Opinion
60229704
Decided March 31, 2005.
Motion Sequence Numbers 005, 006, 007, 008, 009, and 010 are consolidated for disposition.
In Motion Sequence Number 005, defendant Heller Ehrman White McAuliffe LLP (Heller Ehrman) moves for dismissal of the complaint, pursuant to CPLR 3211 (a) (3), for lack of capacity to sue, and CPLR 3211 (a) (7), for failure to state a cause of action.
In Motion Sequence Number 006, defendant Fried, Frank, Harris, Shriver Jacobson LLP (Fried Frank) moves for dismissal the complaint, pursuant to CPLR 3211 (a) (1), (3), (5), and (7), and 3016 (b).
In Motion Sequence Number 007, defendant William Blair Company moves for dismissal of the complaint, pursuant to CPLR 3211 (a) (1), (3), and (7).
In Motion Sequence Number 008, defendants JPMorgan Chase Bank and JPMorgan Securities, Inc. (together, JPM), move for dismissal of the complaint, pursuant to CPLR 3211 (a) (1), (3), (5), and (7), or, in the alternative, requiring a more definitive statement, pursuant to CPLR 3024 (a).
In Motion Sequence Number 009, the "Shareholder Defendants" (Canaan Equity L.P., Canaan Equity II Entrepreneurs, LLC, Euclid Partners IV, L.P., Soros Private Equity Investors, L.P., RHO Ventures IV, L.P., RHO Ventures IV (QP), L.P., RHO Ventures IV GMBH Co., Beteilgungs KG, and RHO Management Trust I) move for dismissal of the complaint, pursuant to CPLR 3211 (a) (1), (3), and (7), and 3016 (b).
In Motion Sequence Number 010, defendants IntraLinks, Inc. (Intralinks), Carolyn Buck-Luce, Stephen Davis, Habib Kairouz, Roger Hurwitz, Milton Pappas, Patrick Wack, and David Wassong move for dismissal of the complaint, pursuant to CPLR 3211 (a) (1), (3), (5), and (7).
Fried Frank, Banc of America Securities, LLC (BAS), and JPM previously cross-moved to Motion Sequence Number 001 for sanctions. By decision of October 22, 2004, I decided that motion (seeking injunctive relief), but held in abeyance the cross motion, pending determination of the instant motions.
This is a purported shareholder derivative action brought on behalf of Intralinks for "breach of contract, violations of applicable law, including breach of fiduciary duty and waste of corporate assets," against Intralinks' entire Board of Directors and certain current and former key executive officers and legal counsel (Complaint, ¶ 1).
Plaintiffs also bring this action as a class action, purportedly on behalf of all shareholders of Intralinks since 1996, seeking to enforce rights under two agreements: (1) an "Underwriting Agreement" between Intralinks and JPM, and (2) a "Shareholders Agreement," among all shareholders of Intralinks ( id., ¶ 57).
Plaintiffs allege that, in July 2000, Intralinks entered into an Underwriting Agreement with JPM, in which JPM agreed to purchase shares of Intralinks, and to resell them to the public in an initial public offering (IPO) ( id., ¶ 69). The Underwriting Agreement was attached to an S-1 registration statement that was duly executed and filed with the Securities and Exchange Commission (SEC) ( id., ¶ 81). JPM agreed to purchase 4.6 million shares of Intralinks for a price specified in the S-1 registration statement, which became binding upon the effectiveness of the S-1 on July 26, 2000, and subsequently increased to 5.4 million shares ( id., ¶¶ 72, 73, 75).
Allegedly, pursuant to the Underwriting Agreement, JPM is obligated to purchase 5.3 million shares at $12.59 per share for a total of $66,727,000 ( id., ¶ 83). Plaintiffs claim entitlement to specific performance of the Underwriting Agreement, and they seek an order directing Intralinks to issue such shares, and compelling JPM, as well as the other "Defendant Underwriters" (BAS and William Blair Company) to purchase such shares for $66,727,000 ( id., ¶ 284).
As for the second agreement, plaintiffs allege that, on August 31, 2000, certain Intralinks shareholders entered into a Shareholders Agreement that defendants breached by failing to provide the common shareholders with notice prior to a "sham merger" in which a group of shareholders transferred their shares, that purportedly constituted more than 90% of the shares of Intralinks, to a Delaware corporation called Ilink Holdings Corp. ( id., ¶¶ 103, 104, 105). Plaintiffs allege further that the initial issuance of "counterfeit stock," known as the G round financing, involved issuing more than 220 million shares in a company that, prior to the Shareholders Agreement, had only 22 million shares outstanding ( id., ¶ 130).
Plaintiffs seek an order cancelling all shares issued in violation of the Shareholders Agreement, directing audited financial statements, and directing that a copy of the list of shareholders be delivered to plaintiffs. They also seek an injunction against future violations, and indemnification for costs, expenses, and attorney's fees ( id., ¶ 287).
The facts underlying this action have also been discussed in decisions issued in two related federal actions, involving substantially the same parties as in this action. These two federal decisions are (1) Adams, et al. v. Intralinks, et al. ( 2004 WL 1627313 [SD NY 2004], motion to vacate denied 2005 WL 427878 [SD NY 2005]) (First Federal Action) and Adams et al. v. Buck-Luce, et al. ( 2004 WL 2375800 [SD NY 2004]) (Second Federal Action).
The First Federal Action arose out of the failed IPO of Intralinks, and the subsequent public financing that Intralinks undertook. The action raised several federal issues, including claims of violations of Rule 10b-5 promulgated under Section 10 (b) of the Securities Exchange Act of 1934, and claims under the Employee Retirement Income Security Act of 1974 (ERISA).
Plaintiffs in the First Federal Action, alleged that JPM and BAS made false representations about their compensation from the Intralinks IPO, because JPM intended to engage in illegal aftermarket activities, including "laddering," "spinning," and the use of undisclosed tie-in agreements. On July 26, 2000, Intralinks filed a registration statement for the IPO with the SEC, but, thereafter, refused to price and sell the IPO, making a vague reference to the stock not being sufficiently over-subscribed. Plaintiffs alleged, however, that JPM refused to price the IPO, because it learned that JPM might become the subject of an SEC inquiry into its IPO allocation practices.
Plaintiffs also alleged that, on January 31, 2001, the initial closing of the G round financing occurred, and that the offering was made available to all shareholders except plaintiffs. The G round financing raised $30.15 million in new financing, and had an additional $12.8 million of debt converted to "Series G Preferred Stock." Through the financing, Intralinks increased the number of its B, C, D, E, and F preferred shares, thereby protecting all shareholders, other than plaintiffs, from a drastic dilution in the value of their shares.
Plaintiffs allege further that, to maintain the value of their own stock, the Intralinks' board created a new pool of options in the G round financing, equaling 15% of Intralinks' total stock, and that JPM was permitted to protect its interest in Intralinks by exchanging worthless stock warrants, executable at $8.50 per share for common stock valued at $0.54 per share.
Judge Scheindlin dismissed all claims, finding that: (1) plaintiffs lacked standing to bring the 10b-5 claims, because no purchase or sale occurred in connection with the registration statements, the claims were time-barred, and the 10b-5 fraud claims (involving loan and pledge agreements entered into by plaintiffs) failed to plead reliance, and (2) the claim that the dilution in the value of plaintiffs' stock violated ERISA was without merit, because ERISA did not cover the plans. Judge Scheindlin also found that, pursuant to 28 USC § 1367 (c), the balance of factors weighed in favor of dismissing the remaining claims, all of which involved state law.
In a subsequent decision, dated February 22, 2005, Judge Scheindlin denied plaintiffs' motion to vacate portions of her prior order relating to Intralinks' G round financing, on the alleged ground of newly-discovered evidence, consisting of an amended certificate of incorporation and a certificate of correction. Judge Scheindlin also denied a request to amend the complaint, finding no causation, because even if defendants made false and misleading statements to plaintiffs, defendants had sufficient votes to effectuate the merger ( 2005 WL 427878).
In the Second Federal Action, plaintiffs alleged that they were the subject of a "freeze-out merger" that would force them to sell their shares back to Intralinks. The complaint alleged securities fraud under Rule 10b-5, a claim against the individual defendants, alleging "control person" liability for securities fraud, and various state law claims for breach of contract, unjust enrichment, and breach of fiduciary duty.
Judge Rakoff dismissed all federal claims. To the extent that they related to the G round financing, the dismissal was based upon the First Federal Action and res judicata. The freeze-out merger claims failed, because even if defendants made false and misleading statements to plaintiffs, defendants had sufficient votes to effectuate the merger. Finally, Judge Rakoff declined to accept jurisdiction over the state law claims on the ground that the core federal claims have been dismissed, and the "case involves state law issues of corporate governance that are best litigated, if at all, in the state courts."
The state law claims at issue here include the following: (1) breach of the Underwriting Agreement, (2) breach of the Shareholders Agreement, (3) breach of fiduciary duty, (4) tortious interference with contract, (5) legal malpractice, (6) abuse of control, (7) gross mismanagement and negligence, (8) waste of corporate assets, (9) unjust enrichment, and (10) usurpation of a corporate opportunity. The legal malpractice claim alleges that Heller Ehrman failed to protect Intralinks from defaulting shareholders, and caused it to breach its contractual obligations under the Shareholders Agreement to the class members, in that it advised Intralinks to engage in an illegal transaction; falsely claimed that Delaware law authorized the issuance of vast quantities of illegal and worthless shares; and Heller Ehrman breached its obligation to inform Intralinks or the board of directors that they had the right to seek specific performance of the Underwriting Agreement.
Defendants now move to dismiss all causes of action on various grounds, including a defense founded upon documentary evidence, lack of capacity to sue, failure to state a cause of action, and failure to plead with adequate specificity. For the reasons set forth below, the motions are granted.
In her decision, dated February 22, 2005 ( 2005 WL 427878), Judge Scheindlin stated:
"[M]any of plaintiffs' numerous claims appear to be frivolous, patently unwarranted by existing law and unsupported by any argument for the modification of existing law — although the extreme disorganization of plaintiffs' papers makes it hard to be certain. Some of plaintiffs' claims and arguments, especially on the present motion, seem so ill-defined and incoherent that they are, in the words of the physicist Wolfgang Pauli, 'not even wrong.'"
I find some of these same problems present here. For example, the 62-page, 327-paragraph complaint combines shareholder derivative claims with class action allegations (the first and second causes of action). A derivative claim is a claim brought on behalf of the corporation. A claim brought in the form of a class action is a grouping together of individual claims. A complaint that confuses a shareholder's derivative claim with claims based upon individual rights is to be dismissed, though with leave to replead in an appropriate case ( Abrams v. Donati, 66 NY2d 951; Barbour v. Knecht, 296 AD2d 218, 227 [1st Dept 2002]). Considering the substantial amount of federal litigation that has already transpired, and the fact that plaintiffs have failed to demonstrate merit, I do not believe that leave to replead is warranted.
As a preliminary matter, I find to be without merit plaintiffs' argument that the motion to dismiss is premature prior to the appointment of guardians ad litem over the trust beneficiary plaintiffs. As trustees, plaintiffs have the legal capacity to sue in their own names without joining as parties the beneficiaries of the trusts ( Fiduciary Co., Ltd. v. Micro-Therapeutics, 83 AD2d 814 [1st Dept 1981]; Chemical Bank v. Shearson Lehman Bros., 1992 WL 183760 [SD NY 1992]). Moreover, the record does not indicate that there is a conflict between the interests of the trustees, and that of the beneficiaries ( Matter of Manufacturers Hanover Trust Co., 83 AD2d 808 [1st Dept 1981]).
Judge Scheindlin and Judge Rakoff both found that even if defendants made false and misleading statements to plaintiffs in connection with the short form merger, it would not have mattered, because defendants had sufficient votes to effectuate the merger anyway. I find that plaintiffs do not fare any better under state law, be it the law of Delaware, the State of Intralinks' incorporation, or New York, the "choice of law" jurisdiction, as provided for in the Shareholder's Agreement.
Section 13.5 of the Shareholders Agreement provides that it will be governed by the law of the State of New York. It is the policy of New York courts to enforce choice of law contractual provisions ( Indosuez Intl. Fin., B.V. v. National Reserve Bank, 304 AD2d 429 [1st Dept 2003]). Whether plaintiffs have standing to assert a derivative action, however, is governed by the law of the state of incorporation ( Matter of CPF Acquisition Co. v. CPF Acquisition Co., 255 AD2d 200 [1st Dept 1998]; Graczykowski v. Ramppen, 101 AD2d 978 [3rd Dept 1984]). One of the abiding principles of the law of corporations is that the issue of corporate governance, including the threshold demand issue, is governed by the law of the state in which the corporation is incorporated ( Hart v. General Motors Corp., 129 AD2d 179 [1st Dept], appeal denied 70 NY2d 608). Although the Shareholders Agreement states that the law of New York shall apply, without regard to its conflict of laws provisions, plaintiffs have not demonstrated that any disparity exists between the two jurisdictions as to the dispositive issue here of the necessity of making a proper demand on the board in a derivative action ( Portanova v. Trump Taj Mahal Assoc., 270 AD2d 757 [3rd Dept], lv denied 95 NY2d 765).
In support of plaintiffs' argument that New York law governs all issues in this action, because of the choice of law provision contained in the Shareholders Agreement, plaintiffs remarkably cite BBS Norwalk One v. Raccolta, Inc. ( 60 F Supp 2d 123 [SD NY], affd 205 F3d 1321 [2d Cir 1999]), asserting that that case contradicts the proposition that Delaware law applies to issues involving the internal affairs of a company. In BBS Norwalk One v. Raccolta, Inc., however, the court held precisely that; i.e., that because the claim relates fundamentally to the conduct of the internal affairs of BBS, the law of the state of incorporation — Delaware — governs, notwithstanding the provision in the shareholder agreement that New York law would apply.
A stockholder may not pursue a derivative suit to assert a claim of the corporation unless: (1) the stockholder has first demanded that all directors pursue the corporate claim, and they have wrongfully refused to do so; or (2) such demand is excused, because the directors are deemed incapable of making an impartial decision regarding the pursuit of the litigation ( Beam v. Stewart, 845 A2d 1040 [Del 2004]). Plaintiffs fail to adequately plead that the board wrongfully refused their demand.
If the stockholders make a demand on the board, as is alleged to be the case here ( see Complaint, ¶¶ 56, 279, 280), then they waive any claim that they might otherwise have had that the board cannot act independently on the demand, but they do not waive the right to claim that the board has wrongfully refused the demand ( Scattered Corp. v. Chicago Stock Exch., 701 A2d 70, 74 [Del 1997]; Speigel v. Buntrock, 571 A2d 767 [Del 1990]). Thus, if the board rejects the demand, the board is entitled to the presumption of the business judgment rule, unless the stockholder can allege facts with particularity creating a reasonable doubt that the board is entitled to the presumption ( Scattered Corp. v. Chicago Stock Exch., 701 A2d at 74).
The allegations that the board wrongfully refused the demands are not adequately pled, in that they are largely conclusory. These include, among others, the assertions that the directors participated in the wrongs; to bring this lawsuit, the directors would be forced to sue themselves; and the financial investors so control the directors that they are incapable of objectively evaluating the allegations ( Levine v. Smith, 591 A2d 194 [Del 1991]).
Even under New York law, the complaint is properly dismissed where, as here, plaintiffs fail to set forth with particularity the efforts that they made to secure the initiation of action by the board of directors, or the reason for not making such effort ( Tomczak v. Trepel, 283 AD2d 229 [1st Dept], lv dismissed in part, denied in part 96 NY2d 930).
Paragraph 56 of the complaint states: "Written demand was made on Intralinks to assert the claims asserted in this action. Intralinks ignored such demand." Paragraph 279 states, in relevant part: [D]emand on the Intralinks Board of Directors to institute this action against the officers and the members of the Intralinks Board of Directors was made and rejected." Paragraph 280 states: "Plaintiffs have repeatedly demanded that Intralinks bring these derivative claims and Intralinks has failed to do so." The complaint is not properly pled, because it provides no indication as to who made the demand, when it was made, to which board members it was made, and the content of the demand, or why the board refused to take action ( Tomczak v. Trepel, 283 AD2d 229, supra).
Moreover, plaintiffs do not have standing to bring the derivative claims, because none of them were shareholders at the time that the action was commenced. These derivative claims include the third through tenth causes of action for breach of fiduciary duty, tortious interference with contract, legal malpractice, abuse of control, gross mismanagement and negligence, waste of corporate assets, unjust enrichment, and usurpation of a corporate opportunity.
Under Delaware law, a merger that eliminates a derivative plaintiff's ownership of shares of the corporation for whose benefit the former shareholder sued, terminates the standing to pursue the derivative claims ( Lewis v. Ward, 852 A2d 896 [Del 2004]). Here, the short form merger was consummated on June 10, 2004, eliminating plaintiffs' share ownership.
The first cause of action fails based upon the additional grounds of a defense founded on documentary evidence and failure to state a cause of action. It alleges that, pursuant to the Underwriting Agreement, the Defendant Underwriters are obligated to purchase 5.3 million shares at $12.59 per share, for a total of $66,727,000. Plaintiffs also claim entitlement to specific performance of the Underwriting Agreement, and they seek an order directing Intralinks to issue such shares and compelling the Defendant Underwriters to purchase such shares for $66,727,000.
Plaintiffs are not entitled to specific performance, because it is undisputed that the parties never executed the Underwriting Agreement ( Calka v. Chuu, 271 AD2d 261 [1st Dept 2000], lv dismissed 98 NY2d 670). Although the complaint alleges that the Underwriting Agreement was attached to an S-1 registration statement that was "duly executed," and filed with the SEC, allegations consisting of factual claims that are flatly contradicted by documentary evidence are not entitled to a presumption of truthfulness, or accorded every favorable inference ( Caniglia v. Chicago-Tribune-New York News Syndicate, 204 AD2d 233 [1st Dept 1994]).
Moreover, when the parties do not intend to be bound until their agreement is reduced to a signed writing, there is no contract in the interim ( Chatterjee Fund Mgt., L.P. v. Dimensional Media Assoc., 260 AD2d 159 [1st Dept 1999]). The complaint recites that:
"10. This Agreement shall become effective upon the later of (x) execution and delivery hereof by the parties hereto and (y) release of notification of the effectiveness of the Registration Statement (or, if applicable, any post-effective amendment) by the Commission."
When evidentiary material submitted in support of a complaint demonstrates that a material fact claimed by the plaintiff is not a fact at all, there is no bar to dismissal of the complaint for failure to state a cause of action ( Prudential-Bache Metal Co. v. Binder, 121 AD2d 923 [1st Dept 1986]). This finding also applies to the fifth cause of action, for legal malpractice, to the extent that it alleges that Heller Ehrman had an obligation to inform Intralinks or the board of directors that they had the right to seek specific performance of the Underwriting Agreement. The fourth cause of action, for tortious interference with contract, is not validly stated. It alleges that a Fried Frank associate should have known that by sending out the buyout term sheet in unmarked envelopes, without return addresses, and representing to shareholders that his clients were lawful holders of valid shares in Intralinks, that he was interfering with the class members "bring along" and "tag along" rights under the Shareholders Agreement, and that the statements and misrepresentations he placed in the buyout term sheet were calculated to mislead class members, and actually misled them as to their rights.
A cause of action for tortious interference with contract requires the existence of a valid contract between the plaintiff and a third party, defendants' knowledge of that contract, defendants' intentional procurement of the third-party's breach of that contract without justification, and damages resulting therefrom ( Lama Holding Co. v. Smith Barney, Inc., 88 NY2d 413). Of these elements, the element of intentional procurement of the third-party's breach requires a showing that, but for defendants' acts, the agreement would not have been breached ( see Lana Samer, Inc. v. Goldfine, 7 AD3d 300 [1st Dept 2004]). Plaintiffs fail to allege that, but for the attorney's acts, the agreement would not have been breached ( Velazquez v. Lackman Food Serv., 251 AD2d 495 [2nd Dept 1998]; Schuckman Realty v. Marine Midland Bank, N.A., 244 AD2d 400 [2nd Dept 1997], lv denied 91 NY2d 809).
Finally, Fried Frank and BAS cross-move for sanctions in the amount of $10,000, and awarding each of them its costs, including attorney's fees. JPM joins in the motion.
Cross movants contend that there was no basis for plaintiffs to have sought a preliminary injunction as against them (Motion Sequence 001). In that motion, plaintiffs sought: (1) to enjoin the transfer or issuance of stock in Intralinks, in violation of the Shareholders' Agreement, (2) to require the advancement of plaintiffs' attorney's fees, pursuant to the Shareholders' Agreement, and (3) to enjoin an arbitration that Intralinks had commenced. Fried Frank and BAS argue that plaintiffs compounded their fault by failing to respond to the written request by counsel for clarification as to why the preliminary injunction was directed at those particular defendants.
Plaintiffs' counsel never responded to those inquiries, nor did he provide a meritorious response in either his reply affirmation, dated October 15, 2004, or at oral argument held on October 20, 2004. In his reply affirmation, plaintiffs' counsel asserted that the sanctions motion is meritless, because defendants failed to serve a demand for a bill of particulars, and that a review of the Shareholders' Agreement makes it clear that any person trafficking in Intralinks securities in violation of that agreement is subject to an injunction. At oral argument, counsel stated that he was too busy to respond to the letters and phone calls inquiring about the merits of the preliminary injunction motion as to these defendants, but that its merit is clear from the complaint.
Counsel failed to articulate why he sought to enjoin these three defendants based upon an agreement to which none of them were parties. Counsel's conduct can be characterized as frivolous, pursuant to 22 NYCRR 130-1.1, in that, as against cross movants, the motion was completely without merit in law, and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law ( In the Matter of One Beacon Ins. Co. v. Bloch, 298 AD2d 522 [2nd Dept 2002]). Significantly, counsel did not even attempt to provide a meaningful explanation in opposition to the sanctions application. Hence, I am persuaded that sanctions against plaintiffs' counsel is warranted, but only to the extent of awarding defense counsel motion costs, including reasonable attorney's fees incurred in defending against the preliminary injunction motion. Counsel for Fried Frank, BAS, and JPM are each directed to submit an affidavit setting forth with specificity the costs and legal fees incurred in connection with the preliminary injunction motion. Plaintiffs' counsel shall have 10 days after the date of service of the affidavits to respond to the amounts sought.
Accordingly, it is
ORDERED that Motions Sequence Numbers 005, 006, 007, 008, 009, and 010 are granted, and the complaint is dismissed with prejudice; and it is further
ORDERED that the Cross Motion to Motion Sequence Number 001, by Fried Frank, BAS, and JPM, is granted to the extent set forth above; and it is further
ORDERED that Counsel for Fried Frank, BAS, and JPM are each directed to submit an affidavit setting forth with specificity the costs and legal fees incurred in connection with the preliminary injunction motion. Plaintiffs' counsel shall have 10 days after the date of service of the affidavits to respond to the amounts sought; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.