      IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

VIRTUS CAPITAL L.P., individually and on behalf
                                           )
of all others similarly situated,          )
                                           )
             Plaintiff,                    )
                                           )
             v.                            )      C.A. No. 9808-VCL
                                           )
EASTMAN CHEMICAL COMPANY, JOHN L.          )
TEEGER, JOHN V. GENOVA, RICHARD K.         )
CRUMP, JOHN W. GILDEA, PHILIP M. SIVIN,    )
KARL W. SCHWARZFELD, DANIEL M.             )
FISHBANE, WALTER TREYBIG, MARTIN D.        )
SASS, M.D. SASS INVESTORS SERVICES, INC., )
RESURGENCE ASSET MANAGEMENT, L.L.C.,       )
RE/ENTERPRISE ASSET MANAGEMENT             )
L.L.C., RESURGENCE ASSET MANAGEMENT        )
INTERNATIONAL, L.L.C., CORPORATE           )
RESURGENCE PARTNERS, L.L.C.,               )
CORPORATE RESURGENCE PARTNERS II,          )
L.L.C., M.D. SASS CORPORATE RESURGENCE )
PARTNERS III, L.P., RESURGENCE ASSET       )
MANAGEMENT, L.L.C. EMPLOYEE                )
RETIREMENT PLAN, TRUST ―O‖ FOR A           )
PORTION OF THE ASSETS OF THE KODAK         )
RETIREMENT INCOME PLAN, KODAK              )
PENSION PLAN, M.D. SASS ASSOCIATES, INC. )
EMPLOYEE PROFIT SHARING PLAN, M.D.         )
SASS RE/ENTERPRISE PORTFOLIO               )
COMPANY, L.P., M.D. SASS RE/ENTERPRISE II, )
L.P., RESURGENCE PARALLEL FUND, L.L.C.,    )
RESURGENCE PARALLEL FUND II, L.L.C.,       )
RESURGENCE PARALLEL FUND III, L.L.C.,      )
EASTMAN TC, INC., AND MOELIS &             )
COMPANY LLC,                               )
                                           )
             Defendants.                   )
                           MEMORANDUM OPINION

                         Date Submitted: December 9, 2014
                          Date Decided: February 11, 2015

Joel Friedlander, Jeffrey M. Gorris, Benjamin P. Chapple, FRIEDLANDER & GORRIS,
P.A., Wilmington, Delaware; Attorneys for Plaintiff.

T. Brad Davey, J. Matthew Belger, POTTER ANDERSON & CORROON LLP,
Wilmington, Delaware; Barry S. Pollack, POLLACK SOLOMON DUFFY LLP, Boston,
Massachusetts; Attorneys for Defendants Martin D. Sass, M.D. Sass Associates, Inc.
Employee Profit Sharing Plan, M.D. Sass Investor Services, Inc., Resurgence Asset
Management, L.L.C., and RE/Enterprise Asset Management L.L.C.

A. Thompson Bayliss, Adam K. Schulman, ABRAMS & BAYLISS LLP, Wilmington,
Delaware; Attorneys for Defendant John V. Genova.

Thomas W. Briggs, Jr., Kevin M. Coen, Frank R. Martin, Brendan W. Sullivan,
MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware; Attorneys for
Defendants Eastman Chemical Company, and Eastman TC, Inc.

Lewis H. Lazarus, Brett M. McCartney, Patricia A. Winston, MORRIS JAMES LLP,
Wilmington, Delaware; Attorneys for Defendants John L. Teeger, Richard K. Crump, and
John W. Gildea.

Rolin P. Bissell, Paul J. Loughman, YOUNG CONAWAY STARGATT & TAYLOR,
LLP, Wilmington, Delaware; Paul D. Flack, Reagan D. Pratt, PRATT & FLACK LLP,
Houston, Texas; Attorneys for Defendant Walter B. Treybig.

Gregory P. Williams, Susan M. Hannigan, J. Scott Pritchard, RICHARDS LAYTON &
FINGER, P.A. Wilmington, Delaware; Yosef J. Reimer, Matthew Solum, KIRKLAND &
ELLIS LLP, New York, New York; Attorneys for Defendants Philip M. Sivin, Karl W.
Schwarzfeld, and Daniel M. Fishbane.

David E. Ross, S. Michael Sirkin, SEITZ ROSS ARONSTAM & MORITZ LLP,
Wilmington, Delaware; William Savitt, Benjamin D. Klein, WACHTELL, LIPTON,
ROSEN & KATZ, New York, New York; Attorneys for Defendant Moelis & Company
LLC.

LASTER, Vice Chancellor.
       Defendant Martin D. Sass controlled Sterling Chemicals, Inc. (―Sterling‖ or the

―Company‖), a publicly traded Delaware corporation. The complaint contains detailed

allegations sufficient to state a claim that Sass breached his duty of loyalty by causing

Sterling to be sold at a fire-sale price to alleviate a liquidity crisis that Sass was facing at

his investment funds. The complaint also contains detailed allegations sufficient to state a

claim that Eastman Chemical Company (―Eastman‖), the acquirer, aided and abetted

Sass‘ breaches of fiduciary duty by exploiting the conflicts of interest that Sass faced.

None of the defendants have moved to dismiss the complaint for failing to state a claim

on which relief could be granted.

       Instead, Sass has moved to dismiss the complaint pursuant to Rule 12(b)(2),

arguing that this court lacks personal jurisdiction over him. So has one of the entities

through which he controlled Sterling: the M.D. Sass Associates, Inc. Employee Profit

Sharing Plan (the ―Sass Plan‖). Because the defendants engaged in acts within the State

of Delaware and purposefully availed themselves of the benefits of Delaware law, this

court has jurisdiction over Sass and the Sass Plan.

                          I.       FACTUAL BACKGROUND

       The facts are drawn principally from the Verified Class Action Complaint (the

―Complaint‖) and the documents it incorporates by reference. At this procedural stage,

the Complaint‘s allegations are assumed to be true, and the plaintiff receives the benefit

of all reasonable inferences. For purposes of evaluating whether a defendant is subject to

the court‘s jurisdiction, ―the court may go beyond the pleadings and look to affidavits and


                                               1
other discovery of record.‖ Chandler v. Ciccoricco, 2003 WL 21040185, at *8 (Del. Ch.

May 5, 2003) (Strine, V.C.). The factual recitation therefore also incorporates matters

drawn from the parties‘ submissions in connection with the motions to dismiss.

A.    Resurgence and Sterling

      Sass controlled a financial complex comprising various investment funds and

related entities that operated under the ―Resurgence‖ trade name. The investment funds

included defendants Resurgence Parallel Fund, L.L.C.; Resurgence Parallel Fund II,

L.L.C.; Resurgence Parallel Fund III, L.L.C.; Corporate Resurgence Partners, L.L.C.;

Corporate Resurgence Partners II, L.L.C.; M.D. Sass Corporate Resurgence Partners III,

L.P.; M.D. Sass RE/Enterprise Portfolio Company, L.P.; and M.D. Sass RE/Enterprise II,

L.P. Other funds that Sass controlled included the Sass Plan; the Resurgence Asset

Management, L.L.C. Employee Retirement Plan; the Kodak Pension Plan; and Trust ―O‖

For a Portion of the Assets Of The Kodak Retirement Income Plan. This decision refers

to these funds collectively as the ―Resurgence Funds.‖ The Resurgence financial complex

also included fund-management entities such as defendants Resurgence Asset

Management, L.L.C.; Resurgence Asset Management International, L.L.C.; and

RE/Enterprise Asset Management, L.L.C. This decision refers to the asset management

entities as the ―RAM Entities.‖ The pinnacle entity through which Sass controlled the

Resurgence financial complex was defendant M.D. Sass Investors Services (―Sass

Services‖), which controlled the RAM Entities. This decision refers to the Resurgence

Funds, the RAM Entities, and Sass Services collectively as ―Resurgence.‖



                                           2
       In 2002, Resurgence made a substantial investment in Sterling. Headquartered in

Houston, Sterling owned a 290-acre petrochemical manufacturing facility in Texas City

on Galveston Bay. The facility had two primary manufacturing plants: an acetic acid

plant and a temporarily idled plasticizer plant. The facility also had other underutilized

assets, including storage tanks, deep injection wells for hazardous waste disposal, two

deep water docks, three barge docks, and direct access to two railways. Additionally,

Sterling owned 160 acres of excess land, NOx credits worth millions of dollars, and more

than $90 million in federal net operating losses that could be used as a tax shield.

       Through its 2002 investment, Resurgence acquired beneficial ownership of

approximately 56% of Sterling‘s common stock and 100% of Sterling‘s preferred stock.

Sass allocated these holdings across the Resurgence Funds, the RAM Entities, and Sass

Services. Through their aggregate ownership stake, the entities controlled over 88% of

Sterling‘s voting power. Through Resurgence, Sass controlled Sterling.

B.     The Fund Expirations

       In 2008, the largest Resurgence Fund, defendant M.D. Sass Corporate Resurgence

Partners, L.P. (―Fund I‖) reached the end of its ten-year term. Fund I owned over 25% of

Sterling‘s equity. Resurgence negotiated with Fund I‘s biggest investor to extend Fund

I‘s term for another year. In return, Sass agreed to fund personally a cash escrow that

would cover his portion of the returns owed to Fund I‘s investors. After obtaining the

biggest investor‘s support, Resurgence sought and obtained consents to the extension

from other Fund I investors.



                                             3
       When soliciting and obtaining the consents, Resurgence represented that the

additional time was critical to maximizing the value of Sterling, which was Fund I‘s most

significant remaining investment:

       Sterling will have approximately $150 million in cash, leaving it with no
       net debt, a strong acetic acid business and an attractive footprint at its Texas
       City site for future development. We believe that there is significant value
       to the underutilized assets (including the real estate, deepwater port, rail and
       access to the electrical grid and gas pipelines, chemical permits next to
       large refineries and valuable NOX credits)

       ...

       In summary, we believe the best way to maximize this value, which we
       believe could be materially more than recent valuation levels, is to continue
       to work on attracting a significant development opportunity to replace
       businesses that we have closed at Sterling‘s valuable deep water dock and
       adjoining gulf coast facility.

Compl. ¶ 24.

       At its annual investor conference on September 10, 2008, Resurgence again

represented to its investors that Sterling had significant upside. Resurgence stated that

Sterling could be worth between $437.7 million and $1.037 billion with a projected 10-

20% ownership of a potential $2-4 billion project at the Texas City site. Resurgence also

stated that Sterling was negotiating with potential partners to develop the 160 acres of

excess land for a production process project.

       In February 2009, Resurgence sought consents from Fund I‘s investors to extend

its life for another year, until March 16, 2010. Once again Resurgence emphasized

Sterling‘s potential to deliver value. Resurgence told investors that the ―development

potential of Sterling‘s assets remains substantial‖ and ―selling the Partnership‘s interests


                                              4
[in Sterling] in the current extremely depressed financial and economic environment

would result in a very unattractive price.‖ Compl. ¶ 26. Resurgence received the

necessary consents, but Fund I‘s partnership agreement forbade any further extensions.

       With the second extension, the expiration of Fund I in March 2010 corresponded

with the expiration of two other Resurgence Funds: M.D. Sass Corporate Resurgence

Partners II, L.P. (―Fund II‖) and M.D. Sass Corporate International (the ―International

Fund‖). Fund II held approximately 9.4% of Sterling‘s equity; the International Fund held

approximately 5% of Sterling‘s equity. In total, Resurgence funds holding approximately

40% of Sterling‘s equity would dissolve in March 2010 and be forced to wind up.

C.     Mid-2009: Resurgence Decides To Sell Sterling.

       Until mid-2009, Resurgence focused on operating Sterling and developing the

Texas City site. Within Resurgence, the champion of this strategy was Byron Haney, the

portfolio manager with primary responsibility for the Sterling investment. Haney

believed sufficiently in Sterling‘s value that he turned down premium offers for Sterling.

In 2007, Gulf Hydrogen and Energy, LLC (―Gulf Hydrogen‖) offered approximately

$392 million to acquire Sterling. In February 2008, D.E. Shaw proposed a range of $300

to $350 million on behalf of an investor group that included Gulf Hydrogen. The

principal behind Gulf Hydrogen, Ken Berry, believed that Sterling rejected both offers

because Haney thought Resurgence could execute the acquirer‘s plans for Sterling and

capture the bulk of the resulting $1 billion in value for Resurgence.




                                             5
       Then, in mid-2009, the hedge funds managed by Resurgence suffered significant

losses. Redemption requests poured in. Haney, who was the chief investment officer for

the hedge funds, abruptly left Resurgence.

       Faced with a need for liquidity, Resurgence changed its plans. Despite having told

its investors in February 2009 that selling Sterling ―in the current extremely depressed

financial and economic environment would result in a very unattractive price,‖

Resurgence decided to sell. Sterling‘s CEO, defendant John V. Genova, understood that

the redemption demands and concomitant need for liquidity drove the decision.

       Defendant Moelis & Company, LLC (―Moelis‖) pitched Sterling for the sell-side

work. Moelis understood the liquidity concerns driving the sale and was skeptical about

the timing for purposes of maximizing value. The Moelis pitchbook noted that

―resolution‖ of Resurgence‘s liquidity issues was ―the primary factor driving the timing

of a potential transaction involving Sterling‖ and that ―the current economic, financial

and chemical industry environment [was] not ideal for realizing the highest value.‖

Compl. ¶ 29. Moelis managing director David Faris expressed surprise that Resurgence

would explore a sale in 2009. He advised that it ―was not the ideal time [to sell] given

what was going on in the overall economy and what was going on in the chemical

industry specifically.‖ Id.

       Sterling did not retain Moelis in 2009. Instead, Sterling hired Jefferies LLC

(―Jefferies‖). Jefferies contacted sixty-four potential buyers and made it clear that

Resurgence was looked for prices north of $250 million. Jefferies could not generate any

interest at that price.

                                             6
      Despite Jefferies‘ failure to find a buyer for the Company at a price above $250

million, Resurgence still needed to sell. In pursuit of that goal, Sass recommended that

Sterling add defendant John L. Teeger to its board of directors (the ―Board‖). Teeger was

a close personal friend of Sass who played golf and tennis with him regularly. Teeger

joined the Board, increasing its size from six to seven. The other six directors, all of

whom are defendants, were:

      ●        Philip M. Sivin, an employee of Resurgence and Sass‘ son-in-law;

      ●        Karl W. Schwarzfeld, an employee of Resurgence;

      ●        Daniel M. Fishbane, an employee of Resurgence;

      ●        Genova, Sterling‘s CEO;

      ●        Richard K. Crump, who appears at this stage to be an independent, outside
               director; and

      ●        John W. Gildea, who appears at this stage to be an independent, outside
               director.

      From the outset, Sass envisioned that Teeger would work to monetize

Resurgence‘s investment in Sterling. On July 10, 2010, Sass emailed Teeger, Siven,

Schwarzfeld, and Sterling‘s CFO about the need to sell the Company. He wrote: ―John

Teeger & I discussed the need for a strong focus on finding an acquirer to monetize

RAM‘s investment. John made the suggestion, which I support, of forming a Special

Committee for that purpose comprised of the 3 of you & John Genova and our new CFO .

. . .‖ Compl. ¶ 33. Teeger responded privately to Sass: ―Wow—you sure don‘t mess

around!‖ Id.




                                            7
       Prompted by Sass‘ email, Sterling formed an informal M&A committee. On July

28, 2010, Schwarzfeld emailed Sass with an update after the committee‘s first meeting:

       Phil [Sivin] and/or I are going to have a call with Genova tomorrow
       (without his team who was on the phone today) to reiterate our priority
       (cash today being priority #1, building in a meaningful way towards cash
       tomorrow being priority #2) and refocus his demeanor in interacting with
       this or future potential buyers (ie. ―I know you are at $100 to $150m, but
       come out for a plant tour and we will show you why were are worth
       substantially more‖ as opposed to ―You can come for a plant tour, but it is a
       waste of time if the number is $100m‖).

Id. ¶ 35. Sass responded: ―I‘m glad you will continue to focus on priority #1.‖ Id.

       On August 19, 2010, Schwarzfeld emailed Sass and Sivin, copying Teeger, with

an update on a subsequent committee meeting. Although the email discussed potential

alternatives Genova had identified to unlock the value of Sterling‘s underutilized assets,

none contemplated a sale of Sterling. Sass responded that Genova ―still isn‘t focused on

our top priority – selling Sterling Chemicals. Please send us a summary of his financial

incentives on a sale – did we not [provide] sufficient motivation for him?‖ Id. Teeger

reassured Sass that a sale was his first priority: ―The first choice is selling the company

and getting an exit—tough to do.‖ Id. Sass then reiterated his bottom line: ―Our largest

Resurgence PE fund has reached the end of its term and needs to monetize Sterling asap.‖

Compl. ¶ 36.

       On September 7, 2010, Genova emailed Sivin and Schwarzfeld a letter of intent

from a potential acquirer, which Sivin forwarded to Sass. Sass asked him to ―share [it]

confidentially w/ John Teeger and provide his feedback prior to our meeting today[.]‖

Dkt. 66, Ex. 9. Sivin indicated that he and Schwarzfeld ―would like to discuss [the letter


                                             8
of intent] with [Sass] before sharing it with John.‖ Id. When Sass asked why, Sivin

replied, ―better to explain in our in person meeting but relates to different

constituencies/duties.‖ Id. Sass then made Teeger‘s role clear:

       John [Teeger] is on our side and knows RAM‘s #1 priority is to sell the
       company. he [sic] can help us in that process. i [sic] believe that blocking
       him out or delaying information flow to him is wasting his expertise = he
       know [sic] that I asked [him] to join the Board to help us make the best deal
       we can for our Funds.

Id.

D.     Eastman Expresses Interest.

       In August 2010, Eastman approached Sterling about a supply agreement for

plasticizer, referred to in the industry as a tolling agreement. Eastman is a global specialty

chemical company and the world‘s largest manufacturer of non-phthalate plasticizer.

       Eastman wanted access to Sterling‘s plasticizer manufacturing capacity to

capitalize on a shift in plasticizer demand. Due to regulatory issues and health concerns,

demand for phthalate plasticizers was declining. Eastman had developed a non-phthalate

plasticizer known as ―Eastman 168,‖ and Eastman saw an opportunity to capture market

share if it could bring a significant volume to market quickly. But Eastman had limited

production capacity, especially in North America, and Eastman needed additional

capacity to achieve its goals.

       Eastman regarded Sterling‘s plasticizer manufacturing capacity at the Texas City

plant as a key asset. Eastman wanted either to get a tolling agreement in place or acquire

Sterling. In August 2010, the head of Eastman‘s plasticizer business explained Eastman‘s

position in an internal email to members of Eastman‘s M&A team:

                                              9
       [W]e will need an additional North American plasticizer asset in order to
       make an orderly transition over the next few years – in particular to deal
       with the [Eastman 168] transition . . . . Our preferred position is Sterling
       and [we have] been in discussions with Sterling to get a CDA in place to
       allow tolling discussions to occur, but we believe we need to go ahead and
       simultaneously begin an effort to acquire Sterling . . . . [A] number of
       market issues are putting some urgency on our finding a 3rd plant option in
       the near term if possible.

Compl. ¶ 39. A twenty-two page internal Eastman presentation from the same month

identified a tolling agreement or an acquisition as the options giving Eastman the highest

returns. The presentation singled out Sterling as a candidate.

       On September 13, 2010, Gary McDermott, the head of Eastman‘s M&A team,

spoke with Schwarzfeld, one of the Resurgence employees on the Board, about whether

Resurgence would consider selling Sterling. Schwarzfeld reported on the conversation in

an email to Sass and Sivin.

       Eastman is working with Sterling on a commercial opportunity around the
       plasticizers business (upon the BASF termination). Gary [McDermott] was
       interested in exploring if there was potentially more to do with Sterling then
       [sic] just the commercial opportunity, but before doing his ―homework‖
       wanted to get a sense of MDSass‘s receptiveness to such a situation. I told
       Gary … ―it is a public company and we have a majority of the board of
       directors …, but it is public information that we funded this company … in
       2002. Obviously now that it is almost 2011, speaking generally, that is a
       long time for a private equity owner to hold an investment.‖

Id. ¶ 41. At the pleading stage, the plaintiff is entitled to the reasonable inference that

when Schwarzfeld contrasted the investment funding year of 2002 with the then-current

year of 2011 and observed that ―speaking generally, that is a long time for a private

equity owner to hold an investment,‖ he was signaling specifically that Resurgence was

receptive to selling Sterling.


                                            10
       On October 26, 2010, Eastman expressed interest in purchasing Sterling for $95-

$105 million. Genova described the offer to Schwarzfeld, who reported on the

conversation in an email to Sass, Sivin, and Teeger.

       Genova believes Eastman is looking to expand its plasticizers business. We
       have been in talks with them about Sterling tolling Plasticezers [sic] for
       Eastman. There was a bit of a break through [sic] on that process last week,
       and it turns out all are now very comfortable that the engineering for what
       Eastman wants can be done, Sterling thinks they can get Eastman to sign a
       long term agreement that gets Sterling $5m to $6m a year (covering fixed
       costs that would otherwise get allocated to Acetic, with slight profit).
       Genova suspects Eastman is looking at Sterling as opportunity to get that
       Plasticezers [sic] deal cheap, plus ability to expand Plasticezers [sic], plus
       location to serve as terminal for rest of Eastman North America business.

       We need to discuss who and how we should respond.

Id. ¶ 47 (emphasis added). Despite Genova‘s belief that Eastman was looking to buy

Sterling ―cheap‖ as a way to obtain plasticizer capacity, Sass was more than intrigued. He

responded: ―We should definitely pursue discussion for sale to Eastman. I suggest John

[Teeger] work closely with one or more of you to move this along.‖ Id. Sivin agreed and

added, ―[W]e should try to get them up as much as possible and close it!‖ Id.

       On October 29, 2010, Sass, Schwarzfeld, Sivin, and Teeger discussed potential

negotiating strategies. Sivin believed that because Eastman ―originally reached out to

RAM [] it should be us that negotiates it.‖ Dkt. 66, Ex. 10. Teeger observed that ―we will

definitely need a fairness opinion for protection, particularly as the Sterling common will

get very little compared with a public trading price of $7.‖ Id. Later that day, Sass asked

Genova to ―provide a call-in # & Draft Agenda to help us all coordinate, communicate &

cooperate in getting a deal done.‖ Id. Ex. 11.


                                             11
E.     The Special Committee

       On November 1, 2010, Eastman submitted a formal non-binding expression of

interest in acquiring Sterling. On November 5, the Board formed a special committee to

represent the interests of Sterling‘s minority stockholders (the ―Special Committee‖). The

Special Committee initially consisted of Teeger and Gildea. The minutes do not reflect

any discussion of Teeger‘s relationship with Sass.

       On November 15, 2010, the Special Committee held its first meeting. The Special

Committee members retained counsel and discussed Teeger‘s relationship with Sass. On

November 17, the Special Committee met again and engaged in further discussion about

Teeger‘s relationship with Sass. They decided to recommend that the Board add a third

member to the Special Committee. On January 4, 2011, Crump joined the Special

Committee.

       Meanwhile, Sass made sure that Resurgence would maintain its control over

Sterling until a sale could be completed. As noted, Fund I, Fund II, and the International

Fund dissolved when their terms expired in March 2010. In the resulting winding up

process, Sass could have caused the funds to distribute their Sterling shares in kind to

their investors. Had Resurgence done so, then Sass no longer would have controlled a

majority of Sterling‘s outstanding voting power.

       Sass chose not to cause the funds to make an in-kind distribution. Instead, in

November 2010, the funds transferred their Sterling equity into newly formed Delaware

entities that would serve as liquidating vehicles. Sass continued to control the liquidating

vehicles, allowing him to maintain control over a supermajority of Sterling‘s voting

                                            12
power. The liquidating vehicles did not pay any management fees or incentive fees that

might have offset Sass‘ desire to sell Sterling quickly.

F.     A Compromised Negotiation Process

       The Complaint alleges that the Special Committee‘s negotiation process was

compromised at many levels. First, despite his close relationship with Sass, Teeger took

on an outsized role in the Special Committee‘s process. He served as Chair of the Special

Committee, acted as the lead negotiator with Eastman, and was the principal interface

with Resurgence. Although Crump and Gildea nominally served as members of the

Special Committee, they deferred to Teeger on all significant decisions and actions. The

Complaint provides detailed examples to support this characterization.

       Second, the Complaint alleges that the Special Committee retained a financial

advisor whom Eastman promptly compromised with overtures about future work. On

January 7, 2011, Teeger asked Faris of Moelis to advise the Special Committee. Monit

Bhalla, a member of Eastman‘s M&A team and Eastman‘s lead negotiator on the Sterling

Transaction, learned from Eastman‘s investment banker that Sterling was reaching out to

Faris. On January 10, Bhalla contacted Faris and invited him to meet with Eastman to

discuss future work. Faris had not worked previously for Eastman. Faris accepted the

invitation, and on February 23, he met with the Eastman M&A team and discussed

potential opportunities. That same day, Faris and the Special Committee were finalizing

Moelis‘ fee arrangement for its representation of the Special Committee. On February 24,

the Special Committee formally retained Moelis. On February 28, after being officially

hired, Faris sent Bhalla an email reiterating his desire to work with Eastman in the future.

                                             13
On March 3, Bhalla emailed an update to Eastman executives letting them know that

Faris had been hired and noting that he had met with Faris the week before. He reported

that he had just spoken to Faris, who understood that ―one of the things he needs to do is

bring some urgency to the situation.‖ Compl. ¶ 76.

       Third, the Complaint alleges that Teeger and other sell-side fiduciaries

undermined Sterling‘s negotiating position by making clear to Eastman that Resurgence

wanted to sell. For example, On January 13, 2010, Teeger spoke with Eastman‘s lead

negotiators, Bhalla and McDermott. He told them that ―Sass was highly motivated to do a

deal‖ because ―[t]his investment is the last remaining in their 12 year old fund and that

they want to close it.‖ Id. ¶ 68.

       Weeks later, defendant Walter Treybig, a Sterling employee, leaked detailed

information to Eastman about Resurgence‘s motivations to sell Sterling, the sale process,

Genova‘s desire to work for Eastman, and the likely sale price. An Eastman employee

reported the information to McDermott in an email dated February 15, 2011:

       1. Walt Treybig is interested in working for Eastman. He can‘t retire and go
       home and he likes the plant. I don‘t know that we have a place for him, but
       his long term concern for his job may be a positive influence on the way he
       is working for us.

       2. Walt has little or no respect for Genova. He feels Genova is a control
       freak and is only out for himself.

       3. Walt isn‘t sure the exit package for Genova is sufficient for him to work
       cooperatively with us.

       4. At least one on the board recently chastised Genova for ―not working on
       anything in the last two years except his own compensation.‖



                                           14
       5. Walt said the investment owners of the company entered the project in
       ~2000 with a 10 year window, intending to exit the investment after that
       time. They recently approved two one-year extensions to allow the
       economy to recover so the sale price would be better. If Eastman doesn‘t
       buy [Sterling], Walt feels someone will in the next couple of years due to
       the investor‘s [sic] desire to get out of this investment. The current owners
       didn‘t buy [Sterling] to own a chemical company long term.

       6. If Genova becomes unwilling to negotiate, there are probably those in
       ownership roles (beyond the board) that would like to discuss the purchase.

       7. Walt mentioned there were 3 or 4 companies interested in running the
       plasticizer unit . . . . There is no indication any of these are serious or
       viable. Walt also indicated most of what they see interested in the property
       are low cost bankers looking for quick money and very little idea of
       running a chemical company long term.

       8. Genova did not want us on-site on Wednesday. What I gather from Walt
       is that there is a company coming in for a visit to look at some portion of
       the plant (perhaps the plasticizer unit, but not sure) . . . . Walt also indicated
       the other company was making an initial visit and had not proposed
       anything yet. [Sterling] doesn‘t know if this visit will result in anything.

       9. Walt indicated the preferred stock owners would receive payout before
       common stock or stock option owners. Walt said the preferred stock owners
       get the first $110M and he did not think the business would bring more than
       that amount, so he (through stock options) would not see any of the sale
       profits. This is just an insight into what Walt believed the value of the
       company is currently.

       These aren‘t discussion items for the entire group, but were shared at
       various times during the day. I thought these might be of interest to you.

Id. ¶ 80.

       From this leaked information, Eastman learned key facts that it used in its

negotiations with Sterling, including that Resurgence‘s investors wanted liquidity, that

Resurgence needed to sell, and that if Genova was not cooperative, others ―in ownership

roles (beyond the board)‖ would see the transaction through. Eastman also learned it had


                                              15
little competition because the other bidders were not strategic acquirers. Eastman even

understood that Resurgence did not expect to sell Sterling for more than the liquidation

preference on its preferred stock, or $110 million.

G.     The Deal

       On April 4, 2011, Teeger, Sivin, Faris, and another Moelis employee met with

Bhalla and Damon Warmack of Eastman. They tentatively agreed on a sale price for

Sterling of $100 million.

       On May 24, 2011, the Special Committee authorized Moelis to conduct a market

check. Moelis sent a one-page teaser to eighteen potential buyers. The teaser did not

contain any financial information other than two numbers for Sterling‘s acetic acid plant.

Moelis made no meaningful attempt educate potential buyers about the value of the

Texas City site. Moelis also did not explore selling discrete assets to multiple buyers,

even though Moelis knew that many parties were interested in specific Sterling assets.

       Despite the minimal information, two of the parties that Moelis contacted

expressed interest. Only nine of the eighteen that Moelis contacted said they had no

interest. Sterling also received expressions of interest from parties that Moelis had not

contacted. The Special Committee and Moelis told the interested parties to act quickly.

H.     The Sterling Transaction

       On June 17, 2011, Eastman received a call from the financial press about the

Sterling Transaction. Recognizing that word had leaked, Bhalla told Teeger that the deal

had to be signed and announced that weekend.



                                            16
      The Special Committee and Moelis were not prepared to meet that deadline.

Among other things, the Special Committee had yet to negotiate—and Moelis had yet to

evaluate—what portion of the merger consideration Sterling‘s minority stockholders

would receive. Just two days earlier, on June 15, 2011, Teeger had emailed Genova

saying, ―So far I have nothing from Moelis so I cannot yet sit down with ram.‖ Compl. ¶

103. At that time, Teeger was in Germany, and Gildea was in Belgium, making it

difficult to organize meetings. On Saturday, June 18, after receiving Bhalla‘s demand to

sign that weekend, Crump emailed Teeger and Gildea: ―Guys—I don‘t know what to

suggest to get this process under control, but we have a mess on our hands.‖ Id. ¶ 102.

      Despite lacking any materials from Moelis, Teeger entered into discussions with

Resurgence. On Sunday, June 19, Teeger summarized the discussions for his colleagues

on the Special Committee:

      This is to confirm that I held a meeting with Phil Sivin on June 8 and we
      discussed the amount per share that the minority shareholders should
      receive out of the proceeds of a sale of Sterling. We set out our current
      thinking but did not reach a conclusion.

      On June 16 I met with Phil Sivin and Karl Shwarztfeld [sic] and we
      discussed further the amount per share that the minority shareholders in
      Sterling should receive. I await the views of The [sic] spec comm and
      Moelis before attempting to finalize the negotiation with RAM . . . As a
      prelude to these views it is helpful to know that RAM considers that $1 per
      share is the right amount.

Id. ¶104. There is obvious tension between Teeger‘s statement on June 15 that he could

not enter into discussions with Resurgence because he had not yet received materials

from Moelis and Teeger‘s claim on June 19 to have engaged in precisely those types of

discussions on June 8 and 18.

                                            17
       Teeger told Bhalla that Sterling would not be able to meet the Monday deadline.

Id. ¶105. Teeger finally received presentation materials from Moelis after 6 pm Eastern

time Monday, June 20, 2011, which was after midnight in Germany where Teeger was.

       On Tuesday, June 21, 2011, Teeger sent the following email to the full Board,

including the directors affiliated with Resurgence:

       Met last evening and went thru the Moelis presentation ending up with an
       instreuction [sic] for me to speak to RAM

       I spoke with Phil Sivin and we are negotiating a split of the proceeds of the
       eastman [sic] transaction

Id. ¶107. Gildea responded, ―good show.‖ Id.

       The negotiations must have concluded quickly. Later that day, Teeger sent the

Special Committee and Moelis a final update: ―Price is $2.50 per share.‖ Id. ¶ 108.

I.     The Fairness Opinion

       On June 21, 2011, Moelis provided the Special Committee with its opinion that

$2.50 per share was fair from a financial perspective to Sterling‘s minority stockholders.

The Complaint alleges that Moelis manipulated its supporting financial analysis to

undervalue Sterling and make the Sterling Transaction appear fair. Among other things,

Moelis used a discount rate of 18%, nearly double the discount rates used internally by

Sterling (10%) and Eastman (9.75%). Moelis also used an implied terminal multiple of

approximately 3x, even though comparables supported a range of 6.4x to 9.0x. Moelis

attributed no value to Sterling‘s plasticizer facility, which was the key asset Eastman was

buying.



                                            18
       The $100 million price that Moelis endorsed contrasted with other indications of

value. In December 2010, Genova prepared materials valuing Sterling between $129 and

$431 million, excluding the plasticizer facility and underutilized assets, and between

$314 and $616 million, including those assets. In March 2011, Genova valued Sterling at

$185 to $195 million, excluding the plasticizer facility and other underutilized assets. The

earlier Gulf Hydrogen bid had been $392 million, and the D.E. Shaw bid proposal was in

the range of $300 to $350 million.

J.     The Sterling Transaction Closes

       On June 22, 2011, Sterling entered into an agreement and plan of merger (the

―Merger Agreement‖ or ―MA‖) with Eastman and Eastman TC, Inc., a wholly owned

acquisition subsidiary (―Eastman Sub‖). The Merger Agreement called for Sterling to

merge with Eastman Sub and become a wholly owned subsidiary of Eastman (the

―Merger‖). Resurgence provided the necessary stockholder approval in the form of a

Written Consent and Voting Agreement, dated as of June 22, 2011 (the ―Written

Consent‖), that Sass executed. The minority stockholders did not vote on the Merger.

       On July 19, 2011, Sterling sent an information statement to its stockholders

containing information about the Merger and notifying them of their statutory appraisal

rights. The Complaint alleges that the information statement contained materially false

and misleading statements and omissions. The Merger closed on August 9.




                                            19
K.     Procedural History

       On October 19, 2011, plaintiff Virtus Capital L.P. (―Virtus‖) filed an appraisal

proceeding. In the appraisal action, Virtus obtained the discovery that forms the basis for

the Complaint‘s allegations. On June 20, 2014, Virtus filed this plenary action.

       The Complaint contains seven counts:

●      Count I alleges that Resurgence, as Sterling‘s controlling stockholder, breached its
       fiduciary duties by causing Sterling to be sold to satisfy Resurgence‘s
       idiosyncratic needs for liquidity, resulting in an unfair transaction at an unfair
       price. The defendants comprising Resurgence for purposes of this claim are Sass,
       the Resurgence Funds, the RAM Entities, and Sass Services.

●      Count II advances the same basic theory against the members of the Board
       affiliated with Resurgence.

●      Count III alleges that that the members of the Special Committee breached their
       fiduciary duties by facilitating and approving the Merger.

●      Count IV alleges that Genova breached his fiduciary duties as both an officer and
       a director by facilitating and approving the Merger.

●      Count V alleges that Treybig breached his fiduciary duties as an officer by leaking
       information to Eastman to serve his personal interests.

●      Count VI alleges that Eastman and Eastman Sub aided and abetted the members of
       the Board, Genova, and Treybig in their breaches of duty.

●      Count VII alleges that Moelis aided and abetted Resurgence, the members of the
       Board, and Treybig in their breaches of duty.

On August 28, 2014, Sass and the Sass Plan moved to dismiss the Complaint on the

grounds that this court lacked personal jurisdiction over them.

                             II.      LEGAL ANALYSIS

       A defendant may move to dismiss a complaint for lack of personal jurisdiction. Ct.

Ch. R. 12(b)(2). ―Generally, a plaintiff does not have the burden to plead in its complaint

facts establishing a court‘s personal jurisdiction over defendant.‖ Benerofe v. Cha, 1996
                                            20
WL 535405, at *3 (Del. Ch. Sept. 12, 1996). However, ―[w]hen a defendant moves to

dismiss a complaint pursuant to Court of Chancery Rule 12(b)(2), the plaintiff bears the

burden of showing a basis for the court‘s exercise of jurisdiction over the defendant.‖

Ryan v. Gifford, 935 A.2d 258, 265 (Del. Ch. 2007). ―In ruling on a Rule 12(b)(2)

motion, the court may consider the pleadings, affidavits, and any discovery of record.‖ Id.

―If . . . no evidentiary hearing has been held, plaintiffs need only make a prima facie

showing of personal jurisdiction and the record is construed in the light most favorable to

the plaintiff.‖ Id. (footnotes and quotation marks omitted).

       To analyze a Rule 12(b)(2) motion, a Delaware trial court applies a two-part test:

       First, the court must determine whether Delaware‘s long arm statute, 10
       Del. C. § 3104(c), is applicable. If so, the court must decide whether
       subjecting the nonresident defendant to jurisdiction would violate due
       process. Under settled law, a nonresident defendant must have sufficient
       minimum contacts with the forum state such that the maintenance of the
       suit does not offend traditional notions of fair play and substantial justice.

Matthew v. Fläkt Woods Gp. SA, 56 A.3d 1023, 1027 (Del. 2012) (internal quotation

marks and alterations omitted). See generally Donald J. Wolfe, Jr. & Michael A.

Pittenger, Corporate and Commercial Practice in the Delaware Court of Chancery §

3.02 (2013).

       The Delaware Long-Arm Statute provides:

       (c) As to a cause of action brought by any person arising from any of the
       acts enumerated in this section, a court may exercise personal jurisdiction
       over any nonresident, or a personal representative, who in person or
       through an agent: (1) Transacts any business or performs any character of
       work or service in the State . . . .




                                             21
10 Del. C. § 3104(c)(1). ―[A] single transaction is sufficient to confer jurisdiction where

the claim is based on that transaction.‖ Crescent/Mach I P’rs, L.P. v. Turner, 846 A.2d

963, 978 (Del. Ch. 2000) (internal quotation marks and footnote omitted); accord

LaNuova D & B SpA v. Bowe Co., Inc., 513 A.2d 764, 768 (Del. 1986). Under the plain

language of the Long-Arm Statute, forum-directed activity can be accomplished ―through

an agent.‖ 10 Del. C. § 3104(c).

       Section 3104(c) is to be ―broadly construed to confer jurisdiction to the maximum

extent possible under the Due Process Clause.‖ Hercules Inc. v. Leu Trust & Banking

(Bahamas) Ltd., 611 A.2d 476, 480 (Del. 1992); accord LaNuova, 513 A.2d at 768.

       [T]rial courts must give a broad reading to the terms of the long-arm
       statute[] in order to effectuate the statute‘s intent to ensure that this state‘s
       court may exercise jurisdiction to the full limits permissible under the Due
       Process Clause. In other words, the Supreme Court has instructed that trial
       courts should permit service under § 3104 if the statutory language
       plausibly permits service, and rely upon a Due Process analysis to screen
       out uses of the statute that sweep too broadly.

Sample v. Morgan (Sample II), 935 A.2d 1046, 1056 (Del. Ch. 2007) (Strine, V.C.)

(footnotes omitted)

       For purposes of the due process analysis, ―[t]he well-established point of departure

is that certain minimum contacts must exist between a State and a nonresident defendant

before that State can exercise personal jurisdiction over him.‖ Moore v. Little Giant

Indus., Inc., 513 F. Supp. 1043, 1048 (D. Del. 1981), aff’d, 681 F.2d 807 (3d Cir. 1982)

(internal quotation marks omitted). The question is whether the defendants had sufficient

minimum contacts with Delaware such that ―compelling [them] to defend [themselves] in

the State would be consistent with the traditional notions of fair play and substantial

                                              22
justice[.]‖ Waters v. Deutz Corp., 479 A.2d 273, 276 (Del. 1984) (internal quotation

marks omitted).

       The Delaware Supreme Court has adopted what is known as the conspiracy theory

of jurisdiction. Fläkt Woods, 56 A.3d at 1027. Under this theory,

       a conspirator who is absent from the forum state is subject to the
       jurisdiction of the court, assuming he is properly served under state law, if
       the plaintiff can make a factual showing that: (1) a conspiracy to defraud
       existed; (2) the defendant was a member of that conspiracy; (3) a
       substantial act or substantial effect in furtherance of the conspiracy
       occurred in the forum state; (4) the defendant knew or had reason to know
       of the act in the forum state or that acts outside the forum state would have
       an effect in the forum state; and (5) the act in, or effect on, the forum state
       was a direct and foreseeable result of the conduct in furtherance of the
       conspiracy.

Istituto Bancario Italiano SpA v. Hunter Eng’g Co., 449 A.2d 210, 225 (Del. 1982). The

theory ―is based on the legal principle that one conspirator‘s acts are attributable to the

other conspirators.‖ Fläkt Woods, 56 A.3d at 1027. Thus, ―if the purposeful act or acts of

one conspirator are of a nature and quality that would subject the actor to the jurisdiction

of the court, all of the conspirators are subject to the jurisdiction of the court.‖ Istituto

Bancario, 449 A.2d at 222.

       Delaware decisions have not explained consistently how the conspiracy theory

corresponds to the two-prong jurisdictional test. See Wolfe & Pittenger, § 3.04[b], at 3-87

(describing approaches). In my view, the five elements of the Istituto Bancario test

functionally encompass both prongs of the jurisdictional test. The first three Istituto

Bancario elements address the statutory prong of the test. The fourth and fifth Istituto

Bancario elements address the constitutional prong of the test.


                                             23
       The first three Istituto Bancario elements encompass the statutory prong by

speaking to the requirements of the Delaware Long-Arm Statute. The third Istituto

Bancario element—whether a ―substantial act or substantial effect in furtherance of the

conspiracy occurred in the forum state‖—corresponds to the statutory requirement that

the defendant have transacted business or performed work in the State. The first and

second Istituto Bancario elements—the existence of a conspiracy and the defendant‘s

membership in it—provide grounds for imputing the jurisdiction-conferring act to the

defendant under agency principles, because ―conspirators are considered agents for

jurisdictional purposes.‖ Hercules, 611 A.2d at 481; accord Carlton Invs. v. TLC

Beatrice Int’l Hldgs., Inc., 1995 WL 694397, at *12 (Del. Ch. Nov. 21, 1995) (Allen, C.).

It remains true that the conspiracy theory itself is not an independent basis for jurisdiction

that alleviates the need to establish a statutory hook in Section 3104. Hercules, 611 A.2d

at 482 n.6. But the first, second, and third Istituto Bancario elements correspond

sufficiently with the requirements of Section 3104 such that satisfying the former

accomplishes the latter.

       Analytical overlap is equally present for the constitutional prong. The fourth and

fifth Istituto Bancario elements—whether the defendant ―knew or had reason to know of‖

the forum-directed activity and the degree to which the forum-directed activity was ―a

direct and foreseeable result of the conduct in furtherance of the conspiracy‖—speak to

due process and whether there are sufficient minimum contacts between the defendant

and the forum such that the defendant could reasonably anticipate being sued there. See

Carlton Invs., 1995 WL 694397, at *12. ―[A] defendant who has so voluntarily

                                             24
participated in a conspiracy with knowledge of its acts in or effects in the forum state can

be said to have purposefully availed himself of the privilege of conducting activities in

the forum state, thereby fairly invoking the benefits and burdens of its laws.‖ Istituto

Bancario, 449 A.2d at 225. The ―participation is a substantial contact with the

jurisdiction of a nature and quality that it is reasonable and fair to require the defendant to

come and defend an action there.‖ Id.; accord Hercules, 611 A.2d at 482 n.6 (explaining

that the conspiracy theory ―provides a framework with which to analyze a foreign

defendant‘s contacts with Delaware‖).

       In my view, therefore, if a plaintiff can address satisfactorily all five elements of

the conspiracy theory, then the plaintiff will have met both prongs of the jurisdictional

test. This decision therefore uses the conspiracy theory as the framework for analysis.

A.     Jurisdiction Over Sass

       Under the conspiracy theory, acts taken in the State of Delaware in connection

with the Sterling Transaction can be attributed to Sass for purposes of Section 3104(c)(1),

and it is consistent with due process for the plaintiff to have sued him in Delaware in

connection with the Sterling Transaction. Sass‘ motion to dismiss is denied.

       1.     Sass’ Role In The Conspiracy

       The first and second Istituto Bancario elements ask whether a conspiracy existed

and whether the defendant was a member of the conspiracy. 449 A.2d at 225. Although

Istituto Bancario literally speaks in terms of a ―conspiracy to defraud,‖ the principle is




                                              25
not limited to that particular tort.1 ―[I]n cases involving the internal affairs of

corporations, aiding and abetting claims represent a context-specific application of civil

conspiracy law.‖ Allied Capital Corp. v. GC-Sun Hldgs., L.P., 910 A.2d 1020, 1038 (Del.

Ch. 2006); accord Weinberger v. Rio Grande Indus., Inc., 519 A.2d 116, 131 (Del. Ch.

1986). Sufficiently pleading a claim for breach of fiduciary duty and a related claim for

aiding and abetting a breach of fiduciary duty satisfies the first and second elements of

the Istituto Bancario test. Benihana of Tokyo, Inc. v. Benihana, Inc., 2005 WL 583828, at

*7 (Del. Ch. Feb. 4, 2005); Crescent/Mach I, 846 A.2d at 977.

       The Complaint adequately pleads that Sass and his fellow-fiduciary defendants

breached their duty of loyalty in connection with the Sterling Transaction and that the

non-fiduciary defendants aided and abetted the breach. The Complaint goes beyond

alleging that Sass was a part of the conspiracy; it alleges that he was the top dog and ring

leader. According to the Complaint, Sass used his control over the Resurgence Funds,

RAM Entities, and Sass Services to sell Sterling on the cheap. He caused Sterling to be

sold at a fire-sale price because Resurgence needed liquidity. The Complaint does not

advance these claims in conclusory fashion, nor does it rely on generic statements about

the market pressures that confront fund managers or the consequences of limited-term



       1
         See id. at 222-25 (describing underlying theory without fraud-based limitation);
Carsanaro v. Bloodhound Techs., Inc., 65 A.3d 618, 635-36 (Del. Ch. 2013) (noting that
theory encompasses claims of breach of fiduciary duty and aiding and abetting);
Hamilton P’rs v. Englard, 11 A.3d 1180, 1197 (Del. Ch. 2010) (same); Crescent/Mach I,
846 A.2d at 977 (rejecting construction of Istituto Bancario that would require a ―specific
allegation that [the defendants] agreed to conspire ‗to defraud‘ minority stockholders‖).

                                            26
funds and short investment horizons. The Complaint describes the losses, redemption

requests, and fund expirations that squeezed Resurgence, and it quotes from myriad

emails between Sass, Teeger, Sivin, and Schwarzfeld in which they discussed, among

other things, the ―need for a strong focus on finding an acquirer to monetize RAM‘s

investment‖ and their desire to ―monetize Sterling asap.‖ Compl. ¶¶ 33, 36; see also id.

¶¶ 35, 47-48. The Complaint also cites actions that Sass took to further his desire for

liquidity, such as causing Teeger to join the Board and take charge of the sale process,

and ensuring that Genova was focused on a near-term sale and incentivized to pursue

one.

       For his part, Sass argues that ―[t]he emails attributed to [him] are not directed to

anyone in Delaware.‖ Sass Br. at 15. True, but irrelevant. The emails themselves do not

have to be the Delaware-directed acts. The emails support the existence of the conspiracy

and Sass‘ role in it, satisfying the first and second elements of the Istituto Bancario test.

       2.     The Forum-Related Acts

       The third Istituto Bancario element asks whether ―a substantial act or substantial

effect in furtherance of the conspiracy occurred in the forum state.‖ 449 A.2d at 225.

Forming a Delaware entity to facilitate a challenged transaction satisfies this element.2 So



       2
         E.g., Papendick v. Robert Bosch GmbH, 410 A.2d 148, 152 (Del. 1979); Reid v.
Siniscalchi, 2014 WL 6589342, at *10 (Del. Ch. Nov. 20, 2014); Microsoft Corp. v.
Amphus, Inc., 2013 WL 5899003, at *9 (Del. Ch. Oct. 31, 2013); Conn. Gen. Life Ins.
Co. v. Pinkas, 2011 WL 5222796, at *2 (Del. Ch. Oct. 28, 2011); Cairns v. Gelmon, 1998
WL 276226, at *3 (Del. Ch. May 21, 1998). See generally Wolfe & Pittenger, supra, §
3.04[c][3], at 3-103 (―in suits in which the incorporation of a Delaware subsidiary is an
integral component of the conduct giving rise to the cause of action, the Delaware courts
                                              27
does filing a corporate instrument in Delaware in connection with the challenged

transaction.3

       The Complaint identifies two instances of Delaware-related activities, each

independently sufficient to satisfy the third Istituto Bancario element and provide the

statutory prerequisite for jurisdiction under Section 3104(c)(1). The first instance of

Delaware-related activity was the formation of the Delaware entities to serve as

liquidating vehicles. ―When done as an integral part of a wrongful scheme, the formation

of a Delaware entity confers personal jurisdiction under the long-arm statute.‖ Reid, 2014

WL 6589342, at *10. The Complaint alleges that Sass caused the liquidating vehicles to

be formed in November 2010, after Resurgence had suffered significant losses and

redemption requests, after Sass had discussed with Teeger the importance of monetizing

Sterling to meet Resurgence‘s liquidity needs, after Teeger joined the Board, and after a

monetization strategy was put in motion.




have consistently recognized that a nonresident defendant‘s incorporation of such
subsidiary constitutes constitutionally sufficient ‗minimum contacts‘ with Delaware.‖ ).
       3
          E.g., Fläkt Woods, 56 A.3d at 1027 (certificate of cancellation); Carsanaro, 65
A.3d at 635 (various certificates required by DGCL for challenged transactions, including
certificates of amendment, certificates of designation, certificates of correction, and
certificate of cancellation); Benihana, 2005 WL 583828, at *8 (certificate of
designations); Gibralt Capital Corp. v. Smith, 2001 WL 647837, at *6 (Del. Ch. May 9,
2001) (certificate of designations); Crescent/Mach I, 846 A.2d at 977 (certificate of
merger). See generally R. Franklin Balotti & Jesse A. Finkelstein, The Delaware Law of
Corporations and Business Organizations § 13.4[B], at 13-13 (3 ed. 2014) (―[t]he filing
of corporate instruments with the Delaware Secretary of State may also constitute an
action in Delaware sufficient to support jurisdiction‖).

                                           28
       Sass has argued that any connection between the formation of the liquidating

vehicles and the Sterling Transaction is too attenuated to support jurisdiction. At the

pleadings stage, the plaintiff receives the benefit of the reasonable inference that Sass

used the liquidating vehicles to maintain control of Sterling as part of his efforts to obtain

liquidity for Resurgence. Sass did not have to create the liquidating vehicles; Fund I,

Fund II, and the International Fund could have distributed their Sterling holdings to their

investors. But if Sass had chosen that route, then he would have given up his control over

a majority of Sterling‘s outstanding voting power and could not have caused the various

Resurgence entities to approve the Sterling Transaction through action by written

consent. The Complaint sufficiently alleges that forming the liquidating vehicles was an

integral part of the process that led to the Sterling Transaction.

       The second instance of Delaware-related activity was the filing of the certificate of

merger for the Sterling Transaction with the Delaware Secretary of State. Eastman

formed Eastman Sub as a Delaware-sitused acquisition vehicle. The parties took

advantage of Delaware law by agreeing to merge Sterling with Eastman Sub, with

Sterling emerging as a wholly owned subsidiary of Eastman. The filing of the certificate

of merger in Delaware consummated the transaction.

       As to the certificate, Sass argues that because Eastman actually filed it, and

because Eastman was the acquirer on the opposite side of the deal from Sass, the filing

cannot be attributed to Sass for jurisdictional purposes. The Delaware Supreme Court has

held on at least three occasions that ―one conspirator‘s acts are attributable to the other

conspirators.‖ Fläkt Woods, 56 A.3d at 1027; accord Hercules, 611 A.2d at 481; Istituto

                                              29
Bancario, 449 A.2d at 222. The filing of the certificate of merger is therefore attributable

to Sass.

       3.     Knowledge Of The Forum-Related Acts

       The fourth and fifth Istituto Bancario elements evaluate whether ―the defendant

knew or had reason to know of the act in the forum state‖ and the degree to which ―the

act in . . . the forum state was a direct and foreseeable result of the conduct in furtherance

of the conspiracy.‖ 449 A.2d at 225. In substance, these elements require allegations

―from which one can infer that a foreign defendant knew or should have known that the

conspiracy would have a Delaware nexus.‖ Fläkt Woods, 56 A.3d at 1024. Actual

knowledge is not required; ―the applicable standard is whether the foreign [defendant]

knew or should have known [about the] activity in Delaware.‖ Id.

       At the current procedural stage, it is readily inferable that Sass knew or should

have known that the Sterling Transaction had a Delaware nexus. Sterling was a Delaware

corporation, and the Merger Agreement called for Sterling would merge with another

Delaware corporation. Sass signed the Written Consent to satisfy the stockholder

approval requirement for the Sterling Transaction. Sass thus personally provided the

stockholder approval that was necessary for the Sterling Transaction to close and for the

certificate of merger to be filed with the Delaware Secretary of State.

       This court‘s exercise of personal jurisdiction over Sass comports with due process.

See Istituto Bancario, 449 A.2d at 225. Sass is no neophyte. Since 1972, he has formed

over seventy entities in Delaware, fifty-six of which bear his name. As the financially

sophisticated principal of an investment fund complex, he certainly should have

                                             30
anticipated that his orchestration of a merger involving a Delaware entity that he

controlled, including the formation of Delaware liquidating vehicles to preserve his

control, could render him subject to the jurisdiction of the Delaware courts for purposes

of challenges to the transaction. Having engaged in conduct that involved the formation

of Delaware entities, the use of Delaware law, and the filing of a certificate of merger

with the Delaware Secretary of State to accomplish his purposes, Sass should have

―reasonably anticipated . . . that his . . . actions might result in the forum state asserting

personal jurisdiction over him in order to adjudicate disputes arising from those actions.‖

In re USACafes, L.P. Litig., 600 A.2d 43, 50-51 (Del. Ch. 1991) (Allen, C.).

―Sophisticated investors should reasonably expect to face suit in Delaware when they

place their employees or principals on the board of directors of a Delaware corporation,

then allegedly use those representatives to channel benefits to themselves through . . .

transactions that require acts in Delaware for their implementation.‖ Carsanaro, 65 A.3d

at 636.

          4.     The Corporate Veil As A Jurisdictional Defense

          Sass alternatively argues that because he only acted through other entities, such as

Sass Services, he cannot be subject to personal jurisdiction in Delaware for a breach of

fiduciary duty claim, because to do so would disregard the separate existence of his

entities. Sass equates this result to piercing the corporate veil, and he contends that the

Complaint does not contain allegations sufficient for piercing. This contention is really an

argument that the Complaint fails to state a claim against Sass personally, but it is dressed

in jurisdictional garb. The argument fails because it tries to deploy principles of corporate

                                               31
separateness that govern claims brought by third parties as a shield against fiduciary

accountability.

       The doctrine of piercing the corporate veil enables contract creditors to reach the

assets of the owners of an entity if they can meet a multi-factor test. The doctrine is also

available to tort claimants.4 The doctrine traditionally has not been applied to claims for

breach of fiduciary duty brought by stockholders against the human actors who control

their corporation. To the contrary, a cause of action against the actual humans is a

centerpiece of corporate law. Delaware law endows the board of directors with the

authority and concomitant duty to manage a Delaware corporation. See 8 Del. C. §

141(a). The directors of a Delaware corporation must be natural persons. See 8 Del. C. §

141(d). Those individuals owe fiduciary duties of loyalty and care to the corporation,

which require that the directors exercise their managerial authority on an informed basis

in the good faith pursuit of maximizing the value of the corporation for the benefit of its

residual claimants, viz., the stockholders.5 When stockholders contend that the directors



       4
         See Feeley v. NHAOCG, LLC, 62 A.3d 649, 667 (Del. Ch. 2012); Robert B.
Thompson, The Limits of Liability in the New Limited Liability Entities, 32 Wake Forest
L. Rev. 1, 9-12 (1997); see also Robert B. Thompson, Piercing the Corporate Veil: An
Empirical Study, 76 Cornell L. Rev. 1036, 1058 (1991) (reviewing statistical occurrence
of piercing cases based on an underlying tort).
       5
         See N. Am. Catholic Educ. Programming Found., Inc. v. Gheewalla, 930 A.2d
92, 101 (Del. 2007) (―The directors of Delaware corporations have ‗the legal
responsibility to manage the business of a corporation for the benefit of its shareholder[]
owners.‘‖ (quoting Malone v. Brincat, 722 A.2d 5, 9 (Del. 1998))); Unocal Corp. v. Mesa
Petroleum Co., 493 A.2d 946, 955 (Del. 1985) (citing ―the basic principle that corporate
directors have a fiduciary duty to act in the best interests of the corporation‘s
stockholders‖); eBay Domestic Hldgs., Inc. v. Newmark, 16 A.3d 1, 34 (Del. Ch. 2010)
                                            32
breached their fiduciary duties, they can assert a cause of action (directly or derivatively)

against natural persons without having to seek to pierce the corporate veil.

       Breach of fiduciary duty is an equitable claim, and it is a maxim of equity that

―equity regards substance rather than form.‖ Monroe Park v. Metro. Life Ins. Co., 457

A.2d 734, 737 (Del. 1983); accord Gatz v. Ponsoldt, 925 A.2d 1265, 1280 (Del. 2007)




(explaining that directors have a fiduciary duty ―to promote the value of the corporation
for the benefit of its stockholders‖); see also Leo E. Strine, Jr., Our Continuing Struggle
with the Idea that For-Profit Corporations Seek Profit, 47 Wake Forest L. Rev. 135, 147
n.34 (2012) (―[S]tockholders‘ best interest must always, within legal limits, be the end.
Other [corporate] constituencies may be considered only instrumentally to advance that
end.‖); Leo E. Strine, Jr. et al., Loyalty’s Core Demand: The Defining Role of Good Faith
in Corporation Law, 98 Geo. L.J. 629, 634 (2010) (―[I]t is essential that directors take
their responsibilities seriously by actually trying to manage the corporation in a manner
advantageous to the stockholders.‖).

        The fiduciary obligation to maximize the value of the corporation for the benefit
of its stockholders does not mean that directors must sacrifice greater value that can be
achieved over the long term in pursuit of short-term strategies, and it certainly does not
mean that directors must attempt to maximize the a public company‘s stock price on a
daily or quarterly basis. The fiduciary relationship requires that directors act prudently,
loyally, and in good faith to maximize the corporation‘s value over the long-term for its
stockholders‘ benefit. See, e.g., Gantler v. Stephens, 965 A.2d 695, 706 (Del. 2009)
(holding that ―enhancing the corporation‘s long term share value‖ is a ―distinctively
corporate concern[]‖); TW Servs., Inc. v. SWT Acq. Corp., 1989 WL 20290, at *7 (Del.
Ch. Mar. 2, 1989) (Allen, C.) (describing as ―non-controversial‖ the proposition that ―the
interests of the shareholders as a class are seen as congruent with those of the corporation
in the long run‖ and explaining that ―[t]hus, broadly, directors may be said to owe a duty
to shareholders as a class to manage the corporation within the law, with due care and in
a way intended to maximize the long run interests of shareholders‖); see also Andrew A.
Schwartz, The Perpetual Corporation, 80 Geo. Wash. L. Rev. 764, 777-83 (2012)
(arguing that the corporate attribute of perpetual existence calls for a fiduciary mandate
of long-term value maximization for the stockholders‘ benefit); William T. Allen,
Ambiguity in Corporation Law, 22 Del. J. Corp. L. 894, 896-97 (1997) (―[I]t can be seen
that the proper orientation of corporation law is the protection of long-term value of
capital committed indefinitely to the firm.‖).

                                             33
(―It is the very nature of equity to look beyond form to the substance of an

arrangement.‖). Courts applying equitable principles therefore have had little difficulty

extending liability for breach of fiduciary duty beyond the natural persons who served as

directors to outsiders like majority stockholders who effectively controlled the

corporation. See, e.g., S. Pac. Co. v. Bogert, 250 U.S. 483, 488 (1919); Sterling v.

Mayflower Hotel Corp., 93 A.2d 107, 298 (Del. 1952). Delaware corporate decisions

consistently have looked to who wields control in substance and have imposed the risk of

fiduciary liability on the actual controllers.6



       6
          See Kahn v. Lynch Commc’n Sys. Inc., 638 A.2d 1110, 1114 (Del. 1994)
(holding that 43% stockholder that exercised actual control over subsidiary could be
liable for breach of fiduciary duty); Sterling, 93 A.2d at 109-10 (citing ―the settled rule of
law that Hilton as majority stockholder of Mayflower and the Hilton directors as its
nominees occupy, in relation to the minority, a fiduciary position in dealing with
Mayflower‘s property‖); Keenan v. Eshleman, 2 A.2d 904, 908 (Del. 1938) (affirming
imposition of liability on directors for management fees paid by corporation to second
corporation that was its controlling stockholder, where directors also controlled the
controlling stockholder: ―The conception of corporate entity is not a thing so opaque that
it cannot be seen through; and, viewing the transaction as one between corporations,
casual scrutiny reveals that the appellants, in fact, dealt with themselves to their own
advantage and enrichment. The employment of Consolidated by Sanitary was merely the
employment by the appellants of themselves to do what it was their plain duty to do as
officers of Sanitary.‖); Shandler v. DLJ Merch. Banking, Inc., 2010 WL 2929654, at *15
(Del. Ch. July 26, 2010) (Strine, V.C.) (―Fairly read, the complaint alleges that DLJ, Inc.
presided over a family of entities that it dominated and controlled, including the entities
that together owned 74% of Insilco‘s equity. Using their unified power in a concerted
way, DLJ controlled Insilco and directed its business strategy, including causing it to
employ the DLJ Advisors . . . . I believe that Shandler has pled sufficient facts from
which it can be inferred that the DLJ Funds were instrumentalities operated for the
benefit of DLJ, Inc. and DLJMB.‖); In re Primedia, Inc. Deriv. Litig., 910 A.2d 248, 258
n.26 (Del. Ch. 2006) (holding that private equity firm could owe fiduciary duties to non-
controlling stockholders when firm controlled corporation through intervening entities);
Allied Chem. & Dye Corp. v. Steel & Tube Co., 120 A. 486, 491 (Del. Ch. 1923) (―When,
in the conduct of the corporate business, a majority of the voting power . . . join hands in
                                                  34
       Sass wields control in substance, and Sterling‘s stockholders can sue him

personally for breach of fiduciary duty because he was the controller and ultimate

fiduciary of Sterling. The Complaint states a claim for breach of fiduciary duty against

Sass; the question raised by his Rule 12(b)(2) motion is whether he could be sued in

Delaware, or whether he only could be sued in California, where he resides. As discussed

in the preceding section, jurisdiction-conferring acts in the State of Delaware are

attributable to Sass, and it is fair as a matter of due process to hale him into this court.

       In arguing that the entities he controls should screen him from being subject to

personal jurisdiction in this court, Sass relies on Ruggiero v. FuturaGene, plc, 948 A.2d

1124 (Del. Ch. 2008). In that decision, an English corporation (FuturaGene) used a

Delaware acquisition vehicle to acquire an Indiana corporation through a reverse-

triangular merger. The separate existence of the Delaware acquisition vehicle ceased as a

result of the merger, leaving the Indiana target as a wholly owned subsidiary of

FuturaGene. Id. at 1129. As merger consideration, the former stockholders of the Indiana

target received shares representing approximately 30% of FutureGene‘s voting power, as

well as the right to additional shares in the form of earn-out payments. Id. at 1129-30.




imposing its policy upon all, it is beyond all reason . . . to take any view other than that
they are to be regarded as having placed upon themselves the same sort of fiduciary
character which the law impresses upon the directors in their relation to all the
stockholders.‖); Martin v. D.B. Martin Co., 88 A. 612, 615 (Del. Ch. 1913) (―For the
protection of the rights of stockholders of the dominant, or parent company, and for
righting of wrongs done them by means of the control of the dominant, or parent,
company . . . the latter are to be treated as agents of the former, or even as identical with
each other.‖).

                                              35
Litigation ensued over the earn-out, and the former stockholders of the Indiana target,

now stockholders of FuturaGene, asserted claims for breach of contract and breach of

fiduciary duty against FuturaGene and its directors.

       FuturaGene had consented in the merger agreement to jurisdiction in the Court of

Chancery. The directors of FuturaGene were not parties to that agreement, and the

decision held that they were not bound by the forum selection provision. Id. at 1132. The

court also held that as directors of an English corporation, the individual defendants were

not subject to jurisdiction under Delaware‘s director-consent statute, 10 Del. C. § 3114.

Nor had they taken any action during their transitory tenure as directors of the Delaware

acquisition subsidiary that would support jurisdiction under Section 3114. Ruggiero, 948

A.2d at 1134.

       This left Section 3104(c)(1) and the creation of the Delaware acquisition

subsidiary as the only potential jurisdictional hook. That theory failed for two reasons.

For one, the creation of the Delaware acquisition subsidiary did not provide the basis for

the plaintiffs‘ claims, which alleged post-closing breaches of contractual and fiduciary

duty that led to the failure to issue earn-out shares. For another, the plaintiffs had not

alleged any facts suggesting that the individual defendants took action other than as

directors of a foreign corporation. As the court explained,

       a corporate director or officer of a foreign corporation cannot be haled into
       a Delaware court for an act of the corporation simply because the officer or
       director has directed the corporation to take that act . . . . Rather, the
       corporate officer or director must be shown to have substantial contacts in
       Delaware or with a nexus to Delaware having a clear relationship to the
       cause of action.


                                            36
Ruggiero, 948 A.2d at 1134. Alternatively, the plaintiffs would have had to show that

FuturaGene functioned as the directors‘ agent so that Section 3104(c)‘s language about

―action through an agent‖ would apply. Id. at 1134-35. The complaint in Ruggiero did

neither.

       Notably, the Ruggiero decision did not involve claims for breach of fiduciary duty

brought by stockholders of a Delaware corporation against its controller. The principal

claims in Ruggiero were breach of contract claims, where piercing doctrine ordinary

applies, and the fiduciary duty claims recast the breach of contract claims in fiduciary

guise. Nor did the decision in Ruggiero suggest a degree of involvement comparable to

Sass‘ role in the Sterling Transaction.

       Other Delaware decisions support the existence of personal jurisdiction over an

individual defendant for purposes of breach of fiduciary duty claims involving a

Delaware corporation where the individual was alleged to have been involved actively in

the transactions that resulted in jurisdiction-conferring acts taking place in the State of

Delaware. For example, in Microsoft Corp. v. Amphus, Inc., 2013 WL 5899003 (Del. Ch.

Oct. 31, 2013), this court exercised personal jurisdiction over an individual defendant

based on his involvement in the creation of a Delaware subsidiary, despite the

defendant‘s argument that he acted only as an officer and director of the foreign parent

that technically formed the Delaware subsidiary. Distinguishing Ruggiero and similar

cases, the court explained its reasoning as follows:

       Fung did not merely vote, as a director of Vadem BVI [the foreign parent
       entity], to approve the formation of Amphus [the Delaware entity]. Fung
       proposed the creation of Amphus to the [parent] Board. He further

                                             37
       proposed that he would be a founder, director, and the CEO of Amphus and
       also would have a twenty percent stake in the new entity, thereby nearly
       tripling his personal interest in the Vadem Patents. Furthermore, the
       Complaint contains allegations sufficient to make a prima facie showing
       that Fung made his proposal to the Vadem Board for the purpose of
       securing the future benefits of the Vadem Patents for himself at an unfair
       price, and that Fung deliberately misled the Vadem Board to achieve that
       goal. In sum, Microsoft has alleged that Fung purposefully harmed Vadem
       BVI and purposefully availed himself of the laws of Delaware by choosing
       to induce Vadem BVI to create a Delaware entity that Fung could use to
       facilitate his wrongdoing. Under the facts alleged in this case, therefore,
       Fung‘s conduct went beyond mere approval of the creation of Amphus as a
       director of Vadem BVI to his orchestrating that action and subsequently
       using Amphus to facilitate his wrongful scheme. Accordingly, I find that
       Fung is subject to personal jurisdiction in Delaware under 10 Del. C. §
       3104(c)(1) and that the exercise of jurisdiction over him under that statute
       comports with Due Process.

Id. at *10. The court declined to exercise personal jurisdiction over a second director who

had not played a similarly meaningful role. As to that director, the complaint ―lack[ed]

any suggestion that [he] had the ability to control the Vadem BVI Board or was aware of

Fung‘s alleged scheme.‖ Id. The complaint therefore did not provide any basis to hold

him accountable in Delaware for his actions as a director of a foreign corporation. Id.

       Another example is Sample v. Morgan. That litigation involved a transaction in

which the directors of a Delaware corporation issued shares representing nearly one third

of the corporation‘s equity capitalization to its three top managers, who also composed a

majority of the five-member board. To facilitate the issuance, the board recommended

and sought stockholder approval of an amendment to the corporation‘s certificate of

incorporation that reduced the par value of the shares, enabling the top managers to pay

$200 for the equity instead of $200,000. After the stockholders approved the amendment,

the corporation filed a certificate of amendment with the Delaware Secretary of State. In

                                            38
a decision addressing a motion to dismiss the complaint for failure to state a claim on

which relief could be granted, then-Vice Chancellor, now Chief Justice Strine held that

the complaint pled facts supporting the inference that ―the [Certificate] Amendment and

the Equity Incentive Plan resulted from a conscious scheme of entrenchment and personal

self-enrichment by the [three top managers], facilitated by the advice of [the lawyer],

which was purposely concealed from the [corporation‘s] stockholders when they were

asked to vote on the Amendment and the Plan.‖ Sample v. Morgan (Sample I), 914 A.2d

647, 675 (Del. Ch. 2007).

       After the dismissal ruling, the plaintiff sought to amend the complaint to add a

claim for aiding and abetting breaches of fiduciary duty against the lawyer and his firm.

They challenged the court‘s ability to exercise personal jurisdiction over them, resulting

in a second decision from Chief Justice Strine. See Sample II, 935 A.2d at 1055. Like

Sass, they argued that the filing of the certificate of amendment was the act of the

corporation and could not be attributed to them for purposes of Section 3104(c)(1). Chief

Justice Strine framed their contention as follows:

       In its broadest form, a form that the moving defendants did not shy from
       advancing, the moving defendants posit that the filing of a charter
       amendment or other key corporate instrument with the Secretary of State in
       Delaware may never form the basis for serving a party sued . . . in
       Delaware. Why? Because such documents are formally filed by the
       corporation itself and thus respect for the corporation‘s separate legal
       identity requires that the individuals who caused the corporation to make
       the filings cannot be held personally accountable for those filings for
       purposes of § 3104.

Id. at 1058-59.

       Chief Justice Strine dismantled this argument:

                                            39
       One can sleep soundly at night confident that rejection of this argument is
       not at odds with either logic or sound public policy. When a claim for
       breach of fiduciary duty is at issue, the underlying conduct almost always
       involves formal action of the corporation itself. After all, the very essence
       of a breach of corporate law fiduciary duty claim is the misuse of corporate
       control. For example, an unfair squeeze out merger by a controlling
       stockholder quintessentially involves the corporation entering into a merger
       agreement . . . . That is, claims of fiduciary duty ultimately rest on the
       proposition that a corporate fiduciary has caused the corporation to do
       something at odds with its own best interests, typically so that the fiduciary
       could secure an improper personal benefit . . . .

       Although there are sound public policy reasons for limiting the ability of
       contract and tort claimants to file certain claims against corporate officers
       and directors for conduct of the corporation itself, those reasons have little
       to do with this case or other cases involving the internal affairs of
       corporations. When well-pled facts support the inference that a person
       caused a corporation to take jurisdictionally-significant conduct in
       Delaware and that conduct is an element in a scheme by corporate
       fiduciaries to unfairly advantage themselves at the expense of a Delaware
       corporation and its stockholders, our case law has consistently held that the
       long-arm statute may be used to serve that person. It would be surprising
       were it otherwise, because a contrary ruling would turn the very essence of
       faithless conduct—the abuse of corporate power—into an immunity from
       accountability, precisely because the disloyal fiduciaries derived their
       wrongful gains from actions of the corporation itself, albeit corporate
       actions that their own conduct brought about. Such an accountability-
       destroying reading of the long-arm statute would itself be entirely disloyal
       to the statute‘s purpose, as articulated by our Supreme Court . . . .

Id. at 1059-60 (footnotes omitted).

       The Chief Justice‘s reasoning in Sample II applies to Sass. The Complaint

challenges Sass‘ alleged misuse of corporate power in causing Sterling to enter into a

merger agreement that allowed Eastman to acquire the Company at an unfair price. The

Complaint rests on the proposition that Sass caused Sterling to do something at odds with

its own best interests and the best interests of its stockholders so that Sass could secure an

improper personal benefit in the form of the liquidity that Resurgence desperately

                                             40
needed. In contrast to a case involving contractual counterparties or third party tort

claimants, there is no basis to interpose an entity veil in a matter involving the

corporation‘s internal affairs. The well-pled facts of the Complaint support the inference

that jurisdictionally significant conduct occurred in Delaware as part of a scheme by

corporate fiduciaries to advantage themselves at the expense of a Delaware corporation

and its stockholders. Under those circumstances, ―our case law has consistently held that

the long-arm statute may be used to serve that person.‖ Id. at 1060.

       As in the Microsoft and Sample II decisions, Sass is subject to personal

jurisdiction in Delaware. His motion to dismiss is denied.

B.     Jurisdiction Over The Sass Plan

       The Sass Plan‘s motion to dismiss for lack of personal jurisdiction is also denied.

The analysis of the Istituto Bancario elements is the same as for Sass, with the Sass Plan

contesting only the second element, whether the Sass Plan ―was a member of that

conspiracy,‖ and the fourth element, whether the Sass Plan ―knew or had reason to know

of the act in the forum state or that acts outside the forum state would have an effect in

the forum state.‖ 449 A.2d at 225.

       As to the second element, the Sass Plan is properly considered a member of the

conspiracy because Sass himself, a co-conspirator, controlled the Sass Plan. Sass signed a

written consent on the Sass Plan‘s behalf as its trustee.

       As to the fourth element, Sass‘ knowledge of the Sterling Transaction is fairly

imputed to the Sass Plan. See, e.g., Triton Const. Co. v. E. Shore Elec. Servs., Inc., 2009

WL 1387115, at *16 (Del. Ch. May 18, 2009) (imputing knowledge of individual

                                             41
controlling corporation to entity), aff’d, 988 A.2d 938 (Del. 2010); Teachers’ Ret. Sys. of

La. v. Aidinoff, 900 A.2d 654, 671 (Del. Ch. 2006) (same). The attribution of Sass‘

knowledge to the Sass Plan and Sass‘ use of the Sass Plan to effectuate the Sterling

Transaction gives the Sass Plan a sufficient connection with Delaware to make it

amenable to suit here.

                               III.     CONCLUSION

       This court can exercise personal jurisdiction over Sass and the Sass Plan for the

purpose of the claims set forth in the Complaint. The Rule 12(b)(2) motions are denied.




                                            42
