      IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

ROBERT GARFIELD,              )
                              )
           Plaintiff,         )
                              )
      v.                      )             C.A. No. 2018-0917-KSJM
                              )
BLACKROCK MORTGAGE            )
VENTURES, LLC, BLACKROCK,     )
INC., HC PARTNERS, LLC,       )
STANFORD L. KURLAND, DAVID    )
A. SPECTOR, ANNE D.           )
MCCALLION, MATTHEW BOTEIN, )
FARHAD NANJI, MARK WIEDMAN, )
JOSEPH MAZELLA, and ANDREW S. )
CHANG,                        )
                              )
           Defendants,        )
                              )
      and                     )
                              )
PENNYMAC FINANCIAL            )
SERVICES, INC.,               )
                              )
           Nominal Defendant. )

                        MEMORANDUM OPINION
                      Date Submitted: September 10, 2019
                       Date Decided: December 20, 2019

Kurt M. Heyman, Aaron M. Nelson, HEYMAN ENERIO GATTUSO & HIRZEL
LLP, Wilmington, Delaware; Jason M. Leviton, Joel A. Fleming, Amanda R.
Crawford, BLOCK & LEVITON LLP, Boston, Massachusetts; Counsel for Plaintiff
Robert Garfield.

Kenneth J. Nachbar, MORRIS NICHOLS ARSHT & TUNNELL, Wilmington,
Delaware; Deborah S. Birnbach, Jennifer B. Luz, Katherine B. Dacey, GOODWIN
PROCTER LLP, Boston, Massachusetts; Counsel for Defendants Stanford L.
Kurland, David A. Spector, Anne D. McCallion, Matthew Botein, Farhad Nanji,
Mark Wiedman, Joseph Mazzella, Andrew S. Chang, and Nominal Defendant
PennyMac Financial Services, Inc.

Kevin R. Shannon, Berton W. Ashman, Jr., Callan R. Jackson, POTTER
ANDERSON & CORROON LLP, Wilmington, Delaware; John P. Coffey, Adina
C. Levine, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New
York; Counsel for Defendants BlackRock Mortgage Ventures, LLC and BlackRock,
Inc.

David E. Ross, S. Michael Sirkin, ROSS ARONSTAM & MORITZ LLP,
Wilmington, Delaware; Counsel for Defendant HC Partners, LLC.



McCORMICK, V.C.
      This action challenges the fairness of a reorganization that transformed

PennyMac from an “Up-C” structure to a simple corporate form. The reorganization

created benefits for the defendants who held units in the company’s operating

subsidiary, but not for the stockholders who held Class A common stock in the parent

corporation.   The plaintiff holds Class A common stock and argues that the

reorganization should be subject to the entire fairness standard of review. The

defendants moved to dismiss pursuant to Court of Chancery Rule 12(b)(6), arguing

they should obtain the benefit of the business judgment rule under Corwin because

a majority of disinterested stockholders approved the transaction.

      Under Delaware law, a stockholder vote cannot restore the business judgment

rule under Corwin when there is a controller that benefits personally from the

transaction. Following this logic, this decision finds Corwin is inapplicable because

the complaint supports a reasonably conceivable inference that two large PennyMac

stockholders constituted a control group that stood to benefit from the

reorganization. This decision further finds that the complaint states a claim when

evaluated under the entire fairness standard.




                                          1
I.      FACTUAL BACKGROUND
        The background facts are drawn from the Verified Amended Class Action and

Derivative Complaint (the “Amended Complaint”),1 exhibits attached to the

Amended Complaint, documents it incorporates by reference, and any judicially

noticeable sources.

        A.     BlackRock and HC Partners Launch PennyMac.
        During the financial crisis of 2008, BlackRock, Inc.2 and Highfields Capital

Management (“HC Partners”)3 perceived a market opportunity to acquire loans from

financial institutions who were “seeking to reduce their mortgage exposures.”4 For

that purpose, they formed Private National Mortgage Acceptance Company, LLC

(“PennyMac, LLC”). The press release announcing PennyMac, LLC’s formation

referred to BlackRock and HC Partners as “strategic partners” who could “enhanc[e]

PennyMac’s relationships with global financial institutions and provid[e] valuable




1
 C.A. No. 2018-0917-KSJM Docket (“Dkt.”) 39, Verified Am. Class Action and
Derivative Compl. (“Am. Compl.”).
2
  BlackRock Mortgage Ventures, LLC is also a named defendant. BlackRock, Inc. owned
its stake in the PennyMac entities through BlackRock Mortgage Ventures, LLC. At no
time did BlackRock, Inc. directly own a stake in PennyMac. For ease, this opinion refers
to these two entities collectively as “BlackRock.”
3
  HC Partners, LLC was formerly known as Highfields Capital Management. The
Amended Complaint references Highfields Capital Management, but the parties adopted
“HC Partners” to minimize confusion.
4
    Am. Compl. ¶ 39.

                                           2
input in structuring PennyMac’s investment management activities.”5 BlackRock

and HC Partners signed the PennyMac LLC Agreement (the “LLC Agreement”),6

which afforded them certain rights and preferences. These included the right to veto

certain LLC actions and to call an official meeting at any time.

          In 2009, PennyMac, LLC formed PennyMac Mortgage Investment Trust (the

“Public REIT”). The Public REIT was externally managed by PNMAC Capital

Management, LLC (the “REIT Manager”), a subsidiary of PennyMac, LLC. In its

initial public offering, the Public REIT sold 93.5% of its shares to public investors

and 6.5% of its shares to BlackRock, HC Partners, and management. The offering

documents again described BlackRock and HC Partners as “strategic partners.”7

          B.   The Up-C Transaction
          In 2013, BlackRock, HC Partners, and former PennyMac CEO Stanford L.

Kurland took the PennyMac structure public in an “Up-C” transaction. After the

initial public offering, a new publicly traded corporation, PennyMac, Inc., sat above

PennyMac, LLC. PennyMac, Inc. issued Class A common stock to the new public



5
    Id.
6
  Dkt. 48, Opening Br. in Supp. Of Def. HC Partners, LLC’s Mot. to Dismiss (“HC P’rs
Opening Br.”) Ex. B. The Amended Complaint quotes from the LLC Agreement and thus
incorporates it by reference. Amalgamated Bank v. Yahoo! Inc., 132 A.3d 752, 797 (Del.
Ch. 2016) (“The incorporation-by-reference doctrine permits a court to review the actual
document to ensure that the plaintiff has not misrepresented its contents and that any
inference the plaintiff seeks to have drawn is a reasonable one.”).
7
    Am. Compl. ¶ 53.

                                           3
stockholders who participated in the public offering. These Class A common

stockholders owned 15% of the voting rights and 100% of the economic rights to

PennyMac, Inc. PennyMac, Inc. also issued Class B common stock to existing

PennyMac, LLC Unitholders (the “LLC Unitholders”). The LLC Unitholders held

the remaining 85% of the voting rights of PennyMac, Inc. through their Class B

shares; they continued to derive their economic benefits solely from ownership of

the subsidiary LLC. For ease, this decision refers to PennyMac, Inc. and PennyMac,

LLC together as “PennyMac” unless a distinction is necessary.

          The Up-C public offering documents described BlackRock and HC Partners

as “strategic investors” who supported PennyMac’s senior management in

“organiz[ing] PennyMac and assembl[ing] a team with the knowledge and

experience” to identify market opportunities and create value for stockholders.8

PennyMac, LLC’s filings in connection with the public offering also describe

BlackRock and HC Partners as “strategic partners” who, along with members of

management, founded the original LLC.9

          C.    IPO-Related Agreements
          Two agreements executed in conjunction with the 2013 Up-C transaction

allowed the LLC Unitholders to take advantage of the tax-friendly Up-C structure.



8
    Id.
9
    Id. ¶ 54.

                                         4
The first, the “Exchange Agreement,” allowed LLC Unitholders to exchange their

LLC Units for Class A common stock in PennyMac, Inc. on a one-for-one basis.

These exchanges created potential tax liability for the LLC Unitholder but provided

potential tax benefits to PennyMac, Inc.         The second, the “Tax Receivable

Agreement,” entitled LLC Unitholders to payment of 85% of any such tax benefit

enjoyed by PennyMac, Inc.        Thus, only 15% of any tax benefits from these

exchanges remained with the PennyMac, Inc. Blackrock and HC Partners are co-

signatories the Tax Receivable Agreement.

      D.     Lead Up to the Reorganization
      Although the Up-C structure was designed in part to allow LLC Unitholders

to more easily realize tax benefits, these benefits did not materialize for two reasons.

First, the federal government passed the Tax Cuts and Jobs Act of 2017, which

reduced the top marginal corporate tax rate from 35% to 21%. This reduction in the

tax rate reduced the expected future value of PennyMac, LLC’s tax assets

accumulated due to historical net operating losses. Separately, PennyMac, LLC’s

business changed. Its loan production volume grew significantly, and tax laws

allowed it to defer revenue associated with mortgage servicing rights. This deferral

resulted in current period tax losses for PennyMac, LLC.

      Given these changes, management did not expect to earn taxable income for

at least a decade, which would render the tax benefits afforded by the Up-C structure


                                           5
management present potential ways to reorganize the Company and authorized

management to discuss potential reorganization options with the holders of our Class

B common stock.”13 The Reorganization was designed to allow all of the LLC

Unitholders to exchange their LLC Units for PennyMac, Inc. Class A common stock

in a tax-free exchange and receive long-term capital gains treatment on future sales

of the newly acquired Class A common stock as long as those shares were held for

more than one year.14

         Approval of the Reorganization required a majority vote of the PennyMac,

Inc. stockholders voting as a single class.15 As discussed above, Class A common

stockholders controlled 15% of the voting rights under the Up-C structure, while

LLC Unitholders controlled the remaining 85% through their ownership of Class B

common stock. At the time the Reorganization was proposed, there were 25.2

million outstanding shares of Class A common stock and 52.3 million shares of

Class B common stock for a combined total of 77.5 million votes. Through their

respective holdings, Kurland controlled approximately 8.3 million (10.7%) of those


13
   Id. ¶ 68. Plaintiff alleges that this purported authorization was illusory because while it
is summarized in the proxy statement issued in connection with the Reorganization, it is
not reflected in the formal minutes of the board meeting. Id.; Defs.’ Opening Br. Ex. C.
(“Proxy”) at 45. The Amended Complaint incorporates the Proxy by reference and it is
thus appropriately considered on this motion. See Amalgamated Bank 132 A.3d at 797.
14
  The long-term capital gains rate would be in place of the ordinary income rate that would
otherwise apply to such an exchange.
15
     Proxy at 2.

                                              7
votes;16 BlackRock controlled approximately 15.6 million (20.1%) of those votes;17

and HC Partners controlled approximately 20.2 million of those votes (26%);18

Thus, the proponent of the Reorganization—Kurland—required the support of only

BlackRock and HC Partners to approve the Reorganization.

           Eleven persons comprised the Board that recommended stockholders vote in

favor of the Reorganization. Seven directors, all named as defendants in this action

(the “Director Defendants”),19 owned more LLC Units than shares of Class A

common stock. Of the Director Defendants: BlackRock appointed one of its

employees and one of its consultants, Mark Wiedman and Matthew Botein,

respectively; HC Partners appointed its general counsel and a former employee,

Joseph Mazella and Farhad Nanji, respectively; and PennyMac, Inc. officers

Kurland, David A. Spector, and Anne D. McCallion also served. The remaining

directors were James Hunt, Patrick Kinsella, Theodore Tozer, and Emily Youssouf,

none of whom are named as defendants to this lawsuit.




16
     Id.
17
     Id. at 70.
18
     Id.
19
   Andrew Chang was the Chief Financial Officer of PennyMac, Inc. and is a named
defendant in this action as well. The parties refer to the Director Defendants and Chang as
the “Individual Defendants.” Chang also owned more LLC Units than shares of Class A
common stock. Am. Compl. ¶ 59.

                                            8
           Members of PennyMac, Inc. management made a presentation to Blackrock

and HC Partners contemporaneously concerning the Reorganization on April 24,

2018. The presentation depicted BlackRock, HC Partners, and management as a

single group. It also quantified the size of the tax savings for parties subject to the

individual rate to be approximately $3.21 per Unit. This quantification relied upon

various assumptions relating to the party’s tax situation, including that the party was

a California resident with a specified tax basis and subject to the highest marginal

state and federal tax rates. A week later, management held a conference call with

BlackRock and HC Partners regarding the proposed transaction.

           Management made a formal presentation to the Board about the proposed

transaction on May 30, 2018. Kurland opened the Board’s discussion by noting that

BlackRock and HC Partners were “inclined to support the proposal.”20 Kurland then

turned the meeting over to Chang and attorneys from Goodwin Procter LLP

(“Goodwin Procter”). According to the minutes of the meeting, Chang identified

the benefits of the Reorganization, which included “more favorable tax treatment for

[LLC] unit holders.”21 BlackRock had conducted its own internal evaluation of the

Reorganization considering possible future scenarios depending on a variety of




20
     Id. ¶ 74.
21
     Id.

                                          9
differing assumptions regarding PennyMac’s profitability. Wiedman offered to

make BlackRock’s analysis available to the Board as well.

          The next day, the Board established a special committee comprised of Hunt,

Kinsella, Tozer, and Youssouf (the “Special Committee”) to evaluate the

Reorganization. The resolution forming the Special Committee provided that “after

having made a decision with respect to the Potential Transaction, the Special

Committee’s authority shall be limited to making a recommendation to the Board of

Directors, rather than giving final approval to or implementing such action or

transaction.”22

          On June 2, 2018, the Special Committee held a conference call with

management and Goodwin Procter. According to the minutes of that meeting, “[o]ne

of the Committee members asked whether the Committee should consider retaining

independent counsel.”23 The Special Committee never retained another law firm,

and Goodwin Procter was its sole legal advisor.

          On June 11, 2018, management presented the Special Committee with an

analysis showing that the Reorganization would reduce PennyMac, Inc.’s book value

from $20.61 per share to $19.65 per share. The next day, the Special Committee




22
     Id. ¶ 75.
23
     Id. ¶ 76.

                                          10
held a conference call with management and Goodwin Procter to discuss this

decline.

           On June 15, 2018, the Special Committee met and discussed whether

PennyMac, Inc. should issue a special dividend (the “Distribution”) to the holders

of Class A common stock.          Later that day, the Special Committee convened

telephonically, along with Wiedman and another BlackRock managing director,

Tom Wojcik. Wojcik shared that “in BlackRock’s opinion, the various benefits

resulting from the [Reorganization] were likely to outweigh the loss of BlackRock’s

potential benefits under the Company’s Tax Receivable Agreement.”24

           Two weeks later on June 29, 2018, the Special Committee met and discussed

“the excess cash that accumulated at the [PennyMac, Inc.] level since the IPO in

2013 as a result of, among other things, tax distributions from [PennyMac, LLC]

that exceeded [PennyMac, Inc.’s] actual tax liability.”25 The Special Committee

discussed two possible alternatives to “distribute some or all of this value to Class A

common stockholders.”26 The first alternative was the Distribution, and the second

was to adjust the ratio of shares to be issued to holders of Class A common stock in

connection with the Reorganization. On July 13, 2018, the Special Committee met



24
     Id. ¶ 80.
25
     Id. ¶ 82.
26
     Id.

                                           11
with Goodwin Procter, Chang, and other members of management to review a

presentation regarding the two alternatives. Chang recommended the Distribution

instead of a change to the exchange ratio.

       On July 18, 2018, the Special Committee acted by written consent to

recommend approval of the Reorganization to the full Board. As a condition

precedent to the Reorganization, PennyMac, Inc. Class A common stockholders

would receive the Distribution of approximately $10.1 million ($0.40 per share).

       On July 24, 2018, the full Board met and approved the Reorganization. The

Board also directed the officers of PennyMac, Inc. to attempt to cause each of the

LLC Unitholders to execute and become party to the proposed contribution

agreement and plan of merger.

       At some point before the Board next convened, HC Partners and Blackrock

negotiated to revise the terms of the Reorganization “adding a provision stating that

the consent of BlackRock and [HC Partners] was required to terminate the

Reorganization prior to the effective date.”27 On August 2, 2018, the full Board met

to approve the revised proposed contribution agreement and plan of merger that




27
  Id. ¶ 87; see Proxy Annex 1 at 15 (“This Agreement may be terminated and the
Reorganization contemplated hereby may be abandoned at any time prior to the Effective
time . . . by written notice of the Contributors holding at least a majority of the [LLC] Units
then outstanding (which majority must include each of [HC Partners] and
[BlackRock]) . . . .” (emphasis added)).

                                              12
reflected these changes.28

         The Reorganization was not conditioned on majority-of-the-minority

approval. Rather, the Proxy informs that “[e]ven if no affirmative votes of Class A

common stockholders are cast in favor of the Reorganization Proposal, the

Reorganization Proposal will be approved if a sufficient number of votes of Class B

common stockholders [i.e., [LLC Unitholders]] are cast in favor of the

Reorganization Proposal.”29

         On August 2, 2018, the Board declared and publicly announced the

Distribution, which was issued on or around August 30, 2018. Later that day,

PennyMac, Inc. publicly announced the Reorganization. PennyMac, Inc. issued the

Proxy on September 18, 2018. Stockholders voted to approve the Reorganization

on October 24, 2018, and the Reorganization closed on November 1, 2018.

         F.    The Proxy and the Stockholder Vote
         The Amended Complaint alleges that the stockholder vote was uninformed

and identifies two categories of disclosure deficiencies concerning (1) projections of

PennyMac’s future profitability and (2) the quantification of tax benefits for LLC

Unitholders.




28
     Am. Compl. ¶ 87; Proxy at 48.
29
     Am. Compl. ¶ 88; Proxy at 20.

                                         13
               1.       Projections
         The Amended Complaint alleges that the following Proxy disclosure

regarding projections for PennyMac’s future profitability is incomplete:

               On June 15 . . . the Special Committee held a conference
               call with BlackRock regarding forecasts and estimates that
               were provided to the Special Committee by management
               and sought BlackRock’s views on the benefits of the
               reorganization transaction versus the benefits under the
               Tax Receivable Agreement. The forecasts and estimates
               prepared by management primarily showed that
               [PennyMac, Inc.] would not generate taxable income in
               the near-term and minimal taxable income in the long-
               term. As a result, the forecasts and estimates helped
               advise the Special Committee that the net present value of
               potential benefits to holders of Class A Common Stock
               resulting from future exchanges of [PennyMac, LLC
               Units] would likely be nominal.30

         Plaintiff contends that a number of additional facts regarding management’s

projections are material and merited disclosure.

         First, in the Special Committee’s June 12, 2018, meeting, one of the Special

Committee members asked whether the Company would provide earnings forecasts.

Chang confirmed the Company would not, even though there was significant

discussion “with respect to the relevance of the earnings projections to the

Company’s Class A common stockholders in contrast to [PennyMac, LLC’s] unit

holders.”31


30
     Am. Compl. ¶ 94; Proxy at 46.
31
     Am. Compl. ¶ 95.

                                          14
           Second, On April 24, 2018, BlackRock and HC Partners reviewed the first

presentation regarding the Reorganization that contained management base-case

projections. The Board reviewed these same projections during its meeting on

May 30, 2018.

           Third, BlackRock subsequently requested that management run three

additional scenarios, which included:

                 Mid Growth Scenario (5% market growth) – halfway
                 between management base case market share and the
                 steady state scenario below

                 Steady State Scenario (5% market growth) – No market
                 share gains, just market growth at 5% from 2020 onwards
                 (2018 and 2019 are the average of Fannie/Freddie/MBA
                 forecasts)

                 Steady State Scenario (2.5% market growth) – No market
                 share gains, just market growth at 2.5% from 2020
                 onwards (2018 and 2019 are the average of
                 Fannie/Freddie/MBA forecasts).32

           BlackRock then requested two additional scenarios on top of that:

                 Management Base Case (2.5% market growth) –
                 Management base case market share gains, but the market
                 grows at 2.5% from 2020 onwards

                 Bank Competitor Case – A major bank decides to re-enter
                 the mortgage market in 2021 and market share and
                 margins suffer as a result.33



32
     Id. ¶ 97.
33
     Id.

                                            15
      Each of these scenarios (collectively, the “BlackRock Scenarios”) contains

detailed ten-year projections of revenue, expenses, taxable income, and expected

payments under the Tax Receivable Agreement. The line-by-line results of these

analyses were not disclosed.

             2.       The Tax Benefits
      The Proxy also does not disclose management’s analysis of quantification of

the tax savings that LLC Unitholders could enjoy due to the Reorganization. As

discussed above, management was told that the LLC Unitholders could save up to

$3.21 per Unit by receiving long-term capital gains treatment on their exchange of

LLC Units via the Reorganization, compared to ordinary-income treatment under

the Up-C structure.

      Plaintiff points to a chart included in a presentation released by PennyMac,

Inc. as evidence of the disparate benefits given to the LLC Unitholders at the expense

of Class A common stockholders. The Class A common stockholders would give

up 15% of the potential tax benefits realizable under the Tax Receivable Agreement,

and LLC Unitholders would give up 85% of the same tax benefits. In return, both

the Class A common stockholders and the LLC Unitholders would enjoy a simplified

corporate structure that expands the potential investor universe and demand for

PennyMac, Inc. stock. The LLC Unitholders would also enjoy long-term capital




                                         16
gains treatment on stock sales as opposed to being taxed at rates for ordinary income.

The Class A common stockholders would not enjoy a similar benefit.

       G.     This Litigation
       Plaintiff Robert Garfield (“Plaintiff”) claims to have been a beneficial owner

PennyMac, Inc. Class A common stock since December 10, 2015. Plaintiff filed the

Verified Class Action and Derivative Complaint on December 20, 2018. Plaintiff

brings two causes of action: a direct claim for breach of fiduciary duty against

Defendants, and, in the alternative, a derivative claim for the same breaches of

fiduciary duty.34 In response to Defendants’ initial motion to dismiss, Plaintiff filed

the Amended Complaint on March 11, 2019. Defendants renewed their motion to




34
  According to the Proxy, Plaintiff became a beneficial owner of common stock of “New
PennyMac” by operation of the Reorganization. In the Amended Complaint, Plaintiff
argues that he maintains standing to pursue his claims derivatively, although his shares of
Class A common stock were automatically converted into shares of common stock of “New
PennyMac” in the merger, because the continuous-ownership requirement should not apply
when “the merger is in reality merely a reorganization.” Am. Compl. ¶ 10 n.6 (citing
Kramer v. W. Pac. Indus., Inc., 546 A.2d 348, 354 (Del. 1988)). The Defendants did not
take on this issue in their motion to dismiss. Nor did the Defendants move to dismiss the
claims styled as “derivative” under Court of Chancery Rule 23.1.

                                            17
dismiss on March 25, 2019. The parties fully briefed the motion by May 6, 2019,35

and the Court heard oral arguments on September 10, 2019.36

II.      LEGAL ANALYSIS
         Defendants moved to dismiss the Amended Complaint pursuant to Court of

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

dismiss for failure to state a claim if a complaint does not allege facts that, if proven,

would entitle the plaintiff to relief.37        “[T]he governing pleading standard in

Delaware to survive a motion to dismiss is reasonable ‘conceivability.’” 38 When

considering such a motion, the Court must “accept all well-pleaded factual

allegations in the [c]omplaint as true . . . , draw all reasonable inferences in favor of

the plaintiff, and deny the motion unless the plaintiff could not recover under any


35
  Dkt. 46, Opening Br. in Supp. of Defs. Stanford L. Kurland, David A. Spector, Anne D.
McCallion, Matthew Botein, Farhad Nanji, Mark Wiedman, Joseph Mazzella, Andrew S.
Chang and PennyMac Financial Services, Inc.’s Mot. to Dismiss the Verified Am. Class
Action and Derivative Compl. (“Ind. Defs.’ Opening Br.”); Dkt. 47, Opening Br. in Supp.
of the Mot. to Dismiss of BlackRock Mortgage Ventures, LLC and BlackRock, Inc.; HC
P’rs Opening Br.; Dkt. 57, Pl.’s Omnibus Answering Br. in Opp’n to Defs.’ Mots. to
Dismiss Pl.’s Verified Am. Class Action and Derivative Compl. (“Pl.’s Answering Br.”);
Dkt. 59, Reply Br. in Further Supp. of Defs. Stanford L. Kurland, David A. Spector, Anne
D. McCallion, Matthew Botein, Farhad Nanji, Mark Wiedman, Joseph Mazzella, Andrew
S. Chang and PennyMac Financial Services, Inc.’s Mot. to Dismiss the Verified Am. Class
Action and Derivative Compl. (“Ind. Defs.’ Reply Br.”); Dkt. 60, Reply Br. in Further
Supp. of the Mot. to Dismiss of BlackRock Mortgage Ventures, LLC and BlackRock, Inc.;
Dkt. 61, Reply Br. in Supp. of Def. HC Partners, LLC’s Mot. to Dismiss.
36
     Dkt. 75, Oral Arg. on Defs.’ Mots. to Dismiss (“Oral Arg. Tr.”).
37
     Ct. Ch. R. 12(b)(6).
38
  Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531, 537 (Del.
2011).

                                              18
reasonably conceivable set of circumstances susceptible of proof.”39 The reasonable

conceivability standard asks whether there is a possibility of recovery. 40 The Court,

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

or . . . draw unreasonable inferences in favor of the non-moving party.”41

         In support of dismissal, Defendants argue that the business judgment standard

of review applies under Corwin because a fully informed, uncoerced majority vote

of disinterested stockholders approved the Reorganization, and that the Amended

Complaint fails to state a claim under the business judgment standard.42 Even if

entire fairness is the appropriate standard of review, Defendants contend that

Plaintiff has not alleged facts to suggest the Reorganization was not entirely fair.

         Plaintiff responds that Corwin is inapplicable because the Amended

Complaint adequately pleads the existence of a controlling stockholder group whose

self-interest diverged from that of other stockholders.43 Plaintiff further responds


39
     Id. at 536 (citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002)).
40
     Id. at 537 n.13.
41
  Price v. E.I. du Pont de Nemours & Co., Inc., 26 A.3d 162, 166 (Del. 2011) (citing
Clinton v. Enter. Rent-A-Car Co., 977 A.2d 892, 895 (Del. 2009)).
42
     Ind. Defs.’ Opening Br. at 37–56; Ind. Defs.’ Reply Br. at 7–24.
43
   Pl.’s Answering Br. at 36–43; see Larkin v. Shah, 2016 WL 4485447, at *1 (Del. Ch.
Aug. 25, 2016) (“In the absence of a controlling stockholder that extracted personal
benefits, the effect of disinterested stockholder approval of the merger is review under the
irrebutable business judgment rule . . . .”); In re Merge Healthcare Inc., 2017 WL 395981,
at *6 (Del. Ch. Jan. 30, 2017) (“Importantly, there mere presence of a controller does not
trigger entire fairness per se. Rather, coercion is assumed, and entire fairness invoked,
when the controller . . . sits on both sides of the transaction, or is on only one side but
                                              19
that the Amended Complaint adequately states a claim under the entire fairness

standard.

       A.     Standard of Review
       A stockholder vote cannot restore the business judgment rule under Corwin

when there is “a controlling stockholder that extract[s] personal benefits” from the

transaction.44 This is because “the controller’s presence is said to exert ‘inherent

coercion’” on “both corporate decision-making bodies to which Delaware courts

ardently defer—the board of directors and disinterested voting stockholders.”45 To

neutralize these concerns and benefit from the business judgment standard, the

parties to a controller transaction must implement the procedural safeguards set forth

in MFW to simulate arm’s length negotiations.46 Because the Reorganization was




‘competes with the common stockholders for consideration.’” (quoting Larkin, 2016 WL
4485447, at *8)).
44
   van der Fluit v. Yates, 2017 WL 5953514, at *5 (Del. Ch. Nov. 30, 2017) (citing Merge
Healthcare, 2017 WL 395981, at *6); see Larkin, 2016 WL 4485447, at *1 (“In the absence
of a controlling stockholder that extracted personal benefits, the effect of a disinterested
stockholder approval of [a transaction] is review under the irrebutable business judgment
rule.”); see also Morrison v. Berry, 191 A.3d 268, 274 (Del. 2018) (summarizing extent of
Corwin’s application).
45
  Larkin, 2016 WL 4485447, at *9 (citing Kahn v. M&F Worldwide Corp., 88 A.3d 635,
644 (Del. 2014)).
46
  MFW, 88 A.3d at 644 (summarizing the requirement that a transaction be “conditioned
ab initio upon both the approval of an independent, adequately-empowered Special
Committee that fulfills its duty of care; and the uncoerced, informed vote of a majority of
the minority stockholders”); Flood v. Syntura Int’l, Inc., 195 A.3d 754, 763 (Del. 2018)
(holding that “the purpose of the words ‘ab initio’ . . . require the controller to self-disable
before the start of substantive economic negotiations”); Olenik v. Lodzinski, 208 A.3d 704,
                                              20
not subject to the MFW protections, the business judgment standard does not apply

at the pleadings stage if Plaintiff has adequately pleaded the existence of a conflicted

controller or control group.

       In this case, Plaintiff argues that BlackRock and HC Partners comprised such

a control group.47 To prevail at the pleadings stage, the Amended Complaint must

contain facts sufficient to form a reasonably conceivable inference that BlackRock

and HC Partners, if treated as a group, exercised control sufficient to give rise to

fiduciary obligations under Delaware law. The Amended Complaint must further

support a reasonably conceivable inference that BlackRock and HC Partners indeed

formed a group.

       It is reasonably conceivable that BlackRock and HC Partners, if treated as a

group, wielded control sufficient to give rise to fiduciary duties. BlackRock and HC

Partners controlled approximately 46.1% of PennyMac Inc.’s voting stock. They

also each enjoyed the unilateral right under the LLC Agreement to block the

Reorganization.48 For these reasons, Kurland needed buy-in from these stockholders


716 (Del. 2019) (confirming “ab initio” means that controller-disabling mechanisms must
be implemented before there has been “any economic horse trading”).
47
  Plaintiff alternatively argues that BlackRock, HC Partners, and Kurland formed a control
group, but Plaintiff does not plead significant facts particular to Kurland and instead refers
to the “executive leadership team” generally. This decision thus rejects this alternative
argument.
48
   LLC Agreement § 7.1(c) (“Notwithstanding any provision to the contrary contained in
this Agreement, as long as BlackRock Member or [HC Partners] Member holds any Class
A Units, the Company shall not . . . convert the legal form of the Company into a
                                             21
and only these stockholders to secure approval of the Reorganization. BlackRock

and HC Partners also each had the right to appoint two representatives to the Board

for a total of four out of eleven. Taken together, these allegations give rise to a

reasonable inference that BlackRock and HC Partners could exercise at least

transaction-specific control in connection with the Reorganization if they worked

together.49

       This analysis thus turns on whether, at the pleading stage, BlackRock and HC

Partners may be treated as a group. The Delaware Supreme Court recently addressed

the requirements for pleading a control group in Sheldon v. Pinto, adopting the

“legally significant connection” standard applied by multiple decisions of this Court:

              To demonstrate that a group of stockholders exercises
              control collectively, the [plaintiff] must establish that they
              are connected in some legally significant way—such as by

corporation, in each case, without the consent of BlackRock Member and Highfields
Member . . . .”); see also HC P’rs Opening Br. at 6. Because Plaintiff does not argue that
these blocking rights, standing alone, conveyed control to either BlackRock or HC Partners
respectively, this decision does not address the issue.
49
   See Kahn v. Lynch Commc’n Sys., Inc., 638 A.2d 1110, 1114–15 (Del. 1994) (affirming
Court of Chancery’s finding that stockholder owning 43.3% of equity with rights to
nominate five of eleven directors could dictate terms in the board room and therefore
“exercise[d] actual control over [the company] by dominating its corporate affairs”);
Williamson v. Cox Commc’ns, Inc., 2006 WL 1586375, at *4–5 (Del. Ch. June 5, 2006)
(concluding at pleadings stage that it was reasonably conceivable that two stockholders,
collectively owning 17.1% of the company’s voting stock with the ability to nominate two
of five directors and “veto” certain corporate decisions, effectively controlled the
company); see also In re Primedia Inc. Deriv. Litig., 910 A.2d 248, 257 (Del. Ch. 2006)
(noting that “plaintiffs need not demonstrate that [the alleged controller] oversaw the day-
to-day operations of the company” and that “[a]llegations of control over the particular
transaction at issue are enough”).

                                            22
               contract, common ownership, agreement, or other
               arrangement—to work together toward a shared goal. To
               show a legally significant connection, the [plaintiff] must
               allege that there was more than a mere concurrence of self-
               interest among certain stockholders. Rather, there must be
               some indication of an actual agreement, although it need
               not be formal or written.50

         Applying the “legally significant connection” test in Sheldon, the Supreme

Court favorably discussed In re Hansen Medical Shareholders Litigation.51 In

Hansen, the Court found that the plaintiffs adequately alleged facts sufficient to infer

the existence of a control group among stockholders who agreed to rollover their

equity. The plaintiffs pleaded “more than a mere concurrence of self-interest” by

identifying an array of plus factors that allowed the Court to infer “some indication

of an actual agreement.”52        These factors included both historical ties and

transaction-specific ties.

         The historical ties alleged in Hansen included: the group members’ twenty-

one-year history of investing in the same entities; the group members’ self-

designation as a “group” in historical SEC filings unrelated to Hansen; the group

members’ exclusive right to participate in the private placement that made them


50
  Sheldon v. Pinto, – A.3d –, 2019 WL 4892348, at *4 (Del. Oct. 4, 2019) (collecting cases
interpreting Dubroff v. Wren Hldgs., LLC, 2009 WL 1478697 (Del. Ch. May 22, 2009),
and adopting that standard).
51
     2018 WL 3025525 (Del. Ch. June 18, 2018).
 Sheldon, 2019 WL 4892348, at *4 (citing In re Crimson Expl. Inc. S’holder Litig., 2014
52

WL 5449419, at *15 (Del. Ch. Oct. 24, 2014)).

                                           23
Hansen’s largest stockholders; and the group members’ designation by Hansen as

“Principal Purchasers” in subsequent private placements, which gave the group

members special rights concerning the private placements.53

           The transaction-specific ties alleged in Hansen included: the acquiring

company’s identification of the group members as “Key Stockholders,” which

allowed the “‘Key Stockholders,’ but only the Key Stockholders, to negotiate

directly with” the acquiring company”;54 the group members’ contemporaneous

execution of voting agreements that required the members to vote in favor of the

transaction;55 and the group members’ execution of stock purchase agreements

requiring that they rollover their stakes in the surviving entity.56

           When weighing the alleged transaction-specific ties against the backdrop of

the alleged historical connections between the stockholders, the Court in Hansen

found it reasonably conceivable that the stockholders “functioned as a control group

during the [transaction].”57

           To meet the Sheldon standard in this case, Plaintiff follows the Hansen

playbook. He alleges that the interests of BlackRock and HC Partners were aligned


53
     Hansen, 2018 WL 3025525, at *7.
54
     Id.
55
     Id.
56
     Id.
57
     Id.

                                            24
in optimizing the exchange ratio to favor LLC Unitholders. As plus factors, Plaintiff

points to historical and transaction-specific ties between BlackRock and HC

Partners.

          As historical ties, Plaintiff alleges that BlackRock and HC Partners share a

ten-year history of co-investment in PennyMac with no gaps. They decided to start

PennyMac together as the Company’s founding sponsors.58 From inception, the

LLC Agreement has referred to BlackRock and HC Partners interchangeably and as

“Sponsor Members.”59 Documents filed in connection with the Public REIT IPO

one year after the founding of PennyMac refer to the two entities as “strategic

investors.”60     The Up-C public offering documents filed four years later also

continue to describe BlackRock and HC Partners as “strategic partners.”61 Plaintiff

further alleges that subsequent public disclosures continued to use the same joint

nomenclature with respect to BlackRock and HC Partners. Just as in Hansen,

Plaintiff has alleged a multi-year history of co-investment between group members




58
  See Am. Compl. ¶ 39 (“BlackRock and Highfields Capital Management Launch New
Company To Acquire and Restructure Distressed Mortgage Loans.”); id. (“BlackRock . . .
and Highfields Capital Management today announced that they have sponsored a new
company [PennyMac].”); id. (referring to BlackRock and HC Partners as “strategic
partners”).
59
     Id. ¶ 55 (defining BlackRock and HC Partners as “Sponsor Members”).
60
     Id. ¶ 53 (calling BlackRock and HC Partners “strategic investors”).
61
     Id. ¶ 54.

                                              25
that was identified and recognized by the Company as well as the group itself in

public disclosures.

          As transaction-specific ties, Plaintiff alleges that management met jointly with

BlackRock and HC Partners to negotiate the Reorganization, granting them

preferential review and exclusive weigh-in before the Board had considered the

proposal. Specifically, after the Board requested a formal analysis of Kurland’s

proposal on February 27, 2018, but before management ever presented to the Board

on May 30, 2018, management chose to meet twice with BlackRock and HC Partners

together to discuss the Reorganization.              During meetings, management’s

presentations depicted BlackRock and HC Partners as belonging to a collective unit.

Management treated BlackRock and HC Partners as a collective unit whose opinion

was more of a priority than the Board’s. Management did not meet with BlackRock

and HC Partners apart from one another. And management did not meet with any

other LLC Unitholders. Plaintiff alleges that BlackRock and HC Partners ultimately

secured a late-in-the-game revision in the form of an exclusive right exclusive to

BlackRock and HC Partners requiring “the consent of both BlackRock and [HC

Partners] . . . to terminate the Reorganization prior to the effective date.”62

          As in Hansen, BlackRock and HC Partners’ voting power, concurrence of

interests, historical ties, and transaction-specific coordination give rise to a

62
     Id. ¶ 87.

                                             26
reasonably conceivable inference that the alleged group had more than a “mere

concurrence of self-interest” and an “actual agreement” to work together in

connection with the Reorganization.

      In response, Defendants push back on one of the foundational premises of

Plaintiff’s argument—that the interests of BlackRock and HC Partners were in fact

aligned in connection with the Reorganization.             One key benefit of the

Reorganization is the resulting preferential tax structure for persons and entities

taxed at the individual rate. HC Partners is taxed at the individual rate. BlackRock

is taxed at the corporate rate. Defendants argue it would be unreasonable to conclude

that BlackRock agreed to work with HC Partners to push through a transaction from

which it did not obtain critical tax benefits.

      Defendants’ argument does not persuade the Court at this stage that the group

members’ interests were so misaligned that it would be unreasonable to infer a

legally significant connection regarding the Reorganization. At the pleadings stage,

Plaintiff is entitled to have reasonable inferences drawn in his favor, and despite the

distinguishable tax differences, BlackRock and HC Partners shared an interest in

gaining a maximum percentage of the combined entity by optimizing the exchange

ratio. This, coupled with the historical and transaction-specific ties alleged, is

sufficient to support a reasonable inference of a group.




                                           27
           Defendants also argue there can be no reasonable inference of a control group

because no written agreement executed by BlackRock and HC Partners provided

them rights in connection with the Reorganization. For this point, Defendants rely

on van der Fluit, where the plaintiff cited two agreements to bind members of a

purported control group: an investor rights agreement signed by multiple early-stage

investors, and voting rights agreements that required multiple stockholders to vote

in favor of the transaction.63 In dismissing the plaintiff’s theory, the van der Fluit

Court noted that these agreements were also signed by stockholders whom plaintiff

did not allege to be part of the group, and that the investor rights agreement

“contain[ed] no voting, decision-making, or other agreements that bear on the

transaction challenged.”64

           In this case, Defendants are correct that the written agreements identified by

Plaintiff, standing alone, suffer from some of the infirmities noted in van der Fluit.

But the absence of such a “formal or written” agreement pertaining to the transaction

is not fatal to the Plaintiff’s theory.65 Instead, those agreements can and do lend

some support to a plaintiff-friendly pleading-stage inference that BlackRock and HC

Partners actually agreed, in connection with the Reorganization, to work together.


63
     van der Fluit, 2017 WL 5953514, at *6.
64
     Id.
65
  See Sheldon, 2019 WL 4892348, at *4 (“Rather, there must be some indication of an
actual agreement, although it need not be formal or written.” (emphasis added)).

                                              28
         In the end, “[b]ecause the analysis for whether a control group exists is fact

intensive, it is particularly difficult to ascertain at the motion to dismiss stage.”66 In

this case, the sum-total of the facts alleged and inferences therefrom make it at least

reasonably conceivable that BlackRock and HC Partners formed a control group that

exercised effective control over PennyMac in connection with the Reorganization.

For this reason, Corwin does not apply at the pleadings stage, and the Court evaluates

the sufficiency of the Amended Complaint under the entire fairness standard.67

         B.     Application of Entire Fairness
         Even if entire fairness is the appropriate standard of review, Defendants argue

Plaintiff has failed to allege facts sufficient to call into question the fairness of the

Reorganization even at the pleadings stage. “The concept of fairness has two basic

aspects: fair dealing and fair price.”68 Although the two aspects may be examined

separately, “the test for fairness is not a bifurcated one as between fair dealing and


66
     Hansen, 2018 WL 3025525, at *6.
67
   Plaintiff also argues that Corwin does not apply because the stockholder vote was
uninformed due to two material omissions from the Proxy and further argues that Corwin
should not apply where a majority of the Board is conflicted with respect to the underlying
transaction. Pl.’s Answering Br. at 46–56; 44–45. The latter argument is clearly
inconsistent with well-reasoned decisions of this Court. Larkin, 2016 WL 4485447, at *10
(concluding that “the only transactions that are subject to entire fairness that cannot be
cleansed by proper stockholder approval are those involving a controlling stockholder”);
Merge Healthcare, 2017 WL 395981, at *6 (adopting Larkin). The former argument
presents a close call, which the Court need not undertake at this stage. Because Plaintiff’s
control group allegations suffice to avoid Corwin’s application at the pleading stage, this
decision does not address Plaintiff’s alternative arguments.
68
     Weinberger v. UOP, Inc., 547 A.2d 701, 711 (Del. 1983).

                                            29
price. All aspects of the issue must be examined as a whole since the question is one

of entire fairness.”69 At the pleadings stage, “[t]he possibility that the entire fairness

standard of review may apply tends to preclude the Court from granting a motion to

dismiss under Rule 12(b)(6).”70

           Fair dealing “embraces questions of when the transaction was timed, how it

was initiated, structured, negotiated, disclosed to the directors, and how the

approvals of the directors and the stockholders were obtained.”71 When a there is a

special committee involved, “[p]articular consideration must be given to evidence

of whether the special committee was truly independent, fully informed and had the

freedom to negotiate at arm’s length.”72

           Fair price “relates to the economic and financial considerations of the

proposed merger, including all relevant factors: assets, market value, earnings, future

prospects, and any other elements that affect the intrinsic or inherent value of a

company’s stock.”73



69
     Id.
70
  Klein v. H.I.G. Capital, L.L.C., 2018 WL 6719717, at *16 (Del. Ch. Dec. 19, 2018); see
also Sciabacucchi v. Liberty Broadband Corp., 2018 WL 3599997, at *15 (Del. Ch. July
26, 2018) (noting entire fairness review “typically precludes dismissal of a complaint under
Rule 12(b)(6)”).
71
  Cinerama, Inc. v. Technicolor, Inc., 663 A.2d 1156, 1163 (Del. 1995) (citing
Weinberger, 547 A.2d at 711).
72
     Lynch, 638 A.2d at 1120–21.
73
     Id. at 1115.

                                            30
         The Court has already found a reasonable inference that BlackRock and HC

Partners exercised control over the formulation of the Reorganization before it was

ever presented to the Board, let alone the Special Committee. Moreover, “the

Special Committee’s authority [was] limited to making a recommendation to the

Board of Directors, rather than giving final approval or implementing such action or

transaction.”74 These facts at least call into question whether the Special Committee

was fully empowered to negotiate at arm’s length, which suffices to meet the burden

of pleading an unfair process in this context.

         The fair dealing and fair price inquiries interact.75 Just as a “strong record of

fair dealing can influence the fair price inquiry, . . . process can infect price.”76 It is

reasonably conceivable that the alleged defects in the negotiation process “infected”

the Reorganization’s exchange ratio. Thus, Plaintiff has adequately pleaded an

inference of unfair price.

III.     CONCLUSION
         Defendants’ motions to dismiss are DENIED on the grounds that Plaintiff has

alleged sufficient facts from which this Court can infer that BlackRock and HC

Partners constituted a control group, rendering entire fairness the proper standard of


74
     Am. Compl. ¶ 75.
75
  In re Dole Foods Co., Inc. S’holder Litig., 2015 WL 5052214, at *34 (Del. Ch. Aug. 27,
2015).
76
     Reis v. Hazlett Strip-Casting Corp., 28 A.3d 442, 467 (Del. Ch. 2011).

                                              31
review. Plaintiff has also pled sufficient facts to call into question the entire fairness

of the Reorganization.




                                           32
