                                 COURT OF CHANCERY
                                       OF THE
    SAM GLASSCOCK III            STATE OF DELAWARE                 COURT OF CHANCERY COURTHOUSE
     VICE CHANCELLOR                                                        34 THE CIRCLE
                                                                     GEORGETOWN, DELAWARE 19947


                             Date Submitted: November 6, 2017
                             Date Decided: November 27, 2017

    Peter B. Andrews, Esquire                        Kenneth J. Nachbar, Esquire
    Craig J. Springer, Esquire                       Thomas P. Will, Esquire
    David M. Sborz, Esquire                          Morris, Nichols, Arsht & Tunnell
    Andrews & Springer LLC                           1201 North Market Street
    3801 Kennett Pike                                Wilmington, DE 19899
    Building C, Suite 305
    Wilmington, DE 19807

                 Re: Brett Kandell v. Dror Niv, et al., Civil Action No. 11812-VCG

Dear Counsel:

         This Letter Opinion addresses the Defendants’ Motion for Limited

Reargument of my September 29, 2017 Memorandum Opinion (the “Decision”)

regarding the Defendants’ Motion to Dismiss.1 In that Decision, I declined to

dismiss claims regarding the Defendant directors’ approval of a loan from Leucadia

to nominal defendant FXCM, Inc.2 I found that a majority of those directors voting

was not independent and disinterested, because the Complaint alleged that one

outside director, James G. Brown, had expressed an interest in participating

personally in the transaction and accordingly had abstained from voting, ending the



1
    Kandell v. Niv, 2017 WL 4334149 (Del. Ch. Sept. 29, 2017).
2
    Id. at *12.
possibility of a disinterested majority in favor.3 I also denied the Motion to Dismiss

with respect to a related transaction, a memorandum of understanding (the “MOU”)

that amended the terms of the Leucadia loan.4 It is that latter denial to which the

Defendants address their Motion for Limited Reargument. For the reasons that

follow, the Motion is denied.

       A breezy informality can be a desirable quality in a friend; it is certainly

undesirable in the writer of legal opinions. In my Decision, I noted that “[t]he

Complaint is silent as to whether Brown voted for or abstained from the vote to

approve the MOU [modifying the Leucadia loan]. In light of my decision on the

Leucadia loan, I find it prudent to deny the Motion to Dismiss with respect to the

MOU pending discovery as well.”5 This facile treatment of the issue, no doubt, has

led to this Motion for Limited Reargument.

       A motion for relief under Court of Chancery Rule 59(f) should be granted

where the movant demonstrates that the challenged decision turned on a

misapplication of the law, or on a misapprehension of a material fact.6 The movant

here alleges the former; that I misplaced the burden onto the Defendants to show

that the MOU was not approved by a board composed of a majority of disinterested



3
  Id.
4
  Id.
5
  Id.
6
  E.g., inTEAM Assocs., LLC v. Heartland Payment Sys., Inc., 2016 WL 6819734, at *1 (Del. Ch.
Nov. 18, 2016).
                                             2
and independent directors. As the Defendants state correctly, that burden rests with

the Plaintiffs.7 Nonetheless, I deny the Motion for Limited Reargument here.

       The Defendants point out that a bare majority of the Board was composed of

outside directors, and that it was Brown’s abstention that caused the Leucadia

transaction Board to be evenly split between conflicted and non-conflicted voting

directors. While the Complaint is silent as to whether Brown voted on the MOU,

the Defendants point out that the board minutes of the meeting in question

demonstrate that Brown in fact voted for the MOU. But even if the minutes are meet

for consideration at the Motion to Dismiss phase, and I therefore consider Brown’s

vote in favor, that is insufficient to justify relief under Rule 59(f). That is because

the question of Brown’s conflict of interest—which caused him to abstain from the

vote on the Leucadia transaction but not from the vote on the modification of that

transaction via the MOU—is sufficient, to my mind, to raise a reasonable inference

that a majority of the MOU Board was not independent and disinterested with

respect to the MOU.8 In any event, in considering the consequences of the conflicted


7
  See, e.g., Kandell, 2017 WL 4334149, at *11 (“To establish demand futility under Aronson, the
plaintiff must allege particularized facts creating a reasonable doubt that ‘the directors are
disinterested and independent’ or the ‘challenged transaction was otherwise the product of a valid
exercise of business judgment.’” (quoting Aronson v. Lewis, 473 A.2d 805, 814 (Del. 1984))).
8
  The Defendants argue that the Leucadia loan “was made solely by Leucadia” and that “Brown
had no part in the Leucadia loan.” Defs.’ Mot. for Limited Reargument 4 n.1. According to the
Complaint and the documents it incorporates by reference, however, Brown himself announced an
interest in the loan, and determined that such interest required him to recuse himself from the vote
on that transaction. That interest is sufficient to cause a reasonable doubt as to his interest in the
MOU transaction as well.
                                                  3
vote in favor of the Leucadia transaction, I must also consider the consequences of

the MOU that modifies that transaction, which presumably would not have been in

question but for the conflicted vote on the Leucadia transaction itself.

      For the foregoing reasons, the Motion for Limited Reargument is denied. To

the extent the foregoing requires an Order to take effect, IT IS SO ORDERED.



                                              Sincerely,

                                              /s/ Sam Glasscock III

                                              Sam Glasscock III




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