Adam Klein & Tara Klein v. ECG Topco Holding, LLC ( 2022 )

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
LORI W. WILL LEONARD L. WILLIAMS JUSTICE CENTER
VICE CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734
Date Submitted: April 11, 2022
Date Decided: July 8, 2022
Geoffrey G. Grivner, Esquire Larry R. Wood, Jr., Esquire
Kody M. Sparks, Esquire Anna E. Currier, Esquire
Buchanan Ingersoll & Rooney PC Blank Rome LLP
500 Delaware Avenue, Suite 720 1201 North Market Street, Suite 800
Wilmington, Delaware 19801 Wilmington, Delaware 19801
RE: Adam Klein & Tara Klein v. ECG Topco Holding, LLC,
C.A. No. 2021-0701-LWW
Dear Counsel:
This decision addresses the defendant’s motion to dismiss under Court of
Chancery Rules 12(b)(1) and 12(b)(6). For the reasons discussed below, the motion
is granted. This action generally lacks an actual controversy and the plaintiffs seek
what amounts to an advisory opinion. The single portion of the dispute that appears
ripe fails to state a claim upon which relief can be granted. The plaintiffs’ claims
are therefore dismissed without prejudice.
C.A. No. 2021-0701-LWW
July 8, 2022
Page 2 of 17
I. FACTUAL BACKGROUND1
Plaintiff Adam Klein (“Klein”) is a Class B member of defendant ECG Topco
Holdings, LLC (the “Company”), a Delaware entity that owns a controlling interest
in healthcare consulting firm Executive Consulting Group, LLC.2 Klein was
employed by Executive Consulting Group from 2013 to 2020.3
On November 1, 2019, the Company’s members (including Klein) entered
into the Third Amended and Restated Limited Liability Company Agreement of
ECG Topco Holdings, LLC (the “LLC Agreement”).4 As of that date, Klein held
1,700,000 Class B units.5 On September 9, 2020, plaintiff Tara Klein took
possession of 90% of Klein’s units in connection with their divorce.6
The plaintiffs’ divorce agreement constituted a “Triggering Event” as defined
by the LLC Agreement.7 Section 8.02(h) of the LLC Agreement includes in its
1
The facts described in this section are drawn from the plaintiffs’ Verified Complaint and
the documents it incorporates by reference. Dkt. 1 (“Compl.”); see Winshall v. Viacom
Int’l, Inc., 76 A.3d 808, 818 (Del. 2013) (“[A] plaintiff may not reference certain
documents outside the complaint and at the same time prevent the court from considering
those documents’ actual terms.” (quoting Fletcher Int’l, Ltd. v. ION Geophysical Corp.,
2011 WL 1167088, at *3 n.17 (Del. Ch. Mar. 29, 2011))).
2
Compl. ¶¶ 1, 3-4, 9.
3
Id. ¶¶ 8, 25.
4
Compl. Ex. A (“LLC Agreement”) (Dkt. 1).
5
Compl. ¶ 9.
6
Id. ¶¶ 17-18.
7
Id. ¶ 19.
C.A. No. 2021-0701-LWW
July 8, 2022
Page 3 of 17
definition of Triggering Event the “possession [including by a Spouse as a result of
divorce] of an Affected Member’s Units.”8 On September 11, 2020, Klein delivered
a “Triggering Event Communication” to the Company pursuant to Section 8.02 of
the LLC Agreement.9
Section 8.01 of the LLC Agreement provides that, upon the occurrence of a
Triggering Event, a Class B member is “deemed to have made an offer to Transfer”
his or her units.10 The LLC Agreement explains that other Class B members, the
Company, or ECG Acquisition Inc. (the Company’s sole Class A and controlling
member) are to purchase the ”Affected Units” to be tendered after a Triggering
Event.11 Section 8.04 of the LLC Agreement sets out the procedure by which those
Affected Units are to be offered, the price to be paid for the units, and when and how
such payment is to be made.12
On October 23, 2020, Executive Consulting Group terminated Klein’s
employment.13 The LLC Agreement contains several restrictive covenants that run
from November 1, 2019 to the later of November 1, 2024 and the third anniversary
8
LLC Agreement § 8.02(h).
9
Compl. ¶ 20; see LLC Agreement § 8.02.
10
LLC Agreement § 8.01.
11
Id. § 8.04(a); see Compl. ¶ 21.
12
LLC Agreement § 8.04.
13
Compl. ¶ 25.
C.A. No. 2021-0701-LWW
July 8, 2022
Page 4 of 17
of the date a member is no longer providing services to the Company (in Klein’s
case, October 23, 2023).14 Section 12.02(a) of the LLC Agreement includes a non-
compete provision and Section 12.02(b) contains a non-solicitation provision.15
On November 11, 2020, counsel for the Company and Executive Consulting
Group sent Klein a draft severance agreement that required Klein to sell his units for
$0.30 per share.16 According to that draft agreement, the $0.30 per share price
represented the “Applicable Liquidation Value” of the units as of September 30,
2020, in accordance with the LLC Agreement.17
The plaintiffs’ Verified Complaint, in which they dispute the Company’s
interpretation of the purchase price provisions in the LLC Agreement as applied to
their units, was filed on August 16, 2021.18 The Complaint advances two counts.
Count One is styled as a breach of contract claim “seeking a determination
regarding the construction of the LLC Agreement.”19 The plaintiffs seek a series of
declarations as relief. Effectively, they ask the court to declare that the LLC
Agreement requires ECG Acquisition to purchase the Kleins’ units at $1 per share
14
LLC Agreement § 12.02(d); see Compl. ¶¶ 12-15.
15
See LLC Agreement §§ 12.02(a)-(b).
16
Compl. ¶ 26.
17
Id. ¶ 26.
18
Dkt. 1.
19
Compl. ¶ 41.
C.A. No. 2021-0701-LWW
July 8, 2022
Page 5 of 17
(the allegedly applicable “Triggering Event Purchase Price”), that ECG Acquisition
must pay for the units on a monthly basis over a three-year period that began on
September 9, 2020, and that ECG Acquisition is delinquent on those payments
(together, the “Payment Claim”).20 They also ask the court to declare that the
restrictive covenants in Sections 12.02(a) and 12.02(b) of the LLC Agreement are
void because the Company and ECG Acquisition breached that contract—the former
by failing to properly notify ECG Acquisition of its decision not to purchase the
Kleins’ units and the latter by failing to pay the Kleins (the “Purchase Notice
Claim”).21
Count Two is also styled as a breach of contract claim. The plaintiffs seek a
declaration that the restrictive covenants in Sections 12.02(a) and 12.02(b) of the
LLC Agreement are overbroad and unenforceable under Delaware law.22
The defendant moved to dismiss the Complaint on October 22, 2021.23 After
briefing was complete, I heard oral argument on the defendant’s motion on April 11,
2022.24
20
Specifically, the Payment Claim consists of the declaratory judgments sought in
paragraphs 45-49 of the Complaint.
21
Compl. ¶ 50.
22
Id. ¶¶ 51-58.
23
Dkt. 12.
24
Dkt. 31.
C.A. No. 2021-0701-LWW
July 8, 2022
Page 6 of 17
II. LEGAL ANALYSIS
The defendant seeks dismissal under Court of Chancery Rules 12(b)(1) and
12(b)(6). It argues that the court lacks subject matter jurisdiction over the plaintiffs’
claims because no justiciable controversy exists. The defendant also contends that
dismissal is proper under Rule 12(b)(6) because that the plaintiffs have not stated a
claim upon which relief can be granted.25 For the reasons discussed below, Count
One’s Payment Claim and Count Two are dismissed under Rule 12(b)(1) and Count
One’s Purchase Notice Claim is dismissed under Rule 12(b)(6).
A. Rule 12(b)(1) Arguments
When considering a motion to dismiss under Rule 12(b)(1) for lack of subject
matter jurisdiction, I must take all well-pleaded allegations as true and construe
reasonable inferences in the non-movant’s favor.26 “The burden of establishing the
Court’s subject matter jurisdiction rests with the party seeking the Court’s
intervention.”27
25
See Def.’s Opening Br. 1 (Dkt. 17).
26
de Adler v. Upper N.Y. Inv. Co., 2013 WL 5874645, at *7 (Del. Ch. Oct. 31, 2013).
27
Ropp v. King, 2007 WL 2198771, at *2 (Del. Ch. July 25, 2007).
C.A. No. 2021-0701-LWW
July 8, 2022
Page 7 of 17
This court has subject matter jurisdiction over a declaratory judgment action
where, among other things, an “actual controversy” exists between the parties.28 For
an actual controversy to exist, “the issue involved in the controversy must be ripe
for judicial determination.”29 Determining ripeness, in turn, requires “a common
sense assessment of whether the interests of the party seeking immediate relief
outweigh the concerns of the court ‘in postponing review until the question arises in
some more concrete and final form.’”30 A controversy is generally ripe where the
“material facts are static” and “litigation sooner or later appears to be unavoidable.”31
1. The Payment Claim
The defendant moves to dismiss the Payment Claim in Count One pursuant to
Rule 12(b)(1), arguing that the plaintiffs have not pleaded an actual controversy.
Though the plaintiffs attempt to parse the LLC Agreement to support an
28
Cedarview Opportunities Master Fund, L.P. v. Spanish Broad. Sys., Inc., 2018 WL
4057012, at *20 (Del. Ch. Aug. 27, 2018); see 10 Del. C. § 6501. The Complaint provides
that the court has subject matter jurisdiction pursuant to 6 Del. C. § 18-111. Compl. ¶ 5.
29
Stroud v. Milliken Enters., Inc., 552 A.2d 476, 480 (Del. 1989) (quoting Rollins Int’l,
Inc. v. Int’l Hydronics Corp., 303 A.2d 660, 663 (Del. 1973)); see also S’holder
Representative Servs. LLC v. Alexion Pharms., Inc., 2021 WL 3925937, at *4 (Del. Ch.
Sept. 1, 2021) (noting that “[r]ipeness, the simple question of whether a suit has been
brought at the correct time, goes to the very heart of whether a court has subject matter
jurisdiction”).
30
XL Specialty Ins. Co. v. WMI Liquid. Tr., 93 A.3d 1208, 1217 (Del. 2014) (quoting
Stroud, 552 A.2d at 480).
31
Id. (quoting Julian v. Julian, 2009 WL 2937121, at *3 (Del. Ch. Sept. 9, 2009)).
C.A. No. 2021-0701-LWW
July 8, 2022
Page 8 of 17
interpretation that would rebut the defendant’s argument, a review of that Agreement
reveals that the Payment Claim is unripe.
The plaintiffs allege that a Triggering Event under the LLC Agreement
occurred on September 9, 2020.32 Specifically, they contend that Klein’s transfer of
a portion of his Class B units to Tara Klein constituted a Triggering Event under
Section 8.02(h).33 Following Klein’s delivery of the Triggering Event
Communication on September 11, 2022, they assert, the other Class B members had
90 days to exercise an option to purchase the Kleins’ units, the Company had the
following 180 days to do the same, and—if the options remained unexercised—ECG
Acquisition was “required to purchase all or any portion of the Affected Units that
the Class B Members and the Company [did] not elect[] to purchase.”34 The
plaintiffs also allege that the price to be paid for the units is equal to the “Triggering
Event Purchase Price.”35
For Triggering Events “set forth in Section[s] 8.02(e)-(l),” the LLC
Agreement provides that the “Triggering Event Purchase Price shall equal the
Applicable Liquidation Value of such Affected Units as of the Applicable Valuation
32
Compl. ¶¶ 18-19.
33
LLC Agreement § 8.02(h).
34
Id. § 8.04(d); see id. § 8.04(a).
35
See id. § 8.04(f).
C.A. No. 2021-0701-LWW
July 8, 2022
Page 9 of 17
Date.”36 The Applicable Liquidation Value is the “Liquidation Value of a Class B
Unit as of each Valuation Date immediately preceding an Equity Event Date.”37 The
Valuation Date is September 30 of any given year and the earliest possible Equity
Event Date is January 31, 2023.38 The Applicable Valuation Date is “the Valuation
Date immediately prior to” the Triggering Event.39
A nonsensical result seems to arise from these competing definitions. Read
together, the Triggering Event Purchase Price after a Section 8.02(h) Triggering
Event is equal to a value set as of September 30, 2022 (the Valuation Date preceding
the Equity Event Date) which is itself set as of September 30, 2019 (the Valuation
Date prior to the Triggering Event).40 Thus, it is difficult to discern under the LLC
Agreement how much would be owed to the Kleins for their Class B units.
36
Id. § 8.04(c).
37
Id. § 7.09(a).
38
Id. § 1.01. The full definition of Equity Event Date in the LLC Agreement is “(i) January
31st of each year, beginning after the third (3rd) anniversary of the Effective Date, and if
earlier, (ii) January 31st of each year beginning in the year in which an Edmiston
Termination occurs; provided, that any Equity Event Date may be extended for up to 30
days by the Board, including the Class B Manager, in its discretion.” Id. Because the
“Effective Date” is November 1, 2019 and the “Edmiston Termination” scenario was not
triggered, the earliest possible Equity Event Date is January 31, 2023. Id. at Preamble;
Compl. ¶ 35.
39
LLC Agreement § 8.04(b)
40
Though the table in Section 8.04(f) seems to further confuse the issue by speaking in
terms of the “Fair Market Value,” the Fair Market Value is simply the Liquidation Value
for purposes of Article VIII of the LLC Agreement. Id. § 1.01.
C.A. No. 2021-0701-LWW
July 8, 2022
Page 10 of 17
There is comparatively less ambiguity, however, as to when ECG Acquisition
is required to pay the Triggering Event Purchase Price. Section 8.04(e) of the LLC
Agreement states that the “consummation of such sale shall be held at the offices of
the Company on the Equity Event Date . . . following the date the Class A Member
Purchase Notice was issued.”41 It is “[o]n the date determined in Section 8.04(e)
[that] the Affected Member shall . . . tender to . . . the Class A Member” their units.
And it is on that date that the Class A Member “shall pay the Affected Member the
Triggering Event Purchase Price . . . by way of the provision of an unsecured non-
negotiable promissory note . . . with an original principal balance and payment terms
as set forth on the table” in Section 8.04(f).42
The table in Section 8.04(f) states that the Company can choose between two
sets of payment terms following a Section 8.02(h) Triggering Event. One of the sets
requires the Company to pay the principal balance “in a single installment on [the]
3rd anniversary of [the] Triggering Event.”43
41
Id. § 8.04(e). Tying the applicable Equity Event Date to the Class A Member Purchase
Notice—which the plaintiffs allege has not been issued—seems to invite the possibility of
the payment date being delayed indefinitely. Because the plaintiffs do not raise this issue
in their Complaint, I do not address it in this letter opinion.
42
Id. § 8.04(f).
43
Id.
C.A. No. 2021-0701-LWW
July 8, 2022
Page 11 of 17
The parties agree that the earliest possible Equity Event Date is January 31,
2023 and that the Triggering Event date is September 9, 2019. As a result, the
earliest time at which ECG Acquisition would owe the plaintiffs a promissory note
is January 31, 2023. The earliest date on which the balance would become due—
given the plain language of the contract and under the payment terms described
above—is September 9, 2022.
Regardless of the internal inconsistency of having to pay off the principal
balance of a note before its issuance, the plaintiffs have not been harmed by any non-
payment of the Triggering Event Purchase Price—however defined—because
payment is not yet due. This court “decline[s] to render hypothetical opinions, that
is, [those] dependent on supposition.”44 Because I cannot determine whether the
plaintiffs will be satisfactorily paid for their Class B units at some point in the future,
the adjudication of the plaintiffs’ Payment Claim would be premature and
advisory.45 Judicial intervention may ultimately prove unnecessary.
44
Stroud, 552 A.2d at 480.
45
See id. at 479 (noting that while the Declaratory Judgment Act “may be employed as a
procedural device to ‘advance the stage at which a matter is traditionally justiciable,’ the
statute ‘is not to be used as a means of eliciting advisory opinions from the courts’”
(quoting Rollins Int’l, 303 A.2d at 662)).
C.A. No. 2021-0701-LWW
July 8, 2022
Page 12 of 17
Accordingly, the Payment Claim in Count One is unripe. It must be dismissed
without prejudice under Rule 12(b)(1).46
2. Count Two
The defendant also argues that Count Two does not present a justiciable
dispute under Rule 12(b)(1), asserting that the plaintiffs have failed to demonstrate
harm caused by the restrictive covenants in the LLC Agreement. The plaintiffs
disagree, claiming that the restrictions theoretically prevent Klein from activities
(such as soliciting Company customers) he might otherwise undertake.
Section 12.02(a) of the LLC Agreement prevents Klein from engaging in
“Competition”—that is, from “in any manner engag[ing] in any business or
enterprise . . . in which [ECG Topco] or any of its Subsidiaries” participates—until
November 1, 2024.47 Section 12.02(b) requires him to not “induce or attempt to
induce” the Company or its subsidiaries’ employees from leaving or their customers
46
Dismissals for lack of subject matter jurisdiction are generally without prejudice. See,
e.g., Intel Corp. v. Fortress Inv. Gp. LLC, 2021 WL 4470091, at *9 & n.79 (Del. Ch.
Sept. 30, 2021) (dismissing claims for lack of subject matter jurisdiction without prejudice
where jurisdiction was lacking because the relief sought was duplicative of adequate
remedies at law); Carlyle Inv. Mgmt. L.L.C. v. Moonmouth Co., 2015 WL 5278913, at *18
(Del. Ch. Sept. 10, 2015) (dismissing claims without prejudice where subject matter
jurisdiction was lacking because no actual controversy existed).
47
LLC Agreement §§ 1.01, 12.02(a), 12.02(d). More specifically, Klein is prevented from
engaging in Competition until the later of November 1, 2024 and the third anniversary of
his termination, October 23, 2023. See id. § 12.02(d).
C.A. No. 2021-0701-LWW
July 8, 2022
Page 13 of 17
and other “business relation[s]” from “materially alter[ing]” their relationships with
the Company.48
The Complaint is devoid of allegations suggesting that Klein is attempting to
(or would like to) solicit the Company’s clients but is restrained by Section 12.02(b).
Nor does it suggest that Klein has been unable to obtain employment or that he is
otherwise harmed by Section 12.02(a). The only allegations in the Complaint
concerning the restrictive covenants simply restate the covenants themselves.49 The
plaintiffs have therefore not pleaded a legitimate, non-hypothetical interest in having
the court determine the validity of the LLC Agreement’s restrictive covenants.50
As a result, Sapp v. Casey Employment Services, Inc., on which the plaintiffs
rely, is inapposite.51 In Sapp, the plaintiff alleged that she had “attempted, without
success, to find employment that would not violate the disputed covenant not to
compete,” that she did not have “any education, training or skills outside of the
48
Id. § 12.02(b).
49
Compl. ¶¶ 55-56.
50
See In re Digex, Inc. S’holders Litig., 789 A.2d 1176, 1206 (Del. Ch. 2000) (noting that
a ripeness determination involves a “practical evaluation of the legitimate interest of the
plaintiff in a prompt resolution of the question presented and the hardship that further
delay may threaten” (quoting Schick Inc. v. Amalgamated Clothing & Textile Workers
Union, 533 A.2d 1235, 1239 (Del. Ch. 1987))).
51
1989 WL 133628 (Del. Ch. Nov. 3, 1989).
C.A. No. 2021-0701-LWW
July 8, 2022
Page 14 of 17
[relevant] industry,” and that she was unemployed as a result.52 Nothing of the sort
is alleged here.53
Having failed to demonstrate an actual controversy between the parties, the
plaintiffs have not met their burden of establishing subject matter jurisdiction in this
court. Count Two is therefore also dismissed without prejudice.
B. Rule 12(b)(6) Arguments
Under Rule 12(b)(6), all well-pleaded allegations are accepted as true and
reasonable inferences are drawn in the non-movant’s favor.54 A complaint must be
dismissed where it “does not assert sufficient facts that, if proven, would entitle the
plaintiff to relief.”55
In the Purchase Notice Claim advanced in Count One, the plaintiffs assert that
the restrictive covenants in the LLC Agreement are void because the Company and
ECG Acquisition violated the LLC Agreement. They allegedly did so by,
52
Id. at *3.
53
See Def.’s Reply Br. 18-19 (Dkt. 21). According to a press release submitted by the
defendant, Klein has secured gainful employment at an accounting and consulting firm
since leaving Executive Consulting Group. See Weaver Continues Expansion of Health
Care Practice with the Addition of Adam Klein, Managing Director, Press Release
(Dec. 14, 2021); In re Duke Energy Corp. Deriv. Litig., 2016 WL 4543788, at *4 n.34 (Del.
Ch. Aug. 31, 2016) (taking judicial notice of a publicly available press release).
54
Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002).
55
In re Crimson Expl. Inc. S’holder Litig., 2014 WL 5449419, at *8 (Del. Ch. Oct. 24,
2014).
C.A. No. 2021-0701-LWW
July 8, 2022
Page 15 of 17
respectively, “not issuing a Purchase Notice” for the Kleins’ units and failing to
make required payments.56 Above, I dismissed the plaintiffs’ claim related to
alleged failure to make payments because it is not ripe. That argument can no longer
support the Purchase Notice Claim.
That leaves the aspect of the Purchase Note Claim based on the allegation that
“[the Company] has violated the LLC Agreement by not issuing a Purchase Notice
for the Affected Units.”57 The defendant argues that this contention cannot form the
basis of a reasonably conceivable claim because a purchase notice is not owed to the
Kleins.58
The plain language of the LLC Agreement supports the defendant’s argument.
The LLC Agreement requires the Company to give ECG Acquisition—not Class B
members—written notice “as soon as practicable” once it determines that ECG
56
Compl. ¶ 50.
57
Id.58
Def.’s Opening Br. 21. Though the defendant makes this argument in a section focused
on Rule 12(b)(1) and the plaintiffs respond in similarly titled section, where “the issue of
standing is so closely related to the merits, a motion to dismiss based on lack of standing
is properly considered under Rule 12(b)(6) rather than Rule 12(b)(1).” Appriva S’holder
Litig. Co. v. ev3, Inc., 937 A.2d 1275, 1285-86 (Del. 2007); see Pls.’ Answering Br. 27
(Dkt. 19). Because the defendant also moved under Rule 12(b)(6), I consider the parties’
arguments under that Rule.
C.A. No. 2021-0701-LWW
July 8, 2022
Page 16 of 17
Acquisition will be required to purchase a Class B member’s units after a Triggering
Event.59
But even if the Company failed to supply ECG Acquisition with notice, that
purported breach would not entitle the plaintiffs to the relief of voiding the restrictive
covenants that they seek.
When it comes to restrictive covenants of the type at issue here, “Delaware
courts excuse performance of non-compete obligations following a material breach”
that “goes to the essence” of the agreement.60 Often, the material breach involves
the non-payment of compensation by an employer as per the terms of an employment
agreement.61 That was the case in Physiotherapy Corp v. Moncure, for instance,
which the plaintiffs cite for support.62 There, the defendant employer’s breach
lowered the plaintiff’s compensation by 15-18% by affecting a portion of an
employment agreement that the plaintiff had specifically negotiated with the
employer.63 The court found that amount to be material and that aspect of the
contract “key”—it went “to the essence” of the agreement.64
59
LLC Agreement § 8.04(d).
60
Physiotherapy Corp. v. Moncure, 2018 WL 1256492, at *4 (Del. Ch. Mar. 12, 2018).
61
See, e.g., id.62
Id.63
Id. at *5.
64
Id. at *4, *6.
C.A. No. 2021-0701-LWW
July 8, 2022
Page 17 of 17
Here, the required notice to ECG Acquisition does not form the essence of the
LLC Agreement.65 Certainly, it does not form the essence of the LLC Agreement
for the plaintiffs, to whom no notice is owed. The plaintiffs do not even allege that
this breach is material or that they have been harmed by the Company’s alleged
failure to give notice to ECG Acquisition.
The Purchase Notice Claim in Count One is therefore dismissed without
prejudice under Rule 12(b)(6).
III. CONCLUSION
For the reasons described above, the Complaint is dismissed without prejudice
in its entirety. The parties shall confer on and submit an implementing order within
one week of this decision.
Sincerely yours,
/s/ Lori W. Will
Lori W. Will
Vice Chancellor
65
See id. at *5 (“A slight breach by one party . . . while giving rise to an action for damages,
will not necessarily terminate the obligations of the injured party to perform under the
contract.”).