 Weil noted that bidders would probably ask that Howard

and The Patrick Henry Trust enter a voting agreement to support any potential

transaction.104 Howard then told Weil that, although he would not support a sale of

Straight Path as a whole, he would consent to selling only the Spectrum Assets.105



99
   Compl. ¶ 83.
100
    Id. ¶ 80.
101
    Id. ¶ 83.
102
    Id. ¶ 84; Clark Aff. Ex. C, at 41.
103
    Clark Aff. Ex. C, at 41.
104
    Id.
105
    Id. at 42.

                                         16
Later, on March 20, one of Howard’s lawyers at Boies told counsel for the Special

Committee that Howard would not support any transaction that would enable the

indemnification claim to be pursued against IDT post-closing.106

       Howard Jonas met with the Special Committee on March 29 to discuss the

indemnification claim and the IP Assets.107 Weil, Shearman, Boies, and Straight

Path’s General Counsel were in attendance.108 Realizing that it was out of options,

the Special Committee capitulated to Howard Jonas’s demands.109 The parties

reached an agreement in principle to settle the indemnification claim and sell the IP

Assets to IDT.110 On April 2, Evercore sent out the third-round bid instruction letter,

which informed bidders of the agreement between Howard and the Special

Committee.111

       Straight Path and IDT executed the initial term sheet on April 6. 112 The

Special Committee signed off on the deal “after taking into account both the potential

gain in the event that Straight Path were to pursue an indemnification claim against

IDT and the costs and risks to the merger transaction.”113 Per the term sheet, Straight

Path agreed to sell the IP Assets to IDT for $6 million, even though the Consent


106
    Id.; Compl. ¶ 84.
107
    Compl. ¶ 86.
108
    Clark Aff. Ex. C, at 43–44.
109
    Compl. ¶ 86.
110
    Id.
111
    Id.; Clark Aff. Ex. C., at 44.
112
    Compl. ¶ 87; Clark Aff. Ex. C, at 44.
113
    Clark Aff. Ex. C, at 44.

                                            17
Decree places a $50 million value on Straight Path’s “Non-License Portfolio

Assets,” the vast majority of which are the IP Assets.114 Straight Path also agreed to

settle the indemnification claim against IDT for $10 million plus a right to receive

22% of the net proceeds from the IP Assets.115 Finally, IDT consented to release

any counterclaims it might have against Straight Path.116

       The day after the initial term sheet was executed, one of Howard’s attorneys

from Boies asked the Special Committee’s counsel to make the agreement

binding.117 The Boies attorney expressed the view that “consummation of the

merger should not be contingent upon further documentation of the settlement

between IDT and Straight Path.”118 As the Plaintiffs point out, however, the bidding

war for Straight Path was continuing unabated at this time; indeed, the same day this

conversation took place, Verizon proposed to acquire the company for $1.262

billion.119 Again, as the bids for Straight Path increased, IDT’s potential liability to

Straight Path increased as well.

       The Special Committee met by phone on April 8.120 Recognizing that the

value of the indemnification claim was increasing by the day, the Special Committee



114
    Compl. ¶¶ 88, 90. IDT later resold the IP Assets to Howard Jonas for $6 million. Id. ¶ 88.
115
    Id. ¶ 88; Clark Aff. Ex. C, Annex A, Ex. B, at 1–2.
116
    Clark Aff. Ex. C, Annex A, Ex. B, at 1.
117
    Clark Aff. Ex. C, at 46.
118
    Id.
119
    Id. at 45–46.
120
    Id. at 47.

                                               18
instructed its lawyers to seek additional settlement consideration from IDT.121 When

counsel for the Committee did as they were told and tried to get a better deal for

Straight Path, Howard Jonas’s lawyers at Boies “emphatically rejected the . . .

request.”122 Worse, the Boies attorneys threatened litigation against both Shearman

and the Special Committee members personally if the Committee sought to

renegotiate the term sheet.123 The Special Committee relented, reasoning that “it

was not worth taking any risk of holding up the prospective merger in light of the

vastly improved offers for Straight Path, which . . . would greatly benefit

stockholders.”124 Thus, on April 9, Straight Path and IDT signed a revised term sheet

that reflected IDT’s request to make the agreement binding.125

               4. Verizon Agrees to Acquire Straight Path for $3.1 Billion

       The same day Straight Path and IDT executed the revised term sheet, AT&T

informed Davidi that it was prepared to offer $1.6 billion to acquire Straight Path.126

The offer was contingent on Straight Path approving the transaction that evening.127

The board unanimously approved the deal, and Straight Path and AT&T executed

the merger agreement, which allowed Straight Path to consider superior third-party



121
    Id.; Compl. ¶ 93.
122
    Clark Aff. Ex. C, at 47.
123
    Compl. ¶ 93.
124
    Clark Aff. Ex. C, at 47.
125
    Id.
126
    Id. at 48.
127
    Id.

                                          19
offers.128 Four days later, Verizon sent a letter to Evercore indicating that it was

considering a topping bid.129 A bidding war between AT&T and Verizon ensued.130

Verizon ultimately prevailed, and on May 11, 2017, it entered into the operative

merger agreement with Straight Path.131 Verizon agreed to acquire Straight Path at

a total enterprise value of $3.1 billion, or $184 in Verizon stock.132 The merger

consideration represents a 486% premium to the closing price of Straight Path’s

common stock on January 11, 2017, the day before the company announced the FCC

settlement and the strategic alternatives process.133 As part of the deal, Howard

Jonas agreed to vote his stock in favor of the merger.134 Straight Path’s stockholders

approved the transaction on August 2, 2017.135

               5. The Merger Closes, and Straight Path and Verizon Pay the FCC
               over $600 Million

       On February 28, 2018, the Verizon merger closed, and the FCC received $614

million in accordance with the Consent Decree entered in January 2017.136 The




128
    Id. at 49; Compl. ¶ 97.
129
    Clark Aff. Ex. C, at 49.
130
    Id. at 49–53.
131
    Id. at 53; Compl. ¶ 98.
132
    Compl. ¶ 98.
133
    Clark Aff. Ex. C, at 54.
134
    Compl. ¶ 98.
135
    Id. ¶ 98 n.9.
136
    Mar. 2, 2018 Letter.

                                         20
payment represents the largest civil penalty ever paid to the United States Treasury

to resolve an FCC investigation.137

       C. This Litigation

       This action began on July 5, 2017. Plaintiff JDS1 immediately moved for an

expedited trial, and I denied the request on July 24. That same day, I consolidated

the JDS1 action with a related case that had been filed on July 11 by Plaintiff The

Arbitrage Fund. JDS1’s initial complaint named Straight Path’s outside directors as

defendants. At the hearing on the motion to expedite, however, JDS1’s counsel

stated that the outside directors would be dismissed from the action without

prejudice.138 At the same hearing, counsel for the outside directors indicated that a

majority of the Straight Path board would not authorize the company to move to

dismiss under Court of Chancery Rule 23.1.139 The outside directors saw “it as their

duty to the company and the public stockholders, in the context of this controller

transaction, not to stand in the way of the Court’s consideration of any claim that

could ultimately benefit the company and all stockholders.”140

       The Plaintiffs amended their Complaint on August 29, 2017. The Complaint

is styled as a class action directly challenging the Verizon merger, though the




137
    Mar. 26, 2018 Letter Ex. 2.
138
    July 24, 2017 Oral Arg. Tr. 11:21–24.
139
    Id. at 15:18–16:4.
140
    Id. at 15:24–16:4.

                                            21
Plaintiffs alternatively bring it as a derivative action.141 The Complaint contains four

counts.    Count I alleges that Howard Jonas, as Straight Path’s controlling

stockholder, breached the fiduciary duties he owed to Straight Path and its

stockholders.142 Specifically, the Complaint charges Howard with using his position

as a controlling stockholder to extract unique benefits from the sales process, to the

detriment of the company’s minority stockholders.143 Those benefits included the

settlement of the indemnification claim for well below its fair value and the

acquisition of the IP Assets, previously valued at around $50 million, for only $6

million. Count II alleges that Davidi Jonas breached his fiduciary duties to Straight

Path and its stockholders by putting his (and his family’s) interests above those of

the company and its stockholders.144 Count III alleges that IDT aided and abetted

Howard and Davidi Jonas’s breaches of fiduciary duty. 145 Finally, Count IV is

brought derivatively, and it seeks a declaratory judgment and a constructive trust,

though these requests are moot now that the merger has closed.146




141
    Compl. ¶¶ 102, 113.
142
    Id. ¶¶ 120–24. Count I is brought against both Howard Jonas and The Patrick Henry Trust. Id.
at 43.
143
    Id. ¶ 122.
144
    Id. ¶¶ 125–29.
145
    Id. ¶¶ 130–33.
146
    Id. ¶¶ 134–39.

                                              22
       The Defendants moved to dismiss the Complaint on September 13, 2017.

Howard Jonas147 argues that the Plaintiffs’ claims are derivative rather than direct,

and that the derivative claims fail as a matter of law. He also argues that, regardless

of whether the claims are direct or derivative, the Complaint fails to plead any breach

of fiduciary duty.148 Davidi Jonas separately argues that the Complaint fails to state

a claim against him. According to Davidi, any breach of fiduciary duty claim against

him fails because, even if he had not tipped off his father as to the Special

Committee’s plan to preserve the indemnification claim, Howard would have

learned of the plan anyway. I heard oral argument on these Motions on November

3, 2017. On November 20, 2017, I issued a Letter Opinion holding that the matter

was not ripe for decision, because if the merger failed to close, any ruling on whether

the Plaintiffs pled a direct claim would amount to an advisory opinion.149 I also

noted that if the merged closed, any direct claims would be ripe, while any derivative

claims would fall away.150

       As noted above, the merger closed on February 28, 2018. The Plaintiffs so

informed me on March 2, 2018, upon which I deemed the matter fully submitted.


147
     For simplicity, I sometimes refer to Howard Jonas, IDT, and The Patrick Henry Trust
collectively as “Howard Jonas.”
148
    Howard Jonas additionally argues that because the Plaintiffs have failed to plead an underlying
breach of fiduciary duty, the aiding and abetting claim against IDT must be dismissed as well.
149
    In re Straight Path Commc’ns Inc. Consol. S’holder Litig., 2017 WL 5565264, at *3 (Del. Ch.
Nov. 20, 2017).
150
    Id. at *4. In addition, I declined to decide whether the Plaintiffs adequately alleged demand
futility. Id.

                                                23
                                        II. ANALYSIS

       The Defendants have moved to dismiss the Complaint under Court of

Chancery Rule 12(b)(6).151 When reviewing such a motion,

       (i) all well-pleaded factual allegations are accepted as true; (ii) even
       vague allegations are well-pleaded if they give the opposing party
       notice of the claim; (iii) the Court must draw all reasonable inferences
       in favor of the non-moving party; and (iv) dismissal is inappropriate
       unless the plaintiff would not be entitled to recover under any
       reasonably conceivable set of circumstances susceptible of proof.152

I need not, however, “accept conclusory allegations unsupported by specific facts or

. . . draw unreasonable inferences in favor of the non-moving party.”153

       A. Direct or Derivative?

       Howard Jonas argues that the Plaintiffs’ claims are derivative rather than

direct. According to him, the allegations in the Complaint boil down to the assertion

that IDT did not pay Straight Path enough for the settlement of the indemnification

claim and the IP Assets. Thus, it was Straight Path that suffered the injury, and any

harm befalling the stockholders was merely an indirect result of the underlying

depletion of corporate assets. If Howard Jonas is correct that the Plaintiffs’ claims

are derivative, the Complaint must be dismissed. That is because the Verizon merger



151
    Howard Jonas has also moved to dismiss under Rule 23.1, but because I find that the Plaintiffs’
claims are direct (and because the merger has closed), I need not address Howard’s demand futility
arguments.
152
    Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002) (footnotes and internal quotation
marks omitted).
153
    Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011).

                                                24
has closed, and it is black-letter law that a plaintiff loses standing to sue derivatively

when she ceases to be a stockholder following a merger.154 In my view, the

Plaintiffs’ claims are properly characterized as direct. Thus, the Plaintiffs did not

lose standing when the Verizon merger closed.

       “To determine whether a claim is derivative or direct, this Court must consider

‘(1) who suffered the alleged harm (the corporation or the suing stockholders,

individually); and (2) who would receive the benefit of any recovery or other remedy

(the corporation or the stockholders, individually)?’”155 “The stockholder must

demonstrate that the duty breached was owed to the stockholder and that he or she

can prevail without showing an injury to the corporation.”156 Tooley requires this

Court to look beyond the labels used to describe the claim, evaluating instead the

nature of the wrong alleged.157 “Where all of a corporation’s stockholders are

harmed and would recover pro rata in proportion with their ownership of the




154
    Lewis v. Anderson, 477 A.2d 1040, 1049 (Del. 1984). There are two exceptions to this rule:
“(i) if the merger itself is the subject of a claim of fraud, being perpetrated merely to deprive
shareholders of the standing to bring a derivative action; or (ii) if the merger is in reality merely a
reorganization which does not affect plaintiff's ownership in the business enterprise.” Kramer v.
W. Pac. Indus., Inc., 546 A.2d 348, 354 (Del. 1988). Because the Plaintiffs’ claims are direct
rather than derivative, I need not decide whether these two exceptions apply here.
155
    Carsanaro v. Bloodhound Techs., Inc., 65 A.3d 618, 655 (Del. Ch. 2013) (quoting Tooley v.
Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1033 (Del. 2004)).
156
    Tooley, 845 A.2d at 1039.
157
    E.g., In re J.P. Morgan Chase & Co. S’holder Litig., 906 A.2d 808, 817 (Del. Ch. 2005), aff’d,
906 A.2d 766 (Del. 2006).

                                                 25
corporation’s stock solely because they are stockholders, then the claim is derivative

in nature.”158

       Application of these principles assumes heightened significance in the post-

merger context.159 As noted above, under Lewis v. Anderson, a stockholder loses

standing to pursue derivative claims when a merger extinguishes her status as a

stockholder.160 Thus, “[i]n the context of a merger transaction, the derivative-

individual distinction is essentially outcome-determinative of any breach of

fiduciary duty claims that can be asserted in connection with the merger by the target

company stockholders.”161 If the claims are deemed derivative, the lawsuit ends.162

If they are found to be direct, however, the plaintiff may continue to pursue them.163

The caselaw that has developed to address the question of standing in the post-

merger context is often hard to reconcile.164 Nevertheless, the decisions provide

some helpful guidance.


158
    Feldman v. Cutaia, 951 A.2d 727, 733 (Del. 2008).
159
    Golaine v. Edwards, 1999 WL 1271882, at *4 (Del. Ch. Dec. 21, 1999); see also Feldman, 951
A.2d at 731 (“It is now well established that a plaintiff may avoid dismissal of his derivative claims
following a merger in only two circumstances: where the claims asserted are direct, rather than
derivative, or whether one of the exceptions recognized in Lewis v. Anderson applies.”).
160
    477 A.2d at 1049.
161
    Golaine, 1999 WL 1271882, at *4.
162
    Id.
163
    Id.
164
    See, e.g., In re Gaylord Container Corp. S’holders Litig., 747 A.2d 71, 75 (Del. 1999) (“The
application of th[e direct/derivative test]-especially with respect to complaints challenging board
actions taken for defensive reasons or in the context of change of control transactions-has yielded
less than predictable results. Some of these results seem to flow from whether the plaintiff cited
the correct magic words, rather than from any real distinction between the relief sought or [sic] the
injury suffered.”).

                                                 26
       The basic rule is simple enough: “A stockholder who directly attacks the

fairness or validity of a merger alleges an injury to the stockholders, not the

corporation, and may pursue such a claim even after the merger at issue has been

consummated.”165        Put differently, to state a direct claim under Parnes, “a

stockholder must challenge the validity of the merger itself, usually by charging the

directors with breaches of fiduciary duty resulting in unfair dealing and/or unfair

price.”166 The difficulty lies in distinguishing between challenges to the merger itself

and challenges to mere “wrongs associated with the merger.”167 The former state

direct claims; the latter, if sufficiently remote from the merger itself, give rise to

derivative claims, which target stockholders typically cannot pursue post-merger.168

       A review of the caselaw helps illustrate these principles. Parnes involved

allegations that the CEO of Bally Entertainment Corporation “informed all potential

acquirors that his consent would be required for any business combination with Bally

and that, to obtain his consent, the acquiror would be required to pay [him]

substantial sums of money and transfer to him valuable Bally assets.”169 The CEO

had no legal authority to make these demands, and several potential acquirors




165
    Parnes v. Bally Entm’t Corp., 722 A.2d 1243, 1245 (Del. 1999).
166
    Id.
167
    Id.
168
    See Dieterich v. Harrer, 857 A.2d 1017, 1027 (Del. Ch. 2004) (noting that Parnes does not
mean “all shareholder claims for breach of fiduciary duty are direct if they involve a merger”).
169
    Parnes, 722 A.2d at 1245.

                                              27
declined to bid because they did not want to participate in illegal transactions.170

Nevertheless, Hilton Hotels Corporation agreed to the CEO’s demands.171 The

Supreme Court held that these allegations stated a direct claim because they “directly

challenge[d] the fairness of the process and the price in the Bally/Hilton merger.”172

       The Parnes Court contrasted the facts before it with those in Kramer v.

Western Pacific Industries, Inc., which the Supreme Court had decided over a

decade earlier.173 In Kramer, two of the target corporation’s directors allegedly

breached their fiduciary duties by “diverting to themselves eleven million dollars of

the [merger] proceeds through their receipt of stock options and golden parachutes

and [by] incurring eighteen million dollars of excessive or unnecessary fees and

expenses in connection with the [merger].”174 The plaintiff in Kramer did not claim

that these transactions made the merger price unfair or tainted the sales process.175

Thus, even though the plaintiff alleged that the challenged transactions reduced the

consideration paid to the target stockholders, the Supreme Court held that the

complaint stated a derivative claim for “mismanagement resulting in waste of

corporate assets.”176



170
    Id. at 1245–46.
171
    Id. at 1246.
172
    Id. at 1245.
173
    Id.
174
    Kramer, 546 A.2d at 350.
175
    Id. at 354.
176
    Id. at 353 & n.7.

                                         28
       Parnes distinguished Kramer as follows: “Although the complaint [in

Kramer] did allege that wrongful transactions associated with the merger . . . reduced

the amount paid to [the target’s] stockholders, it did not allege that the merger price

was unfair or that the merger was obtained through unfair dealing.”177 As former

Chancellor Chandler pointed out, the distinction drawn by Parnes is less than clear:

       The rationale given by the Supreme Court in Parnes for distinguishing
       Kramer is somewhat indeterminate. Although the complaint in Kramer
       may not have alleged that the merger price was unfair, it did allege that
       shareholders received less of the merger proceeds because of a series
       of wrongful transactions leading up to the merger. It elevates form over
       substance to allow a complaint to go forward simply by adding a
       sentence to the complaint that alleges that the wrongful transactions at
       issue resulted in an unfair merger price. Such a standard would
       seemingly allow a plaintiff’s designation to trump the body of the
       complaint.178

In other words, the Chancellor appears to have recognized that the distinction

articulated in Parnes embodies the type of formulaic pleading requirement that

Delaware law has generally rejected. Nevertheless, Tooley itself stated that both

Parnes and Kramer had been correctly decided.179

       In Golaine v. Edwards, Chief Justice Strine, writing as a Vice Chancellor,

attempted a synthesis of Parnes and Kramer.180 The Court concluded that “the real


177
    Parnes, 722 A.2d at 1245.
178
    Agostino v. Hicks, 845 A.2d 1110, 1119 (Del. Ch. 2004); see also In re Gaylord Container
Corp. S’holders Litig., 747 A.2d at 75–76 (noting that the difference in outcomes between Parnes
and Kramer “seem[s] to flow from whether the plaintiff cited the correct magic words, rather than
from any real distinction between the relief sought or the injury suffered”).
179
    Tooley, 845 A.2d at 1038–39.
180
    Golaine, 1999 WL 1271882, at *5–7.

                                               29
question underlying the teaching of Parnes [is] whether the complaint states a claim

that the side transactions caused legally compensable harm to the target’s

stockholders by improperly diverting consideration from them to their

fiduciaries.”181    Viewed in this way, “the derivative-individual distinction as

articulated in Parnes is revealed as primarily a way of judging whether a plaintiff

has stated a claim on the merits.”182 According to the Golaine Court, the Parnes

inquiry should focus “on whether compensable injury to the target stockholders is

alleged rather than on whether the target stockholder’s complaint has articulated

only a waste or mismanagement claim for which there is likely no proper plaintiff

on earth.”183 Thus, to state a direct claim under Parnes and Kramer, “the target

stockholder plaintiff must, at the very least, allege facts showing that the side

payment improperly diverted proceeds that would have, if the defendant directors

had acted properly, ended up in the consideration paid to the target stockholders.”184

       In my view, Parnes and its progeny compel the conclusion that the Complaint

here states direct claims challenging the fairness of the Verizon merger. The January

2017 Consent Decree required Straight Path to forfeit 20% of its spectrum licenses,



181
    Id. at *7.
182
    Id.
183
    Id.
184
    Id. at *9; see also Houseman v. Sagerman, 2014 WL 1600724, at *13 (Del. Ch. Apr. 16, 2014)
(holding that, to state a direct claim under Parnes, “the plaintiff must plead facts supporting an
inference that the side payment represented an improper diversion and that, absent the impropriety,
the consideration would have gone to the stockholders”).

                                                30
sell its remaining licenses within one year, and relinquish 20% of the sales proceeds

to the FCC. Because wireless spectrum made up the vast majority of Straight Path’s

assets, the Consent Decree essentially forced the company to sell itself. Fortunately,

Straight Path had a way to seek compensation for the penalties the FCC imposed on

it. As part of the spinoff from IDT, Straight Path received a right to indemnification

from its former parent for liabilities incurred pre-spinoff. The misconduct giving

rise to the Consent Decree occurred in 2011 and 2012, and the spinoff took place in

July 2013. Thus, the indemnification claim could enable Straight Path to recover,

among other things, the 20% penalty it would pay to the FCC in the event of a sale.

The problem was that potential acquirers would probably have little interest in

purchasing, in addition to wireless spectrum, a lawsuit against IDT, a company

controlled by Howard Jonas.185 Accordingly, any sale of Straight Path that did not

preserve the indemnification claim could have the effect of depriving stockholders

of one-fifth of the merger consideration.

       The Special Committee recognized this. It therefore set about preserving the

indemnification claim so that, once the merger closed, Straight Path could recover

the portion of the sales proceeds that would be remitted to the FCC. The Special




185
   See, e.g., Carsanaro, 65 A.3d at 664 (“[I]t can be inferred reasonably at the pleadings stage that
the buyer is paying to acquire the target company’s business and not for the right to sue the target
company’s fiduciaries. Acquirers buy businesses, not claims. Merger-related financial analyses
focus on the business, not on fiduciary duty litigation.”).

                                                31
Committee instructed its counsel to draft the paperwork necessary to create a

litigation trust. The trust would pursue the indemnification claim against IDT post-

merger. It would exist for the benefit of the Straight Path stockholders, and not

Straight Path itself; upon sale of the company, then, stockholders would receive two

forms of consideration—a beneficial interest in the trust and a proportionate share

of consideration paid by the buyer.

      These developments spelled trouble for Howard Jonas and his family.

Howard controlled a majority of the voting stock of Straight Path and IDT. And

while he held a larger equity stake in Straight Path than in IDT (17.6% versus

11.3%), his children separately held 10% of IDT’s outstanding equity. Moreover,

given IDT’s market capitalization, successful pursuit of the indemnification claim

could bankrupt the company Howard had founded approximately thirty years before.

Indeed, if IDT went bankrupt, the bankruptcy trustee might consider pursuing breach

of fiduciary claims against Howard, who had served as the company’s CEO at the

time of the spectrum-related misconduct. Howard would thus have reason to fear the

prospect that an entity he could not control would collect on the massive debt IDT

owed to Straight Path. Accordingly, once he learned of the Special Committee’s

plan, Howard used his leverage as Straight Path’s controlling stockholder to force

the company to settle IDT’s debt at an amount manifestly below fair value. Howard

accomplished this by threatening to block any sale that would allow the


                                        32
indemnification claim to be pursued against IDT post-closing. Howard’s threats put

the Special Committee in a bind: it could capitulate to Howard’s demands and

deprive stockholders of the value represented by the indemnification claim, or it

could stick to its plan and risk blowing up a sales process that was likely to generate

a large premium for the stockholders.186

       The Special Committee ultimately gave in to Howard’s demands, and the

indemnification claim was settled for $10 million plus a right to receive 22% of the

net proceeds from the IP Assets. As part of the settlement, Straight Path also agreed

to sell the IP Assets to IDT for $6 million, even though the Consent Decree places a

$50 million value on Straight Path’s “Non-License Portfolio Assets,” almost all of

which are the IP Assets. The settlement agreement was made binding on April 9,

the same day AT&T offered to acquire Straight Path for $1.6 billion. And Straight

Path was ultimately sold to Verizon for $3.1 billion. Because the indemnification

claim gave Straight Path the right to recover 20% of the sales price, the settlement




186
    Howard Jonas argues that the Special Committee was not actually in a bind because he
expressed support for “a sale of only Straight Path’s wireless spectrum assets—which were the
only assets that had to be sold pursuant to the FCC consent decree.” Clark Aff. Ex. C, at 42. Of
course, selling only the spectrum would leave Howard in control of Straight Path. Given the
extraordinary steps he took to eliminate the indemnification claim, it is reasonable to infer that he
would likewise do whatever he could to prevent the claim from being asserted against IDT after
an asset sale. Moreover, Straight Path’s board advised Evercore that “it was in the best interests
of the holders of Straight Path common stock for Straight Path to pursue a competitive process to
sell Straight Path.” Clark Aff. Ex. C, at 60. That supports a pleading-stage inference that a sale
of Straight Path, rather than an asset sale, was the optimal transaction structure for the company’s
stockholders.

                                                 33
agreement effectively deprived the company’s stockholders of a claim potentially

worth over half a billion dollars as part of the sale of the company. What Straight

Path and its stockholders received in return was a small fraction of that potential

recovery.

      These allegations support a reasonable inference that Howard Jonas, through

IDT, improperly diverted merger consideration that otherwise would have gone to

the stockholders. In the transaction structure proposed by the Special Committee,

the stockholders would receive the $3.1 billion minus the 20% penalty paid to the

FCC. But the indemnification claim would survive the sale, so the litigation trust

would be able to recover the 20% penalty from IDT. Thus, if the Special Committee

had established the litigation trust, the stockholders would have effectively received

a much higher total price in the Verizon sale.

      That is not what happened, of course. Instead, Howard Jonas insisted that the

indemnification claim be settled for a relatively small amount of consideration.

Howard extracted significant, non-ratable benefits from this settlement: forgiveness

of IDT’s enormous debt, and the assurance that IDT would not face bankruptcy as a

result of its obligations to Straight Path. Yet the settlement directly harmed Straight

Path’s other stockholders, who ended up receiving hundreds of millions of dollars




                                          34
less in merger consideration than they would have but for Howard’s disloyalty. 187

For these reasons, the Complaint supports a reasonable inference that Howard Jonas

“improperly diverted proceeds that would have, if [he] had acted properly, ended up

in the consideration paid to the target stockholders.”188                 The Complaint also

establishes “a causal link between the breach complained of and the ultimate

unfairness of the merger.”189 Accordingly, the Plaintiffs have stated direct claims

under Parnes and its progeny.190

       Howard Jonas tries to avoid this outcome by arguing that this case is really

about Straight Path wasting valuable assets, and that the sales process was merely

the backdrop for acts of corporate mismanagement. Specifically, Howard suggests

that the settlement agreement—in which Straight Path gave up assets for less than

they were worth—could have occurred in a non-merger context. To the extent that

is correct, it does not make the Plaintiffs’ claims, under the facts pled, derivative.



187
    Contrary to Howard Jonas’s suggestion, the Plaintiffs’ claims are not derivative simply because
the Complaint fails to allege that any potential acquirer would have paid more than Verizon’s bid
of $184 per share. The Plaintiffs do not argue that the consideration received by the stockholders
was unfair because other bidders could have topped Verizon’s offer. Instead, the Plaintiffs allege
that Howard Jonas took a massive amount of merger consideration off the table by coercing the
Special Committee into settling the indemnification claim (and selling IDT the IP Assets) for less
than fair value.
188
    Golaine, 1999 WL 1271882, at *9.
189
    In re NYMEX S’holder Litig., 2009 WL 3206051, at *10 (Del. Ch. Sept. 30, 2009).
190
    While the Complaint does not explicitly allege that Howard Jonas conditioned his support for
the merger on receipt of the IP Assets, IDT’s acquisition of those Assets was part of the same
settlement agreement that released the indemnification claim. Thus, at the pleading stage, it is
reasonable to infer that IDT’s acquisition of the IP Assets at an allegedly unfair price was part of
the improper diversion of merger proceeds on which the Plaintiffs’ direct claims are premised.

                                                35
Howard Jonas explicitly conditioned his support for a sale of the company on the

elimination of the indemnification claim. Indeed, he threatened to blow up any sale

unless the Special Committee dropped its plan to preserve the claim. Howard thus

manipulated the sales process to secure significant benefits for IDT and himself at

the expense of Straight Path’s other stockholders. This is not a situation in which,

before merger talks began, a company’s fiduciaries made poor business decisions

that ultimately led to a reduction in the merger consideration paid to the

stockholders.191 Rather, the side benefits Howard Jonas extracted from the sales

process were directly related to the Verizon merger.192 Contrary to Howard’s

suggestion, the Complaint does not present only “textbook derivative claims,”193 and

the Plaintiffs’ standing was not extinguished by the merger.




191
     Cf. In re Syncor Int’l Corp. S’holders Litig., 857 A.2d 994, 998 (Del. Ch. 2004) (“The
conclusion that the claims asserted here are derivative, not direct, is not altered by the fact that,
when Fu’s misconduct was ultimately disclosed, an effect of that disclosure was to cause a
reduction in the exchange ratio in the Cardinal/Syncor merger agreement. This is merely a
coincidental, indirect consequence of Fu’s acts that resulted from the awkward timing of the
disclosure. . . . The change in the terms of the then-pending merger agreement simply reflected a
change in the market value of Syncor resulting from the public disclosure of Fu’s alleged
misconduct and Cardinal’s ability to bargain for a better deal.”).
192
    This case is therefore distinguishable from Kramer, in which the Supreme Court noted that the
plaintiff’s claims were “largely unrelated” to the merger. 546 A.2d at 352.
193
    IDT Defs.’ Opening Br. 25; cf. Gentile v. Rossette, 2005 WL 2810683, at *6 (Del. Ch. Oct. 20,
2005) (“[H]ere the challenged side benefits were (as Plaintiffs allege) entirely related to the
merger-consummation of the merger was actually conditioned upon Rossette’s receipt of some
‘inducement.’”), rev’d on other grounds, 906 A.2d 91 (Del. 2006).

                                                36
       B. Does the Complaint Plead Viable Claims for Breach of Fiduciary Duty?

       Having held that the Plaintiffs have standing to sue under Parnes, I next

consider whether the Complaint states viable claims for breach of fiduciary duty.194

Howard and Davidi Jonas argue that the Complaint fails to state claims against them.

Howard’s primary contention is that he was simply exercising his right as Straight

Path’s controlling stockholder to vote “no” on the transaction structure proposed by

the Special Committee. According to Howard, that is not enough to state a claim for

breach of fiduciary duty. Howard also argues that the Plaintiffs have failed to allege

that the Verizon merger was unfair to Straight Path’s stockholders.                       Davidi

separately argues that his alleged misconduct—tipping off his father about the

Special Committee’s plan—cannot sustain a breach of fiduciary duty claim because,

even if he had not leaked the plan, his father would have inevitably learned the

information necessary to commit a breach. I analyze the allegations relevant to

Howard and Davidi separately. In my view, the Complaint adequately pleads claims

for breach of fiduciary duty against both of them.

               1. Howard Jonas

       “A controlling stockholder owes fiduciary duties to the corporation and its

minority stockholders, and it is prohibited from exercising corporate power . . . so




194
   See In re Primedia, Inc. S’holders Litig., 67 A.3d 455, 477 (Del. Ch. 2013) (“If standing exists
[under Parnes], then the plaintiff must still plead a viable claim.”).

                                                37
as to advantage [itself] while disadvantaging the corporation.”195                    While a

controlling stockholder is entitled to act in its own self-interest, that right “must yield

. . . when a corporate decision implicates a controller’s duty of loyalty.”196 For

example, a controlling stockholder may “control and vote [its] shares in [its] own

interest,” but it must do so in accordance with “any fiduciary duty owed to other

stockholders.”197 Delaware law imposes fiduciary duties on controllers because they

are able to “exert[] [their] will over the enterprise in the manner of the board

itself.”198 “The purpose of controlling stockholder liability is to make sure that

controlling stockholders do not use their control to reap improper gains [at the

expense of the minority] through unfair self dealing or other disloyal acts.”199

       Not all transactions involving controlled companies are subject to heightened

judicial scrutiny.200 Delaware’s default standard of review for corporate decisions

is the business judgment rule, “which directs the court to presume the board of

directors ‘acted on an informed basis, in good faith and in the honest belief that the




195
    Carr v. New Enter. Assocs., Inc., 2018 WL 1472336, at *22 (Del. Ch. Mar. 26, 2018) (second
alteration in original) (citation, internal quotation marks, and emphasis omitted).
196
    Id.
197
    Bershad v. Curtiss-Wright Corp., 535 A.2d 840, 845 (Del. 1987).
198
    Abraham v. Emerson Radio Corp., 901 A.2d 751, 759 (Del. Ch. 2006).
199
    Shandler v. DLJ Merchant Banking, Inc., 2010 WL 2929654, at *16 (Del. Ch. July 26, 2010).
200
    See, e.g., IRA Trust FBO Bobbie Ahmed v. Crane, 2017 WL 7053964, at *6 (Del. Ch. Dec. 11,
2017) (“[C]ontrolling stockholders are not automatically subject to entire fairness review when a
controlled corporation effectuates a transaction.”).

                                               38
action was taken in the best interests of the company.’”201 To rebut the business

judgment rule in the context of a controlled corporation, the plaintiff must

adequately allege that the controller engaged in a conflicted transaction.202

“Conflicted transactions include those in which the controller stands on both sides

of the deal (for example, when a parent acquires its subsidiary), as well as those in

which the controller stands on only one side of the deal but ‘competes with the

common stockholders for consideration.’”203 “In either circumstance, entire fairness

review will apply ab initio.”204

       This Court has identified three examples of conflicted transactions in which a

controller competes with minority stockholders for consideration:

       (1) where the controller receives greater monetary consideration for its
       shares than the minority stockholders; (2) where the controller takes a
       different form of consideration than the minority stockholders; and (3)
       where the controller gets a unique benefit by extracting something
       uniquely valuable to the controller, even if the controller nominally
       receives the same consideration as all other stockholders.205

Transactions in these three categories “face entire fairness scrutiny to assuage the

risk that a controller who stands to earn ‘different consideration or some unique



201
    Larkin v. Shah, 2016 WL 4485447, at *8 (Del. Ch. Aug. 25, 2016) (quoting Aronson v. Lewis,
473 A.2d 805, 812 (Del. 1984), overruled on other grounds by Brehm v. Eisner, 746 A.2d 244
(Del. 2000)).
202
    Crane, 2017 WL 7053964, at *6.
203
    Larkin, 2016 WL 4485447, at *8 (footnote omitted) (quoting In re Crimson Exploration Inc.
S’holder Litig., 2014 WL 5449419, at *12 (Del. Ch. Oct. 24, 2014)).
204
    Id.
205
    Crane, 2017 WL 7053964, at *6 (citations, internal quotation marks, and footnotes omitted).

                                              39
benefit’ will flex his control to secure that self-interested deal to the detriment of

minority stockholders.”206

       Here, entire fairness applies because Howard Jonas used his power as a

controlling stockholder to extract unique, non-ratable benefits from the sales

process. By threatening to withhold support for any sale that would allow the

indemnification claim to be pursued against IDT, Howard got the Special Committee

to agree to forgive a potentially half-billion-dollar debt IDT owed to Straight Path.

In exchange, Straight Path received $10 million and a portion of the proceeds from

the IP Assets.207 While Howard’s equity stake in Straight Path was larger than that

in IDT, his children held 10% of IDT’s equity, and one of his sons was IDT’s CEO.

Moreover, IDT—which Howard founded and continues to control—likely faced

bankruptcy if Straight Path successfully enforced its indemnification right. Howard

was IDT’s CEO at the time of the misconduct that gave rise to the Consent Decree,

so it is reasonable to infer that, if IDT went bankrupt, the bankruptcy trustee would

consider pursuing claims against Howard for breach of fiduciary duty.                      The

Complaint plausibly alleges that these benefits were material to Howard. And, as

discussed above, they came at the expense of Straight Path’s minority stockholders,

who received materially less merger consideration as a result of Howard’s disloyalty.


206
   Larkin, 2016 WL 4485447, at *9.
207
   Howard Jonas also received the non-ratable benefit of the IP Assets, which IDT purchased from
Straight Path for $6 million and then immediately resold to Howard for the same amount.

                                              40
       Howard Jonas responds by invoking principles of stockholder democracy. He

says that he was simply exercising his right as a stockholder to “just say no” to a

transaction he disapproved of. Not so. It is true that “a stockholder is under no duty

to sell its holdings in a corporation, even if it is a majority shareholder, merely

because the sale would profit the minority.”208 And a controlling stockholder need

not “engage in self-sacrifice for the benefit of minority shareholders.”209 But that

“does not mean that the controller or its affiliates are immune from claims for the

improper exercise of fiduciary power.”210 “If the controller attempts to squeeze out

the minority, cause the controlled entity to engage in interested transactions, or other

such conduct, the duty of loyalty operates to police the controller’s conduct.”211

       In re Delphi Financial Group Shareholder Litigation212 illustrates that a

controller’s right to refuse to support a transaction does not imply a right to exploit

minority stockholders. In Delphi, the target corporation maintained a dual-class

capital structure in which Class A shares were held mostly by the public and Class




208
    Bershad, 535 A.2d at 845; see also Frank v. Elgamal, 2014 WL 957550, at *21 (Del. Ch. Mar.
10, 2014) (“Because a controlling stockholder has no duty to sell its stock, it has the obvious ability
to reject any transaction it does not like.”).
209
    In re Synthes, Inc. S’holder Litig., 50 A.3d 1022, 1040 (Del. Ch. 2012).
210
    Buttonwood Tree Value Partners, LP v. Sullivan, 2015 WL 6437218, at *1 (Del. Oct. 22, 2015).
211
    Id.; see also Mendel v. Carroll, 651 A.2d 297, 306 (Del. Ch. 1994) (“To acknowledge that the
Carroll Family has no obligation to support a transaction in which they would in effect sell their
stock is not, of course, to suggest that they can use their control over the corporation to effectuate
a self-interested merger at an unfair price.”).
212
    2012 WL 729232 (Del. Ch. Mar. 6, 2012).

                                                 41
B shares were held entirely by the controlling stockholder.213 The controller held

49.9% of the target’s voting power on account of his Class B shares, but his stock

ownership accounted for only 12.9% of the outstanding equity.214 The target’s

charter required that holders of Class A and Class B shares receive equal

consideration in the event of a merger.215 Nevertheless, the controlling stockholder

conditioned his support for the merger on receiving a control premium, which in turn

required a charter amendment removing the equal-consideration requirement.216

The controller argued that because he was “generally unconstrained by fiduciary

duties when deciding whether to sell his stock, he [was] permitted to condition his

approval of a sale on both a restoration of his right to receive a control premium and

on actually receiving such a premium.”217 This Court rejected that argument, finding

it reasonably likely that the plaintiffs would be able to show at trial that “in

negotiating for disparate consideration and only agreeing to support the merger if he

received it, [the controller] violated duties to the stockholders.”218

       Here, Howard Jonas did not simply refuse to support a sale of Straight Path.

He did not “just say no,” as was his right as a stockholder.219 Instead, he conditioned


213
    Id. at *3.
214
    Id.
215
    Id.
216
    Id. at *7, *9.
217
    Id. at *16.
218
    Id. at *17.
219
    See, e.g., Peter Schoenfeld Asset Mgmt. LLC v. Shaw, 2003 WL 21649926, at *2 (Del. Ch. July
10, 2003) (“A majority shareholder has discretion as to when to sell his stock and to whom, a

                                              42
his support for the merger on receiving unique, non-ratable benefits at the expense

of the company’s minority stockholders. Worse, he made personal threats against

the members of the Special Committee to secure their consent, and he threatened to

undercut the sales process if he did not get his way.220 These allegations are

sufficient to subject the Verizon merger to entire fairness review.221 Indeed, entire

fairness review is particularly appropriate here, where “a controller who [stood] to




discretion that comes from the majority shareholder’s rights qua shareholder.” (citation and
internal quotation marks omitted)), aff’d, 840 A.2d 642 (Del. 2003).
220
    According to Howard Jonas, the Plaintiffs fail to allege that he engaged in any wrongdoing in
connection with the sales process. Specifically, Howard claims that “[t]he Complaint contains no
basis for leaping to the conclusion that Jonas pressured Straight Path to settle th[e]
[indemnification] claim (or sell the IP Assets) at any particular price, let alone an unfair one.” IDT
Defs.’ Opening Br. 40. For reasons that should be clear by now, Howard is wrong. To take just
one example, the Complaint specifically alleges that Howard “personally threatened the Special
Committee members in order to coerce them into agreeing to eliminate the Indemnification Claim
for nominal consideration.” Compl. ¶ 83 (emphasis added).
221
    Howard Jonas argues that the business judgment rule applies because the settlement agreement
was approved “by an independent board in the exercise of its judgment.” IDT Defs.’ Opening Br.
52. That is incorrect. The business judgment rule will apply to a conflicted transaction involving
a controlling stockholder where the “controller agrees up front, before any negotiations begin, that
the controller will not proceed with the proposed transaction without both (i) the affirmative
recommendation of a sufficiently authorized board committee composed of independent and
disinterested directors and (ii) the affirmative vote of a majority of the shares owned by
stockholders who are not affiliated with the controller.” In re EZCORP Inc. Consulting Agreement
Derivative Litig., 2016 WL 301245, at *11 (Del. Ch. Jan. 25, 2016), reconsideration granted in
part, 2016 WL 727771 (Del. Ch. Feb. 23, 2016); see also In re Martha Stewart Living Omnimedia,
Inc. S’holder Litig., 2017 WL 3568089, at *2 (Del. Ch. Aug. 18, 2017) (concluding that this
framework applies “to conflicted one-side controller transactions”). “Threats, coercion, or fraud
on the part of the controlling stockholder, however, may nullify either procedural protection.” In
re Delphi Fin. Grp. S’holder Litig., 2012 WL 729232, at *12 n.57 (citation and internal quotation
marks omitted). Here, Howard Jonas repeatedly threatened the members of the Special
Committee, thereby nullifying the burden-shifting effect that would otherwise follow from the
Committee’s approval. See In re EZCORP Inc. Consulting Agreement Derivative Litig., 2016 WL
301245, at *11 (“If a controller agrees to use only one of the protections, . . . then the most that the
controller can achieve is a shift in the burden of proof such that the plaintiff challenging the
transaction must prove unfairness.”).

                                                  43
earn ‘different consideration or some unique benefit’ . . . flex[ed] his control to

secure [a] self-interested deal to the detriment of minority stockholders.”222

       Thorpe v. CERBCO, Inc.,223 relied on by Howard Jonas, does not support a

different result.    CERBCO involved controlling stockholders who usurped a

corporate opportunity by attempting to sell one of CERBCO’s subsidiaries without

bringing that opportunity to CERBCO itself.224 The Delaware Supreme Court

agreed with the trial court that the controllers had breached the duty of loyalty.225

The Supreme Court then turned to the issue of damages, distinguishing between

damages caused by the breach and damages resulting from the controllers’ “lawful

exercise of statutory rights” in vetoing a potential transaction.226 Because any

damages stemming from “the nonconsummation of the transaction” resulted from

the controllers’ lawful exercise of their statutory rights, transactional damages could

not be awarded.227 But the Supreme Court held that other damages could be awarded

for the controllers’ disloyalty, including “any expenses . . . that the corporation

incurred to accommodate the [controllers’] pursuit of their own interests prior to the

deal being abandoned.”228 CERBCO thus has no bearing on the question before me,



222
    Larkin, 2016 WL 4485447, at *9.
223
    676 A.2d 436 (Del. 1996).
224
    Id. at 438–39.
225
    Id. at 442.
226
    Id. at 444.
227
    Id.
228
    Id. at 445.

                                          44
which is whether the Complaint pleads viable claims.229 Issues involving the

calculation of damages must await a developed factual record.230

                2. Davidi Jonas

        According to the Complaint, Davidi Jonas tipped off his father as to the

Special Committee’s plan to put the indemnification claim in a litigation trust.

Davidi had reason to be concerned about the Special Committee’s plan to preserve

the claim. At the time of the sales process, he was a Straight Path director and the

company’s CEO, but he and his siblings held a 10% equity stake in IDT. Thus, it is

reasonable to infer that Davidi was looking out for his own (and his family’s)

interests when he leaked the Special Committee’s plan to his father. Nevertheless,

Davidi argues that the Complaint fails to allege that he breached the duty of loyalty.

He claims that his disloyal conduct cannot support a breach of fiduciary duty claim,

because even if he had been a faithful fiduciary, his father would have inevitably

learned everything necessary to extract non-ratable benefits at the minority

stockholders’ expense. This argument fails.


229
    Equally inapposite is In re Countrywide Corp. Shareholders Litigation, 2009 WL 846019 (Del.
Ch. Mar. 31, 2009). True, in that case, former Vice Chancellor Noble held that a failure to preserve
a derivative claim via a litigation trust was “a novel theory . . . unlikely to find success.” Id. at *9.
But the target board’s actions in Countrywide were protected by the business judgment rule. Id.
Here, by contrast, the Verizon merger is subject to entire fairness review as a result of Howard
Jonas’s extraction of unique benefits from the sales process.
230
    See, e.g., Chaffin v. GNI Grp., Inc., 1999 WL 721569, at *7 (Del. Ch. Sept. 3, 1999) (“On a
motion to dismiss all that need be decided is whether a claim is stated upon which any relief could
be granted. If that question is answered in the affirmative, the nature of that relief is not relevant
and need not be addressed.”).

                                                  45
       As a Straight Path officer and director, Davidi owed fiduciary duties of care

and loyalty to the company and its stockholders.231 To establish a breach of fiduciary

duty, a plaintiff must prove two elements: (i) the defendant owed a fiduciary duty,

and (ii) the defendant breached the duty owed.232

       “At the core of the fiduciary duty is the notion of loyalty—the equitable

requirement that, with respect to the property subject to the duty, a fiduciary always

must act in a good faith effort to advance the interests of his beneficiary.” 233

Accordingly, “the duty of loyalty mandates that the best interest of the corporation

and its shareholders takes precedence over any interest possessed by a director,

officer or controlling shareholder and not shared by the stockholders generally.”234

“Corporate fiduciaries ‘are not permitted to use their position of trust and confidence

to further their private interests.’”235 The duty of loyalty additionally requires a

corporate fiduciary to act in good faith.236 “A failure to act in good faith may be




231
    See, e.g., QC Commc’ns Inc. v. Quartarone, 2014 WL 3974525, at *11 (Del. Ch. Aug. 15,
2014) (“Officers and directors of Delaware corporations owe fiduciary duties of care and loyalty
to those corporations for which they serve.”).
232
    E.g., Beach to Bay Real Estate Ctr. LLC v. Beach to Bay Realtors Inc., 2017 WL 2928033, at
*5 (Del. Ch. July 10, 2017).
233
    Dweck v. Nasser, 2012 WL 161590, at *12 (Del. Ch. Jan. 18, 2012) (quoting U.S. W., Inc. v.
Time Warner Inc., 1996 WL 307445, at *21 (Del. Ch. June 6, 1996)).
234
    Cede & Co. v. Technicolor, Inc., 634 A.2d 345, 361 (Del. 1993).
235
    Frederick Hsu Living Trust v. ODN Holding Corp., 2017 WL 1437308, at *16 (Del. Ch. Apr.
14, 2017) (quoting Guth v. Loft, Inc., 5 A.2d 503, 510 (Del. 1939)).
236
    Id.

                                              46
shown, for instance, where the fiduciary intentionally acts with a purpose other than

that of advancing the best interests of the corporation.”237

       The Complaint supports a reasonable inference that Davidi Jonas acted

disloyally to Straight Path and its stockholders. Because he and his siblings held a

significant equity stake in IDT, Davidi had a strong interest in seeing the

indemnification claim eliminated. After all, successful pursuit of that claim could

bankrupt IDT. Yet Straight Path and its stockholders would benefit from enforcing

the claim. Thus, by tipping off his father about the Special Committee’s plan to

preserve and pursue the claim post-merger, Davidi put his personal interests above

those of Straight Path and its stockholders. Indeed, it is reasonable to infer that

Davidi made the tip precisely because he wanted his father to use his control over

Straight Path to thwart the Special Committee’s plan. Simply put, a loyal fiduciary

would not have done what Davidi is alleged to have done. That is enough to state a

claim for breach of the duty of loyalty.238

       Davidi argues that he should be dismissed from this case because his father

would have learned of the Special Committee’s plan regardless of the tip. Davidi

points out that, as Straight Path’s controlling stockholder, Howard Jonas had to sign

off on any merger. Presumably, Howard would not agree to vote his stock in favor


237
   In re Walt Disney Co. Derivative Litig., 906 A.2d 27, 67 (Del. 2006).
238
   For the same reasons, the Complaint supports a reasonable inference that Davidi “intentionally
act[ed] with a purpose other than that of advancing the best interests of the corporation.” Id.

                                               47
of a merger unless he understood its terms. A key component of the transaction

structure proposed by the Special Committee was that the indemnification claim

would be carved out from the sale and preserved in a litigation trust. Thus, before

he agreed to support a merger, Howard would very likely learn of the Special

Committee’s plan. Once that happened, Howard would be in just as good a position

to breach his fiduciary duties as he was when Davidi tipped him off.

          Davidi misconstrues the pleading burden for claims of breach of fiduciary

duty. A plaintiff’s obligation at the pleading stage is simply to allege “(1) that a

fiduciary duty exists and (2) that the fiduciary breached that duty.”239 Notably,

resulting damages are absent from this list of elements. For the reasons explained

above, the Plaintiffs have adequately alleged that Davidi breached the fiduciary

duties he owed to Straight Path and its stockholders. Nothing more is required at

this stage of the litigation. Davidi has not cited a single case supporting the

proposition that, in addition to these two elements, the plaintiff must also allege the

precise impact of a fiduciary’s disloyal conduct. In any event, that is a fact-intensive

question that cannot be answered on a Rule 12(b)(6) motion. Davidi’s Motion to

Dismiss is denied.




239
      York Linings v. Roach, 1999 WL 608850, at *2 (Del. Ch. July 28, 1999).

                                                48
              3. Entire Fairness

       Having determined that the Verizon merger is subject to entire fairness

review, I now turn to Howard Jonas’s argument that the Plaintiffs have failed to

allege facts suggesting the transaction was unfair. I have already explained why the

Complaint adequately alleges the sales process was tainted by Howard’s improper

efforts to pressure the Special Committee into doing a deal that favored him at the

minority stockholders’ expense. Thus, I need not further address whether the

Plaintiffs have adequately alleged unfair dealing. But Howard also argues the

Plaintiffs have failed to plead that the consideration Straight Path’s stockholders

received in the merger was unfair. This argument lacks merit.

       “Under the entire fairness standard, the Court will inquire ‘into two

interrelated concepts: fair dealing and fair price.’”240 Fair dealing encompasses

“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.”241 “The fair price aspect of the test ensures that the

transaction was substantively fair by examining ‘the economic and financial

considerations.’”242    “Entire fairness is this Court’s most rigorous standard of



240
    Calesa Assocs., L.P. v. Am. Capital, Ltd., 2016 WL 770251, at *9 (Del. Ch. Feb. 29, 2016)
(quoting In re Crimson Exploration Inc. S’holder Litig., 2014 WL 5449419, at *9).
241
    Weinberger v. UOP, Inc., 457 A.2d 701, 711 (Del. 1983).
242
    Williams v. Ji, 2017 WL 2799156, at *5 (Del. Ch. June 28, 2017) (quoting Weinberger, 457
A.2d at 711).

                                             49
review; the initial burden of proof is on the [defendant] to establish, to the Court’s

satisfaction, that the transaction was a product of fair dealing and at a fair price.”243

       If entire fairness applies at the pleading stage, dismissal is inappropriate

“unless the [defendant] is able to show, conclusively, that the challenged transaction

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

integral to it.”244 Still, a plaintiff “must allege some facts that tend to show that the

transaction was not fair.”245 The Plaintiffs here have met their pleading burden.

       According to the Complaint, in exchange for $10 million and a portion of the

proceeds from the IP Assets, Straight Path waived an indemnification claim

potentially worth hundreds of millions of dollars.246 As part of the same transaction,

Straight Path sold IDT the IP Assets for $6 million, even though the Consent Decree

itself suggests the Assets were worth approximately $50 million. These allegations

are sufficient at the pleading stage to show that the reduction in merger consideration


243
    Hamilton Partners, L.P. v. Highland Capital Mgmt., L.P., 2014 WL 1813340, at *12 (Del. Ch.
May 7, 2014).
244
    Id.; see also In re Cornerstone Therapeutics Inc., S’holder Litig., 115 A.3d 1173, 1180–81
(Del. 2015) (“When [entire fairness] is invoked at the pleading stage, the plaintiffs will be able to
survive a motion to dismiss by interested parties regardless of the presence of an exculpatory
charter provision because their conflicts of interest support a pleading-stage inference of
disloyalty.”); Orman v. Cullman, 794 A.2d 5, 21 n.36 (Del. Ch. 2002) (“A determination of
whether the defendant has met [its] burden [in an entire fairness case] will normally be impossible
by examining only the documents the Court is free to consider on a motion to dismiss—the
complaint and any documents it incorporates by reference.”).
245
    Solomon v. Pathe Commc’ns Corp., 1995 WL 250374, at *5 (Del. Ch. Apr. 21, 1995), aff’d,
672 A.2d 35 (Del. 1996).
246
    Notably, the indemnification claim may also have allowed Straight Path to recover from IDT
for the loss of the forfeited licenses, the $15 million fine, and any expenses related to both the
internal and FCC investigations.

                                                50
caused by the settlement was unfair to Straight Path’s stockholders. The Plaintiffs

have thus adequately alleged unfair price.

       Howard Jonas responds by asserting that the indemnification claim was

probably worthless.247 For example, Howard argues that the Plaintiffs have not

alleged Straight Path gave IDT timely written notice of the FCC investigation,

purportedly a condition precedent to the indemnification obligation. Howard also

suggests that the indemnification claim was not triggered because IDT itself did not

consent to the Consent Decree. And Howard claims that, even if Straight Path had

the contractual right to pursue the indemnification claim against IDT, Straight Path

would be barred as a matter of law from recovering from IDT any penalty paid to

the FCC.

       In my view, a motion to dismiss is not the appropriate vehicle for considering

these arguments. The arguments boil down to the assertion that Straight Path had

no chance of recovering anything from IDT via the indemnification claim, and thus

that settlement of the claim—for any amount—was entirely fair. But the Complaint

makes clear that the Special Committee and its legal advisors saw things differently.



247
    See IDT Defs.’ Opening Br. 49 (“At bottom, Plaintiffs’ pleading failures confirm that the
keystone to their position—that the Indemnity Claim was somehow worth $150 million—is flat
wrong. That claim was likely worth nothing . . . .” (emphasis added)). Oddly, in his reply brief,
Howard Jonas appears to deny having taken the position that the indemnification claim had no
value. See IDT Defs.’ Reply Br. 31 (“Indeed, as explained above, Defendants’ position is not that
the Indemnification Claim had no value – it is that Plaintiffs have failed to adequately allege that
the value at which it was settled (tens of millions of dollars) was unfair.”).

                                                51
They thought that Straight Path’s chances of recovering the 20% penalty from IDT

justified creation of the litigation trust. It is possible that the Special Committee and

its lawyers at Shearman—a prominent law firm—misunderstood the Separation

Agreement. But it is equally reasonable to infer that they did not, and at the pleading

stage, the plaintiff gets the benefit of all reasonable inferences.248 Moreover, it is

hard to square the notion that the indemnification claim was worthless with Howard

Jonas’s alleged conduct in connection with settlement of the claim. According to

the Complaint, this conduct included making personal threats to the members of the

Special Committee—one of whom (William F. Weld) is the former Governor of

Massachusetts.249

       Finally, Howard Jonas argues that the Consent Decree’s $50 million valuation

of Straight Path’s “Non-License Portfolio Assets” does not suggest the IP Assets

were worth that amount. But the Complaint explicitly alleges that the vast majority

of Straight Path’s non-spectrum assets consisted of the IP Assets. And, according

to the Plaintiffs, the $50 million figure in the Consent Decree came from Straight

Path itself.250 Thus, the Complaint supports a reasonable inference that the IP Assets

were worth around $50 million, and that $6 million was therefore an unfair price.



248
    See, e.g., Malpiede v. Townson, 780 A.2d 1075, 1083 (Del. 2001) (“[T]he plaintiff is entitled
to all reasonable inferences that logically flow from the face of the complaint.”).
249
    In addition, IDT itself recognized in public filings that it could face liability for the penalties
the FCC imposed on Straight Path.
250
    Compl. ¶ 54 n.3.

                                                 52
Further, while Howard claims that IDT simply matched the highest bid Straight Path

had received for the IP Assets, that purported fact is not alleged or incorporated by

reference in the Complaint, and so cannot be considered on a motion to dismiss.251

Accordingly, the Complaint adequately alleges that the sale of the IP Assets at well

below fair value helped render the merger consideration unfair.

       In sum, the Plaintiffs have alleged enough facts to suggest that the Verizon

merger, conditioned as it was on the transfer of assets to Howard Jonas’s benefit,

was unfair to Straight Path’s stockholders. Of course, Howard Jonas is free to make

the fact-intensive arguments advanced in his motion papers at a later stage of this

litigation.

       C. Aiding and Abetting

       The Complaint charges IDT with aiding and abetting Howard and Davidi

Jonas’s breaches of fiduciary duty. The sole argument for dismissal of this claim is

that the Complaint fails to plead any underlying breach of fiduciary duty. Because

the Complaint adequately alleges Howard and Davidi committed breaches of

fiduciary duty, the aiding and abetting claim survives.




251
   See, e.g., In re Gardner Denver, Inc., 2014 WL 715705, at *2 (Del. Ch. Feb. 21, 2014) (“[T]he
universe of facts [on a Rule 12(b)(6) motion] is typically limited to the allegations of the complaint
and any documents attached to it.”).

                                                 53
         D. Declaratory Judgment and Constructive Trust

         Count IV of the Complaint seeks “an expedited declaratory judgment prior to

the closing of the Verizon Transaction that Davidi Jonas and Howard Jonas breached

their fiduciary duties by entering into” the settlement agreement.252 Count IV also

seeks the imposition of a constructive trust to allow the Plaintiffs “to pursue the

Indemnification Claim on behalf of the stockholders and [have] the Court appoint a

trustee to hold a free and fair auction for the IP Assets with the proceeds going to

the stockholders.”253 These requests are premised on my finding that the Plaintiffs’

claims are derivative, and they seek pre-closing relief. Because the Verizon merger

has closed, and I have held that the Plaintiffs’ claims are direct rather than derivative,

Count IV is moot and must be dismissed.

                                 III. CONCLUSION

         For the foregoing reasons, the Defendants’ Motions to Dismiss are granted in

part and denied in part. The parties should submit an appropriate form of order.




252
      Compl. ¶ 135.
253
      Id. ¶ 139.

                                           54
