Abrams v. Wainscott et al
MEMORANDUM OPINION re 33 MOTION to Dismiss the Second Amended Complaint. Signed by Judge Richard G. Andrews on 11/13/2013. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civil Action No. 11-00297 -RGA
JAMES L. WAINSCOTT, et al.,
Robert D. Goldberg, Esq., Biggs and Battaglia, Wilmington, DE; Alexander Arnold Gershon,
Esq., Barrack, Rodos & Bacine, New York, NY; Michael A. Toomey, Esq., Rodos & Bacine,
New York, NY; Daniel E. Bacine, Esq., Barrack, Rodos & Bacine, Philadelphia, PA, Attorneys
for the Plaintiff.
Jon E. Abramczyk, Esq., Morris Nichols, Arsht & Tunnell LLP, Wilmington, DE; John P.
DiTomo, Esq., Morris, Nichols, Arsht & Tunnell LLP, Wilmington, DE; Gregory A. Markel,
Esq., Cadwalder, Wickersham & Taft LLP, Attorneys for the Defendants James L. Wainscott,
Robert H. Jenkins, Richard A. Abdoo, JohnS. Brinzo, Dennis C. Cuneo, William K. Gerber, Dr.
Bonnie G. Hill, RalphS. Michael Ill, Shirley D. Peterson, Dr. James A Thomson, Albert E.
Ferrara, Jr., David C. Hom, John F. Kaloski, Douglas W. Gant.
C. Barr Flinn, Esq., Young Conaway Stargatt & Taylor, LLP, Wilmington, DE; Adam W. Poff,
Esq., Young Conaway Stargatt & Taylor, LLP, Wilmington, DE, Attorneys for Defendant AK
Steel Holding Corporation.
Presently before the Court for disposition is the Defendants James L. Wainscott, et al. 's
Motion to Dismiss the Second Amended Complaint. (D.I. 33). This matter has been fully
briefed. (D.I. 34, 35, 36, 37, 38, 39, 43). The Court has both federal question and diversity
jurisdiction. For the reasons set forth herein, the Defendants' motion is GRANTED.
The Court dismissed the Plaintiffs First Amended Complaint as it lacked sufficient
allegations to plead demand futility. (D.I. 27). The Plaintiff then timely refiled her complaint.
(D.I. 28). The Defendants responded with the instant motion. (D.I. 33).
Plaintiff alleged in the Second Amended Complaint three distinct fact patterns:
(1) Defendants knowingly and intentionally violated the Long Term Performance
Plan (the 'LTPP') by retroactively increasing the amounts the executive
Defendants were entitled to receive under this plan... ;
(2) AK Steel Holding Corporation's ('AK Steel' ... ) 2010 proxy statement ...
contained false or misleading information ... ; and
(3) Shareholders were coerced into voting for the performance goals of the LTPP .
. . and the [Stock Incentive Plan ("SIP")] ... because they were told that these
performance goals would continue to be used with or without shareholder
approval, but that without this approval compensation paid would cost [AK
Steel] more money.
(D.I. 36 at 7 (internal citations omitted)). The Plaintiff alleges four derivative claims and one
direct claim. The four derivative claims are: (1) Breach of Duties under§ 14(a) of the Securities
and Exchange Act, (2) Breach of Duty of Loyalty, (3) Waste (based on the payment of nondeductible compensation), and (4) Unjust Enrichment. (D.I. 28 at 22-25). The Plaintiff
additionally alleges a direct claim of Coercion. (D.I. 28 at 25).
DISCUSSION FOR DERIVATIVE CLAIMS
1. Legal Standard
Pursuant to FED.R.Crv.P. 23.1(b)(3), a shareholder bringing a derivative action must file
a verified complaint that states with particularity: "(A) any effort by the plaintiff to obtain the
desired action from the directors or comparable authority and, if necessary, from the
shareholders or members; and (B) the reasons for not obtaining the action or not making the
effort." FED.R.Crv.P. 23.1(b)(3) "The purpose ofthe demand requirement is to afford the
directors an opportunity to exercise their reasonable business judgment and waive a legal right
vested in the corporation in the belief that its best interests will be promoted by not insisting on
such right." Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 96 (1991) (internal quotation
marks omitted). "Although Rule 23.1 provides the pleading standard for derivative actions in
federal court, the substantive rules for determining whether a plaintiff has satisfied that standard
are a matter of state law." King v. Baldino, 409 F. App'x 535, 537 (3d Cir. 201 0). "Thus,
federal courts hearing shareholders' derivative actions involving state law claims apply the
federal procedural requirement of particularized pleading, but apply state substantive law to
determine whether the facts demonstrate demand would have been futile and can be excused."
Kanter v. Barella, 489 F.3d 170, 176 (3d Cir. 2007). The Delaware Supreme Court has
characterized the exercise of determining demand futility as deciding "whether, under the
particularized facts alleged, a reasonable doubt is created that: (1) the directors are disinterested
and independent and (2) the challenged transaction was otherwise the product of a valid exercise
ofbusinessjudgment." Aronson v. Lewis, 473 A.2d 805,814 (Del. 1984).
Aronson -First Prong
The Plaintiffhas not pleaded facts to create reasonable doubt that "the directors are
disinterested and independent." !d. The Plaintiff alleges that demand is excused because "[a]ll
of the members of the Board are eligible to participate in the SIP and are interested in the
payments to be made under [it]." (D.I. 36 at 19 (citing D.l. 28, ~ 60(b))). The Plaintiff
maintains that the directors' interest in their stock option compensation excuses the demand
requirement. This argument fails for the same reason that this Court previously found, in
relation to the First Amended Complaint, that the Plaintiff failed to plead particularized facts to
support the allegation that the majority of the AK Steel Directors had a financial interest that
raised a reasonable doubt that they were disinterested. This Court held:
3. In moving to dismiss, Defendants first argue that Plaintiff failed to plead
particularized facts demonstrating demand was excused. (D.I. 21, pp. 18-32).
Under the first Aronson prong, Plaintiff alleged Defendant Wainscott, as CEO, is
interested in the payments under the LTPP, SIP, and SIP Amendment. (D.I. 15, ~
71). Plaintiff alleged the nine remaining outside members of the Board (the
Director Defendants) are interested in SIP payments, and are "therefore interested
in the transactions and events alleged herein." (Id. mf 25, 71; D.I. 22 at 39-40).
These Director Defendants are not participants in the LTPP plan and their retainer
under the SIP is not performance-based. (D.I. 15, ~~ 25, 71; D.l. 21, Ex. 1 at 27).
Plaintiff alleged the Director Defendants were interested in the proxy's SIP
amendments that asked shareholders to extend the expiration period during which
restricted stock could be granted, and to increase the number of shares available for
the grant of restricted stock awards, because the Director Defendants receive at least
half of their annual retainer in the form of restricted stock units. (Id. ~ 71).
4. Defendants argue that director compensation under the SIP does not
make the directors "interested" in the result of the 201 0 proxy, as the SIP would
have continued to exist and provide that compensation regardless of the result of
the 2010 vote and the tax consequences thereof. (D.I. 21 at 21). The issue here
is whether pleading that the outside directors were interested in the proxy
statements' representations about restricted stock creates reasonable doubt as to
whether the outside directors were interested in the proxy statement's
representations about performance-based compensation under the SIP and LTPP 3
the heart of Plaintiffs claim.
The performance-based compensation
representations appear in Proposals 3 and 4 in the Proxy Statement, and the
restricted stock representations appear in Proposal 5. (D .I. 21, Ex. 1 at 71-81 ).
5. Plaintiffs allegations that the outside directors were interested in the
outcome of Proposal 5 do not plead particularized facts creating a reasonable doubt
that the outside directors (i.e., a majority of the board) are interested as to Proposals
3 and 4. Plaintiff does not allege any basis to believe that the directors would not
continue to receive their stock compensation under the SIP regardless of whether
the SIP performance goals in Proposal 4 passed, nor does Plaintiff allege any
connection between the SIP amendment in Proposal 5, and the performance goals
in Proposals 3 and 4. The demand futility analysis proceeds transaction-bytransaction. Khanna v. McMinn, 2006 WL 1388744, *14 (Del. Ch. May 9, 2006).
The transactions here - the proxy proposals - split the Director Defendants' interest
off from the claims, distinguishing this case from Hoch v. Alexander, 2011 WL
2633722 (D.Del. July 1, 2011) and Resnik v. Woertz, 774 F.Supp.2d 614 (D. Del.
2011). Plaintiff has failed to plead that demand is excused under Aronson's first
(D.I. 27 at 2-4).
Here, the Plaintiff adds an additional allegation, not present in the First Amended
Complaint, that "[a]ll ofthe members ofthe board are eligible to participate in the Amended SIP
and are interested in the nearly unlimited stock option payments the Compensation Committee
can award them under the plan." (D.I. 28 at 21). The Plaintiff argues that these "nearly
unlimited stock option payments" defeat the need to seek demand as "all of the members of the
Board were specifically interested in ensuring a positive shareholder vote for the first two
amendments to the SIP presented in Proposal 5 because these amendments extended the time
period during which directors could receive compensation under the SIP and increased the pool
from which their compensation was drawn." (D.I. 36 at 20).
While the pool of shares increased, this fact alone is not sufficient to raise a reasonable
doubt that the outside directors (i.e., a majority of the board) were disinterested in the proposals.
As demand futility analysis proceeds transaction-by-transaction, the transaction here- the proxy
proposals - split the Director Defendants' interest in determining their own pay from both the
increase in the time period during which Directors receive compensation and the increase in the
options pool. In other words, the Directors' ability to grant themselves stock remains unaffected
by the proxy vote and exists regardless of any of the proxy proposals. (D .I. 34-1 at 101 ).
Therefore, for the reasons stated above and in this Court's previous opinion, the Plaintiff has
failed to plead sufficient facts to raise a reasonable doubt concerning the Directors' disinterest.
Aronson -Second Prong
The Plaintiff fails to raise a reasonable doubt about the business judgment rule. The
Plaintiff's Second Amended Complaint fails for the same reason that the First Amended
Complaint failed. The Court previously held:
6. This brings the inquiry to Aronson's second prong- whether Plaintiff
has alleged particularized facts to create a reasonable doubt as to whether the
protections of the business judgment rule are available to the Board. Plaintiff
alleged demand is excused because: a) the issue here is one of disclosure; b) at least
half the board cannot claim protection of the business judgment rule because they
are members of the Compensation Committee that developed, approved,
recommended, and implemented the LTPP and SIP, and had at various earlier times
allegedly violated the express terms of then-existing LTPP; c) a majority of the
board violated United States public policy; and d) the compensation at issue
comprises waste, which is not protected by the business judgment rule. (D.I. 15
~~ 72-73; D.I. 22 at 36-38; 40-42).
7. Defendants argue that Plaintiff's disclosure allegations fail because they
do not plead bad faith, specifically "what the directors knew and when" or that the
Directors knew the 2010 Proxy Statement contained false or misleading statements.
(D.I. 21 at 24-25, 30-31; D.I. 23 at 17). In response, Plaintiffs argue that disclosure
claims are not protected by the business judgment rule as a matter oflaw. (D.I. 22
at 40-41) (citing In re Anderson, Clayton Shareholder Litig., 519 A.2d 669 (Del.Ch.
1986); In re Tri-Star Pictures, Inc. Litig., 1990 WL 82734 (Del.Ch. June 14, 1990);
Lewis v. Leaseway Transp. Corp., 1990 WL 67383 (Del.Ch. May 16, 1990)).
8. Plaintiff's cited cases do not support the proposition that derivative
claims based on a proxy statement nondisclosure do not need to meet the second
Aronson prong in the context of a Rule 23.1 motion. See Bader v. Blanlifein, 2008
WL 5274442, *6 (E.D.N.Y. Dec. 19, 2008) ("If shareholders could elect to sue on
behalf of a corporation without consulting the board of directors whenever they
deemed a proxy statement to contain materially false information, shareholders
could effectively usurp the board's decision as to whether litigation was merited.");
Freedman v. Adams, 2012 WL 1099893, *16 n.l55 (Del. Ch. Mar. 30, 2012) "[T]he
Plaintiff appears to conflate the fact that disclosure claims are generally not subject
to the demand requirement (because they are usually direct claims) with the idea
that a properly pled disclosure claim excuses demand under Aronson's second
prong.") (emphases omitted).
9. Plaintiff also pled that demand is excused under Aronson's second
prong because at least half the board sits on the Compensation Committee that
violated the LTPP. (D.I. 15, ~ 73). Defendant argues that Plaintiff failed to plead
that the violation was knowing and intentional. (D.I. 21 at 30, D.I. 23 at 15-16).
Plaintiff responds that awarding compensation in violation of an approved
compensation plan is not protected by the business judgment rule. (D.I. 22 at 38)
(citing Weiss v. Swanson, 948 A.2d 433, 441-42 (Del. Ch. 2008); Ryan v. Gifford,
918 A.2d 341,357-58 (Del. Ch. 2007); Sanders v. Wang, 1999 WL 1044880, *4-5
(Del. Ch. Nov. 8, 1999)).
10. Plaintiffs cited cases do not convince the Court of the blanket
proposition that a shareholder need only allege violation of a compensation
agreement to excuse demand, without additional allegations of knowledge and
intent. Weiss specifically provides that "allegations in a complaint rebut the
business judgment rule where they support an inference that the directors intended
to violate the terms of stockholder-approved option plans." 948 A.2d at 441. The
Ryan Court, discussing the allegations before it and Sanders, stated that "[a] board's
knowing and intentional decision to exceed the shareholders' grant of express (but
limited) authority raises doubt regarding whether such decision is a valid exercise
of business judgment and is sufficient to excuse a failure to make demand." 918
A.2d at 354. Sanders and Ryan were also explicitly fact-specific: in Ryan, the
"unusual facts alleged" of"knowing and intentional violations" ofthe stock option
plans raised reason to doubt that the challenged transactions resulted from a valid
exercise of business judgment, while in Sanders, demand was excused "[f]or
immediate purposes" because the plaintiff had pled violation of an "express,"
"unambiguous" provision where it was "clear from the uncontroverted facts" that
the compensation award exceeded the provision. Id; see Sanders, 1999 WL
1044880 at *4-5.
. Next, Plaintiff pled that demand is excused because "a majority of
the Board violated United States public policy." (D.I. 15, ~ 73). As with Plaintiffs
LTPP violation pleading, Defendants argue that demand is not excused for
Plaintiffs public policy complaint because Plaintiff does not allege a knowing
violation. (D.I. 21 at 31 ). Plaintiff does not defend its one-sentence public policy
allegation in opposing Defendants' motion. (D.I. 22). It appears that Plaintiffs
once sentence fails to plead particularized facts under the second Aronson prong in
. Finally, Plaintiff pled that demand is excused because the claim of
waste, based on the inability to take tax deductions under the LTPP and SIP, does
not invoke the business judgment rule. (D.I. 15, ~~ 73-75; D.l. 22 at 37).
Defendants argue that a waste claim still requires pleading particularized facts to
create a reasonable doubt that the board's decisions were the product of a valid
exercise of business judgment to excuse demand. (D.I. 21 at 26-29 (citing In re
Walt Disney Co. Deriv. Litig., 906 A.2d 27, 67 (Del. 2006); White v. Panic, 783
A.2d 543, 554 n.36 (Del. 2001); D.l. 23 at 11-13). Indeed, the Delaware Supreme
Court in White affirmed dismissal of a waste claim for failure to show demand was
excused under Aronson's second prong. 783 A.2d at 554-55. While Plaintiffs
cited case, Leung v. Schuler, provides that demand is excused for a "cognizable
claim of waste," it proceeded to dismiss a waste claim under Rule 23.1 for failing
to state a claim that would excuse demand. 2000 WL 264328, *10 (Del. Ch. Feb.
29, 2000). Leung does not support Plaintiffs argument that demand is excused
merely because a claim of waste is alleged.
(D.I. 27 at 4-7) (footnote omitted).
The Plaintiffs only significant change to the First Amended Complaint is to add the
assertion that Defendants "knowingly and intentionally" violated the LTPP. (D.I. 28 at 21).
However, this assertion is conclusory in nature and fails to meet the standard for pleading
knowledge and intent. The Court previously found that the Plaintiffs assertion that the
Defendants were aware of a specific treasury regulation and disregarded its content was not
sufficient to meet the pleading standard. This finding continues to hold true, even though the
Plaintiff adds the phrase "knowingly and intentionally." This same reasoning holds true for the
Plaintiffs allegation that the Defendants were aware of the anti-discretion requirement of§
162(m) and that the Defendants' knowledge should be implied because the Compensation
Committee's charter requires review of the LTPP. (D.I. 28 at 13-14). None ofthese assertions
rise to the level required by the Delaware Supreme Court that the Plaintiff"plead with
particularity the specific conduct in which each defendant 'knowingly' engaged, or that the
Wood v. Baum, 953 A.2d 136, 142 (Del. 2008).
defendants knew that such conduct was illegal."
The Plaintiff reasserts her arguments regarding Ryan v. Gifford, Sanders v. Wang, and
Weiss v. Swanson. (D.I. 36 at 17-20). These arguments were made in the Plaintiffs opposition
of Defendants' Motion to Dismiss the First Amended Complaint (D.I. 22 at 38) and specifically
addressed by this Court. (D.I. 27 at 5-6). The Court readopts its previous analysis. The Court
also readopts its previous analysis regarding the waste claim, as the Plaintiff does not set forth
any significant new facts that would excuse demand in regard to the waste claim.
Therefore as the Plaintiffhas failed to allege particularized facts creating a reasonable
doubt that (1) the directors are disinterested and independent and (2) the challenged transactions
were otherwise the product of a valid exercise of business judgment, the Plaintiff has not
demonstrated demand futility as required for derivative claims.
DISCUSSION FOR DIRECT CLAIM
1. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) requires dismissal of a claim if it fails to "state a
claim upon which relief can be granted .... " FED.R.CIV.P. 12(b)(6). When reviewing a
12(b)(6) motion, the Court must "accept as true all material allegations of the complaint."
Seinfeld v. O'Connor, 774 F. Supp. 2d 660, 664 (D. Del. 2011). "The issue is not whether a
plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support
the claims." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997)
(internal quotation marks omitted). Thus, "[a] motion to dismiss pursuant to Rule 12(b)(6) may
be granted only if, accepting all well-pleaded allegations in the complaint as true, and viewing
them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Maio v. Aetna,
Inc., 221 F.3d 472, 481-82 (3d Cir. 2000) (internal quotation marks omitted). However, while
"heightened fact pleading of specifics" is not required, the plaintiff must "nudge their claims
across the line from conceivable to plausible ...." Bell Atl. Corp. v. Twombly, 550 U.S. 544,
The Plaintiff asserts one direct claim against the Defendants for coercion of her
shareholder vote. The claim, which is new to the Second Amended Complaint, is based on
Delaware law. Specifically, the Plaintiff claims that the Defendants "construct[ed] a vote to
coerce shareholders to vote for the LTPP and SIP's performance goals .... " (D.I. 28 at 25).
The Defendants argue that this claim fails to state a claim under FED.R.CIV.P. 12(b)(6).
The Plaintiff claims that the stockholder vote is null and void because "stockholders were
forced to decide between the lesser of two evils." (D.I. 36 at 37 (citing Williams v. Geier, 671
A.2d 1368, 1383 (Del. 1996))). Furthe1p1ore, the Plaintiff argues, "shareholders could not vote
based on the merits of the performance goals because shareholders were told that they would
continue to be used with or without shareholder consent, but that such payments would cost AK
Steel more without their consent . . . . Given the non-choice between these identical options,
shareholders were effectively forced to approve the less costly [option]." !d. at 36-37. The
Defendants respond by arguing that, "The Proxy's disclosure that performance-based
compensation granted under the Plans in the future would not qualify as tax-deductible under
Section 162(m) if shareholders did not reapprove the terms was not a threat, but rather ensured
the shareholders were fully informed." (D.I. 37 at 20).
The Supreme Court of Delaware set forth the legal doctrine for this Court to follow in
Williams v. Geier. The Court stated:
[A] board of directors seeking stockholder approval of a transaction must walk a
fine line between disclosures designed to inform and disclosures which may be seen
as coercive. An otherwise valid stockholder vote may be nullified by a showing
that the structure or circumstances of the vote were impermissibly coercive.
Wrongful coercion may exist where the board or some other party takes actions
which have the effect of causing the stockholders to vote in favor of the proposed
transaction for some reason other than the merits of that transaction. In the final
analysis, however, the determination of whether a particular stockholder vote has
been robbed of its effectiveness by impermissible coercion depends on the facts of
671 A.2d 1368, 1382-83 (Del. 1996) (internal citations and quotation marks omitted).
The disputed portions of the proxy statement read as follows:
Relevant portion ofProposal 3
These performance goals were most recently approved by stockholders at the
Company's Annual Meeting in May 2005. In the event stockholders fail to reapprove the performance-based terms of the Long-Term Plan, any performancebased compensation granted by the Company to Executive Officers under the LongTerm Plan in the future would not meet the conditions for tax deductibility under
Section 162(m), thereby increasing the Company's total cost ofsuch compensation.
As discussed further below, the Board of Directors believes that the Company's
ability to take advantage of the tax deductibility of performance-based awards
granted under the Long-Term Plan benefits the Company and is in the best interests
of its stockholders.
Relevant Portion ofProposal 4
The Company's stockholders most recently approved the material terms of the
Stock Plan's performance goals in May 2005 and grants of performance awards
under the Stock Plan currently may qualifY as performance-based compensation
that is tax deductible to the Company under Section 162(m). Under Section
162(m), however, in order for performance awards under the Stock Plan to continue
to qualify as deductible performance-based compensation, the material terms ofthe
plan's performance goals must be approved by the stockholders no later than the
first stockholder meeting that occurs in the fifth year following the year in which
the goals last received stockholder approval. Since the last such stockholder
approval was received in 2005, the Company is now asking our stockholders to reapprove the Stock Plan's performance goals in order to preserve the tax status of
performance awards under that plan as performance-based, and thereby allow the
Company to continue to fully deduct the compensation expense related to the
awards. If this proposal is not adopted, competitive or other circumstances may
cause the Committee to continue to grant performance awards under the Stock
Plan, but should it do so, certain awards to Executive Officers may no longer be
fully tax deductible by the Company, increasing the total net cost to the Company
ofmaking such awards.
(D.I. 34-1 at 77-78, 81) (emphasis added).
The above statements do not correspond with what the Plaintiff alleges. For example,
while the Plaintiff alleges that the "shareholders were told that [performance goals] would
continue to be used with or without shareholder consent," the proxy statement states that
"competitive or other circumstances may cause the Committee to continue to grant performance
awards .... " (D.I. 36 at 36-37; D.I. 34-1 at 81 (italics added)). Furthermore, the proxy
statement makes clear that the current performance awards may be tax-deductible, not that they
are tax-deductible. (D.I. 34-1 at 81). Therefore, without the Plaintiffs mischaracterizations of
the proxy statement, there are no facts proffered by the Plaintiff on which she could base her
The Court rejects the Plaintiffs argument that her case is analogous to Shaev. (D.I. 36 at
37-38). The Third Circuit in Shaev found "that Datascope's Board made a materially false
statement in the proxy statement when it stated that [CEO's] bonus would be deductible if the
shareholders approved it." Shaev v. Saper, 320 F.3d 373, 381 (3d Cir. 2003). The Third
Circuit based this determination, at least in part, on the fact that a proxy statement must at a
minimum contain "the material terms of the incentive plan and general performance goals on
which the executive's compensation is based .... " !d. at 383. Furthermore, in Shaev the Board
failed to disclose that the CEO, who was a major shareholder, "had not earned the $3,285,714
bonus under the terms of the currently existing plan," and therefore that the Defendants would
have had actual knowledge that the compensation plan would not be tax deductible. !d. at 382.
Unlike in Shaev, here there is no evidence that the proposed bonus plan "would exceed the
amount to which [the Defendants] would have been entitled to under the extant [bonus plan] and
to what extent." !d. at 383. Therefore Claim 5 fails to state a claim for coercion as a matter of
For the reasons above, the Court will GRANT Defendant's Motion to Dismiss the
Plaintiff's Second Amended Complaint (D.I. 33) WITH PREJUDICE. An appropriate order
will be entered.
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