Id. See also In re Mindbody, Inc., Stockholder Litig., No. 2019-0442-KSJM, 2023 WL 2518149, at *31 n. 493 (Del. Ch. Mar. 15, 2023) ("In his capacity as a director, Stollmeyer was protected by an exculpatory charter provision, which means that Plaintiffs would have to prove that Stollmeyer acted disloyally or in bad faith to prevail on a claim against him as a director. Mindbody's exculpatory charter provision did not protect Stollmeyer from liability when he was acting as an officer.
Such a motion may be made by any party at any time, even after judgment, under Super. Ct. Civ. R. 15(b). In re Mindbody, Inc., 2023 WL 2518149, at *103 (Del. Ch. Mar. 15, 2023) (citations omitted). However, Rule 15(b) itself provides that, when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings, and Delaware courts have held that failure to amend the pleadings does not affect the result of the trial of these issues.