The trial court, applying Delaware law, granted summary judgment for defendants. The court found no triable issue of material fact regarding the individual defendants' alleged breaches of fiduciary duty, and concomitantly no liability on behalf of McAfee and Intel for aiding and abetting. Plaintiff challenges the summary judgment as well as an earlier order setting the matter for a trial to the court without a jury.
For the reasons stated herein, we affirm the judgment as to the nine outside director defendants and reverse the judgment as to DeWalt and the corporate defendants.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. FACTUAL OVERVIEW
1. The Company
McAfee was founded in 1989 as a Delaware corporation with headquarters in Santa Clara. At the time of the merger, it was the world's largest dedicated
The nine other members of the board-defendants Charles Robel, Carl Bass, Thomas Darcy, Leslie Denend, Jeffrey Miller, Lorrie Norrington, Denis O'Leary, Robert Pangia, and Anthony Zingale-were outside, nonmanagement, nonemployee directors with combined executive and board experience in the technology, investment banking, and accounting fields, including dozens of merger and acquisition transactions. None of the independent directors joined Intel as directors or employees after the merger.
McAfee maintained close working relationships and alliances with numerous technology companies. As part of its regular diligence, the board of directors discussed McAfee's strategic relationships with other technology companies along a "full spectrum of options" from technology partnerships to mergers and acquisitions. It was DeWalt's role to update the board on these ongoing discussions, which he did as part of a "regular review process that
2. McAfee and Intel-Business Relationship and Early Merger Discussions
Before the merger, McAfee had a nearly decade-long relationship with Intel as a supplier of security software and a partner in research and development and marketing initiatives. In 2009, the companies agreed to collaborate in developing enhanced security technology using the expertise of both companies through a joint research-and-development project called "Patmos." Intel's Software and Services Group, led by the group's general manager and senior vice-president Renee James (James), was around this time also considering potential acquisitions as part of Intel's security strategy, including the possibility of acquiring an existing platform security company such as McAfee.
In March 2010, Intel requested a meeting with McAfee. DeWalt and Gerhard Watzinger, a McAfee executive vice-president, speculated that Intel
James later testified that the McAfee presentation "surprised" her because she anticipated a meeting about the joint development effort. DeWalt testified that the group led by James met "to ask questions about our business in the spirit of partnership, but certainly the questions that were being asked were probably more leading than just a partnership discussion."
After the March 2010 meeting, McAfee and Intel management continued their partnership discussions. Intel began vetting investment banks for advisory services in connection with a potential "deal" in the security sector. At one point Intel offered the advisory position to Morgan Stanley. Morgan Stanley declined, noting internally that it anticipated a more lucrative "revenue opportunity" providing sell-side advice to McAfee.
Meanwhile, DeWalt and James stayed in regular contact, which DeWalt understood as "partner oriented" and indicative of Intel's interest in security and in McAfee. A close collaboration began between McAfee and Intel management in a project that was dubbed "Inca." On April 4, 2010, representatives of both sides met at Intel's headquarters. The objective of the Inca meeting was to provide Intel with "necessary McAfee and technology background to build synergy matrix and [financial] model" and to "[i]dentify top opportunities for combined assets." The discussion centered on a list of eight joint business opportunities, including Patmos, that each represented a "$1B+ opportunity." Inca discussions continued throughout April and May 2010. McAfee added a segment-by-segment analysis of business opportunities to Intel's technology asset list, highlighting McAfee's "value-add" in terms of the eight "Billion Dollar" ideas. In early
In May and June 2010, James proposed to Intel's board of directors that Intel engage in acquisition discussions with McAfee. Intel's internal valuation
3. June 11 Proposal at $45 per share
James met with DeWalt on June 10, 2010 and verbally conveyed Intel's interest in making an offer at the price of $45 per share. DeWalt recalled it as the "first meeting ... where there was a strong indication of interest and that there might be an offer to follow." DeWalt's response to James was "if it didn't start with a five, it was a non starter." James later testified that "Dave [DeWalt] let me know 45 didn't work. ... Dave's words were: It needs to start with a 5."
The next day, James sent DeWalt a written request for exclusive negotiating rights and nonbinding proposal to acquire McAfee in a cash offer at $45 per share (June 11 proposal) subject to the completion of due diligence and board and regulatory approvals. The proposed price represented a 43 percent premium over McAfee's stock price, which had fallen since late 2009 and was trading in the low 30s. The June 11 proposal stated that Intel intended to oрerate McAfee as a standalone subsidiary and to retain "the current management team." DeWalt notified McAfee board chairman Robel, who called a special meeting for the next day.
In an e-mail to Intel's CEO and board subcommittee dated June 11, 2010, James reported "preliminary progress" with McAfee and stated that DeWalt had requested a nonbinding letter of intention to enter into due diligence despite "a price gap to their potential expectations ...." In a follow-up exchange with Andy Bryant (of Intel), James stated that DeWalt's "expected price" was "50." Bryant responded that a deal was possible "if that is where he is starting." James also recounted the meeting to her Intel colleague Donald Harbert, whose notes indicate that James believed the "gap is $5.00" between Intel's indication of interest at $45 and McAfee's expectations for an opening bid. Harbert's notes indicate that McAfee's stock price was "down" and Intel should make an offer "now before the stock goes up." The notes also reference a retention plan for the "top 41" and that DeWalt would "only want to stay 2 years."
4. McAfee's Response to the June 11 Proposal
The McAfee board was informed of ongoing joint partnership discussions between Intel and McAfee in the spring of 2010. Several board members
Yet several directors described Intel's June 11 proposal as unexpected and a surprise, based on views that Intel was not a likely acquirer and that DeWalt's briefings about discussions with Intel had remained focused on the joint venture. Defendant Robel explained that he thought Intel's increased interest in security and questions about McAfee's business might have been a "fishing expedition" because a combination with Intel was "pretty out of
The McAfee board met in formal sessions nine times following receipt of the June 11 proposal. At the first special meeting on June 12, 2010, DeWalt reviewed McAfee's relationship with Intel and updated the board on the partnering discussions that had taken place since late February 2010. DeWalt told the board that he believed Intel could be convinced to increase its price pеr share following initial due diligence. The board at that time retained transactional counsel, Wilson Sonsini, and considered several investment banks to serve as McAfee's financial advisor, ultimately selecting Morgan Stanley. The terms of engagement tied Morgan Stanley's compensation to the acquisition price and provided a higher fee for each per-share increase in sale price, with a multi-million dollar bonus for a price equal to or greater than $50 per share and a bonus of several times that amount for a sale at $55 per share or more.
McAfee's board reconvened several days later for an update on the due diligence sessions and McAfee's internal forecast. Morgan Stanley offered its preliminary analysis of the July 11 proposal in view of McAfee's financial performance, possible standalone scenarios, other potential bidders, and Morgan Stanley's valuation of McAfee at between $55.09 per share (base case) to $60.20 per share (high case). Following these discussions, the board decided to reject the June 11 proposal and directed DeWalt to communicate to Intel that $45 per share was inadequate. The focus of the board was to obtain an offer at a price that was "something above $50." According to defendant Lorrie Norrington, the board "had the specific conversation that 45 was too low and that ... it has to start with a five in order for the board to consider the offer."
DeWalt and Morgan Stanley separately communicated McAfee's rejection of the $45 offer. DeWalt testified that there was "an impasse" because "Intel
James spoke with DeWalt over the July 4th weekend and asked "will 50 get the deal done, if we go back to the board?" DeWalt, according to James, "said, no, 52 to 54. He stuck to it." James explained that she did not speak with DeWalt for "a couple weeks after" and decided to wait until the second quarter results, noting that McAfee was "in a falling market, their stock was going down, and we knew their quarter wasn't good. So we sаid: You know what? We see real weaknesses in their business. And we were concerned that we needed to wait and get more data."
Correspondence continued between James and DeWalt immediately following
McAfee's board met again on July 8, at which time DeWalt reported a pause in the merger discussions as Intel wished to wait until the full financial statements from McAfee's second quarter became available. Morgan Stanley confirmed DeWalt's information and reported that they had reiterated that Intel would need to increase its $45-per-share offer before McAfee would engage in more complete due diligence. Morgan Stanley also reported that one other potential acquirer identified by the board had indicated that it was not interested in pursuing an acquisition. DeWalt apparently did not inform the board about James's inquiry if $50 would "get the deal done" if she went back to Intel's board.
Intel revised its acquisition offer to $48 per share in a letter dated July 19 and delivered to DeWalt on July 20. The offer represented a 58 percent premium over McAfee's stock closing price on July 19 and demanded a 30-day exclusivity agreement.
McAfee's board convened special meetings on July 21 and July 22 to discuss the revised offer. DeWalt reported that based on his discussions with James, Intel "was not willing to further increase its offer" price. Morgan Stanley reported that it had received similar information from Intel's financial advisor and that it believed Intel would withdraw its offer if McAfee sought alternative bids or failed to agree to a 30-day exclusivity period. Morgan Stanley presented a valuation summary and the board discussed the conditions of the offer, market trends for mergers and acquisitions, the interest and ability of other potential acquirers to complete an acquisition, and whether to seek a further increase in the offer price. DeWalt reviewed the second quarter financial results and reasons that revenues had fallen below expeсtations, as well as several successes that McAfee had achieved that quarter. At the end of the meeting on July 22, McAfee's board authorized negotiations based on the $48-per-share offer but directed counsel to seek a shorter term of exclusivity.
The McAfee board held three special meetings in August to consider aspects of the proposed transaction. DeWalt's compensation and employment agreement with Intel also was negotiated and reviewed by the board's compensation committee. At the meeting on August 18, Morgan Stanley delivered a formal fairness opinion concluding that the acquisition price of $48 per share was "fair from a financial point of view" to the shareholders. The board approved the merger on August 18, 2010. On August 19, Intel and McAfee jointly announced an agreement for Intel to acquire all of McAfee's common stock for $48 per share in cash. The merger agreement included a "fiduciary out" clause that permitted
The proxy statement dated September 21, 2010, described in relevant part the McAfee-Intel joint partnership (Patmos) in 2009 and the meeting between James and DeWalt on June 10, 2010. It described McAfee's process, price negotiations, and communications with Intel between the June 11 proposal at $45 per share and receipt of the revised offer on July 20 at $48 per share, as well as Morgan Stanley's fairness opinion and the board's deliberations and consideration of alternative prospects before approving the agreement on August 18. It did not mention project Inca or pre-due diligence discussions or
No other company expressed interest in purchasing McAfee following the merger announcement. On November 2, 2010, McAfee's shareholders approved the merger, with 99.9 percent of voting shares in favor.
B. PROCEDURAL HISTORY
This class action consolidated several lawsuits filed in the Superior Court of Santa Clara County in August 2010
1. Operative Complaint
The operative, consolidated amended complaint (complaint) was filed on January 6, 2011, after McAfee's shareholders voted in favor of the merger on November 2, 2010, but before the deal closed after regulatory approvals. The complaint asserted a single cause of action for breach of fiduciary duties and aiding and abetting, claiming that the 10 individual defendants,
The complaint alleged that DeWalt "in particular" acted out of self-interest during the merger process in order to ensure his gains in an acquisition, and that he allegedly kept the other board members "in the dark" throughout the merger process-including by concealing information about management's exchanges with Intel on the value of McAfee's prospects and future products and by effectively "capping" McAfee's price expectations at $50. The
It alleged that in order to protect the deal with Intel, defendants entered into a merger agreement that was "steeped in preclusive deal protection provisions designed to guarantee that Intel did not lose its preferred position." These included a " 'No Shop' " provision that required McAfee to discontinue any discussions with other potential acquirers, a " 'Matching Rights' " provision that gave Intel five days to match any competing acquisition proposals that McAfee might receive, and a " 'Termination Fee' " provision in which McAfee would pay Intel $230 million if it accepted a higher offer despite the no shop provision.
The complaint also alleged that defendants withheld material information in proxy statements, depriving McAfee's shareholders of information about the flawed sales process, conflicts of interest that burdened the board and its advisors, McAfee's intrinsic value and prospects going forward, material benefits that defendants and McAfee management would secure only if the acquisition succeeded, and the flawed financial analysis supporting Morgan Stanley's fairness opinion.
The complaint in sum asserted thаt (1) defendants were motivated by lucrative personal gains, (2) the acquisition price of $48 per share was unfair and undervalued below McAfee management's own estimates, (3) the proxy statements to McAfee's public shareholders omitted material information about the merger process and the basis for Morgan Stanley's fairness analysis, and (4) defendants consequently breached their fiduciary obligation to obtain the highest value reasonably available for McAfee's shareholders.
The trial court overruled demurrers to the consolidated amended complaint on June 29, 2011.
2. Trial Setting
In January 2012, the trial court granted plaintiff's motion to intervene, certified the class, and appointed plaintiff as class representative. Several months later, defendants moved to amend certain pretrial and trial-setting orders to specify that the case would be tried to the court in a bench trial. Defendants argued that plaintiff was not entitled to a jury trial because under Delaware law, breach of fiduciary duty claims are equitable in nature and are subject to the exclusive jurisdiction of the Delaware Court of Chancery, with no right to a trial by jury in that court. Plaintiff opposed the motion and
In August 2012, the court denied a motion by plaintiff for leave to file a second amended complaint.
3. Summary Judgment
Defendants moved for summary judgment (Code Civ. Proc., § 437c)
Plaintiff in response raised no evidentiary objections but purported to dispute many of defendants' 185 material facts and raised 153 additional disputed material facts in support of its opposition. Plaintiff argued that triable issues of material fact precluded summary judgment, particularly concerning (1) strategic, informational, and timing disadvantages that McAfee faced in its haste to evaluate an offer that " 'surprised' " and " 'shocked' " the board members (despite McAfee's collaboration with Intel management on project Inca to identify and value strategic synergies), (2) DeWalt's "outright" rejection of James's $50-per-share overture, which allegedly caused Intel to "freeze" discussions at a critical juncture, (3) DeWalt's alleged concealment of the $50-per-share overture and the project Inca discussions from the board, and (4) the board's acceptance of Morgan Stanley's fairness analysis despite obvious reliance on " 'street' " valuations that undervalued the company because they "had no idea about the billions of dollars of additional value uncovered during the Project Inca discussions."
The trial court granted judgment in favor of defendants on November 2, 2012. The court noted there was no dispute that the McAfee charter contained an exculpatory provision pursuant to section 102, subdivision (b)(7) of the Delaware General Corporation Law ( 8 Del. Code, § 102(b)(7) ) shielding the
Regarding DeWalt, the court found that DeWalt's interest in the merger did not present a disqualifying conflict, particularly because Intel's interest in retaining McAfee management was disclosed in the June 11 proposal, and DeWalt's employment terms were negotiated after the board accepted the $48 price-per-share offer and were approved by the compensation committee. The court found no evidence that DeWalt's failure to notify McAfee's board about project Inca and the synergy discussions with Intel was the result of self-interest or placed McAfee "at a
Having found no triable issues of material fact related to the fiduciary duty claims, the court concluded there was no basis for relief for any alleged disclosure violations and that McAfee and Intel could not be liable for aiding and abetting. The trial court entered judgment for defendants on February 13, 2013. Plaintiff timely appealed.
II. DISCUSSION
Plaintiff asserts that in deciding the motion for summary judgment, the trial court disregarded its fundamental task to construe the evidence and draw all
A. SUMMARY JUDGMENT AND STANDARD OF REVIEW
A motion for summary judgment provides "a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." ( Aguilar v. Atlantic Richfield Co . (2001)
On appeal from a summary judgment, we "examine the record de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party." ( Miller v. Department of Corrections (2005)
A fundamental principle of Delaware law is that the "ultimate responsibility for managing the business and affairs of a corporation falls on its board of directors." ( Revlon, Inc. v. MacAndrews & Forbes Holdings (Del. 1986)
"When shareholders challenge actions by a board of directors, generally one of three standards of judicial review is applied: the traditional business judgment rule, an intermediate standard of enhanced judicial scrutiny, or the entire fairness analysis." ( Emerald Partners v. Berlin (Del. 2001)
In certain circumstances, however, including a sale of control, courts apply "enhanced scrutiny" to the decisions and actions of the directors to ensure that the directors' conduct is "reasonable." ( Paramount Communications v. QVC Network (Del. 1993)
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In sum, "[w]hen determining whether corporate fiduciaries have breached their duties, Delaware corporate law distinguishes between the standard of conduct and the standard of review." ( Chen v. Howard-Anderson (Del. Ch. 2014)
Our review of the grant of summary judgment in this case is closely bound to the applicable standard of review of the challenged transaction under Delaware law. (See Mills , supra ,
Defendants respond that plaintiff has not satisfied the prerequisites for entire fairness because there is no evidence that a majority of the directors acted out of self-interest ( Paramount, supra ,
The parties also dispute the effect of the exculpatory provision in McAfee's charter to limit personal liability of any independent directors for breaches of the duty of care. (See 8 Del. Code, § 102(b)(7).)
We begin by analyzing plaintiff's claim for entire fairness review and find that the standard was not met.
As summarized above, the operative standard of review "depends initially on whether the board members (i) were disinterested and independent (the business judgment rule), (ii) faced potential conflicts of interest because of the decisional dynamics present in particular recurring and recognizable situations (enhanced scrutiny), or (iii) confronted actual conflicts of interest such that the directors making the decision did not comprise a disinterested and independent board majority (entire fairness)." ( Trados , supra ,
a. Duty of Loyalty
The duty of loyalty under Delaware law "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." ( Cede , supra ,
The Delaware Supreme Court in Cede , supra ,
b. Duty of Care
"A director's duty to exercise an informed business judgment implicates the duty of care. Director liability for breaching the duty of care 'is
c. Exculpatory Provision under Section 102 (b )(7 )
We address as a preliminary matter the effect of the exculpatory provision in McAfee's charter, adopted pursuant to section 102, subdivision (b)(7) of the Delaware General Corporations Law (hereafter " section 102(b)(7)"). The purpose of section 102(b)(7) is to permit shareholders, through the certificate of incorporation, "to exculpate directors from any personal liability for the payment of monetary damages for breaches of their duty of care, but not for duty of loyalty violations, good faith violations and certain other conduct." ( Emerald Partners,
There is no dispute that McAfee's charter during the relevant time period contained a section 102(b)(7) exculpatory provision. The trial court found that McAfee's independent directors could not be held personally liable for breaches of the fiduciary duty of care, and accordingly analyzed the evidence as it pertained to the directors' alleged breaches of the duties of loyalty and good faith.
Plaintiff urges on appeal that any consideration of the exculpatory provision and its impact on defendants' potential liability is not proper at summary judgment and must be made after trial on the merits. (See, e.g.,
For present purposes, plaintiff is incorrect. "Depending on the facts of the case, the standard of review, and the procedural stage of the litigation, a court may be able to determine that a plaintiff's claims only involve breaches of the duty of care such that the court can apply an exculpatory provision to enter judgment in favor of the defendant directors before making a post-trial finding of a breach of fiduciary duty and determining the nature of the breach. If a court cannot make the requisite determination as a matter of law on a pre-trial record, then it becomes necessary to hold a trial and evaluate each director's potential liability individually." ( Chen , supra , 87 A.3d at pp. 676-677.)
Plaintiff's reliance on Emerging Communications is misplaced, because the transaction in that case (a " 'going private' acquisition of a corporation's minority stock by its majority stockholder") dictated the standard of review for entire fairness. ( Emerging Communications , supra ,
The transaction before us is not presumptively subject to entire fairness review. Since we proceed from the starting point of the business judgment rule (or enhanced scrutiny in connection with actions taken when merger negotiations began, see Lyondell , supra ,
We conclude that plaintiff's quest to establish entire fairness as the applicable standard of review and to defeat summary judgment as to the independent directors requires a showing of one or more triable issues of material fact pertаining to the non-exculpated loyalty or good faith claims against those directors. A failure to present evidence of a triable issue of material fact as to the non-exculpated breach of the fiduciary duty claims properly results in the affirmance of judgment in their favor. (See, e.g., Lyondell , supra , 970 A.2d at pp. 237-239 ; In re S. Peru Copper Corp. S'holder Derivative Litig . (Del. Ch. 2011)
d. The Record Does Not Support Review for Entire Fairness
Plaintiff argues that DeWalt's interest in the merger and alleged manipulation of the independent directors necessitates the application of entire fairness review. Plaintiff focuses on DeWalt's alleged concealment of James's $50-per-share overture and of the pre-due diligence, project Inca exchanges between McAfee and Intel leading up to the June 11 proposal. Plaintiff contends that the independent directors failed to take steps to protect against conflicts in the process, especially pertaining to DeWalt after the June 11 proposal stated Intel's intent to retain McAfee's management team. Plaintiff relies primarily on three cases to support this argument:
Mills involved an ongoing "battle for control" of Macmillan, Inc. (Mills, supra ,
On appeal, the Delaware Supreme Court emphasized that "judicial reluctance to assess the merits of a business decision ends in the face of illicit manipulation of a
Bomarko involved the merger of International Telecharge, Inc. (ITI), into a corporation that was wholly-owned by ITI's chairman and CEO, Ronald Haan. ( Bomarko , supra , 794 A.2d at pp. 1164-1165.) ITI was facing default
The Court of Chancery observed that Haan's illicit counter-proposal "interfered with whatever opportunity ITI had to obtain financing from Bell Atlantic." ( Bomarko, supra ,
In Weinberger , acquirer (Signal) owned a majority interest of stock in target (UOP), and several Signal directors and employees served on UOP's board of directors. ( Weinberger , supra , 457 A.2d at pp. 703-704.) Two mеmbers of Signal's senior management, who were also UOP directors, prepared a feasibility study about acquiring the balance of UOP's outstanding shares. The study concluded that it "would be a good investment for Signal ... at any price up to $24 [per share]." ( Id . at p. 705.) After UOP's president and CEO (who also was a Signal director) responded favorably to Signal's intent to acquire
The Delaware Supreme Court emphasized that the feasibility study was of material significance to UOP and its shareholders. ( Weinberger , supra ,
Plaintiff likens DeWalt's conduct to that of the CEOs in Mills and Bomarko and the conflicted directors in Weinberger . Plaintiff points out that DeWalt never disclosed James's inquiry about $50-per-share to the McAfee board or its financial advisors, depriving them of material information against which to gauge the $48-per-share offer that came after. Plaintiff also asserts that DeWalt concealed project Inca and the pre-June 2010 merger discussions with Intel from the McAfee board members, produced key documents associated with project Inca only at the very end of discovery in this case, and was evasive and "affirmatively lied" in his deposition regarding McAfee's pre-June 2010 dealings with Intel and the timing of discussions with Intel about keeping McAfee's management team in a transition.
Defendants contest the relevance of Mills , Bomarko , and Weinberger to this case. We agree that the record as it relates to DeWalt's self-interest, alleged acts of deceit and concealment, and the efficacy of the board as a neutral decisionmaking body, contains no semblance of the conflicting interests or obstructive, manipulative conduct that permeated those cases and mandated review for entire fairness.
First, regarding DeWalt's self-interest, plaintiff presents DeWalt's actions as motivated by a lucrative career built on "pushing the companies he leads into change-of-control transactions" at "extraordinary financial benefits" to himself. Plaintiff asserts that DeWalt's expectation of post-merger emplоyment predated the June 11 proposal by a few months based on indications that Intel would want a McAfee acquisition to be consistent with its recent acquisition of another company called Wind River. In support, plaintiff points to deposition testimony in which DeWalt stated that during discussions Intel "would point to the ways in which they had acquired a previous firm called Wind River and what they had done with that structure." Plaintiff argues that like Haan in Bomarko , supra , 794 A.2d at pages 1173 through 1174, who the court found had "attempted to conceal" ( id . at p. 1174 ) his wrongful actions, DeWalt "affirmatively lied" in deposition regarding his future employment interest. Although DeWalt responded "No" after being asked whether his June 10 meeting with James included any discussion of keeping McAfee's management on board through an acquisition, he also testified (only a few
Plaintiff also points to notes produced in connection with the deposition of James's colleague at Intel, Donald Harbert, as support for plaintiff's argument that DeWalt angled early for his employment terms with Intel. The notes appear to indicate that James described her June 10 meeting with DeWalt to Harbert, who wrote that McAfee's top management would need a retention plan and that DeWalt would only want to stay two years.
We find that plaintiff has not raised a triable issue of material fact as to DeWalt's postmerger employment. It is undisputed that the June 11 proposal received by DeWalt and the McAfee board indicated Intel's intent to retain McAfee management. DeWalt and James separately testified that employee retention agreements were discussed later in the process, аfter McAfee's board had approved the $48-per-share price, and the terms of DeWalt's employment with Intel, including his compensation package and bonus, were discussed even later. Plaintiff does not argue that any aspect of those negotiations were improper. At most, the evidence viewed in the light most favorable to plaintiff supports an inference that DeWalt had reason to believe, leading up the June 11 proposal, that he would be asked to stay on as McAfee's head in the event of an acquisition by Intel and that he indicated the extent of interest in such an arrangement (i.e., not more than two years) during their June 10 meeting. This is insufficient for a showing that DeWalt's interest in the transaction diverged from that of McAfee's shareholders. (See Cede , supra ,
In fact, the Delaware Supreme Court spoke to the issue of actual or assumed director interest in Cinerama : " 'The fact that some interested transactions are permitted under our corporate law demonstrates that they are not inherently detrimental to a corporation. As long as a given transaction is fair to the corporation, and no confidential relationship betrayed, it may not matter that certain corporate officers will profit as the result of it. ... The key to upholding an interested transaction is the approval of some neutral decision-making body.' " ( Cinerama , supra ,
Here, the June 11 proposal dispels any inference that DeWalt concealed his future employment prospects from the independent directors. Plaintiff's reference to Krasner v. Moffett (Del. 2003)
More comparable are the facts in In re Toys "R" Us, Inc. (Del. Ch. 2005)
Next, plaintiff asserts that DeWalt hampered the board's deliberative process by concealing project Inca and James's overture asking whether $50 per share would "get the deal done."
The record establishes that DeWalt contemplated the possibility of an acquisition by Intel as early as his first meeting with James and Intel representatives in March 2010, and brainstorming about potential synergies of an acquisition began in earnest after the meeting at Intel's headquarters on April 4, 2010. According to a "McAfee/Intel Partnership Chronology" that McAfee's Gerhard Watzinger sent to DeWalt shortly after McAfee received the June 11 proposal, April 2010 was the "first brainstorming meeting with Intel about potential synergies of an acquisition," and in May 2010 there were "various meetings and calls with Intel regarding pre-due diligence data collection." The record reflects detailed exchanges between McAfee and Intel management during this period. In an e-mail on May 28, Watzinger told DeWalt that "Inca" was sending "[l]ot's [sic ] of requests for data; i.e. gross margins of businesses, renewal vs. x-sell vs. new customers, attrition, etc." The record shows that DeWalt did not update the board specifically about project Inca or these
On the other hand, the evidence shows that the independent directors expected DeWalt to engage in discussions with potential partners and acquirers and viewed the related exchanges of information to be appropriate. Chairman Robel testified that in the spring of 2010, DeWalt told him that Intel had "expressed a greater interest in McAfee" and was "looking at additional information," and that DeWalt had meetings with James over "some period of weeks." Accоrding to Robel, "it wouldn't have been unusual" in that context for DeWalt to have "provided all sorts of analysis around our business, their business, and the opportunities between the two." When Robel learned that Intel "was asking more questions about the business," he believed it might have been a "fishing expedition" because a combination with Intel was "pretty out of the box and is subsequently viewed by people as being pretty out of the box."
The expressions of surprise at Intel's June 11 proposal appear to be closely tied to this generally-held view that Intel was an unlikely acquirer. For example, defendant Pangia testified that DeWalt "kept the board abreast of discussions that ... evolved initially from what we thought would be a joint
Even DeWalt, according to James's testimony about their June 10th meeting, "seemed surprised that we actually gave him an offer ...." These statements support the inference that the independent directors had only a high-level understanding of the exploratory merger discussions between McAfee and Intel management; they do not support an inference that the independent directors were uninformed or kept in the dark about those discussions.
Upon receiving the June 11 proposal, the McAfee board retained Morgan Stanley to serve as McAfee's financial advisor. Plaintiff contends that neither DeWalt nor Morgan Stanley provided the board with the appropriate discussion materials or quantitative analysis about the synergies and "billion-dollar" opportunities identified in the project Inca collaboration. Contrary to this claim, the record reflects discussion of these topics between McAfee management, Morgan Stanley, and the McAfee board, though not in direct reference to "billion dollar" or "$1B+" ideas. Each of the eight "billion dollar" opportunities was outlined in the "Key Synergies" section of McAfee's presentation to Intel during due diligence meetings beginning on June 15.
In addition, Morgan Stanley's lead advisor to McAfee testified that he discussed "the synergy potential for a transaction" with McAfee's management but did not include "revenue synergies" in the analysis to the McAfee board because they were "focused on the stand-alone value of the business" and synergies "are not something that McAfee can achieve on a stand-alone basis." When director defendant Carl Bass was questioned about each of the "billion-dollar" opportunities, he responded as to each that he was familiar and was not sure if McAfee had prepared financial models, but "would hope" that Morgan Stanley and McAfee management had not placed a value on the potential revenues from the opportunities because "it's a speculative market" and at the time the merger was under consideration "wasn't at the point of being substantial enough to value in that way."
Plaintiff points to Intel's substantially higher internal valuation of McAfee at between $56 and $90 per share when including "financial and strategic" synergies
DeWalt's failure to disclose James's $50 overture presents a closer question; but the same reasoning prevails insofar as it impacts the standard of review. The record shows that McAfee's presentations to Intel during the early June due diligence negotiations led James to surmise that Morgan Stanley had "convinced" McAfee that they were "worth 55"-a value that James testified her team had "backed into" and believed to be "very lofty ...." Negotiations during the final week of June 2010 left James "modestly confident" that if Intel was prepared to offer $50 per share, they would "get a handshake."
James testified that she spoke with DeWalt over the weekend of July 4th and asked "will 50 get the deal done" if she were to get authorization for that amount from Intel's board, noting "[i]t's outside our engagement range." According to James, DeWalt responded "no, 52 to 54." James testified that she did not speak with DeWalt for "a couple weeks after," having decided to wait until the second quarter results. James explained that McAfee was "in a falling market, their stock was going down, and we knew their quarter wasn't good. So we said: You know what? We see real weaknesses in their business. And we were concerned that we needed to wait and get more data."
Several McAfee board members testified that they did not recall hearing about any such communication from Intel. Defendant O'Leary stated that he
Plaintiff argues that like Haan in Bomarko , DeWalt's actions "make it impossible to know what would have happened if
While James testified that she recalled not speaking with DeWalt for "a couple weeks after," having decided to wait until the second quarter results, the e-mail communication immediately following the 4th of July weekend showed that James continued to seek information from DeWalt that could help her justify a higher offer.
This record does not support an inference that DeWalt was acting other than in McAfee's interest by seeking to convince Intel that McAfee's second quarter results merited an offer in its "expectation range." Nor is there evidence from which to infer that Intel's board was prepared to authorize a higher offer, or that DeWalt deceived the independent dirеctors after receipt of the $48-per-share offer by advising that Intel "was not willing to further increase its offer to acquire the Company." The internal exchanges between James and Andy Bryant suggest that while James had considered approaching Intel's board for authorization up to $50, Bryant advised her that she needed "better news" from McAfee in order to do so. James responded that she had "confirmation
The evidence related to the marketplace outlook and second quarter results further does not support an inference that an offer higher than $48 per share would have been forthcoming. Plaintiff points out that despite falling below market expectations, McAfee's revenue results still represented the "17th consecutive quarter of double-digit, year-over-year revenue growth." This fact must be viewed in the context in which merger negotiations were taking place. James testified that McAfee's "stock was going down" and that around the time of Intel's June 11 proposal, "[t]he business went off a cliff," dropping another $3 by the time McAfee's board had accepted the second offer. According to James, McAfee had missed its second quarter and showed "very weak forward guidance." James communicated internally to Intel's board committee that she had waited for written confirmation of McAfee's second quarter results, which "were in line with what we expected," before making the revised offer. DeWalt described the results as "mixed" with McAfee having "missed pretty substantially" analyst expectations in a few key categories but having beat expectations in others. Chairman Robel testified that "it was not a good quarter" and "there was a lot more cloud around the company's ability to grow in the future." And Dr. Shaw testified that Intel's board at that time was watching McAfee's market performance "very closely ... and it actually wasn't doing well."
Thus, plaintiff relies on inferences that are not supported by the record. Setting aside whether DeWalt's failure to share the details of his conversation with James raises any triable issues related to his individual fiduciary duties, we find that the
2. The Enhanced Scrutiny Analysis
Having concluded that plaintiff did not meet its burden to establish entire fairness review, we turn to consider whether the trial court erred in finding no triable issues of material fact as to either the independent directors
a. Independent Directors
In opposing the motion for summary judgment, plaintiff did not dispute that the independent directors-who comprised nine of the 10 members of McAfee's board-were experienced, outside directors, none of whom joined Intel after the merger. Indeed, plaintiff on appeal does not appear to contest the independent directors' independence, meaning that each director's decision was "based entirely on the corporate merits of the transaction and [was] not influenced by personal or extraneous considerations." ( Cede , supra ,
Rather, plaintiff contends that triable issues of fact exist with respect to the independent directors' alleged failure to oversee conflicted fiduciaries-namely, DeWalt. This argument requires little additional consideration, given our conclusion above that plaintiff failed to establish a triable issue of fact concerning DeWalt's fiduciary duty of loyalty based on post-merger employment and financial interest in the merger. (See ante , section II.C.1.d.) Plaintiff cites no authority under Delaware law to support its argument that DeWalt's interest in the transaction-which was established by the June 11 proposal-required the board to take direct control of the negotiations with Intel or to form an independent committee. Delaware courts have rejected similar arguments in cases where the evidence showed the board met its overall supervisory obligations. (See,
Here, the record is devoid of any similar evidence of board passivity. Plaintiff does not challenge defendants' showing that upon receiving the June 11 proposal, the board, not DeWalt, retained outside legal counsel and financial advisors and negotiated the terms of Morgan Stanley's engagement with significant incentives for securing a higher offer. After determining that Intel's initial offer was too low, the board directed DeWalt to communicate to Intel that $45 per share was inadequate. The board met in formal session nine times over the course of about nine weeks of negotiations for updates on the process and considered reports from the board's advisors as well as DeWalt. During that time, with input from Morgan Stanley, the board considered other potential acquirers and their likely ability to complete an acquisition and ultimately directed DeWalt to approach the most likely company suitor, which declined, in order to gauge its interest.
On this record, we find no support for the alleged, "virtual abandonment" of the independent directors' oversight functions "in the face of [DeWalt's] patent self-interest." (Cf. Mills , supra ,
Plaintiff also contends that there are triable issues as to whether the independent directors actеd in bad faith by consciously disregarding their obligation to disclose all material information in the proxy statement. Plaintiff argues that if the independent directors were informed of discussions between Intel and McAfee leading up to the June 11 proposal, then they were required to disclose those discussions in the proxy statement, and their knowing disregard of that obligation violated their duties of loyalty and good faith.
Under Delaware law, "the obligation to disclose all material facts fairly when seeking shareholder action is merely a specific application of the duties of care and loyalty." ( In re Transkaryotic Therapies, Inc . (Del. Ch. 2008)
We find plaintiff's contention that the failure to disclose the pre-June 2010 discussions and document exchanges between McAfee and Intel was "knowing" or "intentional" to be wholly conclusory. The Delaware Supreme Court's decision in Arnold is instructive. There, the plaintiff sought to prove that alleged disclosure violations qualified as exceptions to the section 102(b)(7) exculpatory provision by arguing, in relevant part, that the defendants' knowing or deliberate failure to make proper and complete disclosures implicated the duty of loyalty and the proscription against knowing, intentional violations of the law. ( Arnold, supra , 650 A.2d at pp. 1287-1288.) The court rejected this argument as unsupported by the record, noting that the individual defendants did not violate the duty of loyalty under the facts of the case and the record did not support an intentional disclosure violation. ( Id . at p. 1288.) The court added, in dictum,
So too here, the independent directors did not breach the duty of loyalty under the facts of the case, and plaintiff fails to offer evidence that any disclosure violation was knowing or deliberate. Plaintiff relies on the independent directors' purported awareness of the evolving discussions between Intel and McAfee prior to June 2010. We find that under Arnold , the fact that defendants were generally informed about the discussions thаt precipitated the June 11 proposal does not in and of itself create a triable issue of fact as to whether the information was omitted from the proxy materials due to a failure of loyalty or bad faith. Following Arnold , "a violation of the duty of disclosure is not necessarily a breach of the duty of loyalty." ( Cinerama, supra ,
Plaintiff cites Chen,
Accordingly, summary judgment is appropriate because any disclosure violation would implicate only the duty of care and would not lead to the imposition of monetary damages under McAfee's section 102(b)(7) exculpatory provision. (See Transkaryotic,
b. DeWalt
This decision already summarized in detail plaintiff's contentions and the evidence demonstrating DeWalt's allegedly self-interested and deceitful conduct. (See ante , section ii.C.1.d.) We found that DeWalt's interest in the transaction " 'was disclosed[,] and a majority of the non-interested directors approved the transaction in good faith.' " ( Cinerama, supra ,
Next we found that DeWalt provided high-level updates, consistent with the board's expectations during the early merger discussions. After Intel unveiled its initial offer in the June 11 proposal, the board retained experienced transactional and financial advisors and consulted with those advisors throughout the process. We found no triable issues concerning DeWalt's alleged concealment of project Inca or failure to inform the board or Morgan Stanley about management's synergy discussions with Intel prior to June 2010. Finally, we concluded that DeWalt's rebuff of James's $50 overture and apparent failure to disclose it to the board or to McAfee's financial advisors did not undermine
Plaintiff contends that DeWalt knowingly concealed James's overture from the board and, what is more, continued the deception when a couple of weeks later, Intel revised its offer to $48-per-share and communicated that it would go no higher. Defendants deny that DeWalt concealed a $50-per-share "offer" from the board, as James had made it clear that she did not have authorization at that level. Defendants point to James's testimony that DeWalt responded "no, 52 to 54" as evidence that DeWalt handled James's "fishing expedition" negotiating tactic by appropriately trying to get more money for McAfee's stockholders and not by selling them out. They argue that plaintiff's inability
Plaintiff argues that this assessment improperly drew inferences in defendants' favor related to DeWalt's motive, even though in analyzing a corporate fiduciary's disloyalty or failure to act in good faith, "[i]t makes no differencе the reason why the director intentionally fails to pursue the best interests of the corporation." ( In re Walt Disney Co. Derivative Litigation, supra ,
We resolve this debate through the lens of enhanced scrutiny review, recalling that it is the directors' burden to prove that they acted reasonably in light of the circumstances at the time. ( Paramount , supra ,
Applying these principles in order to determine whether a triable issue of material fact exists on the subject of DeWalt's response to and subsequent nondisclosure of James's overture, we find that consideration of motive is inevitable. That is, a reasonable trier of fact could not find that DeWalt " 'intentionally act[ed] with a purpose other than that of advancing the best interests of the corporation' " or " 'intentionally fail[ed] to act in the face of a known duty to act, demonstrating a conscious disregard for his duties' " ( Walt Disney, supra ,
There are two aspects of DeWalt's conduct at issue-the response to James's overture and the subsequent nondisclosure. We find the fact that DeWalt rebuffed James by citing a higher, desired offer price insufficient to support an inference that DeWalt was acting disloyally or in bad faith. We agree with the trial court that DeWalt's rejection of James's negotiation tactic and push for an offer in the $52-54 range cannot be reasonably construed as anything but negotiating for an authorized, higher amount-conduct consistent with the duty to seek the "best value reasonably available for the stockholders." ( Paramount, supra ,
DeWalt's failure to disclose the overture to the board and ultimately to the shareholders, however, does not survive the same analysis. The evidence shows that DeWalt did not tell the board or its advisors that about two weeks before Intel made its revised offer at $48 per share, James had probed him about "will 50 get the deal done," if she were to get authorization for that amount from Intel's board.
While there are many plausible explanations for DeWalt not mentioning the overture to the board and its advisors, there is no direct evidence on this point, and any resulting inferences appear to be conflicting. (Cf. Chen , supra ,
Even if the evidence is insufficient to create a triable issue of material
Plaintiff contends that the evidence of DeWalt's conduct "without question" raises potential due care violations. Yet the trial court did not address the due care aspect of plaintiff's claim in its decision granting summary judgment for defendants, and plaintiff presents no specific analysis to support its claim that DeWalt's failure to disclose James's overture breached this standard of fiduciary conduct. On remand, the trier of fact must weigh the evidence relevant to the nondisclosure issue as it relates to DeWalt's alleged breach of fiduciary duty-be it based on bad faith or on an omission that falls outside the bounds of reason.
Defendants argue that the proxy statement disclosed all material facts concerning the June 11 proposal and subsequent negotiations, including that DeWalt told James that the McAfee board "would not be interested in accepting an offer price below $50.00 per share," and that James indicated that Intel's board "would not support an offer price of $50.00 per share."
Yet in this case there is no evidence that the omission of James's overture to DeWalt from the proxy statement was the product of reasoned business judgment, because DeWalt never disclosed the interaction to the board or its advisors. This stands in contrast with circumstances that Delaware courts have found to fall appropriately within the range of reasonableness required under enhanced scrutiny. For example, in Dollar Thrifty , the plaintiffs alleged that the Dollar Thrifty board failed to reach out to a potential suitor (Avis) before finalizing the merger transaction with Hertz, and specifically alleged that Dollar Thrifty's CEO lied about his reasons for turning down a dinner invitation from the Avis CEO even though he had "suspicions" that perhaps
To summarize, we find that plaintiff has raised one or more triable issues of material fact related to DeWalt's apparent nondisclosure of arguably material information about James's $50-per-share overture. Even if the evidence at the time that Intel made its revised offer at $48 per share showed that it was Intel's best and final offer (see ante , section II.C.2.a), conflicting inferences emerge as to why DeWalt did not mention James's probing inquiry two weeks earlier. DeWalt bears the burden under the enhanced scrutiny standard of review to show that he exercised his fiduciary duties in furtherance of the obligation "to secure the transaction offering the best value reasonably available for the stockholders ...." ( Paramount, supra ,
3. Aiding and Abetting
Plaintiff's complaint asserted a single cause of action for breach of fiduciary duties and aiding and abetting and identified McAfee and Intel each as "an aider and abettor" to the conduct alleged. A claim for aiding and abetting a breach of fiduciary duty requires proof of: "(1) the existence of a fiduciary relationship; (2) a breach of a fiduciary duty; (3) knowing participation in the breach by a defendant
Defendants correctly point out that aiding and abetting liability requires an underlying breach of duty. (See Manzo v . Rite Aid Corp .,
Here, the sole basis for defendants' motion on the aiding and abetting claim, and the basis on which the trial court granted summary judgment in favor of defendants McAfee and Intel, was the claimed absence of an underlying breach of duty. By relying entirely on the theory that plaintiffs could not demonstrate a triable issue on any breach of fiduciary duty claim, defendants have failed to meet their initial burden to show that one or more elements of the aiding and abetting cause of action cannot be established ( § 437c, subd. (p)(2) ) with respect to an assumed breach by DeWalt. Since we conclude that triable issues remain as to the fiduciary duty and disclosure claim against DeWalt, the trial court's determination that McAfee and Intel cannot be liable for aiding and abetting must be reversed.
D. JURY TRIAL
Plaintiff contends that the trial court improperly denied its right to a jury trial under the California Constitution. ( Cal. Const. art. I, § 16.) According to plaintiff, its claim for breach of fiduciary duty and aiding and abetting should be characterized as an action at law rather than in equity because (1) the relief sought is legal (damages), (2) California law characterizes the relationship between shareholders and the directors and officers of a corporation as legal in nature, and (3) model jury instructions envision jury trials on breach of fiduciary duty claims. Defendants respond that the matter is properly tried to the court without a jury because plaintiff's breach of fiduciary duty claims are equitable in nature. Both sides cite California law governing the right to a jury trial but disagree about whether California or Delaware law should apply in determining the nature of the action.
Under California law, " '[t]he jury trial is a matter of right in a civil action at law, but not in equity.' " ( C & K Engineering Contractors v. Amber Steel Co . (1978)
The California Supreme Court reiterated these principles in a decision addressing in relevant part the right to a jury trial on a cause of action for wrongful termination in violation of public policy. ( Shaw v . Superior Court (2017)
As set forth in the Restatement (Second) Conflict of Laws section 122, "A court usually applies its own local law rules prescribing how litigation shall be conducted even when it applies the local law rules of another state to resolve other issues in the case." (Rest.2d Conf. of Laws,
In arguing that Delaware law determines the nature of the action, defendants misapprehend the reach of the internal affairs doctrine, which pertains to the substantive law governing the outcome of the litigation-specifically to provide " 'the relevant corporate governance general standard of care' " based on the state of a businesses' incorporation. ( State Farm Mutual Automobile Ins. Co. v. Superior Court (2003)
The question thus narrowed is whether plaintiff's shareholder class action for breach of fiduciary duty, brought under Delaware law, is legal or equitable in nature under California law. Plaintiff emphasizes that the relief sought in this case is legal because the complaint sought money damages for defendants' breach of fiduciary duty and withholding of material information. Specifically, plaintiff sought: (1) "damages to the class in an amount to be proven at trial, caused by defendants' breaches of fiduciary duties in connection with the Acquisition," (2) rescission of "the Merger Agreement or any of the terms thereof, and the Acquisition," and (3) "such other and further equitable relief as this Court may deem just and proper."
We note that the prayer for relief, though not conclusive, is weighted toward equitable remedies. Notably, the pleading for damages is tied to the conduct of McAfee's former directors "in connection with the Acquisition,"
Interactive Multimedia, supra ,
Plaintiff's effort to distinguish Interactive Multimedia as a dispute between minority and majority shareholders, rather than between shareholders and the board of directors, is unavailing. The fiduciary duty action implicated directors of the former corporation as well as the majority shareholder, and the court's ruling applied to both. ( Interactive Multimedia , supra ,
Plaintiff also seeks to refute or limit the principle articulated in Interactive Multimedia by arguing that the relationship between shareholders and the directors of a corporation is not one of trust but of agency. Plaintiff relies on the following passage from Bainbridge v . Stoner (1940)
We are not persuaded that our high court's statement in Bainbridge has direct application here.
Similarly in In re Cantrell (9th Cir. 2003)
Even accepting the relationship between corporate directors and shareholders as an agency relationship in the circumstances discussed in Bainbridge does not resolve how this shareholder action for breach of fiduciary duty should be viewed, as between an action cognizable at law or in equity. (See C & K Engineering , supra ,
We conclude, based on the nature of the allegations and relief sought in this case,
The judgment is affirmed as to defendants Charles Robel, Carl Bass, Thomas Darcy, Leslie Denend, Jeffrey Miller, Lorrie Norrington, Denis O'Leary, Robert Pangia, and Anthony Zingale.
The judgment is reversed as to defendants David DeWalt, McAfee, Inc., and Intel Corporation.
Each side shall bear its own costs on appeal.
WE CONCUR:
Rushing, P.J.
Walsh, J.
Notes
Portions of the record and the parties' briefs on appeal were filed under seal pursuant to this court's orders of June 25, 2014, November 25, 2014 and June 18, 2015. Having determined that the facts relevant to our decision on the appeal are no longer subject to an "overriding interest that overcomes the right of public access" to the records (see Cal. Rules of Court, rule 2.550(d) ; NBC Subsidiary(KNBC-TV), Inc. v. Superior Court(1999)
Two lawsuits also were filed in the Delaware Court of Chancery and consolidated; the plaintiffs in that action voluntarily dismissed their complaints in July 2011.
The individual defendants, as noted in our discussion of the facts, are David DeWalt, Charles Robel, Carl Bass, Thomas Darcy, Leslie Denend, Jeffrey Miller, Lorrie Norrington, Denis O'Leary, Robert Pangia, and Anthony Zingale.
Plaintiff petitioned for review of the trial court's order denying a jury trial. This court summarily denied the petition for writ of mandate on July 12, 2012.
Unspecified statutory references are to the Code of Civil Procedure.
The exculpatory provision in McAfee's Third Amended and Restated Articles of Incorporation states in relevant part that the directors are "not personally liable ... for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law ...."
Delaware's business judgment rule has procedural and substantive applications. " ' "As a rule of evidence, it creates a 'presumption that in making a business decision, the directors of a corporation acted on an informed basis [i.e., with due care], in good faith and in the honest belief that the action taken was in the best interest of the company.' [Citation.] The presumption initially attaches to a director-approved transaction ... in the absence of any evidence of 'fraud, bad faith, or self-dealing in the usual sense of personal profit or betterment.' " ' " (Cede, supra,
Plaintiff does not dispute that defendants met their initial burden under section 437c, subdivision (p)(2). We therefore do not examine the showing in support of the summary judgment motion except insofar as it may be relevant to the discussion.
Certain Delaware authority relied on by the parties is unpublished. We note that although an unpublished California case opinion may not be cited or relied upon (Cal. Rules of Court, rule 8.1115 ), citing unpublished opinions from other jurisdictions for their persuasive value does not violate this rule. (See In re Farm Raised Salmon Cases(2008)
Harbert was not present for the June 10 meeting between James and DeWalt. Harbert testified that his personal notes were intended for what he might need to remember from a discussion, not to make a record.
Several other defendants explained their surprise at the June 11 proposal. Defendant Bass testified that he was "surprised" by the $45-per-share proposal because he "thought it was a rich offer" and did not think of Intel as a likely buyer. Defendant O'Leary testified that there were "continual briefings from our CEO about discussions with Intel" in which "James was involved and some other Intel execs," though O'Leary had understood the discussions to be focused on the joint venture. Defendant Darcy did not recall discussions about an acquisition by Intel before the June 11 proposal and was surprised because he "didn't quite view Intel as a potential acquirer of McAfee ...."
Side-by-side comparison of McAfee's "key synergies" slides and the document circulated between Intel and McAfee management in April 2010 shows all eight categories of "$1B+" opportunities reflected in the due diligence рresentation, including "Embedded device protection," "Security for mobile/handheld devices," "Patmos," and others. Although plaintiff contends that McAfee's slides contained no quantification of value or revenue potential, neither does the document that was circulated in April 2010, which contains columns for "Technology," "McAfee Value-Add," "Description," and "Opportunity Mapping" (connecting each technology to one of the eight "$1B+" categories) but does not quantify values or reference financial data or projections.
James explained in her deposition Intel's use of the terms "financial" and "strategic" synergies. Financial synergies were those that Intel "could directly calculate," such as "ability to address markets that Intel was in that McAfee was not, and their ability to expand their distribution as part of Intel." Strategic synergies were "more hopeful than direct calculation" and represented markets that Intel was looking to enter.
In an e-mail to Andy Bryant of Intel dated June 30, 2010, James described the discussions that week with DeWalt, Morgan Stanley, and Wilson Sonsini: "they get that we weren't going to get to or near 50 last week-Dave has not been willing to affirm other than he would work to get his board to say 'they would do 50' ... and we know some of the board is at 52-55 ...."
James sent an e-mail to DeWalt on the evening of July 5, 2010-apparently just after the conversation she testified took place that weekend which reads: "Hi, Happy 4th of July-just checking in as I know you were busy last week with the quarter close. Hope all turned out well there-any updates you can share? I think we should schedule a call this week and see if we can get going."
The trial court explained that plaintiff's argument (that DeWalt rejected James's offer without discussing it with the board or advisors to cause the board to "abandon the price range it had determined to be fair and settle for a lower price") was "difficult to reconcile with Plaintiff's theory that DeWalt's main objective was to facilitate the sale of McAfee. Moreover, it is undisputed that in refusing James's $50 offer, DeWalt sought a higher price in the '$52 to $54' range .... Thus, DeWalt's refusal cannot be reasonably construed as anything but negotiating for an authorized, higher amount, not an effort to drive McAfee's expectations lower."
As plaintiff points out, it also appears from the record that James had spoken with DeWalt once prior to the conversation over the July 4th weekend about the possibility of seeking a deal at $50.
We note that on remand, if the trial court finds it impossible to separate actions taken by DeWalt in fulfillment of his directorial duties from actions taken in fulfillment of his duties as CEO, the duty of care claim against DeWalt must be exculpated pursuant to the section 102(b)(7) provision. (See Arnold,
Plaintiff complains that defendants cite to nothing more than the proxy statement in support of the assertion that Intel's board would not support an offer at $50 per share. Plaintiff fails to recognize other evidence in the record that supports this paragraph of the proxy statement, including an e-mail from James to Andy Bryant on June 30, 2010, in which she confirmed, "they get that we weren't going to get to or near 50 last week-Dave has not been willing to affirm other than he would work to get his board to say 'they would do 50' ... and we know some of the board is at 52-55 ...."
The Restatement has discarded the approach of classifying issues as substantive or procedural. (Rest.2d Conf. of Laws, § 122, com. b, p. 352.)
The complete statement in Bainbridge reads: "One who is a director of a corporation acts in a fiduciary capacity, and the law does not allow him to secure any personal advantage as against the corporation or its stockholders. [Citations.] However, strictly speaking, the relationship is not one of trust, but of agency, although it has been held that a director must comply with the requirements of section 2230 of the Civil Code relating to trustees. [Citations.] But having no title to the property in his charge, [the director] was not an express trustee of it as a director or officer of the corporation." (Bainbridge, supra, 16 Cal.2d at pp. 427-428,
Furthermore, to the extent that we look to whether " ' " 'the action has to deal with ordinary common-law rights cognizable in courts of law' " ' " (Shaw,
That these are equitable principles also appears in a case from 1860, Neall v. Hill(1860)
These cases suggest that in addressing alleged breaches of duty by corporate fiduciaries, the courts of equity were not confined to remedies like an accounting but could compensate for "any loss occasioned by [the directors'] negligence or improper conduct." (Neall,
See Judicial Council of California Civil Jury Instruction Nos. 4100 through 4102. The referenced model instructions' "Directions for Use" expressly assume that the plaintiff is bringing a legal cause of action, not an action in equity.
We recognize that our conclusion does not foreclose the right to a jury trial in all or other shareholder actions against corporate fiduciaries, which may invoke different factual scenarios or allegations that are cognizable at law.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.