   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

JOHN CUMMING, derivatively on behalf of                :
NEW SENIOR INVESTMENT GROUP, INC.,                     :
                                                       :
                            Plaintiff,                 :
                                                       :
                v.                                     : C.A. No. 13007-VCS
                                                       :
WESLEY R. EDENS, SUSAN GIVENS,                         :
VIRGIS W. COLBERT, MICHAEL D. MALONE,                  :
STUART A. MCFARLAND, CASSIA VAN DER                    :
HOOF HOLSTEIN, FIG LLC, FORTRESS                       :
OPERATING ENTITY I LP, FIG                             :
CORPORATION, HOLIDAY ACQUISITION                       :
HOLDINGS LLC, and FORTRESS                             :
INVESTMENT GROUP LLC,                                  :
                                                       :
                            Defendants,                :
                                                       :
               and                                     :
                                                       :
NEW SENIOR INVESTMENT GROUP, INC.,                     :
                                                       :
                            Nominal Defendant.         :

                         MEMORANDUM OPINION

                      Date Submitted: November 21, 2017
                       Date Decided: February 20, 2018


Jeffrey Gorris, Esquire, Christopher Foulds, Esquire and Christopher Quinn, Esquire
of Friedlander & Gorris P.A., Wilmington, Delaware; David Wales, Esquire, David
MacIsaac, Esquire and John Vielandi, Esquire of Bernstein Litowitz Berger &
Grossmann LLP, New York, New York; Adam Warden, Esquire of Saxena
White P.A., Boca Raton, Florida; Steven B. Singer, Esquire and Joshua H. Saltzman,
Esquire of Saxena White P.A., White Plains, New York; J. Elazar Fruchter, Esquire
of Wohl & Fruchter LLP, New York, New York, Attorneys for Plaintiff.
Robert S. Saunders, Esquire, Ronald N. Brown, III, Esquire, Sarah R. Martin,
Esquire and Elisa M.C. Klein, Esquire of Skadden, Arps, Slate, Meagher & Flom
LLP, Wilmington, Delaware, Attorneys for Defendants.




SLIGHTS, Vice Chancellor
       Plaintiff, John Cumming, is a stockholder of nominal defendant, New Senior

Investment Group, Inc. (“New Senior”). He initiated this action derivatively on

behalf of New Senior against members of the New Senior board of directors alleging

they breached their fiduciary duties in connection with their approval of a transaction

whereby New Senior acquired assets at an unfair price from an entity controlled by

Fortress Investment Group, LLC (“Fortress”). Cumming asserts that a majority of

the New Senior board was either interested in the transaction or disabled by conflicts

arising from various relationships with a principal of Fortress, Wesley Edens.

He further alleges that the transaction, comprised of three related and equally unfair

elements, must be subject to the entire fairness standard of review. For both of these

reasons, Cumming maintains that he is excused from demanding that the managers

of New Senior assert these claims directly under either or both “prongs” of Aronson.1

       Defendants have moved to dismiss Cumming’s complaint under Court of

Chancery Rules 23.1 and 12(b)(6). They argue he has failed to plead particularized

facts to demonstrate demand excusal under Rule 23.1 and has failed to plead viable,

non-exculpated claims that can survive their challenge under Rule 12(b)(6).

I disagree.   The complaint pleads sufficiently particularized facts to create a


1
  Aronson v. Lewis, 473 A.2d 805, 814 (Del. 1984) overruled on other grounds, Brehm v.
Eisner, 746 A.2d 244 (Del. 2000) (citing 8 Del. C. § 141(a)) (holding that demand on a
board is excused where a plaintiff alleges particularized facts creating a “reasonable doubt”
that either (1) a majority of the directors were disinterested and independent, or (2) the
challenged transaction was a valid exercise of business judgment).
                                             1
reasonable doubt that a majority of the New Senior board was disinterested or

independent. It also pleads facts that support a reasonable inference that the

defendants breached their duty of loyalty by approving a conflicted, unfair

transaction, and thereby pleads a non-exculpated claim under 8 Del. C. § 102(b)(7).

Finally, the complaint pleads a reasonably conceivable claim of aiding and abetting

a breach of fiduciary duty against Fortress (and its affiliates) by alleging that

Fortress, as seller, knowingly exploited conflicts of interest among members of the

New Senior board in order to facilitate the transaction and thereby advance its own

interests (and those of the interested directors) at the expense of New Senior

stockholders. Accordingly, the motion to dismiss must be denied as to all counts of

the complaint.

                                 I. BACKGROUND

      The relevant facts are drawn from the complaint’s well-pled allegations, the

documents the complaint incorporates by reference and those matters I am permitted

to consider by stipulation of the parties.2 For purposes of this motion to dismiss, the



2
  EMSI Acq., Inc. v. Contrarian Funds, LLC, 2017 WL 1732369, at *1 (Del. Ch. May 3,
2017). Plaintiff received certain documents from New Senior in response to a books and
records demand. The parties agreed that documents produced in response to that demand
would be deemed incorporated within the complaint whether or not referenced therein.
Transmittal Aff. of Elisa M.C. Klein in Supp. of Defs.’ Opening Br. in Supp. of their Mot.
to Dismiss Pl.’s Verified Am. Deriv. Compl. (“Klein Aff.”) Ex. 34 (Confidentiality
Agreement) ¶ 7; Quinn Letter dated Nov. 16, 2017, Ex. 2, at 2. Notwithstanding this
agreement, Plaintiff argues that Defendants have referred to materials outside of the
produced or incorporated documents in resisting his motion to dismiss. Accordingly, he
                                            2
Court accepts as true the well-pled facts in the Complaint and draws all reasonable

inferences in Plaintiff’s favor.3

         A. Parties and Relevant Non-Parties

         Plaintiff, John Cumming, was a stockholder of New Senior at all relevant

times and remains a New Senior stockholder today.4 He purports to bring this action

derivatively on behalf of New Senior.

         Nominal Defendant, New Senior, is a Delaware corporation with its principal

place of business in New York.5 It has no employees of its own.6 Rather, it is an

externally-managed, publicly-traded real estate investment trust (“REIT”) that owns

a portfolio of senior housing facilities totaling 154 properties across the United




urges me to convert this motion into a motion for summary judgment, and then allow him
to take discovery before addressing the motion. Pl.’s Answering Br. in Opp’n to Defs.’
Mot. to Dismiss (“Pl.’s Answering Br.”) 17 n.8; Transcript of Oral Argument on Defs.’
Mot. to Dismiss, Nov. 21, 2017, D.I. 33 (“Tr.”) 62:12–63:5. Consistent with this Court’s
practice, beyond the four corners of the Verified Amended Derivative Complaint
(“Complaint”), I have considered only those documents produced by New Senior in
response to the Section 220 demand or incorporated by Cumming in his Complaint. “[I]f a
document or the circumstances support more than one possible inference, and if the
inference that [P]laintiff seeks is reasonable, then [P]laintiff [has] receive[d] the inference.”
Amalgamated Bank v. Yahoo! Inc., 132 A.3d 752, 798 (Del. Ch. 2016). Thus, I decline
Plaintiff’s invitation to convert this motion into a motion for summary judgment.
3
    Wayne Cty. Empls.’ Ret. Sys. v. Corti, 2009 WL 2219260, at *8 (Del. Ch. July 24, 2009).
4
    Verified Am. Deriv. Compl. (“Compl.”) ¶ 21.
5
    Compl. ¶ 22.
6
    Compl. ¶ 29.

                                               3
States.7 New Senior was originally formed as a subsidiary of Drive Shack, Inc.

(“Drive Shack”), which is another publicly-traded REIT managed and dominated by

Fortress.8 New Senior was spun off from Drive Shack in November 2014.9

         Defendant, Fortress, is a global asset and investment management firm.10

It was founded by, among others, Defendant, Wesley Edens (“Edens”), in 1998 and

went public in 2007.11

         Defendant, Fig LLC (“FIG”), is New Senior’s manager and an indirect

subsidiary of Fortress.12 FIG is wholly owned and managed by Defendant, Fortress

Operating Entity I LP (“FOE I”).13 FOE I’s sole general partner is FIG Corporation

(“FIG Corp.”), a wholly-owned Fortress subsidiary.14 FIG Corp. and Fortress’ three


7
    Compl. ¶ 22.
8
    Compl. ¶ 23.
9
    Compl. ¶ 23.
10
     Compl. ¶ 24.
11
  Compl. ¶ 24. “As of April 2, 2015, Fortress, Edens and other New Senior insiders owned
approximately 7.2% of New Senior’s outstanding stock.” Compl. ¶ 27.
12
  Compl. ¶ 31. FIG also manages, inter alia, the Fortress funds that own Holiday, Drive
Shack and Fortress investment funds that own a majority of Nationstar Mortgage Holdings,
Inc. Id.
13
     Compl. ¶ 32.
14
  Compl. ¶ 33. I note that the Complaint collectively refers to Fortress, FIG, FOE I and
FIG Corp. as “Fortress.” Compl. ¶ 34. I have done my best to differentiate among the
entities, when necessary, with help of the parties’ briefing and the incorporated documents.
Otherwise, I adopt the convention utilized in the Complaint and refer to the Fortress entities
                                              4
“principals” (including Edens) own 100% of FOE I’s limited partnership interests.15

“Fortress, FIG, FOE I, FIG Corp., Drive Shack, and New Senior all operate out of

the same offices.”16

         Defendant, Holiday Acquisition Holdings LLC (”Holiday”),17 “is the second

largest private owner and operator of independent living communities for seniors in

the United States.”18 In 2007, Holiday was acquired by Fortress Holiday Investment

Fund (“FHIF”), a Fortress-managed private equity fund. Since then, it has been

“controlled and majority-owned by Fortress,” primarily through FHIF.19

         At the time of the challenged transactions, New Senior’s board of directors

(the “Board” or the “New Senior Board”) had six members: Edens, Susan Givens,



collectively as “Fortress.” An organizational chart is attached as an appendix to this
Memorandum Opinion.
15
  Compl. ¶ 33. Fortress’ “principals” are Defendant Edens and non-parties, Peter L.
Briger, Jr. and Randal A. Nardone. Id.
16
     Compl. ¶ 35.
17
  The portfolio of properties at issue here belonged to and was sold by Holiday Retirement,
which is alleged to be an affiliate of Holiday Acquisition Holdings LLC (the only named
“Holiday” defendant in this matter). Compl. ¶ 3 n.2. Because of the interrelationship of
the Holiday companies, the Complaint refers to “Holiday Retirement, with its affiliates,
including Harvest Facility Holdings LP, Holiday Facility Holdings, LP, Holiday
Acquisition Holdings LLC, and Holiday AL Holdings LP” collectively as “Holiday.” Id.
Once again, I will follow the Complaint and refer to the Holiday entities collectively as
“Holiday.”
18
     Compl. ¶ 36.
19
     Compl. ¶ 36.

                                            5
Virgis Colbert, Michael Malone, Stuart McFarland and Cassia van der Hoof

Holstein, all of whom joined the Board by Fortress’ designation in October 2014.20

The committee of New Senior’s board of directors organized to negotiate and

consummate the transaction at issue here (the “Transaction Committee”) comprised

Malone, Van der Hoof Holstein, Colbert and McFarland.21 As of the filing of this

action, the Board consisted of seven members, the six members serving at the time

of the challenged transaction and Robert Savage.22 Savage is not a defendant in this

action.

         Defendant, Edens, is Fortress’ founder and one of its “Principals.”23 He is

also Fortress’ largest stockholder24 and the co-chairman of its board of directors.25

At Fortress, “Edens is responsible for Fortress’ private equity and publicly traded

alternative investment businesses, which include both Holiday and New Senior.”26


20
     Compl. ¶¶ 27, 37, 52, 60, 63, 134.
21
     Compl. ¶¶ 14–17.
22
     Compl. ¶ 134.
23
  Compl. ¶¶ 23, 33. The Complaint alleges that the three-person control group of Fortress
together owns approximately 45% of Fortress’ voting stock. Compl. ¶ 37.
24
  According to the Complaint, “[a]s of April 6, 2016, [Edens] owned approximately 22.6%
of Fortress’ Class A shares and about 27.2% of its Class B shares” making him Fortress’
largest stockholder. Compl. ¶ 37.
25
     Compl. ¶¶ 24, 33, 37.
26
     Compl. ¶ 38.

                                           6
Edens has been the Chairman of the New Senior Board since October 2014.27

He also serves as a director of FIG Corp., as officer and general partner of the funds

that own Holiday, and as a director of non-party, A&K Global Health LLC

(“A&K”), which was founded by Fortress in 2011.28 Along with Givens, he was

designated as one of two members of the New Senior Board’s pricing committee

that determined the price of the equity offering used, in part, to fund the transaction

at issue (the “Pricing Committee”).29

         Defendant, Givens, is New Senior’s CEO and a member of its Board.30

Givens also serves as managing director of Fortress’ private equity group31 and holds

interests in Holiday through Fortress’ private equity fund.32 She was New Senior’s

lead negotiator in the acquisition of the portfolio of properties challenged here and,

as noted, served on the two-person Pricing Committee alongside Edens.33



27
     Compl. ¶ 37.
28
     Compl. ¶¶ 33, 36, 39.
29
     Compl. ¶ 6.
30
     Compl. ¶ 41.
31
     Compl. ¶ 41.
32
  Compl. ¶¶ 41, 135. Givens did not disclose the amount of her ownership interest in
Holiday in her director questionnaire. Transmittal Aff. of Christopher P. Quinn (“Quinn
Aff.”) Ex. 2, at SNR00000108.
33
     Compl. ¶ 41.

                                          7
         Defendant, Malone, served as Chairman of the Transaction Committee.34

From 2008 to 2012, Malone served as managing director of Fortress.35 He also sits

on the boards of directors of a Fortress-affiliated company, non-party Nationstar

Mortgage Holdings (“Nationstar”), and Walker & Dunlop, which provided financing

for the challenged transaction.36 Malone holds ownership interests in Fortress, New

Senior and Walker & Dunlop.37 At the time of the challenged transaction, Malone

had retired from his Senior Executive Banker and Managing Director positions at

Bank of America after 24 years of service and, thus, did not have full-time

employment.38 It is alleged he earned $1.7 million in director fees between 2012

and 2015 from Fortress-managed companies.39

         Defendant, Van der Hoof Holstein, was added to the Transaction Committee

by written consent after its inception.40 In addition to her service on the New Senior




34
     Compl. ¶ 42.
35
     Compl. ¶¶ 43–44.
36
     Compl. ¶¶ 45–49.
37
     Compl. ¶¶ 44, 50.
38
     Klein Aff. Ex. 4 (2015 Proxy Statement), at 7.
39
     Compl. ¶ 51.
40
     Compl. ¶ 52.

                                              8
Board, she also serves on the board of directors of A&K together with Edens.41

Van der Hoof Holstein’s full-time employment is with Partners in Health (“PIH”), a

nonprofit medical organization, where she has served as Chief Partnership

Integration Officer since 2010.42 It is alleged that Edens’ wife serves on the board

of directors of PIH and that the Edens family is a “trusted partner” of the

organization, donating money and otherwise providing significant support for PIH’s

worldwide relief efforts.43

         Van der Hoof Holstein has also served as Associate Director of the Global

Health Delivery Partnership (“GHDP”) for the Department of Global Health and

Social Medicine at Harvard Medical School since 2011.44            According to the

Complaint, GHDP has received continued substantial support from Edens over many

years.45

         Defendant, Colbert, was also a member of the Transaction Committee.46

In addition to his service on the New Senior Board, Colbert “has served in a variety



41
     Klein Aff. Ex. 4 (2015 Proxy Statement), at 8; Compl. ¶ 39.
42
     Compl. ¶ 53.
43
     Compl. ¶¶ 54–56.
44
     Compl. ¶¶ 57–58.
45
     Compl. ¶ 15.
46
     Compl. ¶ 60.

                                              9
of key leadership positions with Miller Brewing Company since 1979,” and

“continues to serve as Senior Advisor to MillerCoors LLC.”47 He previously served

on the boards of directors for several other companies.48 It is alleged that around the

time Colbert became a member of the Board, Edens (as controlling owner) invited

Colbert to join him as a co-owner of the Milwaukee Bucks (the NBA team), through

Partners for Community Impact, LLC, and that Colbert accepted the invitation.

Colbert now enjoys the unique opportunity of being a co-owner of an NBA

franchise, along with approximately 24 others in the Bucks’ ownership group.49

         Defendant, McFarland, was the final member of the Transaction Committee.50

McFarland also serves as a Fortress-designated director of Drive Shack, which, as

mentioned, is managed by Fortress and was New Senior’s parent prior to the spin-

off in November 2014.51 McFarland receives 60% of his publicly declared income




47
     Klein Aff. Ex. 4 (2015 Proxy Statement), at 6.
48
     Klein Aff. Ex. 4 (2015 Proxy Statement), at 6.
49
     Compl. ¶¶ 60, 62.
50
     Compl. ¶ 63.
51
     Compl. ¶¶ 23, 63.

                                              10
from his various board fees.52 He lists his address with the SEC for investment

purposes (for non-Fortress investments) as “C/O Fortress Investment Group.”53

         B. New Senior’s Spin-Off

         New Senior was spun off from Drive Shack in 2014 (the “Spin-Off”).54 Prior

to the Spin-Off, “Drive Shack was dominated by Fortress, as most of Drive Shack’s

board and management were affiliated with Fortress.”55 Edens served as the

chairman of Drive Shack’s board from 2002 until May 2016 and as its CEO from

2002 until 2007.56 As part of the Spin-Off, Fortress “appointed all of New Senior’s

directors, classified the Board with staggered terms, and severely curtailed the filling

of director vacancies and the removal of directors.”57 It also “installed Fortress-

affiliated personnel as the senior management of New Senior.”58




52
     Compl. ¶ 63.
53
     Compl. ¶ 63.
54
     Compl. ¶ 3.
55
     Compl. ¶ 26.
56
     Compl. ¶ 26.
57
     Compl. ¶ 27.
58
     Compl. ¶ 28.

                                          11
         C. The FIG-New Senior Management Agreement

         “In conjunction with the Spin-Off, New Senior entered into a management

agreement [] with Fortress’ subsidiary FIG[], pursuant to which FIG[] manages New

Senior’s day-to-day operations.”59        Thus, all of New Senior’s management is

employed by FIG. Under the management agreement, FIG receives compensation

in the form of an annual management fee of 1.5% of New Senior’s gross equity as

well as incentive compensation of 25% on New Senior’s returns above a certain

threshold.60 The management agreement further provides that FIG is to receive 10%

of the number of shares sold in any stock offering at the offering’s exercise price.61

         According to New Senior’s public disclosures, New Senior is “completely

reliant on [FIG].”62 Thus, New Senior is “subject to the risk that [FIG] will terminate



59
  Compl. ¶ 28. At the time of the challenged transaction, New Senior’s management team
consisted of: (i) Givens, New Senior’s CEO and Fortress’ private equity group’s managing
director; (ii) Justine Cheng, New Senior’s CFO, Treasurer and COO and also a managing
director of Fortress’ private equity group, employed by Fortress since 2004; (iii) Julien P.
Hontang, New Senior’s Chief Accounting Officer and managing partner of Fortress’
private equity fund; and (iv) Cameron MacDougall, New Senior’s secretary and a
managing partner and general counsel of Fortress’ private equity fund, employed by
Fortress since 2007. Compl. ¶ 29.
60
   Klein Aff. Ex. 1 (FIG Management Agreement), at 9. “Gross Equity” is defined as “for
any period [] (A) the sum of (i) the ‘Total Equity,’ plus (ii) the value of contributions made
by partners other than [New Senior], from time to time, to the capital of any subsidiary . . .
less (B) any capital dividends or capital distributions . . . .” Id.
61
     Klein Aff. Ex. 1 (FIG Management Agreement), at 10.
62
     Klein Aff. Ex. 25 (Preliminary Prospectus Supplement June 22, 2015), at S-22.

                                             12
the Management Agreement and that [New Senior] will not be able to find a suitable

replacement for [its] [m]anager in a timely manner, at a reasonable cost or at all.”63

The public disclosures confirm that the management agreement was “not negotiated

at arm’s length, and its terms, including fee payable, may not be as favorable to [New

Senior] as if it had been negotiated with an unaffiliated party.”64

         D. The Challenged Transaction

         The transaction at issue here is more accurately described as three separate

(but inextricably intertwined) transactions, each of which Plaintiff alleges was

detrimental to New Senior. First, the overarching transaction was New Senior’s

acquisition of a portfolio of properties (the “Holiday Portfolio”) from Defendant

Holiday (the “Acquisition”) at an allegedly unfair price. Second, New Senior

financed the Acquisition (in part) through an equity offering that allegedly favored

Fortress to the detriment of New Senior. And third, New Senior entered into a

property management agreement with Holiday to manage the Holiday Portfolio at

allegedly higher-than-market rates (collectively the “Challenged Transactions”).65




63
     Klein Aff. Ex. 25 (Preliminary Prospectus Supplement June 22, 2015), at S-22.
64
     Klein Aff. Ex. 25 (Preliminary Prospectus Supplement June 22, 2015), at S-22.
65
 New Senior and Holiday Acquisitions Holdings, LLC were the parties to the
management agreement. Klein Aff. Ex. 35 (2016 Proxy Statement), at 26.
                                             13
            1. The Acquisition

         The Board was first made aware of the possibility of acquiring the Holiday

Portfolio at a meeting on May 5, 2015.66 At that meeting, “Givens informed three

members of the Board that Holiday had solicited bids for the sale of the Holiday

Portfolio” and that she “expected to submit a bid” on New Senior’s behalf.67

She also “indicated the expected price range for the portfolio.”68 In her presentation,

Givens advised the Board that the Acquisition would be part of New Senior’s “key

initiative” to “build pipeline and close on new acquisitions.”69 In response to

Givens’ announced intentions, the Board discussed its plan to form a transaction

committee “if [New Senior] were invited to proceed to the second round of

bidding.”70

         When the Board next met to discuss the possible acquisition, on May 15, 2015,

Givens reported that she had already made an opening non-binding bid of




66
  This meeting was attended by “Fortress-affiliated members of New Senior’s
management team.” Compl. ¶ 73 n.8. None of the Fortress-affiliated employees recused
themselves from the meeting. Compl. ¶ 75. Neither Van der Hoof Holstein nor Edens
were present. Compl. ¶ 73 n.8; Klein Aff. Ex. 5 (May 5, 2015 Board Minutes).
67
     Compl. ¶ 73.
68
     Klein Aff. Ex. 5 (May 5, 2015 Board Minutes).
69
     Klein Aff. Ex. 6 (Board Presentation May 5, 2015), at SNR00000230-231.
70
     Klein Aff. Ex. 5 (May 5, 2015 Board Minutes).

                                            14
$660 million for the Holiday Portfolio.71 She then outlined the specifics of the bid,

including that “Fortress and its affiliates would manage the Holiday Portfolio post-

acquisition,”72 that “management had begun speaking to lenders about potential

financing” and that, “in the event the Company won the auction, she would

recommend conducting an equity offering in order to fund a portion of the purchase

price.”73 Givens explained that Holiday was motivated to sell “because the funds

that own a majority of Holiday [were] seeking to monetize their investments in order

to return capital to [their] investors in the near term.”74 She closed by emphasizing

that she expected the sales process to be “very competitive.”75

         Following Givens’ presentation and the Board’s discussion of the proposed

acquisition, Cameron MacDougall, the Board’s Secretary and a managing director

and general counsel of Fortress, outlined the process by which the Board should

evaluate the proposed acquisition and answered Board member questions regarding




71
  Compl. ¶¶ 73, 77; Klein Aff. Ex. 7 (May 15, 2015 Board Minutes). Plaintiff alleges that
“Givens never explained how she calculated the $660 million bid amount.”
Pl.’s Answering Br. 15. Indeed, the May 15 Board Minutes are silent as to how the bid
was calculated. Klein Aff. Ex. 7.
72
     Compl. ¶¶ 78–80, Klein Aff. Ex. 7 (May 15, 2015 Board Minutes), at 2.
73
     Klein Aff. Ex. 7 (May 15, 2015 Board Minutes).
74
     Klein Aff. Ex. 7 (May 15, 2015 Board Minutes), at 2.
75
     Compl. ¶ 77.

                                             15
applicable legal standards.76 The Board did not seek out or receive independent legal

or financial advice at this time.77 Based on the information provided, the Board

agreed to form the Transaction Committee at this meeting but did not actually do so

until later.78 Edens recused himself from this May 15 meeting and declared that he

would continue to recuse himself from meetings where the Board intended to discuss

a potential acquisition of the Holiday Portfolio due to his affiliation with Fortress.79

         The Board met again on May 18, 2015, and again Givens requested that

MacDougall advise the Board on its actions in evaluating the potential acquisition.80

The Board decided that the Transaction Committee would comprise Malone, Colbert

and McFarland. It was determined that Van der Hoof Holstein could not join the

Transaction Committee at that time given her other commitments.81 While its

members were selected, the Board, again, elected not to form the Transaction

Committee at this meeting. The Board did, however, interview candidates to serve




76
  Compl. ¶ 79; Klein Aff. Ex. 4 (2015 Proxy Statement), at 16; Klein Aff. Ex. 7 (May 15,
2015 Board Minutes), at 2.
77
     Compl. ¶ 79.
78
     Compl. ¶ 79; Klein Aff. Ex. 7 (May 15, 2015 Board Minutes), at 2.
79
     Compl. ¶ 74; Klein Aff. Ex. 7 (May 15, 2015 Board Minutes).
80
     Compl. ¶ 81.
81
     Compl. ¶ 81.

                                             16
as independent counsel for the Transaction Committee, and ultimately decided to

retain Davis, Polk & Wardwell (“Davis Polk”).82

         The next day, the Board finally resolved to form the Transaction Committee

(comprising Malone, Colbert and McFarland, with Malone as Chairman) and

delegated to this committee the full authority to consider and accept or reject the

potential acquisition.83 During this meeting, the Board was informed, for the first

time, of Givens’ interest in the transaction due to her indirect ownership interest in

Holiday.84 Notwithstanding this revelation, it does not appear that the Board pressed

for specifics regarding the extent of Givens’ interest in Holiday or the extent to

which she would or should remain involved in the negotiations.85 While Givens

recused herself from the meeting, she continued thereafter to function as New

Senior’s lead negotiator.86

         On May 29, 2015, Givens learned that the two other bidders for the Holiday

Portfolio had dropped out of the bidding process.87              Without input from


82
     Compl. ¶ 81.
83
     Klein Aff. Ex. 10 (May 19, 2015 Board Minutes), at SNR00000238; Compl. ¶ 82.
84
     Compl. ¶ 82.
85
     Compl. ¶ 82.
86
     Compl. ¶ 82.
87
  Compl. ¶ 83; Klein Aff. Ex. 11 (May 19, 2015 Committee Minutes). Plaintiff alleges
that the documents produced in response to his books and records demand did not disclose
any final bids from other potential bidders. Compl. ¶ 76; Pl.’s Answering Br. 17 n.8.
                                           17
(or knowledge of) the Transaction Committee or the Board, Givens reduced New

Senior’s bid by $20 million (to $640 million).88 The Transaction Committee was

not informed of the revised bid until its first meeting on June 1, 2015, when Givens

(who was in attendance along with three other Fortress-affiliated individuals)

advised that the remaining bidders had dropped out, announced that she had

unilaterally lowered the bid and declared that final bids were due on June 5, 2015,

only four days later.89 Davis Polk was not in attendance at this meeting.90

         Givens explained that her reduced $640 million bid was “derived by applying

the capitalization rate implied by the purchase price for the last portfolio marketed




Having found nothing in the documents that contradicts this allegation, for purposes of this
motion, I accept the allegation as true.
88
     Compl. ¶ 83.
89
   Compl. ¶¶ 85–86. Plaintiff and Defendants disagree whether the bids due on June 5 were
still to be non-binding. Defendants assert that the bids were to remain non-binding, that
the Transaction Committee was free to walk away from the Acquisition and that there is
“no support in the Yahoo record that the company was committed to anything. It made a
nonbinding proposal.” Tr. 11:6–8; Defs.’ Opening Br. in Supp. of the Mot. to Dismiss
Pl.’s Verified Am. Deriv. Compl. (“Defs.’ Opening Br.”) 12–13. Plaintiff, on the other
hand, asserts that none of the so-called Yahoo documents support the contention that the
offer was “non-binding” and, therefore, I must either ignore Defendants’ assertion to the
contrary or convert this motion into a motion for summary judgment. Pl.’s Answering
Br. 17 n.9. At this stage, because the documents incorporated in the Complaint do not
speak to the character of the bid provided to Holiday as of June 5, I will accept as true
Plaintiff’s allegation that the bid was binding upon New Senior.
90
     Compl. ¶ 98.

                                            18
by Holiday and sold to Northstar Realty Finance Corporation [], which was 6.1%.”91

In presenting this justification for the revised bid, Givens failed to “disclose whether

Northstar was the only bidder for its asset purchase from Holiday” and wrongfully

compared the Northstar deal occupancy rate, which was 90%, to the 87.6% rate

purportedly implicated by the Holiday Portfolio.92            These flaws, according to

Plaintiff, rendered the Northstar deal inapposite. Moreover, none of the values used

by Givens to support her lowered bid were or could be independently verified.93

         As of this first meeting of the Transaction Committee, even though only New

Senior remained in the process, Citigroup, the broker for the proposed acquisition,

still had not declared New Senior as the winning bidder. Nevertheless, Givens

advised the Transaction Committee that she expected that announcement to occur




91
     Compl. ¶ 89.
92
     Compl. ¶¶ 90, 92.
93
   Compl. ¶ 91. Plaintiff alleges that “the minutes of the June 1, 2015 Transaction
Committee meeting reflect no discussion or debate concerning whether New Senior’s
enhanced bargaining position warranted a substantially larger reduction than a mere
$20 million in New Senior’s initial $660 million bid.” Compl. ¶ 87. The minutes from
that meeting state that “[t]he Transaction Committee engaged in a robust discussion
regarding the information conveyed by Ms. Givens. They asked a variety of questions
regarding the expected risks and benefits of the acquisition, the proposed capitalization
rate, and the terms of the purchase agreement, and each question was answered to the
Transaction Committee’s satisfaction.” Klein Aff. Ex. 11 (June 1, 2015 Committee
Minutes), at 2. At this stage, drawing all reasonable inferences in Plaintiff’s favor, I find
that the particularized facts pled support Plaintiff’s allegation that Givens was not pressed
to justify her decision to reduce the bid by only $20 million.

                                             19
soon.94 With the end of the process in sight, Givens suggested that the Transaction

Committee select a financial advisor to assess the fairness of the proposed price and

assured the Committee that, in the meantime, she would negotiate further favorable

price adjustments.95 Givens ultimately negotiated an additional $5 million in capital

expenditure adjustments.96

          At its June 2 meeting, the Transaction Committee retained Greenhill & Co.

(“Greenhill”) as its financial advisor.97         The following day, Givens made a

presentation to Greenhill in which she outlined the specific terms of the Acquisition

and explained that the draft agreement did not contain a financing contingency

because “New Senior had determined that agency financing was preferable.”98

         On June 16, 2015, the entire Board met to consider the Acquisition and to hear

from Givens and Edens regarding their views in support of the transaction.99


94
     Klein Aff. Ex. 11 (June 1, 2015 Committee Minutes), at 2.
95
     Compl. ¶¶ 98–99.
96
     Compl. ¶ 99.
97
 Compl. ¶ 101; Klein Aff. Ex. 14 (June 2, 2015 Committee Minutes). Notably, Greenhill
was not retained until after Givens had already submitted the final bid of $640 million.
Compl. ¶ 101.
98
   Compl. ¶ 102. Plaintiff is highly critical of the fact that no reason was given for failing
to include a financing contingency in the final bid for New Senior’s protection, especially
given its leverage as the sole bidder for the assets. Id. Defs.’ Reply Br. in Further Supp.
of Their Mot. to Dismiss Pl.’s Verified Am. Deriv. Compl. (“Defs.’ Reply Br.”) 18–19.
99
     Klein Aff. Ex. 18 (June 16, 2015 Board Minutes).

                                             20
Immediately following this Board meeting, the Transaction Committee met and,

after a briefing by Givens, management left the meeting. 100 With management out

of the room, Malone requested that Greenhill provide an overview of the

transactional structure including an analysis of the conflicts of interest.101 Greenhill

complied and then reviewed its preliminary analysis of the “fairness, from a financial

point of view, to [New Senior] of the [c]onsideration to be paid.”102 This analysis

included comparable transactions (although Greenhill noted that the senior living

market made this “analysis relatively less meaningful”), a discounted cash flow

analysis and the view of certain Wall Street research analysts.103 The meeting lasted

about two hours.104

         On June 21, 2015, the meeting of the Transaction Committee once again

began with a presentation from lead negotiator Givens, this time focused on the

proposed financing plan and other more granular aspects of the Acquisition.105 After


100
    Klein Aff. Ex. 19 (June 16, 2015 Committee Minutes). Van der Hoof Holstein began
attending Transaction Committee meetings on June 10, 2015, although she was not
designated as a member of the Committee until June 19. Compl. ¶ 103.
101
      Klein Aff. Ex. 19 (June 16, 2015 Committee Minutes).
102
   Compl. ¶¶ 102, 104; Quinn Aff. Ex. 5 (Greenhill Fairness Opinion), at 4; Klein Aff.
Ex. 19 (June 16, 2015 Committee Minutes), at SNR00000248.
103
      Klein Aff. Ex. 19 (June 16, 2015 Committee Minutes), at SNR00000249.
104
      Compl. ¶¶ 102, 104; Quinn Aff. Ex. 5 (Greenhill Fairness Opinion), at 4.
105
      Klein Aff. Ex. 22 (June 21, 2015 Committee Minutes).

                                              21
management left the meeting, the Committee received Greenhill’s final fairness

presentation and unanimously determined to recommend that the Board authorize

the Acquisition.106 Immediately thereafter, the Board convened a meeting and

approved the Acquisition with both Edens and Givens recusing.107 No stockholder

vote was requested.108

            2. The Secondary Offering

         The Acquisition was financed in part by a secondary public offering of New

Senior common stock (the “Secondary Offering”).109 The Board delegated the task

of determining the terms of the Secondary Offering to Edens and Givens by

resolution dated June 21, 2015, appointing them as the sole members of the Pricing

Committee.110 On June 23, 2015, the Pricing Committee met for the first time and

resolved to offer $266,973,360111 in equity at a price of $13.75 per share.112 Only a



106
      Compl. ¶¶ 106–07; Klein Aff. Ex. 22 (June 21, 2015 Committee Minutes).
107
      Klein Aff. Ex. 24 (June 21, 2015 Board Minutes), at SNR00000260–61.
108
      Compl. ¶ 19.
109
      Klein Aff. Ex. 24 (June 21, 2015 Board Minutes), at SNR00000266; Compl. ¶ 109.
110
      Compl. ¶ 109; Klein Aff. Ex. 24 (June 21, 2015 Board Minutes), at SNR00000266.
111
      Compl. ¶ 110.
112
   Compl. ¶ 120. New Senior’s stock closed at $15.25 one day prior to the Secondary
Offering. Id. Neither the Board, the Transaction Committee nor the Pricing Committee
ever questioned this discount. Compl. ¶ 113.

                                            22
portion of the money raised through the equity offering was used to finance the

Acquisition.113

       Edens and Givens received shares in the Secondary Offering totaling

72,727,114 and FIG was granted a ten-year option to acquire 2,011,409 New Senior

shares for the $13.75 offering price pursuant to its management agreement with New

Senior.115 Greenhill did not assess the Secondary Offering as part of its fairness

opinion and the Board was not apprised of either the number of shares to be offered

or the offering price prior to approving the Acquisition.116 New Senior announced



113
    Compl. ¶ 110. As discussed below, Plaintiff alleges Edens and Givens caused New
Senior to offer more equity than was needed to complete the Acquisition out of self-
interest. Compl. ¶ 111.
114
   Compl. ¶ 122. The Complaint alleges that Edens, through a side agreement, was entitled
directly to purchase 72,727 shares at the offering price and that an additional 102,917
shares were allocated to certain employees and officers (also at the offering price) with
14,545 shares allocated to Givens. Id.
115
   Compl. ¶ 121. The management agreement entitled FIG to 10% of the shares sold in an
equity offering. Klein Aff. Ex. 1 (FIG Management Agreement).
116
   Compl. ¶ 112; Quinn Aff. Ex. 5 (Greenhill Fairness Opinion), at 3. The June 21 Board
Minutes state that MacDougall (not Davis Polk) “reviewed the terms of the equity offering”
with the Board. Klein Aff. Ex. 24 (June 21, 2015 Board Minutes), at SNR00000261. Aside
from that mention, the documents incorporated in the Complaint, contrary to Defendants’
assertion, lead to the reasonable inference that the Board was not aware of the pricing of
the shares to be sold in the equity offering prior to the creation of the Pricing Committee.
See, e.g., Klein Aff. Ex. 24 (June 21, 2015 Board Minutes), at SNR00000267:

       RESOLVED, that the Board hereby approves the Offering and the sale and
       issuance of the Shares for a maximum aggregate offering price not to exceed
       $300 million (plus a 15% overallotment option) and on such other terms to
       be determined by the Pricing Committee . . .

                                            23
the Secondary Offering on June 25, 2015.117 The market reacted poorly; New Senior

stock closed at $14.14 on June 23 and dropped to $13.65 on June 26.118

             3. The Holiday Management Agreement

         As part of the Acquisition, Holiday and New Senior entered into a no-bid

management agreement (the “Holiday Management Agreement”) under which

Holiday would continue to manage the Holiday Portfolio.119                 The Holiday

Management Agreement provided that Holiday would be compensated with 5% of

New Senior’s revenues as well as an incentive fee of 20% above a designated

threshold.120 These fees were significantly above market.121



117
   Compl. ¶ 18. New Senior retained Citigroup as one of the underwriters and joint-book-
running managers of the Secondary Offering even though Citigroup had represented
Holiday and Fortress during the sale process leading up to the Acquisition. Compl. ¶¶ 114–
15.
118
    Compl. ¶ 18. Defendants contend that “[o]ver 60 potential investors submitted
indications of interest in the Secondary Offering. Of those 60, nearly one-third placed a
limit at or below $13.75 [per share]. Only 11 placed a limit above $13.75, and they only
did so for an indication totaling less than $40 million, a woefully insufficient figure.”
Defs.’ Opening Br. 20 (internal citation omitted).
119
      Compl. ¶ 95.
120
      Compl. ¶ 95; Klein Aff. Ex. 35 (2016 Proxy Statement), at 26.
121
   Compl. ¶ 95 (“[C]ertain other managers charge a fixed amount of only 3% of revenues
and certain other managers receive no incentive fee. As Givens conceded in her September
2015 Interview, there are only ‘some cases’ where property managers are paid an incentive
fee based on performance. Indeed, Holiday charges no incentive fee to New Senior for the
‘Hawthorn’ property portfolio that New Senior purchased from Holiday.”) (internal
quotation omitted).

                                             24
         A Greenhill presentation made to the Transaction Committee indicates that

the terms of the Holiday Management Agreement were first disclosed to the

Committee during a June 2015 meeting.122               As with the Secondary Offering,

Greenhill did not opine on the fairness of the Holiday Management Agreement.123

Nor is there any indication that the Transaction Committee looked into or

interviewed other managers for the Holiday Portfolio or even attempted to negotiate

more favorable terms.124

         E. Fortress’ Alleged Interest in the Transactions

         Plaintiff alleges that Edens and Givens caused New Senior to enter into the

Challenged Transactions to advance certain of Fortress’ own interests, including:

(1) Fortress’ planned shift of assets to publicly-traded companies; (2) the

approaching maturity date of FHIF (through which Fortress held its interests in

Holiday); (3) the increase in FIG’s management fees resulting from the Secondary

Offering; and (4) the increase in fees received through the Holiday Management

Agreement as outlined previously. I discuss each briefly below.



122
     Klein Aff. Ex. 12 (Transaction Committee Presentation: Holiday 28 Portfolio), at
SNR0000038–39. The Complaint alleges that the Transaction Committee did not consider
the Holiday Management Agreement and was not even apprised of its exact terms until
after approval of the Acquisition. Compl. ¶¶ 96–97.
123
      Quinn Aff. Ex. 5 (Greenhill Fairness Opinion), at 2.
124
      Compl. ¶ 96.

                                              25
             1. The Planned Shift of Assets

         At the time of the Acquisition, Fortress was in the midst of a plan to shift its

assets under management from private equity funds, like the funds that own Holiday,

to its Permanent Capital Vehicles (“PCVs”), like New Senior.125 This shift would

yield a greater return to Fortress because Fortress could “charge higher fees on the

gross equity and operating results [of PCVs] . . . over a longer time period.”126

Fortress disclosed this plan in a 2013 presentation where it outlined the “economic

benefits of its ‘New Model.’”127 Presentations in 2014 and 2015 evidence Fortress’

execution of the plan.128

         The sale of the Holiday Portfolio to New Senior was executed in furtherance

of the New Model, as revealed in a statement made by Givens in an interview with

Seniors Housing Business published in September 2015:

         New Senior has been, and we expect it will continue to be, Fortress’
         dedicated vehicle for investing in the seniors housing industry. While
         the private equity funds have a finite life to them, New Senior is one of
         the permanent capital vehicles at Fortress, given it is a public company
         with no time period upon which the equity has to be returned to
         investors.129

125
      Compl. ¶ 72.
126
      Compl. ¶¶ 9, 67, 70.
127
      Compl. ¶ 67.
128
      Compl. ¶¶ 70–71; Quinn Aff. Ex. 1 (Fortress Presentation), at 8–9.
129
      Compl. ¶¶ 29, 66.

                                              26
            2. The Looming Maturity of FHIF

         Prior to the close of the Acquisition, Fortress was in need of liquidity because

its fund, FHIF, through which it held its majority interest in Holiday, had a maturity

date of January 2017, at which time FHIF was to return capital to its investors.130

By selling the Holiday Portfolio to New Senior at an inflated price, Holiday seized

an opportunity to facilitate the delivery of promised returns.131

            3. Increase of New Senior’s Gross Equity

         Plaintiff alleges that Fortress, Edens and Givens received unfair benefits from

the $266 million Secondary Offering (of which only $175.3 million was used for the

Acquisition) at the expense of New Senior in two ways: (1) the stock was offered at

a “deep discount to the market price” and the offering included an award of options

to Fortress, Edens and Givens at that discounted price; and (2) the Secondary

Offering increased New Senior’s gross equity resulting in higher management fees

to FIG (under pre-existing agreements) and a depressed New Senior share price, all

compounded by the fact that Edens and Givens saw to it that more equity was issued

than was needed to fund the Acquisition.132 Indeed, the increase of gross equity from



130
      Compl. ¶ 4.
131
      Compl. ¶ 4.
132
   Compl. ¶¶ 6–8, 110–111, 115. The Secondary Offering caused New Senior’s market
capitalization to drop by $100 million. Compl. ¶ 102.

                                            27
the Secondary Offering led to an increase in FIG’s management fees from

$8.5 million in 2014 to $14.3 million in 2015.133 Because the acquisition agreement

did not contain a financing contingency, New Senior was locked into the Secondary

Offering even if the market responded poorly to news of the Acquisition (which it

did).134

             4. Holiday Benefits

         As noted, Givens arranged for Holiday to earn substantial fees through the

Holiday Management Agreement.                 These fees benefited FHIF and ultimately

Fortress.

         F. Procedural Posture

         Plaintiff filed his Verified Derivative Complaint on December 27, 2016.

Defendants filed their first motion to dismiss on March 16, 2017. Plaintiff responded

by filing his Verified Amended Derivative Complaint on June 8, 2017.135

The Complaint has three counts: Count I asserts a breach of fiduciary duty claim

against all of the directors of New Senior (excluding Robert Savage); Count II asserts

a breach of fiduciary duty claim against Givens as an officer of New Senior; and




133
      Compl. ¶ 119.
134
      Compl. ¶ 113.
135
      D.I. 12. See Del. Ct. Ch. R. 15(aaa).

                                                28
Count III asserts an aiding and abetting breaches of fiduciary duty claim against

Fortress, Holiday, FIG, FOE I and FIG Corp.

          Defendants now move to dismiss the Complaint for failure adequately to plead

demand futility under Court of Chancery Rule 23.1 and failure to state a viable claim

under Rule 12(b)(6). According to Defendants, Plaintiff cannot plead demand

futility because a majority of the Board was disinterested and independent and the

Challenged Transactions were products of valid exercises of the Board’s business

judgment.136

          In riposte, Plaintiff argues that demand is excused as futile because there is

reason to doubt (1) the disinterestedness and independence of a majority of the Board

at the time of the filing of this action and (2) that the Challenged Transactions were

otherwise the proper exercise of business judgment.137 Thus, Plaintiff argues he has

satisfied both prongs of Aronson.138 As for the Rule 12(b)(6) motion, Plaintiff argues

that he has pled sufficient facts to state claims for both breach of the duty of care and

breach of the duty of loyalty. He also argues that entire fairness is the standard of

review and that the pled facts support a reasonable inference of an unfair price and



136
      Defs.’ Opening Br. 2–4.
137
  In his first complaint, Plaintiff alleged that Fortress was a controlling stockholder of
New Senior. The now-operative Complaint no longer makes that claim.
138
      Aronson, 473 A.2d 805; Pl.’s Answering Br. 41.

                                             29
unfair process with respect to the Challenged Transactions.139 These same pled facts,

according to Plaintiff, overcome Defendants’ Section 102(b)(7) defense.

                                       II. ANALYSIS

         There is no question that Cumming’s claims challenging the Board’s

determination to acquire assets are derivative claims that ultimately belong to New

Senior. It is appropriate, therefore, first to take up the threshold question of whether

Cumming may bring these claims on behalf of New Senior. Because I find that

Cumming has pled particularized facts that support a finding of demand futility such

that he may bring this action derivatively, I must also consider whether he has stated

viable claims to survive Defendants’ motion under Rule 12(b)(6). For the reasons

that follow, I conclude that he has.

         A. Plaintiff Has Adequately Pled Demand Futility

         “[A] cardinal precept of the General Corporation Law of the State of Delaware

is that directors, rather than shareholders, manage the business and affairs of the

corporation.”140 As noted, Plaintiff’s claims here allege harm suffered by New

Senior. The claims, therefore, belong to the Company and the decision whether or




  Pl.’s Answering Br. 62 (arguing that Defendants “cannot establish entire fairness on a
139

motion to dismiss”).
140
      Aronson, 473 A.2d at 811.

                                           30
not to pursue them typically would rest with the Board.141 A board of directors does

not stand alone, however, in its authority to initiate litigation on behalf of the

corporation.       In certain circumstances, stockholders may pursue litigation

derivatively on behalf of the corporation as a matter of equity to “redress the conduct

of a torpid or unfaithful management . . . where those in control of the company

refused to assert a claim belonging to it.”142

         Because the derivative plaintiff who elects not to make a demand “seeks to

displace the board’s authority,” it is appropriate to require that he plead

particularized facts that “create a reasonable doubt” as to whether the board is fit to

consider the demand.143 When the complaint challenges a business decision of the

board, Aronson instructs that the derivative plaintiff meets his burden to plead

demand futility by pleading particularized facts that create either (1) a reasonable

doubt that the board of directors that would respond to the demand was disinterested

and independent or (2) a reasonable doubt that “the challenged transaction was




141
   White v. Panic, 783 A.2d 543, 550 (Del. 2001) (stating that “[i]n most situations, the
board of directors has sole authority to initiate or to refrain from initiating legal actions
asserting rights held by the corporation”).
142
      Aronson, 473 A.2d at 811.

  La. Mun. Police Empls.’ Ret. Sys. v. Pyott, 46 A.3d 313, 351 (Del. Ch. 2012) (citation
143

omitted), rev’d on other grounds, Pyott v. La. Mun. Police Empls.’ Ret. Sys., 74 A.3d 612
(Del. 2013).

                                             31
otherwise the product of a valid exercise of business judgment.”144 The “reasonable

doubt” standard articulated in Aronson is not the same as the burden of proof

imposed upon the prosecution in a criminal case.145 It is, instead, a more literal

distillation of the phrase meaning simply “that there is reason to doubt.”146

         Rule 23.1 places a heightened pleading burden on the plaintiff to meet

“stringent requirements of factual particularity that differ substantially from the

permissive notice pleadings” embodied in Court of Chancery Rule 8 and that

animate Court of Chancery Rule 12(b)(6).147 Even so, the court is still “bound to

draw all reasonable inferences from those particularized facts in favor of the

plaintiff, not the defendant, when dismissal of a derivative complaint is sought.”148




144
      Aronson, 473 A.2d at 814.
145
      Grimes v. Donald, 673 A.2d 1207, 1217 (Del. 1996).
146
    Id. Grimes explains that another way to construe Aronson’s “reasonable doubt”
standard is to inquire whether the stockholder has articulated “a ‘reasonable belief’
(objectively) that the board lacks independence or that the transaction was not protected by
the business judgment rule.” Id. The standard is “sufficiently flexible and workable to
provide the stockholder with the ‘keys to the courthouse’ in an appropriate case where the
claim is not based on mere suspicions or stated solely in conclusory terms.” Id.
147
      Brehm, 746 A.2d at 254.
148
   Del. Cty. Empls. Ret. Fund v. Sanchez, 124 A.3d 1017, 1022 (Del. 2015); Pyott, 46 A.3d
at 351 (explaining that the “requirement of factual particularity does not entitle a court to
discredit or weigh the persuasiveness of well-pled allegations” and that Plaintiff must only
plead specific facts and is not required to plead evidence or “facts sufficient to sustain a
‘judicial finding.’”).

                                             32
         Plaintiff did not make a demand on the Board. Therefore, as he must, he has

endeavored to plead demand futility. While he need only do so under either of

Aronson’s prongs, Plaintiff contends that he has pled demand futility under both.

Because I find that the Complaint pleads futility under the first prong, I need not and

decline to reach Plaintiff’s arguments that he has satisfied the second prong as well.

         In order to plead futility under Aronson’s first prong, the complaint must raise

a reasonable doubt that a majority of the directors could have evaluated a demand

independently and without self-interest.149           When determining whether the

complaint pleads director interest or lack of independence, the court does not

consider the pled facts in isolation but instead considers them in totality.150

         The court will deem a director “interested” for purposes of this analysis when

he stood on both sides of the transaction at issue or stood to receive a material benefit

that was not to be received by others.151 A material benefit is one that is “significant

enough in the context of the director’s economic circumstances, as to have made it



149
      Brehm, 746 A.2d at 256–57.
150
   See Sanchez, 124 A.3d at 1019 (“it is important that the trial court consider all the
particularized facts pled by the plaintiffs about the relationships between the director and
the interested party in their totality and not in isolation from each other, and draw all
reasonable inferences from the totality of those facts in favor of the plaintiffs”).
151
   Chester Cty. Empls.’ Ret. Fund v. New Residential Inv. Corp., 2016 WL 5865004, at *9
(Del. Ch. Oct. 7, 2016); Robotti & Co. v. Liddell, 2010 WL 157474, at *12 (Del. Ch.
Jan. 14, 2010).

                                            33
improbable that the director could perform her fiduciary duties.”152 A pleading of

materiality, however, is only required “in the absence of self-dealing.”153

         The inquiry for director independence is contextual and asks whether a

director’s decision was “based on the merits of the subject before the board rather

than on extraneous considerations or influences.”154 “To show lack of independence,

the plaintiff must allege that a director is so beholden to an interested director that

his or her discretion would be sterilized.”155 Specifically, the relationship between

the challenged director and the interested director must be “so close that one could

infer that the non-interested director would be more willing to risk his or her

reputation than risk the relationship with the interested director.”156

         The parties agree that the members of the New Senior Board that would have

considered Plaintiff’s demand (if he had made one) comprised directors Savage,

Edens, Givens, Malone, Van der Hoof Holstein, Colbert and McFarland. The


152
   Robotti, 2010 WL 157474, at *12; Cinerama, Inc. v. Technicolor, Inc., 663 A.2d 1134,
1151 (Del. Ch. 1994) (“not every financial interest in a transaction that is not shared with
shareholders [is] sufficient”).
153
    Cambridge Ret. Sys. v. Bosnjak, 2014 WL 2930869, at *5 (Del. Ch. June 26, 2014)
(internal quotation omitted).
154
  Chester Cty., 2016 WL 5865004, at *9; Orman v. Cullman, 794 A.2d 5, 25 n.50 (Del.
Ch. 2002).
155
      Chester Cty., 2016 WL 5865004, at *9.
156
      Robotti, 2010 WL 157474, at *12.

                                              34
Court’s function now is to “count heads.”157 By requesting books and records from

New Senior prior to filing his Complaint, Cumming has done what our courts have

long counseled plaintiffs to do: he has utilized the tools provided by our law to gain

access to documents that allowed him to plead specific facts that support his

allegations of interest and lack of independence.158

          1. Savage

      Plaintiff does not challenge the independence or disinterestedness of Savage

who joined the Board after the Challenged Transactions. In this regard, Savage

stands alone.

          2. Edens

      Plaintiff contends that Edens is interested in the Challenged Transactions and

lacks independence from Fortress. Defendants do not seriously dispute Edens’



157
   In re Ezcorp, Inc. Consulting Agmt. Deriv. Litig., 2016 WL 301245, at *34 (Del. Ch.
Jan. 25, 2016); id. (“If the board of directors lacks a majority comprising independent and
disinterested directors, then demand is futile.”).
158
   See, e.g., Sandys v. Pincus, 152 A.3d 124, 128–29 (Del. 2016) (“For many years, this
Court and the Court of Chancery have advised derivative plaintiffs to take seriously their
obligations to plead particularized facts justifying demand excusal. This case presents the
unusual situation where a plaintiff who sought books and records to plead his complaint
somehow only asked for records relating to the transaction he sought to redress and did not
seek any books and records bearing on the independence of the board. . . . As a result of
the plaintiff’s failure, he made the task of the Court of Chancery more difficult than was
necessary and hazarded an adverse result for those he seeks to represent.”); Brehm, 746
A.2d at 266–67 (describing the “tools at hand” available to a stockholder to assist in
pleading particular facts to demonstrate demand futility).

                                            35
conflicts, nor could they. Edens is Fortress’ founder, one of its principals and the

co-chairman of its board of directors.159 He is Fortress’ largest stockholder and is

responsible for Fortress’ private equity and publicly traded alternative investment

businesses (including Holiday and New Senior).160 Additionally, while it appears

that Edens recused himself from voting on the Acquisition, he was one of two

members on the Pricing Committee that set the terms and pricing for the Secondary

Offering used to finance the Acquisition and under which both FIG and Edens

himself received share options. Thus, Plaintiff has adequately pled facts raising a

reasonable doubt that Edens could have independently considered a demand

challenging these transactions.

             3. Givens

         Here again, Defendants do not earnestly dispute Givens’ lack of independence

and disinterest for purposes of the Rule 23.1 analysis.161 Givens was the second

member of the Pricing Committee setting the terms for the Secondary Offering and

she also received options under the Secondary Offering.          Moreover, she was

employed by Fortress and yet was New Senior’s lead negotiator for the




159
      Compl. ¶ 37.
160
      Compl. ¶¶ 37–38; Defs.’ Opening Br. 24 n.10.
161
      Tr. 44:9–14.

                                            36
Acquisition.162 Because she stood on both sides of the Challenged Transactions, it

is reasonable to infer on that basis alone that she was interested in the Challenged

Transactions. Accordingly, Plaintiff has satisfied his burden to raise a reasonable

doubt regarding Givens’ ability objectively to consider a demand.

             4. Malone

         Plaintiff challenges Malone’s fitness to consider a demand on both interest

and independence grounds. Malone is alleged to be interested in the Challenged

Transactions because, as a director of both Walker & Dunlop, which stood to lend

$464.7 million to New Senior to help fund the Acquisition, and the borrower, New

Senior, Malone also stood on both sides of the transaction.163 The Complaint alleges

that Walker & Dunlop has provided financing to New Senior in the past and that

New Senior’s loans “constituted approximately 17.4% of [Walker & Dunlop’s]

Freddie Mac loan origination volume in 2015.”164 It goes on to allege that, in April

2015, Walker & Dunlop “closed on the largest deal in its 77 year history—

originating $670 million in loans to New Senior.”165 Finally, the Complaint alleges



162
   It is also alleged that Givens was further motivated to favor the Challenged Transactions
because she holds stock in the Fortress funds that own Holiday. Compl. ¶ 41.
163
      Compl. ¶ 50; Pl.’s Answering Br. 26.
164
      Compl. ¶ 49.
165
      Compl. ¶ 48.

                                             37
that Walker & Dunlop expected to enjoy a continuing relationship with New Senior

that would lead to further lucrative investments.166              Viewing these pled facts

together, it is reasonably conceivable that Walker & Dunlop had a material interest

in providing the $464.7 million loan to finance the Acquisition.167 Thus, Plaintiff

has raised a reasonable doubt as to whether Malone, as a director of Walker &

Dunlop, was disinterested in the Challenged Transactions. Malone was a dual

fiduciary here and the interests of the beneficiaries he served (lender vs. borrower)

were not aligned.168 Accordingly, Plaintiff has adequately pled that Malone was

“interested” for demand futility purposes.169


166
      Compl. ¶¶ 48–49.
167
   Plaintiff also points to other conflicts affecting Malone that relate principally to his prior
service on the Fortress board of directors and as a managing director for Fortress, his
current ownership of substantial Fortress stock and the substantial, material director fees
he earns from Fortress board placements. Compl. ¶¶ 44, 50; Pl.’s Answering Br. 30.
Although I need not take up these alleged conflicts given my findings relating to Malone’s
service on the Walker & Dunlop board, I do note that, in totality, the weight of the pled
facts regarding these conflicts is substantial.
168
   See Chester Cty., 2016 WL 5865004, at *10 (“Plaintiff has alleged particularized facts
sufficient to create a reasonable doubt as to Edens, Jacobs, and Nierenberg’s
disinterestedness in the HLSS transactions because of their dual fiduciary positions at
Fortress and New Residential.”); Chen v. Howard-Anderson, 87 A.3d 648, 670 (Del. Ch.
2014) (“If the interests of the beneficiaries to whom the dual fiduciary owes duties diverge,
the fiduciary faces an inherent conflict of interest.”); In re Nine Sys. Corp. S’holders Litig.,
2014 WL 4383127, at *29–30 (Del. Ch. Sept. 4, 2014) (describing the so-called “dual-
fiduciary problem”); Weinberger v. UOP, Inc., 457 A.2d 701, 710 (Del. 1983) (“There is
no ‘safe harbor’ for such divided loyalties in Delaware.”).
169
   See Chester Cty., 2016 WL 5865004, at *9 (“When a director of a corporation owes
fiduciary duties as a director or officer of another corporation, the director is conflicted for
purposes of the first prong of Aronson. . . .”); Kahn v. Portnoy, 2008 WL 5197164, at *7
                                               38
          5. Van der Hoof Holstein

       Plaintiff challenges Van der Hoof Holstein’s fitness to consider a demand

based on her especially close ties to Edens. Van der Hoof Holstein is employed in

a leadership position at PIH, a non-profit organization where Edens’ wife has for

many years served on the board of directors and to which the Edens family makes

substantial financial and other contributions.170 To illustrate the close connection,

Plaintiff points to the fact that Edens’ daughter wore her self-described “lucky” PIH

pin while appearing on national television at the NBA draft as a representative of

her father (and the NBA team he owns). He also highlights Edens’ hands-on support

of PIH’s relief efforts in Haiti; support that was praised by Van der Hoof Holstein’s

immediate supervisor in several publications.171 These close ties are further revealed



(Del. Ch. Dec. 11, 2008) (“Portnoy, as a director of HPT and TA, is therefore bound to act
in the best interest of both companies. Thus, when Portnoy acted on behalf of TA in
approving the transaction, his loyalties as an HPT director raise at least a reasonable doubt
as to whether he was acting in the best interest of TA.”).

  Compl. ¶¶ 53–54. The Complaint alleges that “[t]he Edens family has donated between
170

$100,000 and $1,000,000 to PIH every fiscal year from 2008–2012 and in 2015.”
Compl. ¶ 54.
171
    Compl. ¶¶ 55–58. Van der Hoof Holstein’s direct supervisor is Dr. Paul Farmer, the
founder of PIH. Compl. ¶ 56. The recognition in a Van der Hoof Holstein-edited book
was with respect to Edens’ connection to GHDP. Compl. ¶ 58. “GHDP is a partnership
between [the Department of Global Health and Social Medicine] and PIH that trains
healthcare professionals to deliver medical care to destitute populations worldwide.”
Compl. ¶ 57. Van der Hoof Holstein is not listed as an employee on the GHDP website
(Dr. Farmer is) but her connection to and position as Associate Director of GHDP does not
appear to be contested. See Klein Aff. Ex. 4 (2015 Proxy Statement), at 8. The Complaint
further supports the claim of strong ties by reference to a comment by Chelsea Clinton in
                                             39
in the fact that Van der Hoof Holstein serves alongside Edens on several boards,

including A&K (an organization founded by Fortress).172 The compensation for her

board service, as facilitated by Edens, amounts to at least half of her annual

income.173

         This court has considered on several occasions the extent to which charitable

donations to a cause associated with a director made by an interested individual or

entity might serve as a basis to reasonably doubt whether the director was beholden

to the interested donor. Defendants rely primarily on this court’s analysis of the

issue in In re Goldman Sachs174 and In re J.P. Morgan Chase175 to support their

argument that Edens’ charitable contributions to PIH do not raise a reasonable doubt

regarding Van der Hoof Holstein’s independence. In Goldman Sachs, a member of




2015 acknowledging that the “Edens’[] extraordinary support for PIH’s work in Haiti,
include[ed] traveling to Haiti with Dr. Paul Farmer (PIH’s founder and [Van der] Hoof
Holstein’s boss) and Clinton.” Compl. ¶ 56.
172
      Compl. ¶ 59.
173
    Compl. ¶ 59. “According to PIH’s publicly available Form 990 tax returns, Hoof
Holstein earned $72,500 from PIH in 2013, $106,002 from PIH in 2014, and $149,855
from PIH in 2015, for working 60 hours a week. Hoof Holstein therefore receives at least
half of her income from her New Senior Board service. It is also reasonable to infer that
Hoof Holstein receives similar compensation from A&K Global Health, which means that
the vast majority of her compensation comes through her service on Fortress-affiliated
boards with Edens.” Id.
174
      2011 WL 4826104 (Del. Ch. Oct. 12, 2011).
175
      In re J.P. Morgan Chase & Co. S’holder Litig., 906 A.2d 808 (Del. Ch. 2005).

                                             40
the company’s board was also the chair of a $100 million renovation campaign for

a charitable organization and a trustee of the University of Chicago where part of his

responsibilities also included raising money.176 The plaintiffs alleged that the

company made contributions to the renovation campaign as well as to the

university.177 The court determined that the allegations failed to raise a reasonable

doubt regarding the director’s independence when

            nothing more can be inferred from the complaint than the facts that the
            Goldman Foundation made donations to a charity that Bryan served as
            trustee, that part of Bryan’s role as a trustee was to raise money, and
            that Goldman made donations to another charity where Bryan chaired
            a renovation campaign. The Plaintiffs do not allege that Bryan received
            a salary for either of his philanthropic roles, that the donations made by
            the Goldman Foundation or Goldman were the result of active
            solicitation by Bryan, or that Bryan had other substantial dealings with
            Goldman or the Goldman Foundation. The Plaintiffs do not provide the
            ratios of the amounts donated by Goldman, or the Goldman Foundation,
            to overall donations, or any other information demonstrating that the
            amount would be material to the charity. Crucially, the Plaintiffs fail to
            provide any information on how the amounts given influenced Bryan’s
            decision-making process.178

            In J.P. Morgan, the court found the allegations of conflict similarly lacking.

The plaintiff there challenged several directors’ independence based on the

defendant company’s donations to two organizations (the American Natural History



176
      2011 WL 4826104, at *8.
177
      Id.
178
      Id. at *9.

                                               41
Museum and the United Negro College Fund) at which the directors held various

positions, including president, trustee and CEO.179           The court found that the

complaint lacked any indication that the contributions to the respective non-profits

were of import to the directors or how the donations would affect the directors’

decision making.180

         For his part, Plaintiff cites to In re Oracle181 and Delaware County Employees

Retirement Fund v. Sanchez.182 In Oracle, then-Vice Chancellor Strine analyzed the

independence of a two-person special litigation committee that had moved to dismiss

a derivative action.183 The committee members were both tenured professors at

Stanford who were tasked with investigating claims of insider trading against other

directors on the company’s board. The court found the following ties to exist

between the targets of the committee’s investigation and Stanford: one director was

also a professor at Stanford who had taught one of the committee members; another

was a Stanford alumnus who had directed millions of dollars of donations over the


179
      906 A.2d at 814–15.
180
      Id. at 822–23.
181
      824 A.2d 917 (Del. Ch. 2003).
182
    124 A.3d 1017, 1022 (Del. 2015) (finding a pleading sufficient to raise a reasonable
doubt as to director independence when the pled facts alleged that the director had been
friends with the interested director for over fifty years and that friendship had resulted in
economic advantages (including full-time employment) for the director).
183
      824 A.2d 917.

                                             42
years to Stanford; and the third was the company’s CEO who donated millions of

dollars to Stanford through a personal foundation.184 The court concluded that “the

ties among the [committee], the Trading Defendants, and Stanford are so substantial

that they cause reasonable doubt about the [committee]’s ability to impartially

consider whether the Trading Defendants should face suit.”185 The court reached

this conclusion by applying a “contextual approach,” explaining:

          Delaware law should not be based on a reductionist view of human
          nature that simplifies human motivations on the lines of the least
          sophisticated notions of the law and economics movement. Homo
          sapiens is not merely homo economicus. We may be thankful that an
          array of other motivations exist that influence human behavior; not all
          are any better than greed or avarice, think of envy, to name just one.
          But also think of motives like love, friendship, and collegiality, think
          of those among us who direct their behavior as best they can on a
          guiding creed or set of moral values.

          Nor should our law ignore the social nature of humans. To be direct,
          corporate directors are generally the sort of people deeply enmeshed in
          social institutions. Such institutions have norms, expectations that,
          explicitly and implicitly, influence and channel the behavior of those
          who participate in their operation.186

          In my view, Oracle is the more fitting and persuasive authority here. Plaintiff

has pled that Van der Hoof Holstein is employed by, and has a leadership role in, a

relief organization that clearly derives substantial support, both financial and


184
      Id. at 920–21.
185
      Id. at 942.
186
      Id. at 938.

                                             43
devotional, from the Edens family through considerable donations, aide in relief

efforts and service on its board.        Plaintiff’s failure to quantify precisely the

contributions made by the Edens family, as argued by Defendants, does not undercut

the particularized pleading that their support is significant to PIH, Van der Hoof

Holstein’s main employer, and to Van der Hoof Holstein.187 The fact that Plaintiff

does not allege that Van der Hoof Holstein actually solicited the donations or the

other support provided by the Edens family to PIH does not dilute their relevance to

the “independence” analysis.188 When the Edens family’s ties to PIH are coupled

with the substantial and clearly material director fees Van der Hoof Holstein receives

from service on boards at the behest of Edens, I am satisfied that these allegations

raise reasons to doubt Van der Hoof Holstein’s independence from Edens.




187
   Defs.’ Opening Br. 27–28 (“Plaintiff has failed to allege how donations amounting to
less than 1% of PIH’s annual revenue would affect the decision-making of Ms. van der
Hoof Holstein.”).
188
   Defs.’ Opening Br. 24, 28 (“Plaintiff has not alleged that Ms. van der Hoof Holstein’s
role at PIH had anything to do with fundraising, let alone that she personally solicited the
Edens family donations.”). See In re Limited, Inc., 2002 WL 537692, at *4 (Del. Ch.
Mar. 27, 2002) (“The Court in ascertaining the sufficiency of a complaint challenging a
director’s loyalty does not apply an objective reasonable director standard; instead, the
Court must apply a subjective actual person test to determine whether a particular director
lacks independence because he is controlled by another.”) (internal quotation omitted);
McMullin v. Beran, 765 A.2d 910, 923 (Del. 2000) (“In assessing director independence,
Delaware courts apply a subjective ‘actual person’ standard to determine whether a ‘given’
director was likely to be affected in the same or similar circumstances.”).

                                            44
         With that conclusion, I have determined that a majority of the seven directors

that would have considered a demand from Plaintiff are in some way conflicted.

Thus, I could stop the Aronson analysis here. For the sake of completeness,

however, I will address the independence of both Colbert and McFarland as well.

            6. Colbert

         The thrust of Plaintiff’s allegations with respect to Colbert is that there is

reason to doubt his independence from Edens after Edens invited Colbert to join the

Milwaukee Bucks ownership group, a unique, prestigious and lucrative opportunity

available, by NBA rule, to no more than 750 people in the world.189 In return for

this invitation, Colbert, through Partners for Community Impact, LLC, assisted

Edens and the City of Milwaukee in their efforts to build a new arena in downtown

Milwaukee.190 This connection, according to Plaintiff, creates such “a special and

highly unusual financial and social relationship because of the prestige associated

with an ownership stake” that Colbert could not be expected to act against Edens’




189
    Compl. ¶¶ 60–61. According to the Complaint, NBA rules limit team ownership groups
to 25 individuals, each of whom must own at least 1% of the team. Compl. ¶ 60. Thus, it
is alleged that it is unlikely that Colbert would have the opportunity to “become an owner
of another team if Edens, as the team’s dominant partner, decided to squeeze Colbert out
of the [Bucks] ownership group.” Pl.’s Answering Br. 38.
190
      Compl. ¶ 62.

                                           45
interests, especially given that Colbert joined Edens’ Bucks ownership group around

the same time he joined the New Senior Board.191

            Plaintiff likens the Bucks ownership connection between Edens and Colbert

to the unique relationship at issue in Sandys v. Pincus.192 In Pincus, our Supreme

Court found that a derivative plaintiff had raised a reasonable doubt regarding a

director’s independence by pleading that the interested director’s family and the

family of the challenged director owned a private plane together.193 The Court based

its finding on the fact that “[c]o-ownership of a private plane involves a partnership

in a personal asset that is not only expensive, but also requires close cooperation in

use, which is suggestive of detailed planning indicative of a continuing, close

personal friendship.”194 Such close relationships, the Court explained, would be

expected “to heavily influence a human’s ability to exercise impartial judgment.”195




191
   Compl. ¶ 61. The Complaint does not say much about the financial rewards Colbert has
received or might expect to receive from his ownership interest in the Bucks. It only alleges
that the “relationship is . . . lucrative” and that other investors have “reaped a 25-fold gain
on [their] investment[s].” Id. The real thrust of the Complaint, and Plaintiff’s futility
argument, is that Edens invited Colbert to join an exclusive and highly rewarding “club”
that Colbert likely would not have had access to but for Edens’ generosity. Compl. ¶ 62.
192
      152 A.3d 124 (Del. 2016).
193
      Id. at 130.
194
      Id.
195
      Id.

                                              46
         Defendants argue that the relationship Plaintiff has proffered here is nothing

like the one presented in Pincus. Colbert is a co-owner of a sports team with Edens,

along with several others. According to Defendants, this business relationship does

not evidence the kind of close friendship or personal relationship that can reasonably

be inferred when individuals own a private plane together.

         I agree with Defendants that the relationship dynamics are different. There is

likely little or no planning required between Edens and Colbert to ensure that the

Bucks continue to operate successfully as an NBA franchise.196 But that does not

mean the dynamics of joining together to own a professional sports team are any less

revealing of a unique, close personal relationship. Edens invited Colbert to join him

in a relatively small group of investors who would own a highly unique and

personally rewarding asset. In return, Colbert assisted Edens in the effort to build a

new arena for the team they now co-owned. I am satisfied that this relationship

creates a reason to believe that Colbert “may feel . . . beholden to [Edens].”197




196
    Id. (emphasizing the planning and coordination required to own a private plane
together). For example, I suspect that Colbert and Edens collectively have absolutely
nothing to do with whether the “Greek freak” remains healthy, happy, productive and a
major draw for Bucks fans. See http://www.espn.com/nba/player/_/id/3032977/giannis-
antetokounmpo (a.k.a., the “Greek freak,” number 34 in your Bucks program).
197
      Pincus, 152 A.3d at 128.

                                           47
            7. McFarland

         As for the final director, McFarland, the Complaint alleges that he serves on

the board of Drive Shack, where he was placed as a Fortress designee alongside

Edens, and that he receives 60% of his publicly reported income from his service on

Fortress-affiliated boards.198 The Complaint further characterizes as “telling” the

fact that McFarland lists his address for purposes of investment activities as “C/O

Fortress Investment Group.”199

         Plaintiff’s allegations concerning McFarland’s lack of independence are more

scant than those pled regarding the other directors. As I review these allegations, I

am reminded that, in Sanchez, our Supreme Court observed that “[d]etermining

whether a plaintiff has pled facts supporting an inference that a director cannot act

independently of an interested director for purposes of demand excusal . . . can be

difficult.”200    While a close call, I am satisfied that there is reason to doubt

McFarland’s independence. In so finding, I acknowledge that our law is settled that

service on another board alongside the interested director, alone, is insufficient to




  Compl. ¶ 63. “Fortress and Edens, with and through their affiliates, own approximately
198

8% of Drive Shack’s outstanding stock, and Fortress is the manager of Drive Shack.” Id.
199
      Compl. ¶ 63.
200
      Sanchez, 124 A.3d at 1019.

                                           48
raise a reasonable doubt as to a director’s independence,201 especially when the

interested director does not control either company.202 But there is more pled here.

         McFarland is a director of New Senior and Drive Shack, both of which are

managed by Fortress. He was placed on these boards by Fortress and serves on both

of them alongside Edens. Based on public filings, McFarland receives 60% of his

publicly reported income from Fortress-managed companies.203 And he lists his

address on SEC Form 4s (for investments unrelated to Fortress) as “C/O Fortress.”

Weighing the totality of these facts, there is reason to doubt whether McFarland’s

material ties with Fortress and Edens would affect his ability independently to

evaluate a demand to bring claims against them.204




201
   See, e.g., Highland Legacy Ltd. v. Singer, 2006 WL 741939, at *5 (Del. Ch. Mar. 17,
2006) (finding that allegations of service on the boards of different companies alongside
one another only provides a “naked assertion of a previous business relationship [that] is
not enough to overcome the presumption of a director’s independence”).
202
      Compl. ¶ 63.
203
      Compl. ¶ 63.
204
   See, e.g., Portnoy, 2008 WL 5197164, at *8 (“The complaint alleges similar facts with
respect to Gilmore and Donelan. Gilmore is a director of TA and FVE. For 2007, she was
paid $89,480 in fees as a director of TA and $70,940 in fees as a director of FVE,
compensation the complaint alleges is material to Gilmore because it exceeds the
compensation from her position as a clerk in the United States Bankruptcy Court. Gilmore
also worked at Sullivan & Worcester LLP from 1993 to 2000, during part of which time
Portnoy was a partner and chairman of the firm. Donelan is a director of TA and a trustee
of HRPT and the ILC. In 2007, Donelan was paid $88,980 in fees as a director of TA and
$73,600 in fees as a trustee of HRPT.”); In re Ply Gem Indus., Inc. S’holders Litig., 2001
WL 1192206, at *1 (Del. Ch. Oct. 3, 2001) (“past benefits conferred . . . may establish an
                                           49
                               *   *    *   *        *   *   *   *

            Plaintiff has pled sufficient facts to raise a reasonable doubt regarding the

disinterestedness and independence of the majority of the New Senior Board such

that demand would have been futile under the first prong of Aronson. I need not and

decline to address Aronson’s second prong.205 The motion to dismiss under Court

of Chancery Rule 23.1 is denied.

            B. Plaintiff Has Stated Viable Claims Against the Board and Givens as
               Officer

            Rule 12(b)(6) imposes a “less stringent” pleading standard than Rule 23.1.206

“Thus, a complaint that survives a motion to dismiss pursuant to Rule 23.1 also will

survive a 12(b)(6) motion to dismiss, ‘assuming that it otherwise contains sufficient

facts to state a cognizable claim.’”207 “The standards governing a motion to dismiss

for failure to state a claim are well settled: (i) all well-pleaded factual allegations are

accepted as true; (ii) even vague allegations are ‘well-pleaded’ if they give the



obligation or debt (a sense of ‘owingness’) upon which a reasonable doubt as to a director’s
loyalty to a corporation may be premised”).
205
   See Cambridge, 2014 WL 2930869, at *6 (finding demand futility under the first prong
of Aronson and, therefore, declining to consider the second prong); TVI Corp. v. Gallagher,
2013 WL 5809271, at *10 (Del. Ch. Oct. 28, 2013) (same); Limited, 2002 WL 537692, at
*7 (same).
206
      TVI Corp., 2013 WL 5809271, at *12.
207
      Id.

                                                50
opposing party notice of the claim; (iii) the Court must draw all reasonable

inferences in favor of the non-moving party; and (iv) dismissal is inappropriate

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

conceivable set of circumstances susceptible of proof.”208

            Plaintiff’s claims sound in breach of fiduciary duties. As this court explained

in Frederick Hsu:

            when determining whether directors breached their fiduciary duties,
            Delaware corporate law distinguishes between the standard of conduct
            and the standard of review. The standard of conduct describes what
            directors are expected to do and is defined by the content of the duties
            of loyalty and care. The standard of review is the test that a court
            applies when evaluating whether directors have met the standard of
            conduct.209
With this distinction in mind, a logical approach to analyzing the breach of fiduciary

duty claims is to “work[] through the standard of conduct, apply[] a standard of

review, and then determin[e] whether the defendants have properly invoked any

immunities or defenses, such as exculpation.”210 I follow that approach here.




208
      Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002).
209
  Frederick Hsu Living Tr. v. ODN Hldg. Corp., 2017 WL 1437308, at *15 (Del. Ch.
Apr. 24, 2017).
210
      Id.

                                               51
            1. The Standard of Conduct

         “In performing their duties the directors [of Delaware corporations] owe

fundamental fiduciary duties of care and loyalty.”211          “[T]he duty of loyalty

mandates that the best interest of the corporation and its shareholders takes

precedence over any interest possessed by a director, officer or controlling

shareholder and not shared by the stockholders generally.”212 Thus, “Delaware law

is clear that the board of directors of a for-profit corporation . . . must, within the

limits of its legal discretion, treat stockholder welfare as the only end, considering

other interests only to the extent that doing so is rationally related to stockholder

welfare.”213

         Plaintiff has alleged that the Board defendants caused New Senior to pay more

than was reasonable for the Holiday Portfolio to advance the interests of Fortress

and Edens at the expense of New Senior and its stockholders.214 Accepted as true,



211
      Polk v. Good, 507 A.2d 531, 536 (Del. 1986).
212
    Cede & Co. v. Technicolor, Inc., 634 A.2d 345, 361 (Del. 1993). Plaintiff alleges that
the Board defendants breached both their duty of care and duty of loyalty. I focus on the
duty of loyalty allegations, however, because, as discussed below, Defendants have
invoked a Section 102(b)(7) defense that would exculpate them from liability for breaches
of the duty of care.
213
  Leo E. Strine, Jr., A Job Is Not a Hobby: The Judicial Revival of Corporate Paternalism
and Its Problematic Implications, 41 J. Corp. L. 71, 107 (2015).
214
      Compl. ¶¶ 4–10, 109, 111, 128, 150.

                                             52
these allegations describe the kind of self-dealing transaction that gives rise to a

classic breach of the duty of loyalty claim.215

             2. The Standard of Review

         As is often the case at the pleadings stage, much ink has been spilled by the

parties to express their competing views regarding the applicable standard of

review.216 Plaintiff argues that his claims implicate entire fairness review because

the Challenged Transactions were interested transactions. Accordingly, given the

heightened scrutiny with which the Court must review his claims, he maintains that

the Court cannot adjudicate them on a motion to dismiss under Rule 12(b)(6).217

         Not surprisingly, Defendants argue that the Court should review Plaintiff’s

claims under the business judgment rule. They maintain that the Complaint, at best,


215
   See, e.g., Chen, 87 A.3d at 671 (“Delaware cases recognize that liquidity is one benefit
that may lead directors to breach their fiduciary duties, and stockholder directors may be
found to have breached their duty of loyalty if a desire to gain liquidity caused them to
manipulate the sale process and subordinate the best interests of the corporation and the
stockholders as a whole.”) (internal quotation omitted); Rales v. Blasband, 634 A.2d 927,
935 (Del. 1993) (explaining that allegations that the company’s board decided to buy “junk
bonds” for the sole benefit of two directors “who were acting in furtherance of their
business relationship” with the company issuing the bonds would, if proven true, constitute
a breach of the duty of loyalty); Carsanaro v. Bloodhound Technologies, Inc., 65 A.3d 618,
659 (Del. Ch. 2013) (finding a breach of the duty of loyalty alleged where directors had
participated in financing rounds at favorable terms explaining that “each financing
challenged in the complaint was a self-interested transaction implicating the duty of loyalty
and raising an inference of expropriation”).
216
   See Larkin v. Shah, 2016 WL 4485447, at *7 (Del. Ch. Aug. 25, 2016) (characterizing
the determination of the appropriate standard of review as the “gating question”).
217
      Pl.’s Answering Br. 62.

                                             53
pleads facts that would allow a reasonable inference that only Edens, Givens and

perhaps Malone were interested in the Challenged Transactions. Thus, because a

majority of the Transaction Committee was disinterested, the Challenged

Transactions fit within the safe harbor codified in 8 Del. C. § 144(a)(1) and,

therefore, the business judgment rule applies. Moreover, they maintain that, even

without the safe harbor, “[t]o invoke entire fairness [at the pleading stage], in the

absence of a controlling shareholder, Plaintiff would need to allege that a majority

of the board was interested in the [Challenged Transactions] or beholden to an

interested party.”218 Since the Complaint pleads neither factual predicate (majority

interest or lack of independence) for entire fairness review, the business judgment

presumption must apply. I disagree on both counts.

                a. Section 144

         Defendants’ Section 144(a)(1) argument catenates along the following

analytical tree: (i) under Supreme Court precedent, approval by a majority of

disinterested directors under Section 144(a)(1) triggers review under the business

judgment rule; (ii) for purposes of applying the safe harbor of Section 144(a)(1), the

Court should consider only whether directors are interested in the transaction, and

should not be concerned with whether the majority of the board is also independent;



218
      Defs.’ Opening Br. 43 (citing Orman, 794 A.2d at 23) (emphasis in the original).

                                              54
and (iii) since Plaintiff has only challenged three directors on grounds they were

interested in the Challenged Transactions, the majority of the Board met the

requirements of Section 144(a)(1) and their decisions must, therefore, be protected

as valid business judgments.219          In support of this argument, Defendants rely

principally upon Benihana of Tokyo, Inc. v. Benihana, Inc., decided by our Supreme

Court in 2006.220 There, applying Section 144(a)(1), the Court stated “[a]fter

approval by disinterested directors, courts review the interested transaction under

the business judgment rule . . . .”221

          Our case law interpreting Section 144(a)(1) is murky at best. A search of

one’s favorite legal research site would yield cases that appear to support the view

that Section 144(a)(1)’s safe harbor works as Defendants suggest.222 That same


219
   Defs.’ Opening Br. 51 (“[R]egardless of whether any of the four directors who approved
the Acquisition were not independent, they are disinterested in the Acquisition, and the
Amended Complaint should be dismissed.”).
220
      Benihana of Tokyo, Inc. v. Benihana, Inc., 906 A.2d 114 (Del. 2006) (“Benihana II”).
221
      Id. at 120.
222
    See, e.g., Sutherland v. Sutherland, 2009 WL 857468, at *4 n.13 (Del. Ch. Mar. 23,
2009) (“Notably, before the law related to Section 144 of the DGCL finally settled, see,
e.g., Benihana II, 906 A.2d at 120 (stating that interested director transactions approved
pursuant to the 144(a)(1) safe harbor are reviewed under the business judgment rule), it
was frequently suggested that Section 144 . . . did no more than to remove a director’s
disability to participate in a quorum to vote on an interested transaction, but did nothing to
sanitize such a transaction if it was inherently unfair.”); Oberly v. Kirby, 592 A.2d 445,
466 (Del. 1991) (“The enactment of 8 Del. C. § 144 in 1967 limited the stockholders’
power in two ways. First, section 144 allows a committee of disinterested directors to
approve a transaction and bring it within the scope of the business judgment rule. Second,
where an independent committee is not available, the stockholders may either ratify the
                                             55
search, however, would yield several cases, even post-Benihana II, where our courts

have viewed Section 144(a)(1) much more narrowly.223

       To put Benihana II in context, it is useful to review the decision of this court

in Benihana I that was affirmed.                In clarifying the interaction between

Section 144(a)(1) and the common law business judgment rule, this court explained:



transaction or challenge its fairness in a judicial forum, but they lack the power
automatically to nullify it. When a challenge to fairness is raised, the directors carry the
burden of establishing the transaction’s entire fairness, sufficient to pass the test of careful
scrutiny by the courts.”).
223
    See Benihana of Tokyo, Inc. v. Benihana, Inc., 891 A.2d 150, 185 (Del. Ch. 2005)
(“Benihana I”), aff’d, 906 A.2d 114 (Del. 2006) (“While I find that the Benihana Board’s
approval of the BFC Transaction meets the requirements of 8 Del. C. § 144(a)(1), that
section merely protects against invalidation of a transaction “solely” because it is an
interested one. . . . Because BOT also contends that the Director Defendants breached their
fiduciary duties of loyalty and care, my analysis does not end with the “safe harbor”
provisions of § 144(a).”); Khanna v. McMinn, 2006 WL 1388744, at *25 n.201 (Del. Ch.
May 9, 2006) (same); Cinemara, 662 A.2d at 1169 (same); Valeant Pharm. Int’l v. Jerney,
921 A.2d 732, 745 (Del. Ch. 2007) (“Before the 1967 enactment of 8 Del. C. § 144, a
corporation’s stockholders had the right to nullify an interested transaction. To ameliorate
this potentially harsh result, section 144 as presently enacted provides three safe harbors to
prevent nullification of potentially beneficial transactions simply because of director self-
interest. First, section 144 allows a committee of disinterested directors to approve a
transaction and, at least potentially, bring it within the scope of the business judgment
rule.”); Zimmerman v. Crothall, 2012 WL 707238, at *18 (Del. Ch. Mar. 5, 2012) (“As the
Delaware Supreme Court observed in Fliegler v. Lawrence, § 144 ‘merely removes an
interested director cloud when its terms are met and provides against invalidation of an
agreement solely because such a director . . . is involved.’ That is, the statute only
addresses the void or voidable issue presented by the common law before the 1967
amendments to the Delaware General Corporation Law. Thus, it does not appear that
either 8 Del. C. § 144 or § 6.13 of the Operating Agreement, which is based on § 144, was
intended to address the common law rules for liability for breach of fiduciary duty.
Therefore, even if Defendants have complied with § 6.13, that would not operate as a safe
harbor against review of the challenged transactions under the entire fairness standard.”)
(internal citation omitted).

                                              56
         Satisfying the requirements of § 144 only means that the BFC
         Transaction is not void or voidable solely because of the conflict of
         interest.

         While non-compliance with §§ 144(a)(1), (2)’s disclosure requirement
         by definition triggers fairness review rather than business judgment rule
         review, the satisfaction of §§ 144(a)(1) or (a)(2) alone does not always
         have the opposite effect of invoking business judgment rule review.
         Rather, satisfaction of §§ 144(a)(1) or (a)(2) simply protects against
         invalidation of the transaction “solely” because it is an interested one.
         As such, § 144 is best seen as establishing a floor for board conduct but
         not a ceiling. Thus, equitable common law rules requiring the
         application of the entire fairness standard on grounds other than a
         director’s interest still apply.
After determining that the defendant board members had guided the interested

transaction into Section 144(a)(1)’s safe harbor, and that the transaction, therefore,

would not be voided, Vice Chancellor Parsons proceeded to address the plaintiff’s

allegations that the directors breached their fiduciary duties by applying common

law standards. He ultimately concluded that none of the directors had breached their

duty of loyalty because the majority of the directors that approved the transaction

were disinterested and independent and the Board did not enter into the transaction

for an improper purpose.224

         Several commentators and judges, post-Benihana II, have similarly

articulated the difference between the oft-confused Section 144(a) safe harbors and

the common law our courts apply to determine the appropriate standard of review


224
      Benihana I, 891 A.2d at 191.

                                            57
by which to adjudicate a challenge to an interested transaction. A particularly cogent

expression of the distinction (and the confusion) can be found in Finding Safe

Harbor: Clarifying the Limited Application of Section 144, where the authors

explain:

       section 144(a)(1) provides that a covered transaction will not be void
       or voidable solely as a result of the offending interest if it is approved
       by an informed majority of the disinterested directors, even though the
       disinterested directors be less than a quorum. Under the section 144
       statutory analysis, so long as there is one informed, disinterested
       director on the board, and so long as he or she approves the transaction
       in good faith, the transaction will not be presumptively voidable due to
       the offending interest. In other words, a nine-member board with a
       single disinterested director may approve a covered transaction and
       reap the benefits of the section 144 safe harbor.

       Under the common law, however, the factor is somewhat different;
       approval must be by a disinterested majority of the entire board. That
       is, a plaintiff may rebut the presumption of the business judgment rule
       by showing that a majority of the individual directors were interested
       or beholden. In the common-law analysis, therefore, a transaction
       approved by the nine-member board discussed above (with the single
       disinterested director) will be subject to the entire-fairness standard.
       The standards are phrased similarly for the statutory and common-law
       analyses, but they are in fact quite different.225


225
    Blake Rohrbacher, John Mark Zeberkiewicz & Thomas A. Uebler, Finding Safe
Harbor: Clarifying the Limited Application of Section, 144, 33 Del. J. Corp. L. 719, 737–
38 (2008). See also R. Franklin Balotti & Jesse A. Finkelstein, The Delaware Law of
Corporations and Business Organizations, § 4.16 (3d ed. 2018) (“Apart from the statutory
safe-harbor analysis, the courts also scrutinize interested-director transactions under a
common-law fiduciary review. This fiduciary review involves factors similar—though not
quite identical—to those under Section 144. That is, approval by a disinterested majority
of the board or disinterested stockholders may revive the presumptions of the business
judgment rule. Otherwise, the courts will use the entire-fairness standard to scrutinize the
transaction.”); Leo E. Strine, Jr., Lawrence A. Hamermesh, R. Franklin Balotti &
Jeffrey M. Gorris, Loyalty’s Core Demand: The Defining Role of Good Faith in
                                            58
         Based on the plain language of the statute,226 and my reading of the persuasive

authority on the subject, I am satisfied that compliance with Section 144(a)(1) does

not necessarily invoke business judgment review of an interested transaction. The

Court must still adhere to settled common law principles when fixing the appropriate

standard of review by which fiduciary conduct should be measured.227




Corporation Law, 98 Geo. J.L. 629, 656–57 & n.85 (2010) (“The question of whether
section 144 was intended to create a safe harbor from equitable review if its provisions
obviating a statutory fairness burden were met is controversial. . . . To date, the Delaware
courts have generally read the statute more narrowly, while drawing on it in crafting rulings
in equity.”) (citing In re Cox Commc’ns, Inc. S’holders Litig., 879 A.2d 604, 614–15 (Del.
Ch. 2005)); Zimmerman, 2012 WL 70723, at *18; Valeant, 921 A.2d at 745.
226
      8 Del. C. § 144:

         (a) No contract or transaction between a corporation and 1 or more of its
             directors or officers, or between a corporation and any other corporation,
             partnership, association, or other organization in which 1 or more of its
             directors or officers, are directors or officers, or have a financial interest,
             shall be void or voidable solely for this reason, or solely because the
             director or officer is present at or participates in the meeting of the board
             or committee which authorizes the contract or transaction, or solely
             because any such director’s or officer’s votes are counted for such
             purpose, if. . . .

(emphasis supplied).
227
    Benihana I, 891 A.2d at 191 (“No safe-harbor exists for divided loyalties in Delaware.”).
I acknowledge that some read our case law as holding that compliance with Section 144
safe harbors justifies a burden-shift in the entire fairness analysis. While I cannot say that
I share that view of our law, I need not weigh in on that issue at this stage of the
proceedings. See Edward P. Welch, Robert S. Saunders, Allison L. Land & Jennifer C.
Voss, Folk on the Delaware General Corporation Law, § 144.02 (6th ed. 2018) (citing
Cooke v. Oolie, 1997 WL 367034, at *9 (Del. Ch. June 23, 1997) (“It is now clear that even
if a board’s action falls within the safe harbor of Section 144, the board is not entitled to
                                                 59
                b. The Majority of the Board Was Interested In the Challenged
                   Transactions or Not Independent

         In Orman v. Cullman, Chancellor Chandler succinctly laid out the pathway to

overcoming the business judgment presumption at the pleading stage by alleging

that the Board acted out of self-interest or with allegiance to interests other than the

stockholders’:

         As a general matter, the business judgment rule presumption that a
         board acted loyally can be rebutted by alleging facts which, if accepted
         as true, establish that the board was either interested in the outcome of
         the transaction or lacked the independence to consider objectively
         whether the transaction was in the best interest of its company and all
         of its shareholders. To establish that a board was interested or lacked
         independence, a plaintiff must allege facts as to the interest and lack of
         independence of the individual members of that board. To rebut
         successfully business judgment presumptions in this manner, thereby
         leading to the application of the entire fairness standard, a plaintiff must
         normally plead facts demonstrating that a majority of the director
         defendants have a financial interest in the transaction or were
         dominated or controlled by a materially interested director.228
“If a director-by-director analysis leaves insufficient [independent] directors to make

up a board majority, then the court will review the board’s decision for entire

fairness.”229




receive the protection of the business judgment rule. Compliance with Section 144 merely
shifts the burden to the plaintiffs to demonstrate that the transaction was unfair.”)).
228
   Orman, 794 A.2d at 22–23 (later explaining that interest can also be shown by a director
standing on both sides of a transaction).
229
      Frederick Hsu, 2017 WL 1437308, at *26.

                                             60
         As noted, the Complaint alleges that a majority of the New Senior directors

approved the self-dealing Acquisition at an excessive price, allowed New Senior to

issue stock to finance the Acquisition at an unreasonable discount, declined to

exercise their independent judgment when making those decisions and let Givens

(and Edens), who stood on both sides of the deal, control the negotiation and sale

process.230 According to Plaintiff, these pled facts make “[t]his [an] entire fairness

case.”231 I agree.

         Following Edens’ and Givens’ abstention from the vote, the Acquisition was

approved by the Board members who served on the Transaction Committee—

Malone, Van der Hoof Holstein, Colbert and McFarland. Since the test for director

interest and independence is generally the same for purposes of this analysis as the

test under the first prong of Aronson,232 for the same reasons I determined those

directors were interested or not independent under Aronson, I find that Plaintiff has


230
      Compl. ¶ 150.
231
      Pl.’s Answering Br. 1.
232
    TVI Corp., 2013 WL 5809271, at *14. I note, for the sake of clarity, that finding a
director is either interested or not independent under the first prong of Aronson will not
always translate to a finding of interest or lack of independence in the fiduciary duty
analysis. Under the first prong of Aronson, the focus is on whether the director’s interest
or conflict creates a reasonable doubt that the director could objectively consider a demand.
In the fiduciary duty context, the focus is on whether the director’s interest or conflict
caused the director to do or not do something that has harmed the corporation. While the
inquiries are different, and do not necessarily overlap, they lead to the same answer here,
at least as alleged in the Complaint. See id. at *12.

                                             61
well-pled that each of those directors was interested or not independent with respect

to the Challenged Transactions.233

       Additionally, the Complaint alleges that Edens and Givens were the sole

members of the Pricing Committee, setting the terms of the Secondary Offering

under which they both (along with FIG) received share options. The Complaint also

alleges that Givens, who works for Fortress, negotiated the Holiday Management

Agreement with her employer’s affiliate. Those allegations are sufficient to raise a

reasonable inference that Edens and Givens were interested in the Challenged

Transactions. Because the Complaint adequately pleads that no independent and

disinterested Board majority approved the Transactions, the standard of review, for

now, is entire fairness.

       I note that “[t]he applicability of the entire fairness standard ‘normally will

preclude a dismissal of a complaint on a Rule 12(b)(6) motion to dismiss.’”234


233
    See also Limited, 2002 WL 537692, at *7 (“For the reasons set forth [in the Rule 23.1
analysis], I am satisfied that the Complaint states a claim for breach of the duty of loyalty.
The challenged transactions were approved by a unanimous board of twelve; six of those
directors were either interested or subject to disqualifying doubts about their independence.
As set forth below, the challenged transactions, while perhaps not constituting corporate
waste, appear unfair to the stockholders. Thus, because the challenged transactions were
not approved by a majority of independent and disinterested directors, the Complaint states
a loyalty claim that survives a challenge under Court of Chancery Rule 12(b)(6).”).
234
   In re Riverstone Nat’l, Inc. S’holder Litig., 2016 WL 4045411, at *15 (Del. Ch. July 28,
2016) (“Once a plaintiff rebuts the business judgment rule, the burden shifts to the
defendant to establish that the [transaction] was the product of both fair dealing and fair
price.”).

                                             62
Nevertheless, I review briefly the pled facts and find that the Complaint adequately

alleges that the Challenged Transactions were not entirely fair.

         Entire fairness review asks whether the transaction (i) was the product of “fair

dealing,” and (ii) reflected a “fair price.”235 I address both elements, albeit in reverse

order. As for unfair price, Plaintiff argues that unfair price is revealed by the

following pled facts: (i) the market reacted poorly to the Acquisition (“New Senior’s

stock price plummeted”)236; (ii) only New Senior submitted a final bid for the

Holiday Portfolio237; (iii) Givens failed to leverage the fact that New Senior was the

only serious bidder and justified her adjustment to the initial bid by drawing a

comparison to a transaction that was very different from the Acquisition involving a

company that elected not to bid for the Holiday Portfolio 238; (iv) Givens and the

Transaction Committee allowed New Senior to enter into a no-bid management

agreement with Holiday at above-market rates239; (v) Edens and Givens caused the


  Kahn v. Lynch Commc’n Sys., Inc., 638 A.2d 1110, 1115 (Del. 1994) (internal citations
235

omitted).
236
      Pl.’s Answering Br. 53. See also Compl. ¶¶ 18, 124, 126.
237
      Compl. ¶ 83.
238
    Compl. ¶¶ 83–85, Klein Aff. Ex. 11 (June 1, 2015 Committee Minutes), at
SNR00000241 (“Ms. Givens explained that the reduced purchase price was derived by
applying the capitalization rate implied by the purchase price for the last portfolio marketed
by Holiday and sold to Northstar, which was 6.1%.”).
239
      Compl. ¶¶ 95–96.

                                             63
Board to approve a Secondary Offering that generated substantial fees for

Fortress240; and (vi) the Secondary Offering was at a grossly discounted price that

benefited Fortress, Givens and Edens but harmed New Senior by causing a sudden

loss in market capitalization amounting to approximately $100 million.241 These

facts more than adequately allow for a reasonable inference of unfair price.

         Allegations revealing unfair dealing should focus on “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.” 242 With

these elements clearly in mind, Plaintiff alleges the following facts that allow a

reasonable inference of an unfair process: (i) Fortress, Edens, and Givens stood on

both sides of the deal, and then initiated, structured, and negotiated each element of

the Challenged Transactions243; (ii) the Transaction Committee was flawed in its

composition, led by a Chairman who sat on the board of the primary lender for the

transaction, and ineffective in its execution, inter alia, by allowing Givens to

negotiate exclusively on behalf of New Senior “against” her employer (Fortress)244;


240
      Compl. ¶¶ 104, 109–113.
241
      Compl. ¶¶ 102, 110–111, 115, 121–122.
242
      Lynch, 638 A.2d at 1115.
243
      Compl. ¶¶ 73–74, 151.
244
      Compl. ¶¶ 42, 82.

                                              64
(iii) the Transaction Committee allowed Givens to make her bids without direction

from, or even consultation with, the Transaction Committee and without the benefit

of advice from the Committee’s financial advisor (Greenhill)245; (iv) Givens

provided Greenhill with flawed data to use in its fairness opinion relating to the

Acquisition246; (v) the Transaction Committee did not seek a fairness opinion with

respect to the Secondary Offering or the Holiday Management Agreement247;

(vi) even though there were no other bidders, the Transaction Committee allowed

Givens to commit to an acquisition agreement with no financing contingency,

thereby ensuring that the Company would have to go forward with the unfair

Secondary Offering248; (vii) the Board allowed Givens and Edens alone to serve on

the Pricing Committee even though they (and Fortress) stood to benefit personally

from the offering (to the exclusion of other stockholders)249; and (viii) the Board

approved the no-bid management agreement Givens offered to Holiday without even

seeing the terms of Holiday’s incentive compensation.250 It can be reasonably


245
      Compl. ¶¶ 73, 77, 83, 86–87, 100–101.
246
      Compl. ¶¶ 89–94.
247
      Compl. ¶ 112.
248
      Compl. ¶ 102.
249
      Compl. ¶¶ 109, 111.
250
      Compl. ¶ 97.

                                              65
inferred from these allegations that New Senior’s directors engaged in an unfair

process when negotiating and approving the Challenged Transactions.251

          3. The Exculpatory Charter Provision

       Contrary to Plaintiff’s assertion, the application of entire fairness review does

not necessarily result in denial of the motion to dismiss with respect to each

individual defendant.252      New Senior’s certificate of incorporation contains a

Section 102(b)(7) exculpatory provision at Article Six, which exculpates New

Senior’s directors from liability to the fullest extent permitted by Delaware law.253




251
    Defendants maintain that Edens and Givens cannot be held liable because they both
abstained from the Board vote approving the Challenged Transactions. Defs.’ Opening
Br. 55. The argument ignores Givens’ nearly exclusive role in negotiating the Challenged
Transactions, Givens and Edens’ role as sole members of the Pricing Committee and settled
Delaware law that rejects the “Geronimo theory,” which posits that a director can avoid
liability by “extricating himself from decision-making about something he knows is going
to be bad [by] pull[ing] the ripcord” and abstaining from the vote. See Cambridge Ret. Sys.
v. Decarlo, C.A. No. 10879-CB, at 14 (Del. Ch. June 16, 2016) (TRANSCRIPT). See also
Gesoff v. IIC Indus., Inc., 902 A.2d 1130 (Del. Ch. 2006) (rejecting argument that
abstaining from the vote shields a director from liability); Valeant, 921 A.2d at 753 (same);
Frederick Hsu, 2017 WL 1437308, at *38 (same).
252
    In re Cornerstone Therapeutics Inc., Stockholder Litig., 115 A.3d 1173, 1179 (Del.
2015) (“We now resolve the question presented by these cases by determining that
plaintiffs must plead a non-exculpated claim for breach of fiduciary duty against an
independent director protected by an exculpatory charter provision, or that director will be
entitled to be dismissed from the suit. That rule applies regardless of the underlying
standard of review for the transaction.”).
253
   Klein Aff. Ex. 36 (Amended and Restated Certificate of Incorporation of New Senior
Investment Group Inc.), at 8.

                                             66
Thus, only claims that, as a matter of law, cannot be exculpated by that provision

can survive the motion to dismiss.254

       Breaches of the duty of loyalty are not exculpated under Delaware law.255

I have already addressed the alleged breaches of the duty of loyalty by Edens,

Givens, Malone, Van der Hoof Holstein, Colbert and McFarland (and found them to

be adequately pled). Accepting the well-pled facts of the Complaint as true, they

each were in a conflicted state when they negotiated and approved the Challenged

Transactions and, in that state, acted in a manner that advanced either their own

interests or the interests of those to whom they were beholden at the expense of the

Company.256 These breach of loyalty claims cannot be extinguished at the pleading

stage under Section 102(b)(7).




254
    Cornerstone, 115 A.3d at 1180 (“[T]he mere fact that a plaintiff is able to plead facts
supporting the application of the entire fairness standard to the transaction, and can thus
state a duty of loyalty claim against the interested fiduciaries, does not relieve the plaintiff
of the responsibility to plead a non-exculpated claim against each director who moves for
dismissal.”).
255
   Id. at 1179–80 (“When a director is protected by an exculpatory charter provision, a
plaintiff can survive a motion to dismiss by that director defendant by pleading facts
supporting a rational inference that the director harbored self-interest adverse to the
stockholders’ interests, acted to advance the self-interest of an interested party from whom
they could not be presumed to act independently, or acted in bad faith.”).
256
    Guth v. Loft, 5 A.2d 503, 510 (Del. 1939) (holding that “[c]orporate officers and
directors are not permitted to use their positions of confidence to further their private
interests. . . . The rule that requires an undivided and unselfish loyalty to the corporation
demands that there shall be no conflict between duty and self-interest.”).

                                              67
         In Count II, Plaintiff alleges that Givens is separately liable for breaches of

her duty of care and duty of loyalty in her capacity as a New Senior officer.257 While

Plaintiff has alleged similar breaches of the duty of care against all directors

(including Givens in her capacity as director) under Count I,258 those claims fall

directly within the exculpatory charter provision so I will not address them further.

The exculpatory provision, however, does not cover Givens in her capacity as

officer.259 Defendants acknowledge Givens’ exposure but argue that the due care

claim against her must be dismissed because the Complaint does not adequately

differentiate between Givens’ conduct as officer and her conduct as director.

I disagree. Givens, as director, was not a member of the Transaction Committee and

recused herself as director from Board level discussions and votes. Nevertheless, as

officer, along with the remainder of her Fortress-based management team, she led

all aspects of the negotiations and sale process, often without consulting or receiving

direction from the Transaction Committee. Accordingly, Givens may be held liable



257
   With respect to the duty of care, Plaintiff alleges, for instance, that Givens’ projections
with respect to the rise of the Holiday Portfolio’s occupancy rate were “grossly negligent”
and that Givens justified the size of New Senior’s bid by reference to a capitalization rate
that she knew was not comparable to the acquisitions under consideration. Pl.’s Answering
Br. 44–46; Compl. ¶¶ 89–93.
258
   Pl.’s Answering Br. 42. See, e.g., Compl. ¶¶ 96–97 (“Therefore, the Board could not
have been fully informed when it approved the Holiday Acquisition.”).
259
      Gantler v. Stephens, 965 A.2d 695, 709 (Del. 2009).

                                             68
for breaching her duties of care and loyalty to New Senior, to the extent such

breaches are proven.260

         C. Plaintiff Has Stated a Viable Aiding and Abetting Claim

         Finally, at Count III, the Complaint alleges aiding and abetting breaches of

fiduciary duty against Fortress, Holiday, FIG, FOE I and FIG Corp. To state a claim

of aiding and abetting, a complaint must plead facts in support of four elements:

(1) the existence of a fiduciary relationship, (2) a breach of a fiduciary duty,

(3) defendant’s knowing participation in that breach and (4) damages proximately

caused by the breach.261 The first two elements have been addressed in my findings

above. Defendants do not attack the Complaint’s causation allegations. Thus, as is

often the case in aiding and abetting litigation, given the Court’s finding that Plaintiff

has pled breach claims, the focus turns to whether Plaintiff has adequately pled

“knowing participation” by the alleged aiders and abettors.

         An adequate pleading of “knowing participation” requires a pleading of

scienter.262 “To establish scienter, the plaintiff must demonstrate that the aider and


260
   McPadden v. Sidhu, 964 A.2d 1262, 1275–76 (Del. Ch. 2008) (“Though an officer owes
to the corporation identical fiduciary duties of care and loyalty as owed by directors, an
officer does not benefit from the protections of a Section 102(b)(7) exculpatory provision,
which are only available to directors. Thus, so long as plaintiff has alleged a violation of
care or loyalty, the complaint proceeds against [the officer].”).
261
      Malpiede v. Townson, 780 A.2d 1075, 1096 (Del. 2001).
262
  See RBC Capital Mkts., LLC v. Jervis, 129 A.3d 816, 861–62 (Del. 2015) (quoting
Malpiede, 780 A.2d at 1097) (“As an example, this Court has said that ‘a bidder may be
                                            69
abettor had actual or constructive knowledge that their conduct was legally

improper,” and that he acted with “an illicit state of mind.”263 “[T]he requirement

that the aider and abettor act with scienter makes an aiding and abetting claim among

the most difficult to prove.”264 Difficult, but not impossible.

            Based on the well-pled facts in the Complaint, it is reasonably conceivable

that all five of the alleged aiders and abettors knowingly participated in the directors’

alleged breaches. Under Delaware law, “the knowledge of an agent acquired while

acting within the scope of his or her authority [and the acts of agents in that scope]

[are] imputed to the principal.”265 In In re Emerging Communications,266 applying

this fundamental agency principle, the court held that two entities were “liable for

having aided and abetted” an individual defendant where the entities were under the

control of that defendant and “were the mechanisms through which” that defendant

“accomplished” the challenged transaction.267 This same type of scheme is alleged


liable to the target’s stockholders if the bidder attempts to create or exploit conflicts of
interest in the board.’”).
263
      Id. at 862 (internal quotation omitted).
264
      Id.
265
  Metro. Life Ins. Co. v. Tremont Gp. Hldgs., Inc., 2012 WL 6632681, at *19 (Del. Ch.
Dec. 20, 2012).
266
   In re Emerging Commc’ns, Inc. S’holders Litig., 2004 WL 1305745 (Del. Ch. May 3,
2004).
267
      Id. at *38.

                                                 70
here—Givens and Edens are alleged to have facilitated the Challenged Transactions

through the various Fortress subsidiaries named as aiders and abettors.268 Under

basic principles of agency, all of their knowledge is imputed to the Fortress entities

they served as agents.269

         Defendants lament that Plaintiff has failed to plead that any of the alleged

aiders and abettors materially benefited from the Challenged Transactions.270 Even

if allegations of materiality were required to support an aiding and abetting claim,

and Defendants cite no authority imposing that requirement, the Complaint goes to

significant lengths to allege how the aiders and abettors benefitted (materially) from

the Challenged Transactions.271

         In their roles as director members of New Senior’s Pricing Committee, Givens

and Edens alone set the terms of the Secondary Offering while also being employed

by and otherwise affiliated with FIG. FIG, in turn, receives substantial management

fees from New Senior based on New Senior’s gross equity.272 The allegedly unfair


268
      Compl. ¶¶ 6–8, 28–33, 62, 73–82.
269
   See Metro. Life, 2012 WL 6632681, at *19 (applying agency principals in aiding and
abetting analysis); Quadrant Structured Prods. Co., Ltd. v. Vertin, 102 A.3d 155, 204 (Del.
Ch. 2014) (same).
270
      Defs.’ Opening Br. 59–60.
271
      See, e.g., Compl. ¶¶ 65–72, 118–121.
272
      Compl. ¶ 7.

                                             71
Secondary Offering approved by Givens and Edens caused New Senior’s gross

equity to increase substantially with resulting increases in FIG’s management

fees.273     Givens and Edens also caused New Senior to issue “approximately

$100 million in additional equity that New Senior did not need for the []

Acquisition” and thereby increased FIG’s fees even more.274 And, of course, by

pushing New Senior into the Secondary Offering, Givens and Edens saw to it that

FIG would receive options to purchase over 2 million shares of New Senior stock

(at the discounted price).275 Given these well-pled facts, it is reasonably conceivable

that FIG knowingly participated in, and benefited from, the individual directors’

breaches of their duty of loyalty or care.276

         The allegations are similarly compelling against Fortress. Plaintiff alleges

that Fortress pushed the Acquisition in furtherance of a broader plan to shift its assets

under management to publicly-traded companies that were externally managed by

Fortress, such as New Senior, so it (through FIG) could charge higher management




273
      Compl. ¶ 118.
274
      Compl. ¶ 7.
275
      Compl. ¶ 8.
276
   Houseman v. Sagerman, 2014 WL 1478511, at *8 (Del. Ch. Apr. 16, 2014) (holding
that Section 102(b)(7) does not apply to aiding and abetting claims, and collecting cases).

                                            72
fees over longer periods of time.277 He further alleges that FHIF, Fortress’ private

equity fund that is the majority owner of Holiday, pushed the Holiday sale to

facilitate the “return of capital to its investors” in advance of its “maturity date of

January 2017.”278 Those allegations, when coupled with the allegations that Givens

ran the negotiations for New Senior and made bids for the Holiday Portfolio without

any authorization from a Board comprised of members that were either interested in

the Challenged Transactions or beholden to others who were, create a reasonably

conceivable narrative that Fortress knowingly participated in the Board’s and

Givens’ breaches.279

         To evaluate the sufficiency of the aiding and abetting claims pled against

FOE I, FIG Corp and Holiday, one first needs to appreciate the close relationships

of these entities within the Fortress network.280 FIG Corp. is the sole general partner


277
   Compl. ¶ 9. Fortress has publically stated that it can generate between $375 million and
$425 million of present market value for its shareholders from the fees it earns from
managing $1 billion in a PCV. Compl. ¶ 118. As applied to the $266 million of invested
capital generated by the Secondary Offering, Fortress can expect to generate between
$99.75 million and $113.05 million in value, which is material to Fortress. Id.
278
      Compl. ¶ 4.
279
    The Complaint also alleges that Fortress stood to gain from Holiday retaining the
property management of the Holiday Portfolio. Compl. ¶ 10. Defendants take issue with
this allegation because the property management fees would go to Holiday not Fortress.
Defs.’ Opening Br. 60. While that is true, Plaintiff has sufficiently alleged the connections
between Fortress and Holiday which lead to the reasonable inference that Fortress, the
indirect owner of a majority of Holiday’s equity, would benefit from additional revenues
collected by Holiday.
280
      See appendix.
                                             73
of FOE I and, together with Edens and the remaining two Fortress-principals, it owns

all of FOE I’s limited partnership interests. FOE I, in turn, is the sole managing

partner and sole owner of FIG, which is a subsidiary of Fortress and manages the

Fortress private equity funds that own a majority of the Holiday interests. With the

allegations outlined above pertaining to FIG and Fortress, just as in Emerging

Communications, I am satisfied, for now, that Plaintiff has adequately pled that all

of these networked entities were vehicles that aided and abetted the directors, and

Givens as officer, in their alleged breaches of fiduciary duty.281

                                III. CONCLUSION

      Based on the foregoing, Defendants’ motion to dismiss is DENIED.

      IT IS SO ORDERED.




281
   Emerging, 2004 WL 1305745, at *38 (finding aiding and abetting pled for two
companies based on the allegations with respect to the person that controlled them).
                                          74
            FHIF        Subsidiary                                                 o Wesley Edens
                                                Fortress                           o Peter L. Briger, Jr.
                                                                      Principals
            Majority                                                               o Randal A. Nardone
            owner
  Holiday
                                                            Parent


 New Senior
 FHIF (and other                                          FIG
  funds that own       External
  Holiday)             manager
 Drive Shack
 Investment funds                                                     Sole managing
  that own                                                            member & 100%
  Nationstar                                                               owner


                                                                     FOE I



                                100% of limited
                              partnership interests                                    Sole general
                                                                                         partner



                           FIG Corp                                               FIG Corp.
                           “Principals”
                                o Wesley Edens
                                o Peter L. Briger, Jr.
                                o Randal A. Nardone




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