Opinion
CIV. NO. 19-00574 JAO-RT CIV. NO. 20-00246 JAO-RT (CONSOLIDATED CASE)
2023-11-29
Elizabeth A. KANE, Bankruptcy Trustee; et al., Plaintiffs, v. PACAP AVIATION FINANCE, LLC; et al., Defendants. In re Hawaii Island Air, Inc., Debtor. Elizabeth A. Kane, Bankruptcy Trustee, Plaintiff, v. PaCap Aviation Finance, LLC; et al., Defendants.
Alika L. Piper, Simon Klevansky, Chun Kerr LLP, Honolulu, HI, Nickolas A. Kacprowski, Dentons U.S. LLP, Honolulu, HI, for Plaintiff Elizabeth A. Kane in 20-00246. Christian K. Adams, Adams Krek, LLP, Honolulu, HI, Peter W. Ito, Pro Hac Vice, Denver, CO, for Defendants PaCap Aviation Finance, LLC, PaCap Management Holdings LLC, Pacificap Investment Managment, LLC, Malama Investments, LLC, Snowbiz Ventures, LLC, PaCap Management Solutions, LLC, PaCap Advisors, LLC, Jeffrey Au, Jack Chuck She Tsui Trust, Jack Tsui in 20-00246. Christopher J. Muzzi, Tsugawa Lau & Muzzi LLLC, Honolulu, HI, James R. Hancock, Pro Hac Vice, Morrison & Foerster LLP, Palo Alto, CA, for Defendants Lawrence Investments, LLC, Lawrence J. Ellison Revocable Trust, Ohana Airline Holdings, LLC, Carbonview Limited, LLC, Paul Marinelli, Lawrence J. Ellison in 20-00246. Alan Van Etten, Deeley King Pang & Van Etten, LLP, Honolulu, HI, David C. Farmer, David C. Farmer Attorney at Law LLLC, Honolulu, HI, for Defendant Christopher Gossert in 20-00246. Paul Alston, Nickolas A. Kacprowski, Wendy F. Hanakahi, Dentons US LLP, Honolulu, HI, Simon Klevansky, Chun Kerr LLP, Honolulu, HI, for Plaintiff Elizabeth A. Kane in 19-00574. Joshua J. Ellison, Pro Hac Vice, Air Line Pilots Association, International, McLean, VA, Paul Alston, Nickolas A. Kacprowski, Wendy F. Hanakahi, Dentons US LLP, Honolulu, HI, for Plaintiff Air Line Pilots Association, International in 19-00574. Paul Alston, Nickolas A. Kacprowski, Wendy F. Hanakahi, Dentons US LLP, Honolulu, HI, for Plaintiff Hawaii Teamsters and Allied Workers, Local 996 in 19-00574. Christian K. Adams, Adams Krek, LLP, Honolulu, HI, Peter W. Ito, Pro Hac Vice, Denver, CO, for Defendants PaCap Aviation Finance, LLC, PacificCap Investment Management, LLC, Malama Investments, LLC, Snowbiz Ventures, LLC, PaCap Management Solutions, LLC, PaCap Advisors, LLC, Jeffrey Au, Jack Tsui, Jack Chuck She Tsui Trust in 19-00574. Christopher J. Muzzi, Tsugawa Lau & Muzzi LLLC, Honolulu, HI, Darryl P. Rains, Pro Hac Vice, Lorenzo Marinuzzi, Pro Hac Vice, Morrison & Foerster LLP, New York, NY, James R. Hancock, Pro Hac Vice, Morrison & Foerster LLP, Palo Alto, CA, Rahman Connelly, Pro Hac Vice, Pillsbury Winthrop Shaw Pittman LLP, New York, NY, for Defendants Lawrence Investments, LLC, Lawrence J. Ellison Revocable Trust, Ohana Airline Holdings, LLC, Carbonview Limited, LLC, Paul Marinelli in 19-00574. David C. Farmer, David C. Farmer Attorney at Law LLLC, Honolulu, HI, for Defendant Catherine Yannone in 19-00574. Christopher J. Muzzi, Tsugawa Lau & Muzzi LLLC, Honolulu, HI, James R. Hancock, Pro Hac Vice, Morrison & Foerster LLP, Palo Alto, CA, Rahman Connelly, Pro Hac Vice, Pillsbury Winthrop Shaw Pittman LLP, New York, NY, for Defendant Lawrence J. Ellison in 19-00574.
Alika L. Piper, Simon Klevansky, Chun Kerr LLP, Honolulu, HI, Nickolas A. Kacprowski, Dentons U.S. LLP, Honolulu, HI, for Plaintiff Elizabeth A. Kane in 20-00246. Christian K. Adams, Adams Krek, LLP, Honolulu, HI, Peter W. Ito, Pro Hac Vice, Denver, CO, for Defendants PaCap Aviation Finance, LLC, PaCap Management Holdings LLC, Pacificap Investment Managment, LLC, Malama Investments, LLC, Snowbiz Ventures, LLC, PaCap Management Solutions, LLC, PaCap Advisors, LLC, Jeffrey Au, Jack Chuck She Tsui Trust, Jack Tsui in 20-00246. Christopher J. Muzzi, Tsugawa Lau & Muzzi LLLC, Honolulu, HI, James R. Hancock, Pro Hac Vice, Morrison & Foerster LLP, Palo Alto, CA, for Defendants Lawrence Investments, LLC, Lawrence J. Ellison Revocable Trust, Ohana Airline Holdings, LLC, Carbonview Limited, LLC, Paul Marinelli, Lawrence J. Ellison in 20-00246. Alan Van Etten, Deeley King Pang & Van Etten, LLP, Honolulu, HI, David C. Farmer, David C. Farmer Attorney at Law LLLC, Honolulu, HI, for Defendant Christopher Gossert in 20-00246. Paul Alston, Nickolas A. Kacprowski, Wendy F. Hanakahi, Dentons US LLP, Honolulu, HI, Simon Klevansky, Chun Kerr LLP, Honolulu, HI, for Plaintiff Elizabeth A. Kane in 19-00574. Joshua J. Ellison, Pro Hac Vice, Air Line Pilots Association, International, McLean, VA, Paul Alston, Nickolas A. Kacprowski, Wendy F. Hanakahi, Dentons US LLP, Honolulu, HI, for Plaintiff Air Line Pilots Association, International in 19-00574. Paul Alston, Nickolas A. Kacprowski, Wendy F. Hanakahi, Dentons US LLP, Honolulu, HI, for Plaintiff Hawaii Teamsters and Allied Workers, Local 996 in 19-00574. Christian K. Adams, Adams Krek, LLP, Honolulu, HI, Peter W. Ito, Pro Hac Vice, Denver, CO, for Defendants PaCap Aviation Finance, LLC, PacificCap Investment Management, LLC, Malama Investments, LLC, Snowbiz Ventures, LLC, PaCap Management Solutions, LLC, PaCap Advisors, LLC, Jeffrey Au, Jack Tsui, Jack Chuck She Tsui Trust in 19-00574. Christopher J. Muzzi, Tsugawa Lau & Muzzi LLLC, Honolulu, HI, Darryl P. Rains, Pro Hac Vice, Lorenzo Marinuzzi, Pro Hac Vice, Morrison & Foerster LLP, New York, NY, James R. Hancock, Pro Hac Vice, Morrison & Foerster LLP, Palo Alto, CA, Rahman Connelly, Pro Hac Vice, Pillsbury Winthrop Shaw Pittman LLP, New York, NY, for Defendants Lawrence Investments, LLC, Lawrence J. Ellison Revocable Trust, Ohana Airline Holdings, LLC, Carbonview Limited, LLC, Paul Marinelli in 19-00574. David C. Farmer, David C. Farmer Attorney at Law LLLC, Honolulu, HI, for Defendant Catherine Yannone in 19-00574. Christopher J. Muzzi, Tsugawa Lau & Muzzi LLLC, Honolulu, HI, James R. Hancock, Pro Hac Vice, Morrison & Foerster LLP, Palo Alto, CA, Rahman Connelly, Pro Hac Vice, Pillsbury Winthrop Shaw Pittman LLP, New York, NY, for Defendant Lawrence J. Ellison in 19-00574. ORDER ON THE ELLISON DEFENDANTS' MOTIONS FOR JUDGMENT AS A MATTER OF LAW (ECF NOS. 535, 536, 537, 538) Jill A. Otake, United States District Judge
On October 16, 2023, the Ellison Defendants filed three Motions for Judgment as a Matter of Law. See ECF Nos. 535, 536, 538 (the "Motions").
The Ellison Defendants include: Paul Marinelli and Lawrence J. Ellison, personally and as co-trustees of the Lawrence J. Ellison Revocable Trust (the "Ellison Trust"), Ohana Airline Holdings, LLC ("Ohana"), Lawrence Investments, LLC, and Carbonview Limited, LLC.
The Court, having considered the papers filed in support of and in opposition to the Motions, the arguments presented at the hearing on October 23, 2023, and other matters relevant to the determination of the Motions, entered oral rulings on October 23, 2023. This order memorializes the Court's decision to GRANT IN PART, DENY IN PART, and DEFER IN PART the Motions. In the event this Order conflicts with the Court's oral rulings, this Order controls.
I. BACKGROUND
The Court does not provide a factual background of the case or the issues here, as this Order is intended only to provide a formal, written explanation for its rulings on the various Rule 50 motions.
The Ellison Defendants filed (1) a Motion for Judgment as a Matter of Law on the Dislocated Workers Act ("DWA") (Counts I and II), ECF. No. 538; (2) a Motion for Judgment as a Matter of Law on Fiduciary Duty Claims (Counts VII-X), ECF. No. 535; and (3) a Motion for Judgment as a Matter of Law on WARN Act (Count III) and Indemnity (Count XI), ECF. No. 536.
The Ellison Defendants also filed a Motion for Judgment as a Matter of Law on Bankruptcy Claims (Counts 1-7, 18-52, 58-62, 68-75, XII, and XIII), ECF No. 537. Subsequently, the parties stipulated to the dismissal of most of those claims. See ECF No. 606. As to the only remaining claims, XII and XIII, the Court DENIED the motion, and these are equitable claims that remain pending before the Court.
Plaintiffs responded to two of these motions, see ECF Nos. 569 (opposing the Ellison Defendants' Fiduciary Duty Rule 50 Motion), 572 (opposing the Ellison Defendants' DWA Rule 50 Motion). Thereafter, the Court held a hearing regarding the Rule 50 Motions, at which time the Court (1) granted the Ellison Defendants' Motion for Judgment as a Matter of Law on the Dislocated Workers Act ("DWA") (Counts I and II), ECF. No. 538; (2) granted in part, denied in part, and deferred in part the Ellison Defendants' Motion for Judgment as a Matter of Law on Fiduciary Duty Claims (Counts VII-X), ECF. No. 535; and (3) deferred ruling on the Ellison Defendants' Motion for Judgment as a Matter of Law on WARN Act (Count III) and Indemnity (Count XI), ECF. No. 536. See ECF No. 592. The Court indicated that this written order would follow. Id.
Plaintiffs appear not to have filed an opposition to ECF No. 536, regarding the WARN Act and Indemnity.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 50(a), "[j]udgment as a matter of law is appropriate when the evidence presented at trial permits only one reasonable conclusion." Torres v. City of Los Angeles, 548 F.3d 1197, 1205 (9th Cir. 2008) (quoting Santos v. Gates, 287 F.3d 846, 851 (9th Cir. 2002)). "[A] motion for a judgment as a matter of law is properly granted only if no reasonable juror could find in the nonmoving party's favor." Id. (quoting El-Hakem v. BJY Inc., 415 F.3d 1068, 1072 (9th Cir. 2005)).
III. DISCUSSION
A. The Court Granted the Motion for Judgment as a Matter of Law Regarding the DWA Claims (ECF No. 538).
Judgment as a matter of law is granted in favor of Defendants Lawrence J. Ellison and Paul Marinelli, individually and as co-trustees of the Lawrence J. Ellison Revocable Trust (the "Ellison Trust"); Ohana Airline Holdings, LLC; and Lawrence Investments LLC on Counts I and II for violations of the DWA, Haw. Rev. Stat. ("HRS") §§ 394B-9, 11. ECF No. 592.
Under both provisions of the DWA, only "an employer" can be held liable for statutory penalties. HRS §§ 394B-9, 11, 12 (civil penalties for violation of HRS § 394B-11). An "employer" is defined as "any individual or entity that, directly or indirectly, owns, operates, or has a controlling interest in a covered establishment, excluding the State or any political subdivision thereof." HRS § 394B-2.
The Court acknowledges that the Bankruptcy Court's definition of "owns" was "one who had a large enough ownership interest to be able to influence Island Air's decision whether to give the notice that the DWA requires." See Adv. 19-90027, ECF No. 394 at 10. That definition is attractive because it rids the statute of the absurdity inherent in Plaintiffs' proposed definition (i.e., that anyone who owns any amount of stock is an "owner," see ECF No. 572).
But the Court concludes that the appropriate reading of the DWA's "employer" definition contemplates two different types of ownership: total ownership and partial ownership. "Owns" in the "employer" definition falls into the former category, while "has a controlling interest in" would cover those partial owners with a controlling number of shares. If this were not the case, then anyone who owned any amount of stock would be an employer, thus negating the need for the "has a controlling interest in" language. "It is a cardinal rule of statutory construction that the courts are bound, if possible, to give effect to all parts of a statute, and no sentence, clause or word shall be construed as surplusage if a construction can be legitimately found which will give force to and preserve all the words of the statute." Kaheawa Wind Power, LLC v. Cnty. of Maui, 146 Haw. 76, 88, 456 P.3d 149 (2020) (explaining how Hawai'i courts conduct statutory interpretation); see also Giles v. Gen. Motors Acceptance Corp., 494 F.3d 865, 872 (9th Cir. 2007) ("Where the state's highest court has not decided an issue, the task of the federal courts is to predict how the state high court would resolve it."); cf. In re First T.D. & Inv., Inc., 253 F.3d 520, 527 (9th Cir. 2001) ("With the exception of the bankruptcy and district courts below, no state or federal court has had occasion to interpret [the state statute]. We therefore apply [the state's] rules of statutory construction."). Finally, the definition relying on "influence" really only addresses the notification theory of liability, and not the failure to pay theory.
Significantly, the definition adopted by the Court does not leave workers unprotected: someone remains on the hook for notification and payment because there must be an employer who owns, operates, or has a controlling interest in the company. Because the Ellison Defendants neither owned 100% of nor a controlling interest in Island Air at the time of the DWA violations, they are not employers for the purposes of the DWA, and cannot be held liable for its violations.
B. The Court Granted in Part and Denied in Part the Ellison Defendants' Motion for Judgment as a Matter of Law as to the Fiduciary Duty Claims, Counts VII, VIII, IX, and X (ECF No. 535).
1. The Court Granted the Motion as to all Defendants Except Paul Marinelli, Personally.
The Court granted the motion as to Lawrence J. Ellison (both in his personal capacity and in his capacity as trustee of the Ellison Trust); Carbonview Limited, LLC; Lawrence Investments, LLC; and Paul Marinelli in his capacity as a trustee of the Ellison Trust. ECF No. 592. The Court finds that, based on the facts presented at trial, no reasonable jury could conclude that these defendants owed a fiduciary duty to Island Air.
While officers, directors, and majority or minority-controlling shareholders may owe fiduciary duties, none of the above-listed defendants were, in fact, officers, directors, or shareholders of Island Air. See, e.g., Gantler v. Stephens, 965 A.2d 695 (Del. 2009) (officers and directors owe fiduciary duties); Ivanhoe Partners v. Newmont Min. Corp., 535 A.2d 1334, 1344 (Del. 1987) ("Under Delaware law a shareholder owes a fiduciary duty only if it owns a majority interest in or exercises control over the business affairs of the corporation.").
The Court also granted the motion as Ohana Airline Holdings, LLC ("Ohana"). ECF No. 592. While Ohana was a minority shareholder, Plaintiffs presented no evidence that Ohana had actual control over Island Air. A minority shareholder only owes fiduciary duties as a controlling shareholder if it actually controls the corporation. See, e.g., Kahn v. Lynch Commc'n Sys., Inc., 638 A.2d 1110, 1113-15 (Del. 1994) ("controlling shareholder" must "dominate" the corporation through "actual control of corporation conduct"). A potential right to gain control, such as a stock warrant, is not enough. See, e.g., In re Primedia Deriv. Litig., 910 A.2d 248, 257 (Del. Ch. 2006) ("potential ability to exercise control" through warrants is insufficient); Odyssey Partners, L.P. v. Fleming Cos., Inc., 735 A.2d 386, 407-08 (Del. Ch. 1999) (prior to exercise of warrant, shareholder did not control).
The above rulings were without prejudice to later equitable determinations regarding piercing the corporate veil. ECF No. 592.
2. The Court Granted the Motion as to Punitive Damages.
The Court granted this motion as to punitive damages. ECF No. 592. Punitive damages are not available for breaches of fiduciary duty under Delaware law, see, e.g., Gesoff v. IIC Indus., Inc., 902 A.2d 1130, 1154 (Del. Ch. 2006). The Court agrees with the reasoning in Buchwald v. Renco Grp., 539 B.R. 31, 52-54 (S.D.N.Y. 2015), aff'd, 682 F. App'x 24 (2d Cir. 2017), explaining why "[t]he Court [would] not order an award of punitive damages wholly unavailable to a plaintiff litigating in Delaware courts based on some sleight-of-hand that makes Delaware law on punitive damages different in federal court than state court." Buchwald, 539 B.R. at 54. Moreover, there was no evidence of any outrageous, egregious, willful, or wanton conduct that would amount to a defendant acting "maliciously and without probable cause, for the purpose of injuring [the other party]." Reiver v. Murdoch & Walsh, P.A., 625 F. Supp. 998, 1015 (D. Del. 1985); Delaware Civil Pattern Jury Instructions No. 22.27 ("Punitive damages cannot be awarded for mere inadvertence, mistake, errors of judgment and the like," but rather require "intentional[ ] or reckless[ ]" conduct).
In short, the unavailability of punitives for breaches of fiduciary duty in Delaware flows from such actions being heard in the Delaware Court of Chancery. But, as the Buchwald court explained, allowing that fact to overcome the Delaware rule against punitives would run counter to the "twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws." Buchwald, 539 B.R. at 54 (citing Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)).
The Court notes that the jury did not hold Paul Marinelli personally liable at all, ECF No. 627, which suggests that it would have been unlikely to award punitive damages anyway.
3. The Court Grants the Motion as to Count VII (Allowing Assets to Dissipate in Order to Further Own Interests).
For the reasons explained in the Ellison Defendants' motion, ECF No. 535 at 8-12, the Court granted judgment as a matter of law to the Ellison Defendants as to Count VII. ECF No. 592. The Trustee alleged that in June 2017 Marinelli kept "Island Air alive and out of bankruptcy because he wanted to sell Island Leasing's ATR [aircraft to Elix]." See ECF No. 1 ¶ 260.
Most persuasive to the Court, the evidence does not show that Marinelli owed any fiduciary duty at the time of the ATR transaction. Marinelli resigned on July 10; the letter of intent with Elix was not signed until August 4; and the deal did not close until September 15. See Exhibits 1174, 1198, 2109, 2135, 2145, 2146.
While Plaintiffs attempted to argue that Marinelli could be liable for a transaction he set in motion before his resignation, the ATR transaction was negotiated after Marinelli's resignation and was finalized well after his resignation. There was no evidence that Marinelli proposed the transaction, exerted any control or influence after his resignation, or misused any confidential information after his departure. See ECF Nos. 550 (Tr. 10/5/23) at 57:24-58:24; 552 (Tr. 10/11/23) at 101:22-102:11).
4. The Court Granted the Motion as to Count VIII (Resigning while Corporation in Crisis)
For the reasons explained in the Ellison Defendants' motion, ECF No. 535 at 12-13, the Court granted judgment as a matter of law to the Ellison Defendants as to Count VIII. ECF No. 592. The Trustee failed to prove that Marinelli breached his duty of good faith by resigning as an Island Air director. See ECF No. 1 ¶¶ 269-275. A director may resign at any time. Island Air's corporate bylaws confirm this, Exhibit 2052 at 3; see also 8 Del. C. § 141(b); OptimisCorp v. Waite, 2015 WL 5147038, at *73 (Del. Ch. Aug. 26, 2015), aff'd, 137 A.3d 970 (Del. 2016). Marinelli's resignation letter says he resigned to avoid the possibility of future conflicts, Exhibit 2109, an entirely appropriate reason to leave the position.
Further, Plaintiffs presented no evidence that Marinelli resigned in bad faith, which would have required "either [1] an extreme set of facts to establish that disinterested directors were intentionally disregarding their duties or [2] that the decision under attack is so far beyond the bounds of reasonable judgment that it seems essentially inexplicable on any ground other than bad faith." In re Mead-Westvaco S'holders Litig., 168 A.3d 675, 684 (Del. Ch. 2017). "[E]ven one plausible and legitimate explanation for [the director's] decision would negate a reasonable inference that the decision was 'so far beyond the bounds of reasonable judgment that it seems essentially inexplicable on any ground other than bad faith." Id. (internal quotation omitted). Here, the possibility that Ohana—on whose board Marinelli served—would become a creditor of Island Air is an eminently plausible and legitimate reason for his decision to resign.
5. The Court Deferred Ruling as to Count IX (Approving and Implementing an Undercapitalized Business Plan).
The Court deferred ruling on Count IX, the allegation that Marinelli breached his fiduciary duty by approving and implementing an "undercapitalized business plan," ECF No. 1 ¶¶ 277-87. ECF No. 592. The Jury found Marinelli not liable on this count. See ECF No. 627. Therefore, the Court hereby DENIES the Ellison Defendants' motion for judgment as a matter of law as to Marinelli for Count IX. The Jury's verdict that Marinelli is not liable as to Count IX stands.
6. The Court Denied the Motion as to Count X (Aiding and Abetting a Breach of Fiduciary Duty)
The Court denied the motion as to Marinelli for Count X, which alleged that Marinelli aided and abetted Defendant Jeffrey Au's breach of duty for implementing an undercapitalized business plan. ECF No. 592. The Jury did not find Jeffrey Au liable for implementing an undercapitalized business plan, so it did not find Marinelli liable for aiding and abetting. See ECF No. 627.
C. The Court Deferred Ruling on the Ellison Defendants' Motion for Judgment as a Matter of Law as to the WARN Act (Count III) and Indemnity (Count XI) (ECF No. 536)
The Court deferred ruling on the Ellison Defendants' motion as to the WARN Act (Count III) and Indemnity for violations of the DWA and WARN Act (Count XI). ECF No. 592. The Court will continue to DEFER ruling as to the WARN Act until it reviews the parties' closing arguments regarding the equitable claims.
However, because the Court granted judgment as a matter of law as to the Ellison Defendants on the DWA claims, the Court GRANTS the motion as to the Ellison Defendants for indemnity for any violations of the DWA.
IV. CONCLUSION
For the foregoing reasons, the Court:
(1) GRANTED the Ellison Defendants' Motion for Judgment as a Matter of Law on the Dislocated Workers Act (Counts I and II), ECF No. 538;
(2) GRANTED the Ellison Defendants' Motion for Judgment as a Matter of Law on Fiduciary Duty Claims as to Lawrence J. Ellison (both in his personal capacity and in his capacity as trustee of the Lawrence J. Ellison Revocable Trust); Carbonview Limited, LLC; Lawrence Investments, LLC; Paul Marinelli in his capacity as a trustee of the Lawrence J. Ellison Revocable Trust; and Ohana Airline Holdings, LLC, but without prejudice as to later equitable determinations regarding piercing the corporate veil, ECF No. 535;
(3) GRANTED the Ellison Defendants' Motion for Judgment as a Matter of Law on Fiduciary Duty Claims as to punitive damages, ECF No. 535;
(4) GRANTED the Ellison Defendants' Motion for Judgment as a Matter of Law on Fiduciary Duty Claims as to Count VII (Allowing Assets to Dissipate in Order to Further Own Interests), ECF No. 535;
(5) GRANTED the Ellison Defendants' Motion for Judgment as a Matter of Law on Fiduciary Duty Claims as to Count VIII (Resigning while Corporation in Crisis), ECF No. 535;
(6) DENIES the Ellison Defendants' Motion for Judgment as a Matter of Law on Fiduciary Duty Claims as to Count IX (Implementing an Undercapitalized Business Plan), ECF No. 535, as to Paul Marinelli;
(7) DENIES the Ellison Defendants' Motion for Judgment as a Matter of Law on Fiduciary Duty Claims as to Count X (Aiding and Abetting a Breach of Fiduciary Duty), ECF No. 535;
(8) GRANTS the Ellison Defendants' Motion for Judgment as a Matter of Law as to Indemnity (Count XI) for the DWA violations, ECF No. 536;
(9) DEFERS ruling on the Ellison Defendants' Motion for Judgment as a Matter of Law on WARN Act (Count III) and Indemnity (Count XI) as to the WARN Act, ECF No. 536; and
(10) DENIED the Ellison Defendants' Motion for Judgment as a Matter of Law on Bankruptcy Claims, ECF No. 537, as to Counts XII and XIII, which are equitable claims that remain pending before the Court.
IT IS SO ORDERED.