Jerald Hammann v. Adamis Pharmaceuticals Corporation ( 2023 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
JERALD HAMMANN, )
)
Plaintiff, )
)
v. )
) C.A. No. 2021-0506-PAF
ADAMIS PHARMACEUTICALS )
CORPORATION, DENNIS J. CARLO, )
RICHARD C. WILLIAMS, HOWARD C. )
BIRNDORF, ROSHAWN A. BLUNT, and )
DAVID J. MARGUGLIO, )
)
Defendants. )
MEMORANDUM OPINION
Date Submitted: May 1, 2023
Date Decided: August 23, 2023
Jerald Hammann, Plaintiff, pro se.
Rolin P. Bissell, James M. Yoch, Jr., Alberto E. Chávez, YOUNG CONAWAY
STARGATT & TAYLOR, LLP, Wilmington, Delaware; Michael C. Holmes,
Robert P. Ritchie, Jeremy R. Gonzalez, VINSON & ELKINS L.L.P., Dallas, Texas;
Attorneys for Defendants.
FIORAVANTI, Vice Chancellor
Plaintiff Jerald Hammann commenced this action in June 2021, several weeks
after Adamis Pharmaceutical Corporation (“Adamis” or the “Company”) rejected
his director nominations and stockholder proposals for consideration at the 2021
annual meeting of stockholders. The Company rejected the nominations and
proposals because they were delivered after the deadline provided in the Company’s
advance notice bylaw. The court denied Hammann’s application to enjoin the 2021
annual meeting, but agreed to hold an expedited trial on his colorable claim under
Schnell v. Chris-Craft Industries, Inc., 285 A.2d 437 (Del. 1985), alleging that the
Company had inequitably scheduled the meeting and buried its announcement in an
annual report with the purpose of thwarting Hammann’s efforts. The court
suggested a trial in September 2021 and noted that if Hammann were to prevail, the
court could either require Adamis to conduct a new 2021 annual meeting that would
include Hammann’s slate and proposals or, alternatively, compel the Company to
include Hammann’s slate and proposals on the ballot for the 2022 annual meeting.
After obtaining expedited proceedings and an opportunity for a prompt trial,
Hammann did not press his case. He delayed in responding to the defendants’
scheduling proposals and never presented a schedule to the court. Then, starting in
March 2022, Hammann filed serial motions to enjoin Adamis and its directors from
filling vacancies and convening the 2022 annual meeting. By that time, Hammann
was free to submit his proposals and nominees for election at the 2022 meeting, but
for unexplained reasons, he chose not to do so. Hammann also sought to amend and
supplement his complaint. The court denied Hammann’s injunction applications,
but permitted him to amend his complaint. Due to Plaintiff’s torpor, the court
declined a last-minute bid to bifurcate the case and to hold a trial on Hammann’s
Schnell claim in advance of the fast-approaching 2022 annual meeting.
On March 16, 2023, the court held a trial on a paper record and heard argument
on the defendants’ motions to dismiss and for summary judgment. Thereafter,
Hammann filed a second motion for sanctions, and the defendants filed a motion to
compel Hammann to comply with an earlier fee-shifting order. In this post-trial
opinion, the court concludes that Hammann’s claims are largely moot and otherwise
do not establish damages or a right to other relief. 1
1
The court will address the remaining motions for sanctions and contempt in a separate
order.
2
I. BACKGROUND
These are the facts as the court finds them after trial.2
A. Parties
Jerald Hammann is an investor and activist stockholder who resides in
Minnesota. He is no stranger to litigation in Delaware and beyond, and he frequently
represents himself. 3
2
After being identified initially, individuals are referenced herein by their surnames
without regard to formal titles such as “Dr.” No disrespect is intended. Unless otherwise
indicated, references to the parties’ briefs refer to the parties’ pretrial briefs. Citations in
the form “PX” refer to the exhibits attached to the Hammann affidavits, as attached to
Plaintiff’s opening and reply pretrial briefs. Dkts. 107–109, 123. References to
“Hammann Aff.” refer to the Affidavit of Jerald Hammann re: Facts Supporting Claims
filed in tandem with Plaintiff’s Opening Pretrial Brief. Dkt. 109. Citations in the form
“DX” refer to the exhibits attached to Defendants’ pretrial answering brief. Dkts. 119–
120. Facts drawn from the parties’ Pre-Trial Stipulation and Order are cited as “PTO ¶ #.”
Dkt. 106.
3
See Hammann v. CytRx Corp., C.A. No. 2021-0676-PAF (Del. Ch.) (appearing pro se
and seeking a temporary restraining order and expedited proceedings); Hammann v. LadRx
Corp., C.A. No. 2022-1101-PAF (Del. Ch.) (appearing pro se and seeking specific
performance); see also Hammann v. Deyo, 2010 WL 154212 (Minn. Ct. App. Jan. 19,
2010); Hammann v. Falls/Pinnacle, LLC, 562 U.S. 1198 (2011); Hammann v.
Falls/Pinnacle, LLC, 562 U.S. 1272 (2011); Hammann v. Wells Fargo Bank, N.A., 141
S.Ct. 368 (2020); Hammann v. 1-800 Ideas, Inc., 690 F. App’x. 956 (9th Cir. 2017);
Hammann v. Schwan’s Sales Enters., Inc., 2004 WL 1049170 (Minn. Ct. App. May 11,
2004); Hammann v. Sexton Lofts, LLC, 136 S.Ct. 2023 (2016); Hammann v. 1-800 Ideas,
Inc., 138 S.Ct. 2609 (2018); Hammann v. Wells Fargo Bank, N.A., 138 S.Ct. 482 (2017);
Streambend Props. II, LLC v. Ivy Tower Minneapolis, LLC, 577 U.S. 808 (2015);
Streambend Props., LLC v. The Carlyle Condos, LLC, 2010 WL 11534596 (D. Minn. Aug.
3, 2010); Hammann v. Turnstone Calhoun L.L.C., 2008 WL 2885800 (Minn. Ct. App. July
29, 2008); Streambend Props. II, LLC v. Ivy Tower Minneapolis, LLC, 2017 WL 66381(D. Minn. Jan. 6, 2017), aff’d, 701 F. App’x 544 (8th Cir. 2017); Streambend Props. II,
LLC v. Ivy Tower Minneapolis LLC, 2019 WL 2332409 (Minn. Ct. App. June 3, 2019),
cert. denied, 140 S.Ct. 1118 (2020). In one action, Hammann was adjudicated as a
3
A few years ago, Hammann developed a business model of approaching
struggling biotechnology or biopharmaceutical companies to propose reforms and a
consulting arrangement for himself. Should the company decline Hammann’s
modest proposal, he floats the prospect of running a proxy contest. His business
model has, in some respects, proved lucrative. For example, in early 2020,
Hammann initiated a proxy contest against CytRx Corporation (“CytRx”). 4 CytRx
entered into a “Cooperation Agreement” with Hammann, under which he agreed to
terminate the proxy contest for payment of $275,000 and certain corporate reforms.5
In January 2021, Hammann approached Advaxis, Inc. (“Advaxis”). After
Hammann mentioned a possible proxy contest, Advaxis promptly retained
Hammann’s private consulting firm for $150,000 and other contingent payments.6
Hammann and his consulting firm were not asked to provide any consulting services
after they executed the agreement.7 After inking his deal with Advaxis, Hammann
“frivolous litigant” under the Minnesota practice rules, resulting in the imposition of
preconditions before he could file new claims. See Deyo, 2010 WL 154212, at *7–8
(affirming trial court ruling that Hammann was a frivolous litigant). A frivolous litigant is
defined under the Minnesota rules as one “‘who, after a claim has been finally determined
against the person, repeatedly relitigates or attempts to relitigate either’ finally-determined
matters or one who maintains claims not well-grounded in law.” Id. at *7 (quoting Minn.
Gen. R. Pract. 9.06(b)(1), (3)).
4
PTO ¶ 10.
5
Id. ¶ 11; DX 1 at 135:1–12 (Hammann).
6
PTO ¶¶ 12–13; DX 1 at 121:2–20 (Hammann).
7
DX 1 at 128:25–129:17 (Hammann).
4
immediately set his sights on Adamis, a Delaware corporation focused on
developing and commercializing products for therapeutic use. At that time, the
Adamis board consisted of Dennis J. Carlo, Richard C. Williams, Howard C.
Birndorf, Roshawn A. Blunt, and David J. Marguglio (together with Adamis, the
“Defendants”). Carlo also served as the Company’s President and Chief Executive
Officer. Marguglio was a Senior Vice President and Chief Business Officer.
B. Hammann Approaches Adamis
On February 9, 2021, eight days after the public announcement of the Advaxis
consulting agreement, Hammann sent an email to Adamis’s investor relations
department, requesting “a phone conversation this week with Mr. Dennis Carlo
regarding the future of the Company.”8 At the time of this email, Hammann was not
a stockholder of Adamis.9
The parties’ descriptions of their future interactions vary. Defendants contend
that Hammann threatened to purchase stock in the company, to pursue a books and
records demand, and to run an expensive proxy contest if the Company did not pay
him a large fee for his “consulting services.”10 Hammann contends that he
8
PTO ¶ 24.
9
Id. ¶ 25.
10
DX 2 ¶¶ 5–6. See id. (“Hammann made clear that the Company’s only choices were to
hire him or be drawn into a proxy contest against him, and recommended that his proposed
‘consulting agreement’ was likely to be less intrusive to Adamis’s business. He also
5
approached Adamis about enacting changes in the Company to benefit
stockholders.11
On March 10 and 11, the Adamis board of directors met to discuss
Hammann’s inquiry and an appropriate response. 12 The board also engaged the law
firm of Vinson & Elkins, L.L.P. (“V&E”) to advise the Company regarding these
matters. 13 Acting upon V&E’s advice, the Company contacted the Federal Bureau
of Investigation (the “FBI”), forwarding information about the Company’s contacts
with Hammann. 14 The FBI investigated the issue and listened in on a call between
Marguglio and Hammann.15 After further investigation, the FBI and attorneys at the
United States Attorney’s Office for the Southern District of California (the “USAO”)
concluded that “the case did not necessarily fit the 18 United States Code [§] 875(d)
related to extortion.”16 The USAO declined prosecution. 17
informed Company representatives that he had recently learned that he could make a career
out of running proxy contests and that he intended to make a business of effecting similar
shakedowns in the future.”).
11
Dkt. 67 (“Compl.”) ¶ 21.
12
PX 19; PX 20. The minutes for these meetings indicated that Kevin Kelso, from the law
firm of Weintraub Tobin attended the meeting. The minutes are signed by Defendant
Williams, who is identified as the Secretary of the Meeting. Id.
13
PX 19.
14
PX 7 at 86:5–89:20 (Marguglio).
15
Id. at 104:10–108:5.
16
PX 23.
17
PX 24.
6
Hammann purchased 1,000 shares of Adamis common stock in street name
on March 11, 2021. 18 On March 18, 2021, Hammann served a books and records
demand on Adamis. 19 The demand stated that the purpose of the request was, in
part, to solicit proxies for the election of different directors or to propose different
proposals than those the Company would advance. 20 Adamis later responded by
producing the Adamis stockholder list.21
C. Advance Notice By-Law
Adamis has an advance notice bylaw that governs the submission of
stockholder proposals and nominations. It states, in pertinent part:
For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (iii) of Section 5(a)
of these Amended and Restated Bylaws, (i) the stockholder must have
given timely notice thereof in writing to the Secretary of the
corporation, . . . . To be timely, a stockholder’s notice must be received
by the Secretary at the principal executive offices of the corporation not
later than the close of business on the 90th day nor earlier than the close
of business on the 120th day prior to the first anniversary of the date of
the preceding year’s annual meeting; provided, however, that subject
to the next sentence of this Section 5(b), in the event that the date of
the annual meeting is changed by more than 30 days before or after
such anniversary date (or if no annual meeting was held in the
preceding year), notice by the stockholder to be timely must be so
received not earlier than the close of business on the 120th day prior to
the date of such annual meeting and not later than the later of the close
of business on the later of the 90th day prior to the date of such annual
18
DX 5 at 13–14.
19
PX 27.
20
Id. at 5.
21
PTO ¶ 47.
7
meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made. 22
The bylaws provide that the type of “public announcement” that can trigger the
advance notice provision includes “a document publicly filed by the corporation
with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d)
of the 1934 Act.”23
The Company’s 2020 proxy statement disclosed that proposals or nominations
for the 2021 annual meeting “generally must be submitted in writing . . . and received
by our Corporate Secretary no later than May 22, 2021, but no earlier than April 22,
2021.” 24 The 2020 proxy also disclosed the applicable deadlines for stockholder
proposals in the event that the board selected a meeting date more than 30 days
before or after the prior meeting’s anniversary date.25 The proxy instructed its
readers to review the Company’s bylaws, which state that only record holders may
submit nominations for the board of directors. 26 Hammann reviewed the 2020 proxy
before first contacting Adamis. 27
22
PX 13 § 5(b) (emphasis added).
23
Id. § 5(f).
24
PX 28 at 57–58.
25
Id.
26
Id.; PX 13 § 5(a)(iii).
27
DX 1 at 219:11–19 (Hammann).
8
On April 13, 2021, Carlo’s executive assistant contacted Williams, Blunt, and
Birndorf to schedule an Audit Committee meeting for the following day, copying
Adamis’s counsel, Kevin Kelso, from Weintraub Tobin Chediak Coleman Grodin
Law Corporation (“Weintraub Tobin”).28 Kelso responded that “David [Marguglio]
and/or Dennis [Carlo] should also attend a relatively brief part of the call, which will
be a Board item to approve the date of this year’s annual meeting of stockholders (to
include the date in the Form 10-K filing).” 29 Marguglio responded that he would
make himself available. 30
On April 14, 2021, Adamis’s Audit Committee met via teleconference.31
Minutes from that meeting indicate that the meeting was held from 9:30 a.m. to
10:00 a.m. and was attended by Williams, Birndorf, Carlo, and Marguglio, as well
as certain officers of and counsel for the Company.32 Phone records of the
conference call indicate that the call began at approximately 9:27 a.m. and ended at
9:40 a.m.—less than half the duration reflected in the minutes.33
28
PX 34.
29
Id.
30
Id.
31
PX 38.
32
Id.
33
PX 37.
9
Adamis also produced meeting minutes of an April 14, 2021, telephonic
meeting of the full board of directors. Those minutes represent that the board
meeting was held from 10:00 a.m. to 10:10 a.m.34 The minutes indicate that all five
directors—Williams, Birndorf, Blunt, Carlo, and Marguglio—attended the
meeting.35 The minutes describe a resolution proposed by Williams and adopted by
the directors to set the annual meeting date on July 15, 2021.36 The minutes are
signed by Williams, who purportedly acted as the chair and secretary of the
meeting.37
There was no call log or other documentation presented at trial evidencing a
full board meeting on April 14, 2021. Marguglio and Carlo testified that they
recalled attending the April 14 board meeting.38 On the other hand, neither Williams
nor Birndorf could specifically recall having attended the meeting.39 Blunt, who had
not called into the Audit Committee meeting, did not recall having attended the
34
PX 39.
35
Id.
36
Id.
37
Id.
38
PX 7 at 147:14–20 (Marguglio). Hammann asked Marguglio at his deposition whether
he would remember the April 14, 2021, meeting if he had not been shown meeting minutes
indicating that the meeting occurred, to which Marguglio indicated that he could not
answer without speculation. Id. at 151:2–6.
39
PX 1 at 115:9–12 (Williams); PX 68 at 66:10–12 (Birndorf) (“[Q.] Do you recall
whether you were in attendance at this meeting? A. It says I was, so I must have been.”).
10
board meeting, even though the meeting minutes listed him as present.40 Marguglio
and Carlo testified that the board moved the annual meeting date earlier in the
summer in order to be more consistent with the dates of the Company’s annual
meeting in previous years and the customary timing of annual meetings for other
public companies.41
On April 15, 2021, Adamis filed its 2020 Annual Report on Form 10-K with
the United States Securities and Exchange Commission. On page 67, the Company
disclosed that its annual meeting would be held on July 16, 2021, thus triggering the
advance notice bylaw. 42 The proxy stated:
Because the expected date of the 2021 Annual Meeting represents a
change of more than 30 calendar days from the date of the anniversary
of the Company’s 2020 annual meeting of stockholders, the Company
is informing stockholders of this change and the updated deadlines for
stockholders to submit proposals intended for inclusion in our proxy
statement or nominations for director or proposals for consideration at
the 2021 Annual Meeting in accordance with the rules and regulations
of the SEC and the Company’s Bylaws. . . . In addition, to be timely,
stockholders wishing to nominate a candidate for director or to propose
other business at the 2021 Annual Meeting, must ensure that proper
notice is received by the Company at its offices no later than the close
of business on April 25, 2021, which is the 10th day following the day
on which public announcement of the date of the 2021 Annual Meeting
is first made by us.43
40
PX 40 at 90:3–9 (Blunt).
41
See PX 7 at 154:25–155:7 (Marguglio); PX 12 at 78:18−79:22 (Carlo); id. at
115:21−116:2.
42
PX 43 at 67.
43
Id.
11
Hammann downloaded the 10-K onto his computer on April 15, 2021, but stated at
his deposition that he did not recall whether he read it prior to April 25, 2021.44 The
first time he understood this section to set an advanced deadline for nominations was
on May 21, 2021, when he read Adamis’s proxy statement. 45
Hammann knew he needed to be a stockholder of record in order to submit
director nominations or stockholder proposals. To that end, on April 20, 2021,
Hammann began the process of becoming a stockholder of record, which he
understood would take 4–6 weeks.46 Ultimately, Hammann was able to complete
the process in a shorter time period, and the shares were transferred to him of record
on May 5, 2021.47
Hammann began contacting potential board nominees on April 29, 2021.48
He was able to collect completed nomination forms for his slate in less than two
weeks.49 Hammann delivered to Adamis four director nominations and three
44
DX 1 at 164:5–19 (Hammann).
45
Id. at 357:21−358:2.
46
Hammann Aff. ¶ 20.
47
PX 54.
48
DX 1 at 289:11−25 (Hammann).
49
Id. at 291:14−18 (“Q. Okay. So in a span of six days from when you first contacted Mr.
Ramelli, you had gotten the documentation you needed to make a nomination of him for
the board of Adamis? A. Correct.”); id. at 296:10−14 (“Q. Okay. So to summarize, within
a couple days of hearing of this woman’s existence, you had her full nomination form in
hand? A. That is a fair summary.”); id. at 302:22−303:2 (“Q. In any event, within seven
12
stockholder proposals on May 6 and 7, 2021. 50 By letter dated May 18, 2021,
Adamis rejected Plaintiff’s proposals and nominations as untimely under the
advance notice bylaw. 51
D. Procedural History
On June 9, 2021, Hammann filed his pro se complaint, asserting six claims
against Adamis and its directors. 52 Hammann also filed a motion to expedite and
for a temporary restraining order, seeking to prevent Defendants from disseminating
their proxy statement or convening the annual stockholders’ meeting on July 16,
2021. 53 On June 16, the court heard argument on the motions.54 In a telephonic
ruling the next morning, the court denied the motion for a temporary restraining
order and granted the motion to expedite Count VI, which alleged that the
Defendants’ actions in scheduling the annual meeting after Hammann threatened a
proxy contest constituted inequitable conduct under Schnell v. Chris-Craft
Industries, Inc., 285 A.2d 437 (Del. 1971). 55 Given Hammann’s delay in seeking
days . . . of first contacting Ms. Crain, you had her nomination materials in hand, and you
submitted them to the company the next day? A. Yeah.”).
50
DX 9; PX 49.
51
DX 10.
52
Dkt. 1.
53
Dkts. 6–8.
54
Dkt. 21.
55
Dkt. 22.
13
expedited proceedings and recognizing the court’s ability to grant relief after a
prompt trial following the annual meeting, the court offered to conduct a trial on the
merits in September 2021.56 The court explained that in the event Hammann
prevailed, the court could either compel Defendants to conduct a new meeting or,
alternatively, require the Defendants to accept Hammann’s director nominations and
stockholder proposals for consideration at the 2022 annual meeting.57
Shortly after the court granted the motion to expedite and offered September
for a trial on the merits, the parties began to engage in discovery. Yet despite having
secured the opportunity to present his case in September 2021, Hammann did not
press for a trial. He alleges that he was unable to make progress in the case because
Defendants were stonewalling by creating an artificial disagreement as to a
confidentiality stipulation, over redacting documents, and delaying in delivering
discovery.58 When Defendants proposed a schedule providing for an October 2021
trial, Hammann objected to a footnote and did not respond to the proposed schedule
56
Id. at 19:17–19.
57
Id. at 16:21–18:13; see Oliver Press P’rs, LLC v. Decker, 2005 WL 3441364, at *2 (Del.
Ch. Dec. 6, 2005); Millenco L.P. v. meVC Draper Fisher Jurvetson Fund I, Inc., 824 A.2d
11, 19 (Del. Ch. 2002); Immunomedics, Inc. v. Venbio Select Advisor LLC, 2017 WL
822800, at *3 (D. Del. Mar. 2, 2017); Accipiter Life Scis. Fund, L.P. v. Helfer, C.A. No.
2057-N, at *57 (Del. Ch. Apr. 25, 2006).
58
Pl.’s Opening Br. 42.
14
again until January 27, 2022. 59 In the meantime, Hammann did not seek court
intervention to address any disputes over discovery or scheduling.
Following the court’s entry of the order granting expedited proceedings,
Hammann did not make a single case filing until March 14, 2022. But rather than
press for a trial date, Hammann filed a motion for a temporary restraining order,
seeking to prevent Adamis from changing the structure or composition of its board
of directors and from replacing any board members who might resign in advance of
the 2022 annual meeting.60 At the conclusion of a March 28, 2022 hearing, the court
denied the motion, in part because Hammann had unreasonably delayed in
prosecuting his claims. 61 The court pointed out that it had offered Hammann a trial
date for his Schnell claim in September 2021. Instead of seizing on this offer,
Hammann had proceeded for over eight months without requesting that the court fix
a trial date and he had not responded to the Defendants’ proposed schedule for six
months.62 The court also questioned whether anything remained of the case in light
of the impending 2022 annual meeting.63 Notably, Hammann did not submit director
nominations or stockholder proposals for the 2022 annual meeting.
59
Dkt. 47 Ex. 15.
60
Dkt. 30.
61
Dkts. 50, 58.
62
Dkt. 58 at 22:14–23:7.
63
Id. at 23:8–17; id. at 24:10–16.
15
On April 6, 2022, Hammann sought leave to file an amended complaint,
which Defendants opposed.64 On April 25, Hammann filed a motion to enjoin
Adamis from convening its 2022 annual meeting of stockholders until after the
conclusion of this action.65 On April 28, 2022, the court denied the motion for a
preliminary injunction, but granted the motion to amend and supplement the
complaint.66
Hammann filed his first amended complaint (the “Complaint”) on May 9,
2022. 67 On May 19, the parties submitted competing forms of a case scheduling
order. 68 On May 23, Defendants filed motions to dismiss and for summary
judgment.69 On June 6, the court granted Defendants’ proposed scheduling order,
which called for the parties to request a trial date two days after receiving an order
on the pending motion to dismiss.70
64
Dkts. 56, 58.
65
Dkt. 62.
66
Dkts. 65–66. The court concluded that the motion for a preliminary injunction merely
rehashed the same claims asserted in Hammann’s original complaint challenging the
rejection of his 2021 stockholder proposals and nominations, which he had not pursued
over the prior ten months. Dkt. 65.
67
Dkt. 67.
68
Dkts. 68–69.
69
Dkts. 71–72.
70
Dkt. 78.
16
On August 12, Adamis held its 2022 annual stockholders’ meeting, at which
Birndorf, Marguglio, Williams, Meera J. Desai, and Vicki S. Reed were elected as
directors to serve one-year terms.71
The court scheduled a hearing on the pending motions to dismiss and for
summary judgment for December 19, 2022 at 9:15 a.m. at the Leonard L. Williams
Justice Center.72 At 10:59 p.m. on Sunday, December 18, Plaintiff filed a motion to
appear telephonically. 73 The court convened the scheduled in-court hearing on
December 19, with Defendants’ counsel in attendance, and denied the motion to
appear telephonically. 74 Later that day, the court issued an order to show cause as
to why Hammann should not be required to pay the fees of Defendants’ counsel in
traveling to and attending the hearing. 75
On January 20, 2023, concurrent with the filing of his opening pretrial brief,
Hammann filed a motion for sanctions and a motion for referrals against Defendants
71
Adamis Pharmaceuticals Corp., Current Report (Form 8-K) (Aug. 17, 2022).
72
Dkt. 87.
73
Dkt. 93.
74
Dkts. 94, 99.
75
Dkt. 96. On March 24, 2023, the court issued an order requiring Hammann to pay the
Defendants’ attorneys’ fees in traveling to and attending the December 19, 2022 hearing.
Dkt. 135. On July 17, 2023, Defendants filed a motion to enforce the court’s March 24,
2023 order. Dkt. 149. In the meantime, on March 27, 2023, Hammann filed a second
motion for sanctions against Defendants and their counsel. Dkt. 140.
17
and their counsel.76 A one-day paper trial was scheduled for March 16, 2023. The
court held a pretrial conference on March 13, 2023. 77 At the pretrial conference, the
court denied Hammann’s motion for referrals and Defendants’ motion for summary
judgment. The court also denied Defendants’ motion to dismiss, in part, deferring
the motion to dismiss as to Counts VIII and IX until trial. 78 Late afternoon on March
15, 2023, Plaintiff filed another motion for a temporary restraining order, seeking to
prevent Defendants from closing a pending transaction to sell 16.5 million Adamis
shares to a third-party. 79 At the start of trial on March 16, the court denied Plaintiff’s
new motion for a temporary restraining order. Following trial, which was conducted
on a paper record,80 the parties engaged in further motion practice, with Plaintiff
filing a second motion for sanctions and Defendants filing a motion to enforce a
previous court order. The court determined that it would consider the case submitted
as of May 1, 2023.81
76
Dkts. 108–09.
77
Dkt. 131.
78
Dkts. 127, 129–30.
79
Dkt. 132.
80
The record consists of approximately 100 exhibits, including seven depositions.
81
Dkt. 150.
18
II. ANALYSIS
This opinion addresses the issues presented at trial. Hammann’s motions for
sanctions and Defendants’ motion to enforce the court’s March 24, 2023 order will
be addressed in a separate decision.
A. Hammann’s Claims Seeking to Invalidate the 2021 Election of
Directors Are Moot.
“Under Article IV of the Delaware Constitution, this court may adjudicate
only actual, ongoing cases or controversies.” Matter of Jeremy Paradise Dynasty
Tr., 2021 WL 5564086, at *7 (Del. Ch. Nov. 29, 2021) (citing Del. Const. art. IV, §
11). A matter is moot “when the substance of the dispute disappears due to the
occurrence of certain events following the filing of an action.” Diamond State Port
Corp. v. Int’l Longshoremen’s Ass’n, 2011 WL 891201, at *1 (Del. Ch. Feb. 24,
2011) (internal quotations omitted). “According to the mootness doctrine, although
there may have been a justiciable controversy at the time the litigation was
commenced, the action will be dismissed if that controversy ceases to exist.” Gen.
Motors Corp. v. New Castle Cty., 701 A.2d 819, 823 (Del. 1997) (citing Glazer v.
Pasternak, 693 A.2d 319, 320 (Del. 1997)). If a claim is moot, the court has no
subject matter jurisdiction to proceed with that claim. Nama Hldgs., LLC v. Related
World Mkt. Ctr., LLC, 922 A.2d 417, 435 (Del. Ch. 2007).
The heart of this case lies in Count VI, the sole remaining claim from the
original complaint. Count VI alleges that the board’s decision to schedule the 2021
19
annual meeting for July 16, 2021, triggering the ten-day submission deadline under
the Company’s advance notice bylaw, was inequitable action intended to frustrate
the stockholders’ voting franchise under Schnell. 82 Related to Count VI are Counts
VII, VIII and IX. Count VII alleges the Defendants did not comply with the Adamis
bylaws in setting the meeting date. 83 Counts VIII and IX assert a variety of
disclosure-based claims in connection with the 2021 annual meeting. The primary
remedy sought for these claims is an order nullifying the results of the 2021 election,
compelling the Defendants to conduct a new election with Hammann’s slate and
proposals on the ballot, and mandating certain disclosures. Plaintiff asserts his
claims solely in his individual capacity and is not purporting to assert class or
derivative claims.
82
In Schnell, the Delaware Supreme Court reaffirmed the long-standing principle that
“inequitable action does not become permissible simply because it is legally possible.” 285
A.2d at 439. In that case, the defendant board, knowing of an impending proxy contest,
advanced the date of the annual stockholders’ meeting by approximately one month and
moved the location of the meeting to upstate New York. Id. The board’s conduct was held
to be inequitable because the dissidents had already geared their campaign to the
announced meeting date, and the board’s actions gave the dissidents little chance to prepare
a proxy contest. Id. The Court directed that the original meeting date be reinstated. Id. at
440.
83
Section 5(a) of the Adamis bylaws provides: “The annual meeting of the stockholders
of the corporation, for the purpose of election of directors and for such other business as
may lawfully come before it, shall be held on such date and at such time as may be
designated from time to time by the Board of Directors.” PX 13 § 5(a).
20
The issues presented in Counts VI–IX are moot. The directors elected at the
2021 annual meeting were elected to serve one-year terms. 84 Those one-year terms
have since expired, and a new election was held in August 2022, at which a new
board, comprising three incumbents and two new directors, was elected. 85
Plaintiff stands in the shoes of many litigants whose challenges to director
elections became moot after a subsequent election. For example, in Loudon v.
Archer-Daniels-Midland Co., 700 A.2d 135 (Del. 1997), the stockholder plaintiff
filed a complaint challenging the 1995 election of directors based upon alleged
material omissions and misleading proxy disclosures. Our Supreme Court, relying
on a decision from the United States Court of Appeals for the Seventh Circuit
involving the same election, held that most of the claims were moot, because at the
time of the appeal the company had already held a 1996 annual meeting and elected
a new board. Id. at 141 (citing Buckley v. Archer-Daniels-Midland Co., 111 F.3d
524, 526 (7th Cir. 1997)); see also Matter of Jeremy Paradise Dynasty Tr., 2021 WL
554086, at *7 (Del. Ch. Nov. 29, 2021) (“A claim challenging the validity of a
fiduciary’s appointment becomes moot when the fiduciary resigns, as there is no
84
Under the Adamis bylaws, “the directors shall be elected at each annual meeting of
stockholders for a term of one year.” Id. § 17(a).
85
Adamis Pharmaceuticals Corp., Current Report (Form 8-K) (Aug. 17, 2022). The
meeting was adjourned after the election of directors but before the stockholders could vote
on the proposal for a Reverse Stock Split. Id. The meeting was reconvened on September
8, 2022 and the stockholders declined to approve the proposal. Adamis Pharmaceuticals
Corp., Current Report (Form 8-K) (Sept. 12, 2022).
21
longer an ‘actual controversy remaining between the parties’ about whether the
fiduciary was validly appointed.” (quoting Stearn v. Koch, 628 A.2d 44, 46 (Del.
1993)); Shaev v. Adkerson, 2015 WL 5882942, at *12 (Del. Ch. Oct. 5, 2015)
(holding that “[e]ven assuming, for argument’s sake, that Plaintiff’s disclosure
allegations are valid, there is no relief available” where the next annual meeting had
already occurred, and the entire board had been reelected); Maldonado v. Flynn, 597
F.2d 789, 797 n.10 (2d Cir. 1979) (noting that claims as to the validity of the 1975
election were moot where the terms of those elected in 1975 had expired, but
allowing claims to continue as to directors elected in 1976 and 1977); Gen. Elec. Co.
v. Cathcart, 980 F.2d 927, 934 (3d Cir. 1992) (dismissing a claim for new director
elections as moot where a subsequent, unchallenged election took place before the
court of appeals decided the case); Lee v. Schmidt–Wenzel, 766 F.2d 1387, 1390 (9th
Cir. 1985) (concluding that a claim to void elections which filled board vacancies
was moot when parties stipulated to and conducted a new election); Sanders v. Thrall
Car Mfg. Co., 582 F. Supp. 945, 956–57 (S.D.N.Y. 1983) (finding claims regarding
1978 and 1979 director elections to be moot where there was no claim of pecuniary
harm and where requested equitable relief would have no actual effect because
directors were elected at a subsequent stockholder meeting), aff’d, 730 F.2d 910 (2d
Cir. 1984); Smillie v. Park Chem. Co., 466 F. Supp. 572, 575 (E.D. Mich. 1979)
(concluding that allegations concerning prior elections are moot where the elected
22
individuals have completed their terms), aff’d, 710 F.2d 271 (6th Cir. 1983); In re
AGNC Inv. Corp., 2019 WL 464134, at *3 (D. Md. Feb. 6, 2019) (“All United States
Courts of Appeals to address this issue have held that challenges to elections of
directors for lapsed terms are moot.”).
Plaintiff does not try to confront these cases on the merits. Instead, he
advances a superficial argument that his claims fall within an exception to the
mootness doctrine. Specifically, Plaintiff insists that his claims are capable of
repetition but evading review.86 This argument fails for at least two independent
reasons. First, as Plaintiff acknowledges, this narrow exception is only available for
an “alleged injury . . . of inherently limited duration and likely to happen again to
the same complaining party.”87 Even assuming that his claim is transitory,88 “‘there
is no reasonable expectation, much less a demonstrated probability that the same
controversy will recur’ between [Hammann] and [Adamis].” Buckley, 111 F.3d at
527 (quoting Board of Educ. of Downers Grove Grade Sch. Dist. No. 58 v. Steven
86
Pl.’s Reply Br. 31–32.
87
Id. at 31 (quoting Buckley, 111 F.3d at 527).
88
Hammann also ignores that this court frequently affords expedited treatment to consider
stockholder claims challenging proxy disclosures and a board’s refusal to waive
enforcement of advance notice bylaws. See, e.g., Sternlicht v. Hernandez, 2023 WL
3991642 (Del. Ch. June 14, 2023) (deciding a motion seeking to enjoin enforcement of
advance notice bylaw for a preliminary injunction less than seven weeks after the filing of
the complaint); see also Box v. Box, 697 A.2d 395, 399 (Del. 1997) (“Delaware courts are
always receptive to expediting any type of litigation in the interest of affording justice to
the parties.”).
23
L., 89 F.3d 464, 468 (7th Cir. 1996)). In fact, the events surrounding the 2022 annual
meeting demonstrate the opposite. In 2022, the board did not schedule the annual
meeting of stockholders in a way that triggered the advance notice bylaw. Nor did
Hammann present any stockholder proposals or director nominations for the 2022
meeting. Plaintiff offers no evidence suggesting that a court could not enjoin a future
election of directors upon a timely complaint asserting well-pleaded claims under
the Schnell doctrine or for materially misleading disclosures or omissions.
B. Hammann Has Not Established Grounds for Other Equitable,
Declaratory, or Monetary Relief.
Plaintiff’s requested alternative remedies are equally unavailing. In addition
to invalidating and “re-running” the 2021 annual meeting, Plaintiff requests that this
court (1) award him damages; (2) order that Defendants issue retractions as to their
false or misleading statements; and (3) grant declaratory relief; and (4) require
Defendants pay Hammann’s costs, fees, and expenses for pursuing the proxy contest
and this action.89 Each is unavailable to Hammann.
1. Damages and Fees
Plaintiff argues that he is entitled to damages as a result of Defendants’
manipulation of the 2021 annual meeting date. He also seeks an award of attorneys’
89
Pl.’s Opening Br. 59–61.
24
fees under the bad faith exception to the American Rule. 90 For damages, Plaintiff
requests $945,000, which he contends represents the time he expended pursuing the
2021 proxy contest and litigating this case. 91 Hammann argues that he should be
entitled to damages for time expended at the $275 hourly rate he purportedly charges
to consulting clients.92 He contends that he would have incurred a $45,000 monthly
charge, which, working backwards, would represent more than 164 hours per month
for the four months preceding the 2021 annual meeting.93 For the 21 total months
he spent litigating this case, accounting for a month with less substantial efforts, he
contends that he is owed at least $945,000 in damages for time expended, in addition
to around $20,000 in out-of-pocket expenses. 94
90
Delaware follows the American Rule, requiring that both parties to litigation bear their
own legal fees and expenses. Goodrich v. E.F. Hutton Gp., Inc., 681 A.2d 1039, 1044
(Del. 1996). The court recognizes a limited exception to this rule when a party has acted
in bad faith during the course of litigation. Beck v. Greim, 2020 WL 1915946, at *3 n.2
(Del. Ch. Apr. 17, 2020) (quoting Donald J. Wolfe, Jr. & Michael A. Pittenger, Corporate
and Commercial Practice in the Delaware Court of Chancery § 17.03[e], at 17-13–17-16
(2d ed. 2019)). “[T]he bad faith exception is not lightly invoked.” Id. at *1. The court
will shift fees under the bad faith exception only upon a finding by “clear evidence” that
the party against whom the fee award is sought acted in subjective bad faith. Johnston v.
Arbitrium (Cayman Islands) Handels AG, 720 A.2d 542, 546 (Del. 1998). This remedy is
reserved only for extraordinary cases. Lawson v. State, 91 A.3d 544, 553 (Del. 2014).
91
Plaintiff’s Complaint did not seek damages, although one of his 16 separate requests for
relief included a request for attorneys’ fees. See Compl. at 37–38. At his deposition,
Plaintiff testified that he had not yet decided whether to seek damages in this action. DX
1 at 386:9–14 (Hammann).
92
Pl.’s Opening Br. 61.
93
Id.94
Id. at 62–63.
25
It is the plaintiff’s burden to establish damages by a preponderance of the
evidence. Great Am. Opportunities, Inc. v. Cherrydale Fundraising, LLC, 2010 WL
338219, at *22 (Del. Ch. Jan. 29, 2010). “To obtain a meaningful remedy for a
breach of duty, a plaintiff . . . must prove by a preponderance of the evidence that a
sufficient causal linkage exists between the breach of duty and the remedy sought to
make the remedy an apt means of addressing the breach.” Metro Storage Int’l LLC
v. Harron, 275 A.3d 810, 859 (Del. Ch. 2022). “Under Delaware law, a plaintiff can
only recover those damages which can be proven with reasonable certainty.”
PharmAthene, Inc. v. SIGA Techs., Inc., 2010 WL 4813553, at *11 (Del. Ch. Nov.
23, 2010). “[D]amages must be ‘logically and reasonably related to the harm or
injury for which compensation is being awarded.’” Metro Storage, 275 A.3d at 859
(quoting In re J.P. Morgan Chase & Co. S’holder Litig., 906 A.2d 766, 773 (Del.
2006)).
Even if Plaintiff were to be successful on the merits of his claims here, he has
not established that he is entitled to the damages he seeks. Plaintiff seeks as damages
reimbursement for the time he has expended in this case as a pro se litigant. He
claims this right to damages under a fee-shifting theory. See Pl.’s Opening Br. 62
(“Under a fee shifting theory of recovery, Hammann should be entitled to his
$945,000 in effort.”); Pl.’s Reply Br. 35 (“Hammann’s services pursuing this case
constitute damages attributable to Defendants’ and their counsels’ conduct. But for
26
this conduct, Hammann would not have expended these services.”). 95 Hammann is
not entitled to an award of fees as a pro se litigant. “Delaware, like many other
states, does not grant attorneys’ fees to self-represented litigants.” Adams v.
Calvarese Farms Maint. Corp., Inc., 2010 WL 3944961, at *24 (Del. Ch. Sept. 17,
2010); see also Clark v. D.O.W. Fin. Corp., 2000 WL 973092, at *7 (Del. Super.
May 26, 2000) (“[T]here is no Delaware precedent for granting a pro se litigant
attorney’s fees.”); cf. Manzo v. Rite Aid Corp., 2002 WL 31926606, at *5 (Dec. 19,
2002) (“[A]warding money damages to compensate plaintiff for the return she could
have earned had she invested elsewhere-as she was free to do, but didn’t do-amounts
to speculation founded upon uncertainty.”), aff’d, 825 A.2d 239 (Del. 2003)
(TABLE). Plaintiff has offered no policy or precedent to support his damages
theory. Plaintiff is not entitled to an award of attorneys’ fees as a pro se litigant, and
he may not obtain such an award indirectly under the guise of unsupported damages.
Beyond seeking the equivalent of fee shifting, to which he is not entitled, Plaintiff
has established no other basis for damages. 96
95
Hammann then inexplicably, and without legal support, claims that this amount should
be doubled to reflect the risk of litigation. Hammann Aff. ¶ 54. The list of expenses for
which Hammann lists as damages all reflect litigation expenses. See PX 80.
96
Hammann argues that he has suffered “damages to [his] reputation” as a result of the
Defendants allegedly false and materially misleading statements, which he alleges
impugned his character and discourage him from undertaking or fully pursuing his proxy
contest. Pl.’s Opening Br. 60–61. But Hammann makes no attempt to quantify those
27
2. Equitable and Declaratory Relief
Plaintiff argues that even if the court cannot require a new 2021 election,
declaratory relief is appropriate. He maintains that declaratory relief would: (1)
more fully inform stockholders regarding their voting choices; (2) increase the
likelihood that the authorities will prosecute Defendants for their “unlawful
conduct”; (3) permit the voiding of a 2022 separation agreement between Adamis
and Carlo and the 2022 employment agreement between Adamis and Marguglio
(both entered after the 2021 annual meeting); (4) permit removal of the directors
pursuant to a Section 225(c) action; (5) repair Hammann’s personal and professional
reputation; and (6) deter other boards from engaging in similar behavior.
damages, which are based purely on conjecture. See Beard Rsch., Inc. v. Kates, 8 A.3d
573, 613 (Del. Ch. 2010) (“[W]hen acting as the fact finder, this Court may not set damages
based on mere ‘speculation or conjecture’ where a plaintiff fails to adequately prove
damages.”); Henne v. Balick, 146 A.2d 394, 396 (Del. 1958) (“The law does not permit a
recovery of damages which is merely speculative or conjectural.”). Beyond that, the only
legal authority cited for his damages on this theory is a defamation case. Pl.’s Reply Br.
30 (citing Spence v. Funk, 396 A.2d 967 (Del. 1978)). This court is not the appropriate
forum to address a defamation claim. See Organovo Hldgs., Inc. v. Dimitrov, 162 A.3d
102, 119 (Del. Ch. 2017) (noting that equitable courts traditionally will not exercise
jurisdiction over a defamation claim); Preston Hollow Cap. LLC v. Nuveen LLC, 216 A.3d
1, 5 (Del. Ch. 2019) (“The general rule is that equity lacks jurisdiction over a request to
enjoin common-law defamation.”); Smith v. Scott, 2021 WL 1592463 (Del. Ch. Apr. 23,
2021) (declining to exercise jurisdiction over a defamation claim under the clean-up
doctrine given the policy interest in having defamation claims decided by a jury); Tygon
Peak Cap. Mgmt., LLC v. Mobile Invs. Investco, LLC, 2022 WL 34688, at *11 (Del. Ch.
Jan. 4, 2022) (dismissing defamation claim for lack of subject matter jurisdiction).
28
The court may entertain an action for declaratory judgment only if an actual
controversy exists between the parties. See 10 Del. C. § 6501; Stroud v. Milliken
Enters., Inc., 552 A.2d 476, 479 (Del. 1989). For an actual controversy to exist:
(1) It must be a controversy involving the rights or other legal relations
of the party seeking declaratory relief; (2) it must be a controversy in
which the claim of right or other legal interest is asserted against one
who has an interest in contesting the claim; (3) the controversy must be
between parties whose interests are real and adverse; (4) the issue
involved in the controversy must be ripe for judicial determination.
Stroud, 552 A.2d at 479–80 (quoting Rollins Int’l, Inc. v. Int’l Hydronics Corp., 303
A.2d 660, 662–63 (Del. 1973)). This court applies the doctrine of mootness in
determining whether an actual controversy is present. Rollins Int’l, 303 A.2d at 662–
63.
Plaintiff is not entitled to declaratory or injunctive relief because his injury is
no longer redressable. Shaev is directly on point. In that case, the plaintiff asserted
claims for breach of fiduciary duty with respect to disclosures in a 2014 proxy
statement. Shaev, 2015 WL 5882942, at *3. The plaintiff sought a declaratory
judgment that the 2014 election of directors and the approval of a say-on-pay
proposal were void. Id. at *12. In dismissing the complaint, the court held the
requested relief was unavailable because a new election of directors had occurred in
2015, rendering the disclosure claims moot. Id. As here, the plaintiff in Shaev
argued that a declaration that the directors had violated their duty of loyalty in
29
making false disclosures, “could serve as the basis for a [later] § 225 action.” Id.
(alternation in original); see Pl.’s Opening Br. 58 (arguing that the requested
declarations “are necessary for Hammann to file a 8 Del. § 225(c) [sic] action to
remove the Individual Directors from office”). The court rejected that argument in
Shaev, stating: “Such an assertion does not support Plaintiff’s contention that the
Court should render an advisory opinion on a mooted fiduciary duty claim so that
stockholders, who have since reelected the same directors, could later seek removal
of such directors in a Section 225 action.” 2015 WL 5882942, at *12.
Similarly, in Multi-Fineline Electronix, Inc. v. WBL Corp. Ltd., the court held
that a claim for declaratory and injunctive relief was moot when the lock-up
agreement at issue had since expired. 2007 WL 431050, at *8 (Del. Ch. Feb. 2,
2007) (“[E]ven under the bald assumption that the complaint alleged an actual
controversy at the time it was filed, it no longer does so. Therefore, mootness
provides a separate and independent ground on which the court must dismiss M–
Flex’s complaint.”). As in Shaev and Multi-Fineline, the actual controversy
underlying Counts VI–IX are moot, and there is basis to consider declaratory relief
because there is no viable remedy. 97
97
Equitable relief for Plaintiff’s disclosure-based claims, which were added in May 2022,
is also unavailable. Count VIII alleges that the Adamis directors breached their duties of
loyalty when they stated in letters to stockholders and investor presentations that Hammann
30
3. Plaintiff Cannot Be Heard to Lay Blame with the Defendants
for His Delay.
Plaintiff blames Defendants and their counsel for the delays in advancing this
case to trial. The record shows otherwise. Hammann first filed his complaint on
June 9, 2021.98 Shortly after, he moved to expedite the proceedings and sought a
temporary restraining order.99 On June 17, 2021, the court ruled on the motions,
denying the motion for a temporary restraining order and granting the motion to
expedite only as to the Schnell claim. 100 The court instructed the parties to confer
on a schedule for taking the Schnell claim to trial, suggesting a September trial
date. 101 But Hammann did not take up the court’s invitation to proceed quickly to
trial.
“(a) had no public company experience; (b) had no biopharmaceutical expertise; (c) had
no articulated plan; (d) had no plan; and (e) had an apparent track record of launching
value-destructive activist campaigns.” Compl. ¶ 118. Count IX further allege that Carlo
misrepresented to a stockholder, Ronald Newcomb, that Hammann “(a) is a
conman/extortionist; (b) asked for a $250,000 consulting agreement before this all started;
(c) was told no; and, (d) then proceeded along a pathway to deceive shareholders.” Id. ¶
137. Hammann seeks a court order requiring the Adamis directors to issue retractions so
as to reduce the cost of a proxy contest in new 2021 annual meeting and, relatedly, “result
in an increase in shareholder voting.” Pl.’s Opening Br. 60–61. Because Plaintiff’s claim
seeking a new annual meeting is moot, the requested relief of “retractions” to assist him in
running a proxy contest that will not occur is also moot.
98
Dkt. 1.
99
Dkts. 6–8.
100
Dkt. 22.
101
Id. at 19:15–19.
31
Following a July 8, 2021 teleconference between the parties, Defendants
proposed a schedule providing for an October 2021 trial.102 Plaintiff responded on
July 28, saying that he believed that a footnote was objectionable and that the
proposed order was inconsistent with a September trial date, as the court had
indicated in granting expedition.103 Nevertheless, Hammann replied that he would
“continue to consider this proposed scheduling order.”104 Defendants responded
minutes later, stating that they believed the proposed schedule, including the
offending footnote, was consistent with what the parties had discussed, and they
offered to discuss the matter with Plaintiff. 105 Plaintiff did not respond further or
suggest changes to the proposed schedule until six months later—on January 27,
2022. 106
Plaintiff also appears to have been in no rush to take depositions. Plaintiff did
not contact Defendants until November 9 to schedule depositions.107 Defendants
responded promptly, providing opportunities to depose Marguglio on November 30,
2021 and Williams on December 1. 108 Plaintiff waited until the last minute before
102
Dkt. 47 Ex. 12.
103
Id. Ex. 13.
104
Id.
105
Id. Ex. 14.
106
Id. Ex. 15.
107
Id. Ex. 24.
108
Id. Ex. 25.
32
Marguglio’s proposed deposition to secure a remote deposition service provider and
ultimately had to cancel the deposition. 109 Plaintiff subsequently canceled
Williams’s deposition because Plaintiff said he first wanted to complete a FOIA
request on the FBI.110 He did not ultimately take depositions of the five director
defendants until January 2022. On January 27, 2022, Plaintiff informed Defendants
that he had attempted to contact Ronald Newcomb, a non-party, to provide
deposition testimony in the case.111 He then waited until March 11 to serve
Newcomb with a subpoena and ultimately deposed him on March 17, 2022.
While Hammann dragged his feet behind the scenes, the court heard nothing
about Hammann’s plans to propel his case to trial. After the court granted in part
Plaintiff’s motion to expedite on June 17, 2021, Hammann did not make a single
case filing until March 14, 2022—nine months later—and that filing was a motion
for a TRO seeking to prevent the board from changing the size of the board or adding
or replacing its members. 112 It did nothing to move Hammann’s existing claims
towards trial.
Rather than seek a trial date or entry of a scheduling order, Plaintiff repeatedly
moved for immediate injunctive relief regarding the filling of vacancies and the
109
Id. Ex. 26.
110
Id. Ex. 27.
111
Id. Ex. 15.
112
Dkt. 30.
33
convening of the 2022 annual meeting.113 He then waited until April 2022 to file a
proposed amended complaint, adding for the first time disclosure claims relating to
the 2021 annual meeting—a meeting that had concluded nine months earlier. During
this time, Plaintiff was free to nominate a slate or make stockholder proposals for
the fast-approaching 2022 annual meeting, but for unexplained reasons he chose not
to do so.114
“[E]quity aids the vigilant, not those who slumber on their rights.” Adams v.
Jankouskas, 452 A.2d 148, 157 (Del. 1982). “Because injunctions and specific
performance constitute uncommon and extraordinary relief, a plaintiff is required to
act with more alacrity than he would be were he requesting monetary damages.”
Whittington v. Dragon Gp. L.L.C., 2009 WL 1743640, at *13 (Del. Ch. June 11,
2009). That requirement applies not only to the initial application for expedited
proceedings, but also to advancing the case toward a prompt hearing. Thus, a
plaintiff prevailing on an initial motion to expedite who later fails to secure a timely
hearing date or otherwise does not press its case risks losing the right to an expedited
proceeding. Plaintiff here had ample opportunity to secure a prompt trial, but chose
113
Dkts. 30, 62, 83.
114
Unless the board set the annual meeting more than 30 days before or after July 16,
2022—the anniversary date of the prior year’s annual meeting—the window to make
director nominations under the Company’s advance notice bylaw was between March 18,
2022 and April 17, 2022.
34
not to do so. Hammann cannot now blame Defendants for the delays in this case
when he frittered away the time available to try this case and to allow for a decision
well in advance of the 2022 annual meeting. It is the Plaintiff’s responsibility to
press his claims. Hammann failed to do so here. As a result, he lost the right to
pursue his claims on an expedited basis and must accept the consequences of his
nonchalance.
4. Judicial Estoppel
Plaintiff next argues that Defendants should be estopped from arguing that his
claims are moot. Judicial estoppel “prevents a litigant from advancing an argument
that contradicts a position previously taken that the court was persuaded to accept as
the basis for its ruling.” Motorola Inc. v. Amkor Tech., Inc., 958 A.2d 852, 859 (Del.
2008). This doctrine aims to protect the integrity of the judicial process by
prohibiting parties from engaging in a bait and switch, advancing a position to its
benefit in one instance and later contradicting that same position to gain an unfair
advantage. See Julian v. E. States Const. Serv., Inc., 2009 WL 1211642, at *6 (Del.
Ch. May 5, 2009). “The party’s prior position will be considered a basis for the
court’s ruling where (i) the prior position contributed to the court’s decision . . . ; (ii)
the court relied on the party’s prior position . . . ; or (iii) the party’s newly
inconsistent position contradicts the court’s ruling.” In re Rural/Metro Corp.
S’holders Litig., 102 A.3d 205, 247 (Del. Ch. 2014) (internal quotations omitted).
35
For judicial estoppel to apply, the later position must be inconsistent with the
previously advanced position. La Grange Cmtys., LLC v. Cornell Glasgow, LLC,
74 A.3d 653, at *4–5 (Del. 2013) (TABLE).
Defendants argued at the TRO stage that there was no irreparable injury
because the court could use its equitable power to void the results of the 2021 annual
meeting after it occurred.115 Plaintiff argues that Defendants may not assert that his
claims are moot because the court accepted that argument. Plaintiff ignores,
however, that the court accepted that argument within the legal precedents that
concluded equitable relief could be available before the next annual meeting.116
Thus, Defendants are not estopped from arguing Plaintiff’s claims are moot.
III. CONCLUSION
For the foregoing reasons, judgment is entered in favor of Defendants and
against Plaintiff as to all of Plaintiff’s claims.
115
Dkt. 10 at 35–36.
116
Dkt. 21 at 28:9–29:2 (explaining that under precedent the court could “order a new
election before the next annual meeting or, by extension, require the company to put the
stockholders’ slate on the ballot or allow them to run for office at the next annual
meeting” (emphasis added)); Dkt. 22 at 16:21–17:2 (denying motion for a TRO, proposing
a trial in September, and noting: “[A]n adequate remedy can be fashioned after trial if the
plaintiff ultimately prevails. The Court could order a new meeting for the election of
directors or could order the Company to allow plaintiff to run an opposing slate at next
year’s annual meeting.” (emphasis added)).
36