Pharmacy Corporation of America v. Askari

Filing 76

REPORT AND RECOMMENDATIONS re 55 MOTION to Dismiss filed by Pharmacy Corporation of America. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than t en (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 5/21/2018. Signed by Judge Mary Pat Thynge on 5/7/18. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
PHARMACY CORPORATION OF
AMERICA,
Plaintiff,
v.
KAVEH ASKARI, et al.
Defendants.

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C. A. No. 16-1123-RGA-MPT

REPORT AND RECOMMENDATION
I.

INTRODUCTION
On September 20, 2017 Kaveh Askari (“Askari”), Onco360 Holding I, Inc.,

Onco360 Holding II, Inc., and Onco360 Holdings III, Inc. (“Onco360 I-III”)(collectively
“Plaintiffs”) filed this declaratory judgment action through an Amended Complaint (“Am.
Comp.”), against Pharmacy Corporation of America (“PCA”) and Greg Weishar, Paul
Jardina, and David Froesel’s collectively, the (“Managers”) (collectively “Defendants”).1
The Am. Comp. alleges breach of contract to the Operating Agreement, breach of the
implied covenant of Good Faith and Fair Dealing, and seeks a declaration of certain
findings and damages.2
Pending before the court is Defendants’ motion to dismiss pursuant to FED. R.
CIV. P. 12(b)(6) Counts I, II, III, and IV of the Am. Comp. filed on August 16, 2017 for

1

D.I. 53 Am. Comp. at 22-25. Reference to the Am. Comp. throughout this
Report and Recommendation is to the page numbers of this pleading.
2
Id.

failure to state a claim upon which relief may be granted.3 This court has original
jurisdiction under 28 U.S.C. § 1338(a) as this matter relates to contracts. This Report
and Recommendation is issued pursuant to 28 U.S.C § 636(b)(1)(B), FED. R. CIV. P.
72(b)(1), and D. DEL. LR 72.1. For the reasons stated below, it is recommended that
Defendants’ motion be denied.
II.

BACKGROUND4
A.

Parties

Plaintiff Askari, a citizen of the State of New York, is a pharmacist in the field of
oncology, and the indirect owner of the majority of shares in OncoMed Speciality, LLC
(“Specialty”) through his direct interests in Onco360 I-III.5 Plaintiffs Onco360 I-III are
Delaware corporations and collectively own 62.5% of Specialty.6 Defendant PCA is a
California corporation with its principle place of business in Louiseville, Kentucky and is
a wholly-owned subsidiary of PharMerica Corporation (“PMC”).7 Defendant Gregg
Weishar is a citizen of Kentucky, the Chief Executive Officer of PMC, and a member of
the Board of Managers of Specialty.8 Defendant Paul Jardina is a citizen of Kentucky
and the President, Chief Executive Officer, and member of the Board of Managers of
Specialty.9 Defendant David Froesel is a citizen of Kentucky and, until September 30,
2016, was the Chief Financial Officer of PMC and a member of the Board of Managers

3

D.I. 55 Motion to Dismiss.
In addition to the parties’ briefs, factual information is taken from the Am. Comp.
5
D.I. 53 at 1, 3.
6
Id. at 3.
7
Id.
8
Id.
9
Id.
4

2

of Specialty.10
B.

Statements of Facts

In 2002, Askari founded a small specialty pharmacy in Manhasset, New York and
operated the business under the name OncoMed Pharmaceutical Services
(“OncoMed”).11 Due to the success of his oncology medicine business, Askari decided
that the company should become an oncology speciality pharmacy provider. During this
time period, Askari opened a centralized compounding facility in Great Neck, New York
and several pharmacies to accommodate the growing patient base.12 By 2012, Askari’s
business was one of the largest independent specialty pharmacies in the United States
with a sound reputation in special oncology services.13
In 2011, Askari, with the other current interest holders in OncoMed, solicited
offers from interested companies, who had the ability to bring the OncoMed’s services
model to a national level, to purchase a substantial interest in OncoMed.14 In 2012,
Weishar met with Askari and advised that PMC had a strong interest in purchasing an
interest in OncoMed.15 This purchase would allow PMC and OncoMed to join forces
and enable Askari to expand his successful operation to a national level.16
PCA represented that its plan was to use PMC’s pharmacy network to grow
OncoMed’s power to distribute oncology pharmaceuticals throughout the United

10

Id.
Id. at 5.
12
Id. at 6.
13
Id.
14
Id. at 7.
15
Id.
16
Id.
11

3

States.17 The contemplated transaction (the “Transaction”) provided for PCA to
purchase a minority interest in OncoMed from Plaintiffs.18 Over time, PCA would
purchase the remaining majority interest held indirectly by Askari through Onco360 I-III,
and other interest holders, in a two-staged buyout.19 Tier I and II buyouts were based
on trigger dates that obligated PCA to purchase the remaining interest at three and five
years after the close of the Transaction.20
On October 10, 2013, a series of agreements were executed to finalize the
Transaction21 whereby PCA purchased a 37.5% interest in Specialty for $7.80 million
with the future obligation to buy a full interest in Specialty.22 The documents of the
Transaction included, inter alia, (1) Plan of Business Reorganization, (2) Membership
Interest Purchase Agreement (the “MIPA”), (3) Amended and Restated Operating
Agreement of Specialty (the “Operating Agreement”), and (4) certain Loan
Agreements.23 Of particular importance, the Loan Agreements were drafted “to provide
debt financing to fund the Company’s [Specialty] expansions in line with the Plan
[Transaction] as negotiated by the parties.”24 The executed Loan Agreements
contained Term and Working Capital Loans.25 The Loan Agreements provide for a
Term Loan of $6.5 million and Working Capital Loan of $10 million,26 resulting in an
17

Id.
Id.
19
Id.
20
Id. at 8.
21
Id. at 1.
22
Id. at 8.
23
Id.
24
D.I. 57, Ex. E Declaration of Chris Kelley at 16.
25
D.I. 53 at 9.
26
Id.
18

4

aggregate loan limit of $16.5 million.
The combined loan limit of $16.5 million played a critical role in Article I of the
Operating Agreement because of its impact on calculating Net Debt.27 The Loan
Agreements state that:
“Net Debt” shall mean an amount equal to (i) 6.5 million Term Loan
plus (ii) the amount of debt owed by the Company [Specialty] to the
PharMerica member or its Affiliates under the Working Capital Loan
(as defined in the Loan Documents (as defined in the Purchase
Agreement)) minus (iii) the amount of the Company’s cash and
cash equivalents.28
Net Debt is the Term Loan plus the Working Capital Loan of Specialty minus
cash and cash equivalents. As discussed below, the Working Capital Loan is
defined in the Purchase Agreement (MIPA), which authorizes a loan limit of $10
million. Thus, Specialty was authorized under these agreements to have a Net
Debt of $16.5 million.29 The importance of the Net Debt loan limit of $16.5 million
is evident by its interplay in calculating the purchase price PCA must payPlaintiffs
in the Tier I and II buyouts.30 The Operating Agreement explicitly defines the
formula in Section 9.2(a) and provides that the purchase price:
shall be an amount equal to (A) (i) the product of (x) the trailing
twelve (12) months of EBITDA and (y) the Valuation Multiplier, less
(ii) the Net Debt of [Specialty], less (iii) the purchase price for any
acquisition of assets, business or by Person [Specialty], unless
such amount is included in the calculation of Net Debt multiplied by
(B) the Percentage Interests of [Specialty] being purchased.31

27

Id.
D.I. 57 at 21.
29
The $10 million Working Capital Loan plus the $6.5 million Term Loan.
30
D.I. 53 at 11.
31
Id.
28

5

Simply put, the purchase price to be paid in the Tier I and II buyouts equals
EBITDA times the EBITDA multiplier minus the Net Debt of Specialty. Net Debt and how
it is calculated are fundamentally material because Net Debt operates as an offset
resulting in a lower purchase price. The Net Debt cap of $16.5 million and, specifically,
the cap on the Working Capital Loan of $10 million, are material to the contract and the
Parties, because they protect the value of Plaintiffs’ interest in Specialty from artificial
devaluation.32 Thus, the cap on Net Debt is a contracted mechanism to prevent an
unfair offset of the purchase price, while providing a safe means to allow the Parties to
expand the business through an avenue to capital.
The Transaction between the Parties authorized Defendants under the Operating
Agreement the right to broadly manage all aspects of the business operations of
Specialty.33 The Operating Agreement provided important protections from Defendants’
broad rights.34 Plaintiffs held blocking rights on certain management decisions (“Major
Decisions”) per Section 5.8 of the Operating Agreement.35 This section, in defining
Major Decisions, provides:
causing (A) the sale, pledge, lease, or other disposition of all or any
substantial portion of the assets of [Specialty] or Subsidiaries (other
than sales of inventory in the ordinary course of business), or (B)
the granting or incurrence of any lien, mortgage, charge, pledge,
security interest or other similar encumbrance on all or any
substantial portion of the assets of Specialty or Subsidiaries, except
as contemplated by the Loan Documents (as defined by the
32

Artificial devaluation, for example, could occur by incurring excessive loans to
manipulate the formula.
33
D.I. 53 at 9.
34
Id.
35
D.I. 57 at 21. Under Section 5.8, Major Decisions may not be authorized
without 75% approval.
6

Purchase Agreement).36
Thus, Defendants had managerial power to incur loans so long as the loans did
not exceed the amount “contemplated” by the Loan Agreements “as defined in the
Purchase Agreement.”37 The only amount of debt contemplated by the Loan
Documents” is the Term Loan of $6.5 million and the Working Capital Loan of $10
million.38 Under the Purchase Agreement, the loan limits within the Loan Documents
are memorialized.39 In effect, Net Debt is capped at $16.5 million, and, any increases
above that amount, constitute a Major Decision under Section 5.8 which requires
Plaintiffs’ consent.40 Therefore, the Parties contemplated a Working Capital Loan limit
of $10 million and a Net Debt cap of $16.5 million.
Around June 5, 2015, after a Section 9.1(a) early buyout negotiation failed
because the parties could not agree as to the value of Specialty, Defendants, without
notice or approval of Plaintiffs, authorized Specialty to execute an Amended and
Restated Revolving Note (“First Amended Note”).41 The First Amended Note purports
to give Defendants the right increase the Working Capital Loan limit from $10 million to
approximately $32 million.42 Plaintiffs did not consent to this amendment. Plaintiffs
36

Id. (emphasis added).
Id.
38
D.I. 53 at 9.
39
D.I. 57 at 19. The Purchase Agreement defines the “Working Capital Loan
Commitment” as $10 million, the “Working Capital Loan Limit” to mean the Working
Capital Loan Commitment, and the “Working Capital Loan” to mean “the meaning
ascribed in the recitals [“up to the aggregate principal amount of 10,000,000"].
40
D.I. 53 at 20 (stating that Section 5.8 requires a 75% interest holder approval
for all Major Decisions).
41
Id. at 15. Plaintiffs assert the parties’ disagreement over the valuation of
Specialty resulted from Defendants’ bad faith by suppressing EBITDA.
42
Id.
37

7

contend the authorization and execution of the First Amended Note violates the Major
Decision Clause of the Operating Agreement, because Defendants increased Working
Capital Loans above $10 million, resulting in higher indebtness.43
Defendants argue that this modification was a not a Major Decision since
management did not “grant[] or incur[] any lien, security interest, or other similar
encumbrance on the Company’s assets.”44 They further reason the modification “simply
increased the borrowing limit of the Working Capital Loan,” and thereby, changed the
loan limit contemplated by the original Loan Documents.45 In effect, Defendants
contend that the Operating Agreement empowers them to unilaterally change the
Working Capital Loan limits of Specialty without violating the Major Decisions clause,
and thereby allows an increase in Working Capital Loans without Plaintiffs’ consent.
Plaintiffs stress this “tortured interpretation” of the Operating Agreement is wrong
because it makes their interest worthless and their protections in the deal illusory.46
In April 2016, after the execution of the First Amended Note, Plaintiffs and
Defendants attempted to negotiate an early buyout.47 The effect of the First Amended
Note on the buyout was reverberating. Defendants valued Specialty, under Section
9.2(a) of the Operating Agreement, at $48 million for Plaintiffs’ 62.5% interest.48

43

Id. at 21-22; see also D.I. 62. at 11-12 (arguing the amendments increased the
secured indebtness of Specialty).
44
D.I. 56 at 11.
45
D.I. 53 at 15.
46
D.I. 62 at 11-12 (noting “a unilateral change to one of the inputs in that formula
would render Section 11.(b)’s bargained for consent right illusory”).
47
D.I. 53 at 16.
48
Id. Defendants subsequently applied a Net Debt of $32 million to calculate a
purchase price of $16 million.
8

Plaintiffs contend Defendants improperly subtracted $32 million in Net Debt to
calculate the purchase price.49 Plaintiffs responded to the offer by noting the debt was
unauthorized, and Defendants were only allowed to purchase 30.5% of Askari’s 49%
interest and the full interest of another interest holder.50 Combined these two interests
constituted 62.5%, and PCA could not purchase that amount. As a result, Plaintiffs
withdrew from the negotiations and reiterated their objections to the “inflated debt” and
interest percentage sought to be purchased.51 On October 6, 2016, counsel for PCA
and PCM notified Plaintiffs that Defendants, again, amended the Loan Documents,
allowing for an additional $34 million increase in debt.52 Specialty, purportedly, could
borrow $70.5 million and subtract that figure as Net Debt from the valuation of the
company in the two-phased buyout. Plaintiffs objected on October 7, 2016. Defendants
did not respond to their objection.53
On December 7, 2016, with Tier I triggered, Defendants notified Plaintiffs that
they were exercising their Tier I right to buy 44.25% of interest in Specialty and sent a
check (the “Consideration”) for one dollar ($1.00).54 Plaintiffs returned the check.55
Thus, within a few months, Defendants valuation of the company changed from $16
million for 62.5% to $1 dollar for 44.25%, a significant reduction in the valuation of
Specialty. Plaintiffs contend that Defendants miscalculated the purchase price by
49

Id. at 16. Plaintiffs maintain that the proper Net Debt is $16.5 million, making
the purchase price at $32 million, not $16 million.
50
Id. at 16-17.
51
Id. at 17.
52
Id. at 18.
53
Id.
54
Id. at 19.
55
Id.
9

improperly using an inflated Net Debt amount and improperly attempting to purchase
44.25% of Specialty when they were only entitled to a maximum purchase of 28.65%.
III.

LEGAL STANDARD.
A.

Motion to Dismiss for Failure to State a Claim.

Fed. R. Civ. P. 12(b)(6) governs a motion to dismiss a complaint for failure to
state a claim upon which relief can be granted. The purpose of a motion under Rule
12(b)(6) is to test the sufficiency of the complaint, not to resolve disputed facts or decide
the merits of the case.56 “The issue is not whether a plaintiff will ultimately prevail, but
whether the claimant is entitled to offer evidence to support the claims.”57 A motion to
dismiss may be granted only if, after “accepting all well-pleaded allegations in the
complaint as true, and viewing them in the light most favorable to the plaintiff, plaintiff is
not entitled to relief.”58 While the court draws all reasonable factual inferences in the
light most favorable to a plaintiff, it rejects unsupported allegations, “bald assertions,”
and “legal conclusions.”59
56

Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993).
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997)
(internal quotations and citations omitted); see also Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 563 n.8 (2007) (“[W]hen a complaint adequately states a claim, it may not be
dismissed based on a district court's assessment that the plaintiff will fail to find
evidentiary support for his allegations or prove his claim to the satisfaction of the
factfinder.”).
58
Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000) (citing Burlington, 114
F.3d at 1420).
59
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (citations
omitted); see also Schuylkill Energy Res., Inc. v. Pa. Power & Light Co., 113 F.3d 405,
417 (3d Cir. 1997) (citations omitted) (rejecting “unsupported conclusions and
unwarranted inferences”); Associated Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526 (1983) (“It is not . . . proper to assume
[plaintiff] can prove facts that it has not alleged or that the defendants have violated the .
. . laws in ways that have not been alleged.”).
57

10

To survive a motion to dismiss, a plaintiff’s factual allegations must be sufficient
to “raise a right to relief above the speculative level . . . .”60 Plaintiffs are therefore
required to provide the grounds of their entitlement to relief beyond mere labels and
conclusions.61 Although heightened fact pleading is not required, “enough facts to state
a claim to relief that is plausible on its face” must be alleged.62 A claim has facial
plausibility when a plaintiff pleads factual content sufficient for the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.63 Once
stated adequately, a claim may be supported by showing any set of facts consistent
with the allegations in the complaint.64 Courts generally consider only the allegations
contained in the complaint, exhibits attached to the complaint, and matters of public
record when reviewing a motion to dismiss.
IV.

ANALYSIS
A complaint for breach of contract adequately pleads a claim for relief if it alleges

facts that support the following elements: the existence of a contract, whether express
or implied; a breach of an obligation imposed by that contract; and resultant damages to

60

Twombly, 550 U.S. at 555 (citations omitted); see also Victaulic Co. v. Tieman,
499 F.3d 227, 234 (3d Cir. 2007) (citing Twombly, 550 U.S. at 555).
61
See Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)).
62
Twombly, 550 U.S. at 570; see also Phillips v. County of Allegheny, 515 F.3d
224, 233 (3d Cir. 2008) (“In its general discussion, the Supreme Court explained that
the concept of a ‘showing’ requires only notice of a claim and its grounds, and
distinguished such a showing from ‘a pleader's bare averment that he wants relief and is
entitled to it.’”) (quoting Twombly, 550 U.S. at 555 n.3).
63
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
64
Twombly, 550 U.S. at 563 (citations omitted).
11

the plaintiff.65
Plaintiffs’ Am. Comp. undisputedly contains one of these three elements. It alleges
the existence of contracts, such as the Operating Agreement and MIPA, executed between
the Parties.66 As a result, the first element for breach of contract has been adequately pled.
The remaining issues are whether Plaintiffs assert adequate facts supporting elements two
and three: Defendants’ breach of an obligation imposed by the Operating Agreement and
damages resulted from the breach.
A complaint for breach of the implied covenant of good faith and fair dealing
adequately pleads a claim for relief if it alleges facts supporting the following: a specific
implied contractual obligation; a breach of that obligation; and resultant damages.67
Plaintiffs’ Am. Comp. contains one of these three elements since it alleges the existence
of an implied contractual obligation, specifically the Covenant of Good Faith and Fair
Dealing in Delaware.68 Therefore, the first element of the implied contract claim is
adequately pled by Plaintiffs. The remaining issues are whether sufficient facts are
alleged to support that Defendants breached their obligations, and whether damages
resulted from the breach of an implied covenant between the Parties.
A.

Individual Standing of Askari.
Direct Beneficiary/Third Party Beneficiary.

As a preliminary matter, a review of the individual standing of a plaintiff to enforce
65

Avaya Inc., RP v. Telecom Labs, Inc., 838 F.3d 354, 390 (3d Cir. 2016),
quoting VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 612 (Del. 2003).
66
D.I. 53 at 8.
67
Anderson v. Wachovia Mortg. Corp., 497 F. Supp. 2d 572 (D. Del. 2007).
68
D.I. 53 at 24; see also D.I. 62 at 15 (stating that under “Delaware law, a
covenant of good faith and fair dealing is implied in every contract.”).
12

direct claims for breach of a contract under Delaware law is required. Generally, “only
parties to a contract and intended third-party beneficiaries may enforce an agreement’s
provision.”69 The Operating Agreement is the contract alleged as breached by
Defendants. There is no dispute that Onco360 I-III, as signatories of the Operating
Agreement, are parties to the Operating Agreement and possess direct standing to
enforce its provisions. Askari is not a signatory to the Operating Agreement and his
direct standing is at issue,70 specifically whether Askari, as a individual plaintiff, asserted
facts sufficient to establish him as a party to the contract or as a third-party beneficiary.
If not, then Askari lacks standing.
Generally, a party to a contract is a signatory of the agreement. There are
exceptions to the general standard of being a signatory to gain direct party standing,
such as, the operation of incorporation by reference.71 Askari maintains that he is a
direct party to the Operating Agreement through incorporation by reference, or, at a
minimum, as a third-party beneficiary to the contract.72 Askari claims that the MIPA’s
incorporation by reference of the Operating Agreement and/or the Operating

69

D.I. 56 at 5 (citing E.I. du Pont de Nemours & Co. v. MacDermid Printing
Solutions L.L.C., 15-280-SLR, 2017 WL 1217207, at *3 (D. Del. 2017)).
70
D.I. 56 at 5.
71
See Kuroda v. SPJS Holdings, LLC, C.A. No. 4030-CC, WL 4880659, at *12
(Del. Ch. Nov. 30, 2010)(stating “specifically, courts have recognized several theories
under which a non- signatory to a contract may nonetheless be bound by an arbitration
provision contained in the agreement, including: (1) incorporation by reference; (2)
assumption; (3) agency; (4) veil piercing/alter ego; (5) third-party beneficiary; and (6)
equitable estoppel.”).
72
D.I. 62 at 8-10 (arguing that Askari has direct standing to sue); see also D.I. 62
at 10-11 (contending that “even if Askari is found not to have standing to assert the
claims . . . these interlocking contracts demonstrate that Askari is an intended thirdparty beneficiary of the Operating Agreement.”)
13

Agreement’s incorporation by reference of the MIPA are sufficient to make him a party
the Operating Agreement.73 Therefore, either situation, Askari maintains, authorizes
him to bring a direct claim to enforce the Operating Agreement in his individual capacity.

Under Delaware law, to incorporate the provisions of one document into another,
“an explicit manifestation of intent is required.”74 Askari argues that an explicit
manifestation of intent exists between the parties because the MIPA contained an
incorporation by reference provision. The MIPA states “this ‘Agreement’ means this
[MIPA], together with the Schedules and Exhibited hereto.”75 Exhibit E of the MIPA is a
draft form of the Operating Agreement. The parties acknowledged “that each of the
other parties (which includes Askari) has standing to enforce any of the provisions of the
Agreement (which by definition includes the Operating Agreement).”76 This language is
sufficient to meet the standards of Wolfson and Textron to plead a manifestation of
73

Id.
Wolfson v. Supermarkets Gen. Holdings Corp, No. Civ. A. 17041, 2001 WL
85697, at *5 (Del. Ch. Jan. 23, 2001)(emphasizing that “express language that clearly
effects such an incorporation” is required to incorporate one contract’s provision into
another. See also Textron, Inc. v. Acument Global Tech., Inc.,C.A. No 10C-07-103 JRJ
CCLD, 2014 WL 2903060, at *19 fn. 237 (Del. Super. Mar. 25, 2014)(quoting State ex
rel. Hirst v. Black, 83 A.2d 678, 681 (Del. Super. 1951) "[w]here a contract is executed
which refers to another instrument and makes the conditions of such other instrument a
part of it, the two will be interpreted together as the agreement of the
parties.")(emphasis added). This case further notes that “mere reference to a separate
document, without more, does not operate to incorporate said document into the
contract.”)(emphasis added); See Realty Growth Investors v. Counsel of Unit Owners,
435 A.2d 450 (Del. Supr. 1982) and Pauley Petroleum, Inc. v. Continental Oil Co., 231
A. 2d 450 (Del. Ch. 1967), aff’d. 239 A. 2d 629 (Del. Supr. 1968).
75
D.I. 62 at 9 (“this Agreement, the Company’s Disclosure Schedules, the
Exhibits referred to herein, and the documents delivered pursuant hereto contain the
entire understanding of the parties.”).
76
D.I. 62 at 9.
74

14

intent for incorporation by reference77 because the MIPA contains “express language
that clearly effects such an incorporation” of Exhibit E.78
Although Askari pleads sufficient facts to allege incorporation by reference,
Defendants argue that no incorporation by reference exists as a matter of law, because
Exhibit E was an incomplete and unexecuted draft of the Operating Agreement at the
time of the execution of the MIPA,79 and therefore, its terms cannot be incorporated by
reference into the MIPA.80 In support, they rely on Skouras v. Admiralty Enterprises,
which found that a document may only be incorporated into another agreement by
reference, if the referenced document is in “existence at the time” of the agreement and
the incorporated document is sufficiently identified.81 Defendants note that Exhibit E at
the time of execution of the MIPA, was an unfinished draft, and had not been signed by
the parties.82 Therefore, Defendants assert that the Operating Agreement may not be
incorporated by reference because it fails to meet a requirement of Skouras: it must
exist at the time of incorporation. As a result, Defendants contend that Askari does not
have individual standing. The court agrees that the MIPA’s incorporation of reference of
the Operating Agreement through Exhibit E fails to meet the Skouras requirement, and

77

Id. at 8-11.
Wolfson at *5.
79
D.I. 66 at 2.
80
Id.
81
Skouras v. Admiralty Enterprises, Inc., 386 A.2d 674, 678, fn 3 (Del. Ch. 1978).
(stating in fn 3 that “the strict requirements for incorporating by reference an otherwise
independent document are that such document be in existence when the incorporating
document is executed and that the document to be incorporated is referred to so as to
reasonably identify it.”).
82
D.I. 66 at 2. (maintaining that Exhibit E was a draft agreement that PCA, the
Company and other members clearly intended to enter “at a later date.”).
78

15

does not provide Askari standing.
Askari further argues that he is a party to the Operating Agreement because this
agreement incorporates the MIPA by reference, to which he is a signatory.83 The
Operating Agreement in Section 13.2 states “this Agreement together with the
documents expressly referred to herein . . . constitutes the entire agreement”84 and the
Operating Agreement specifically references the MIPA.85 Such language is a
manifestation of intent sufficient under Wolfson and Textron because it is an express
provision which incorporates the MIPA into the Operating Agreement.86
Additionally, the Skouras requirement is satisfied because the MIPA existed
when the Operating Agreement incorporated it by reference. Therefore, Askari pleads
sufficient facts which support that the Operating Agreement incorporates the MIPA by
reference, providing him standing to sue. Defendants’ motion to dismiss for Askari’s
lack of standing should be denied.
B.

Whether Counts II-III Should Be Dismissed.
Count II: Breach of the Operating Agreement by PCA.

Plaintiffs claim that PCA breached the express terms of the Operating Agreement
in Count II of the Am. Comp.87 Since the first element of breach of contract is
adequately pled, an examination of whether Plaintiffs allege sufficient facts to show that

83

D.I. 62 at 10 (contending that “the Operating Agreement itself specifically
acknowledges that the MIPA is part of the agreement between the parties.”).
84
Id.
85
Id.
86
Wolfson v. Supermarkets Gen. Holdings Corp. No. Civ. A. 17041, 2001 WL
85697, at *5 (Del. Ch. 2001).
87
D.I. 53 at 21-22.
16

PCA breached the express terms of the Operating Agreement, with damages resulting
from the breach, is required.
The Am. Comp. explicitly provides: “PCA breached the Operating Agreement by
using a Net Debt of $70,500,000 to calculate the price of Plaintiffs’ membership interest
when it purported to exercise First Call Right and failed to pay the contractually agreed
upon price.”88 Plaintiffs’ primary argument for breach of a contractual obligation is that
PCA improperly calculated the purchase price for Plaintiffs’ interest in Specialty by using
an excessive Net Debt figure.89 In response, Defendants maintain that Count II should
be dismissed because the unambiguous language of the Operating Agreement
contradicts Plaintiffs’ allegation that the Net Debt applied was excessive.90 The Net
Debt above the original Working Capital Loan limit, Defendants urge, was properly
executed and authorized by a managerial amendment to the Loan Documents.
Plaintiffs counter that any amendment to the Working Capital Loan limit must be
consistent with and is controlled by Section 5.8 of the Operating Agreement, the Major
Decisions clause.91 Section 5.8 of the Operating Agreement requires a 75% interest
approval and the amendments were made without meeting this requirement.92
Plaintiffs urge that Defendants’ amendments of the Working Capital Loan limit,
effectively an approval for increased spending, fall under Section 5.8 as an increase in
88

Id. at 22.
D.I. 62 at 11-12 (“the Amended Complaint . . . properly states a breach of
contract claim against PCA because PCA calculated the Purchase Price . . . using an
improperly inflated Net Debt, in violation of the terms of the Operating Agreement.”).
90
D.I. 56 at 8.
91
D.I. 62 at 12. Plaintiffs maintain that the effect of the amendments are an
increase in secured indebtness, and therefore, a Major Decision requiring their consent.
92
D.I. 52 at 9.
89

17

secured indebtedness, and, thus, is a Major Decision.93 Plaintiffs sufficiently pled facts
to state a claim that Defendants violated Sections 5.8 of the Operating Agreement
through the amendments.94 Plaintiffs further allege the amendments are major
decisions, and Defendants violated the Major Decision clause by amending the notes
without the consent of 75% of the interest holders. Plaintiffs also contend that
Defendants’ breach reduced the value of their interest in Specialty to a lower amount as
evidenced by Defendants’ offer of consideration. Plaintiffs claim that, but for the
unauthorized and improper Net Debt figure applied by Defendants in bad faith, their
interest is likely worth millions.95 As a result, Plaintiffs pled sufficient facts to support
elements two and three for breach of contract consistent with Rule 8.
Count III: Breach of the Operating Agreement by Managers.
Plaintiffs claim that Defendants, specifically the Managers, breached the terms of
the Operating Agreement in Count III of the Am. Comp.,96 by amending the Loan
Documents on two occasions, to increase the Working Capital Loan. Plaintiffs maintain
that the amendments violate Section 5.8 of the Operating Agreement because the
Managers increased the Working Capital Loan limit without a 75% interest holder
approval.97
Plaintiffs further contend that the amendments are invalid and the original,

93

Id. at 12.
Id.
95
D.I. 53 at 21-22.
96
Id. at 22-24.
97
D.I. 62 at 12-15.
94

18

unamended Loan Documents control the rights of the Parties.98 Such bad faith conduct,
Plaintiffs argue, reduced the purchase price of their interest below what it actually was if
the Working Capital Loan limit remained at $10 million. In light of these contentions,
Plaintiffs plead sufficient facts for a breach of contract claim against the individual
Managers of PCA and PCM. Count III of the Am. Comp. adequately states a claim
upon which relief may be granted.
C.

Whether Count IV, Covenant of Good Faith and Fair Dealing, Should
Be Dismissed.

Plaintiffs contend that Defendants breached the covenant of Good Faith and Fair
Dealing in Count IV of the Am. Comp.99 Under Delaware law, all contracts have an
implied covenant of Good Faith and Fair Dealing.100 The covenant requires parties to
the contract to refrain from “arbitrary and unreasonable conduct which has the effect of
preventing the other party to the contract from receiving the fruits of the bargain.”101
Parties who engage in arbitrary and unreasonable conduct breach the implied covenant
of good faith and fair dealing.102
Plaintiffs allege in the Am. Comp. that Defendants amended and increased the
Working Capital Loan “solely for the improper purpose of rendering Plaintiffs’
membership interest worthless, thereby denying the benefit of the bargain and violating

98

D.I. 53 at 24 (claiming the amendments to be a “material and intentional
breach of the Operating Agreement”).
99
Id. at 24-25.
100
D.I. 62 at 15; see HSMY, Inc. v. Getty Petroleum Mktg., Inc., 417 F. Supp 617,
621 (D. Del. 2006).
101
D.I. 62 at 16; see Dunlap v. State Farm Fire & Cas. Co. 878 A.2d 434, 442
(Del. 2005).
102
Id.
19

the implied covenant.”103 Specifically, the Am. Comp. contends that Defendants were
obligated not to manipulate Net Debt for an invalid purpose, and they breached their
duty of good faith and fair dealing by increasing the Working Capital Loan limit to “seven
times the amount agreed to in the Loan Documents without any justification including
any business need for the excess Working Capital.”104 Plaintiffs contend this breach
denied them the benefit of their bargain by dramatically reducing their interest in
Specialty.105 Such alleged conduct, Plaintiffs maintain, constituted an improper
action.106 As a result, Plaintiffs pled sufficient facts alleging a breach of the Implied
Covenant of Good Faith and Fair Dealing.
D.

Whether Count I Should Be Dismissed.

The allegations contained in Counts I-IV, if proven, Plaintiffs argue, would
establish that “no valid and binding exercise of the First Call Right”107 occurred and “any
purported purchase of [sic] by PCA of Plaintiffs’ interest in Specialty is null and void.”108
As noted previously, Plaintiffs maintain they own 62.5% of Specialty.109 They further
claim that Defendants are only entitled to purchase 28.65% of Plaintiffs’ interest on the
First Call Right; the Net Debt is limited to $16.5 million, unless 75% of the interest

103

D.I. 62 at 16. See also D.I. 53 at 25 stating “Defendants have wrongfully and
intentionally breached the duty of good faith and fair dealing by denying Plaintiffs the
benefit to which they are entitled under the Operating Agreement.”
104
D.I. 62 at 25. Plaintiffs further argue that even if the Major Decisions clause is
not implicated, and thus, consent is not required, Defendants still violated the implied
covenant because the action was taken for an improper purpose.
105
D.I. 62 at 16.
106
Id. at 17.
107
D.I. 53 at 25.
108
Id.
109
Id.
20

holders amended that limit; and absent a 75% approval, any purported increase of
Working Capital Loans was invalid.110 These contentions along with the facts contained
in the Am. Comp. form the bases for Plaintiffs’ Declaratory Judgment Action, which
adequately state a claim.
V.

RECOMMENDATION DISPOSITION.
Consistent with the findings herein, it is recommended that:
Defendants’ motion to dismiss the Am. Comp.(D.I. 55) be DENIED.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B),

FED. R. CIV. P. 72(b)(1), and D. DEL. LR 72.1. The parties may serve and file specific
written objections within fourteen (14) days after being served a copy of this Report and
Recommendation. The objections and responses to the objections are limited to ten
(10) pages each.
The parties are directed to the Court’s Standing Order in Non-Pro Se matters for
Objections Filed under FED. R. CIV. P. 72 dated October 9, 2013, a copy of which is
available on the Court’s website, located at http://www.ded.uscourts.gov.
Dated: May 7, 2018

110

Mary Pat Thynge
UNITED STATES MAGISTRATE JUDGE

Id. at 25-26.
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