IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
ALIXPARTNERS, LLP, )
ALIXPARTNERS HOLDINGS, LLP, )
and ALIXPARTNERS S.R.L., )
)
Plaintiffs, )
)
v. ) C.A. No. 2019-0392-KSJM
)
GIACOMO MORI, )
)
Defendant. )
MEMORANDUM OPINION
Date Submitted: August 28, 2019
Date Decided: November 26, 2019
Bradley R. Aronstam, Eric D. Selden, ROSS ARONSTAM & MORITZ LLP,
Wilmington, Delaware; Nicholas J. Pappas, Robert S. Berezin, Justin Michael
DiGennaro, WEIL, GOTSHAL & MANGES LLP, New York, New York; Counsel
for Plaintiffs AlixPartners, LLP, AlixPartners Holdings, LLP, and AlixPartners S.r.l.
John A. Sensing, Clarissa R. Chenoweth, Jesse L. Noa, POTTER ANDERSON &
CORROON LLP, Wilmington, Delaware; Counsel for Defendant Giacomo Mori.
McCORMICK, V.C.
The plaintiffs operate a global business advisory firm known as AlixPartners.
The defendant was the managing director of the plaintiffs’ office in Milan, Italy.
Over the course of his employment, the defendant received compensation in the form
of equity interests in two New York-based AlixPartners affiliates formed under
Delaware law, Plaintiffs AlixPartners, LLP (“Alix”) and AlixPartners Holdings,
LLP (“Alix Holdings”). Two agreements with the Delaware entities governed the
defendant’s equity awards: a limited liability partnership agreement and an
equityholders’ agreement. Those agreements contain Delaware choice of law and
forum selection provisions. A separate agreement with the defendant’s Italian
employer, Plaintiff AlixPartners S.r.l. (“Alix S.r.l.”), governed the defendant’s
employment. The employment agreement contains an Italian choice of law
provision but no forum selection clause.
In 2018, Alix S.r.l. raised concerns regarding the defendant’s alleged
violations of firm policy. Anticipating his termination, the defendant connected a
personal external data storage device to his work-issued computer and downloaded
files alleged to be the confidential and proprietary information of all three plaintiffs.
When the defendant refused to return or destroy the information, the plaintiffs
commenced this litigation, claiming that the defendant breached a host of
confidentiality and other contractual obligations under the limited liability
partnership agreement, equityholders’ agreement, and employment agreement. The
1
plaintiffs also asserted claims for misappropriation of trade secrets, conversion, and
declaratory relief.
The defendant has moved to dismiss the complaint on several grounds,
including lack of subject matter jurisdiction, lack of personal jurisdiction, improper
venue, and failure to state a claim. The defendant’s primary argument is that a
European Union regulation and an Italian procedural law require Italian employers
to bring proceedings concerning all employment-related disputes exclusively in
Italian courts, thus divesting this Court of subject matter jurisdiction. This decision
rejects that argument in light of the transitory nature of the plaintiffs’ claims. This
decision further rejects the defendant’s arguments that Delaware forum selection
provisions in the limited liability partnership and equityholders’ agreements are
unenforceable and concludes that these provisions are sufficient to establish personal
jurisdiction over the defendant. This decision further concludes that the complaint
adequately states multiple claims. Under the forum non conveniens doctrine,
however, this decision stays certain of the plaintiffs’ claims that arise exclusively
from the employment agreement and are governed by Italian law.
I. FACTUAL BACKGROUND
These facts are drawn from the Verified Complaint (“Complaint”) and the
documents it incorporates by reference.1
1
C.A. No. 2019-0392-KSJM, Docket (“Dkt.”) 1, Verified Compl. (“Compl.”).
2
A. The Parties
Alix and Alix Holdings are Delaware limited liability partnerships with
principal places of business in New York. Alix S.r.l. is an Italian subsidiary of Alix
(with Alix and Alix Holdings, “AlixPartners”). AlixPartners is a leading global
business advisory firm that specializes in turnaround and restructuring and provides
consulting services ranging from enterprise improvement to information
management.
Defendant Giacomo Mori (“Defendant”) joined the Milan office of Alix S.r.l.
as a director in September 2003. In January 2014, Alix S.r.l. promoted Defendant
to managing director. In March 2017, Defendant was made a partner in Alix
Holdings. In his various positions, Defendant was responsible for building and
maintaining client relationships, leading complex engagements, recruiting, and
developing intellectual property for the firm. In carrying out these responsibilities,
Defendant had access to AlixPartners’ confidential and proprietary information.
B. The Governing Agreements
Over the course of his employment, Defendant entered into various
agreements with the AlixPartners entities. In January 2014, upon his promotion to
managing director, Defendant entered into an employment agreement (the
“Employment Agreement”) with Alix S.r.l. 2 In March 2017, upon his promotion to
2
Id. Ex. C.
3
partner, defendant executed a joinder adopting and approving Alix Holdings’ then-
operative LLP Agreement (the “LLP Agreement”).3
As part of his compensation package, Defendant received equity awards
governed by a series of option award agreements (collectively, the “Award
Agreements”). 4 In 2014 and 2016, he entered into two Award Agreements with Alix
Holdings (the “2014 Agreement” and the “2016 Agreement,” respectively).5
According to the Complaint, those agreements are governed by an equityholders’
agreement (the “Equityholders’ Agreement”).6 In February 2017, April 2017, and
April 2018, Defendant entered into four more Award Agreements with Alix
Holdings (the “February 2017 Agreements,” the “April 2017 Agreement,” and the
“April 2018 Agreement,” respectively). 7 According to the Complaint, those
agreements are governed by the Alix Holdings’ 2017 LLP Interest and Option Plan
(the “2017 Plan”).8
3
Id. Ex. A; id. ¶ 23 n.1.
4
Id. ¶¶ 46–47, 52–54.
5
Id. Exs. D, E.
6
Id. ¶ 48; id. Ex. B. The 2014 Agreement and 2016 Agreement state that they are governed
by the AlixPartners Holdings, LLP 2012 LLP Interest and Option Plan, which is neither
referenced in nor included as an exhibit to the Complaint. Id. Exs. D, E, at 1. Nonetheless,
Plaintiffs allege that the 2014 Agreement and 2016 Agreement are ultimately subject to the
Equityholders’ Agreement—and Defendant does not refute this point.
7
Id. Exs. F, G, H, I.
8
Id. ¶ 48; id. Ex. J. In their request for declaratory judgment, Plaintiffs state that Defendant
also disputes that the 2017 Plan governs the February 2017, April 2017, and April 2018
Agreements. Id. ¶ 95. However, Defendant again does not offer a competing interpretation
4
Certain of the governing agreements contain contractual provisions that form
the bases for the claims in this litigation. The Employment Agreement and the LLP
Agreement contain provisions restricting Defendant’s use of confidential
information.9 The Employment Agreement contains a provision requiring the return
of confidential materials upon termination (the “Return of Property Provision”)10
and a provision requiring Defendant to use his “best efforts” to promote Alix S.r.l.’s
services, business, and affairs (the “Best Efforts Provision”).11
The Employment Agreement and Award Agreements contain nearly identical
provisions restricting Defendant’s ability to solicit AlixPartners’ business or
managing directors post-termination. The Employment Agreement contains a one-
year non-solicitation provision,12 and each of the Award Agreements contains a two-
year non-solicitation provision.13
in his briefs. Plaintiffs’ interpretation is at least reasonably conceivable, because each of
the February 2017, April 2017, and April 2018 Agreements contains a provision subjecting
the option awards they grant “to the terms and conditions of the Plan [defined as the 2017
Plan].” Id. Exs. F, G, H, I §§ 1. The Court accepts this conclusion for purposes of its
analysis.
9
Employment Agreement at 5–6; LLP Agreement § 15.3.
10
Employment Agreement at 7.
11
Id. at 1.
12
Id. at 4–5.
13
Compl. Exs. D, E, F, G, H, I §§ 8(b). This is a slight oversimplification, in light of the
complex contractual scheme involved in this case. As discussed below, the non-solicitation
provisions in certain of the Award Agreements may be arguably open-ended in duration.
See infra notes 171–72 and accompanying text.
5
All of the agreements entered into by the parties—except the Employment
Agreement—either contain or are subject to Delaware forum selection and Delaware
choice of law provisions. The LLP Agreement and Equityholders’ Agreement each
contain Delaware forum selection 14 and Delaware choice of law15 provisions. The
Equityholders’ Agreement’s Delaware forum selection and Delaware choice of law
provisions apply to the 2014 and 2016 Agreements.16 The Award Agreements
executed pursuant to the 2017 Plan—the February 2017, April 2017, and April 2018
Agreements—are subject to the LLP Agreement’s Delaware forum selection
provision,17 and each contains its own Delaware choice of law provision.18 The
Employment Agreement does not contain a forum selection clause, but it contains
an Italian choice of law provision. 19
C. AlixPartners S.r.l. Terminates Defendant’s Employment.
On April 2, 2019, Alix S.r.l. notified Defendant by letter that he allegedly
violated numerous firm policies. Ten days later, Defendant responded by letter
14
LLP Agreement § 15.9; Equityholders’ Agreement § 5.8.
15
LLP Agreement § 15.8; Equityholders’ Agreement § 5.7.
16
Compl. ¶ 48; id. Exs. D, E §§ 15; see supra note 6 and accompanying text.
17
Compl. ¶ 55. The 2017 Plan does not contain a Delaware forum selection clause, but
equity awards granted thereunder are subject to the terms and conditions of the LLP
Agreement, the Equityholders’ Agreement, and the applicable Award Agreement.
2017 Plan § 6(a).
18
Compl. Exs. F, G, H, I §§ 15. The 2017 Plan also has its own Delaware choice of law
provision. 2017 Plan § 13(a).
19
Employment Agreement at 8.
6
explaining his position. On May 10, 2019, Alix S.r.l. replied that it had confirmed
Defendant’s alleged failure to follow relevant procedures and explained that such
failure constituted a breach of trust requiring his termination. Defendant’s
employment was terminated that same day.
D. Defendant Accesses AlixPartners’ Confidential Information.
On May 9, 2019—one day before the termination—Defendant connected a
personal external data storage device to his work-issued computer and copied to that
device more than 3,000 documents designated “Confidential” or “High Risk” by the
AlixPartners U.S.-based data loss prevention system. 20 These documents included
a directory containing at least 1,500 user-created files whose paths contained client
names. AlixPartners’ additional U.S.-based data protection system revealed that at
least 22,000 items—including email, Excel documents, Word documents,
PowerPoint presentations, and PDFs—were copied to the same external device on
the same date. Based on the file names, the majority of these items “appear to be
AlixPartners data.”21 The documents Defendant copied to the external device
included presentations related to Defendant’s work on behalf of AlixPartners,
reports, revenue assessments, studies prepared by AlixPartners, notes from
meetings, pricing analyses, and other strategic documents appearing to contain
20
Compl. ¶¶ 26, 27, 30–31.
21
Id. ¶ 36.
7
“confidential and sensitive” information and “valuable trade secrets” relating to the
company’s methods, techniques, and processes for conducting and marketing its
consulting business.22
On May 13, 2019, AlixPartners sent a letter to Defendant notifying him that
the company was aware that he had downloaded a large number of files onto an
external storage device. The letter directed Defendant to return, delete, or destroy
those files. On May 14, 2019, Defendant returned certain AlixPartners’ property,
including his work-issued laptop, to the company’s Milan office. Defendant did not
produce the external storage device. Defendant represented at that time that he had
copied only personal files from his work-issued laptop.
On May 19, 2019, Defendant explained to a senior AlixPartners executive that
he had in fact downloaded personal files, old files for references, and files regarding
an AlixPartners client engagement. The Complaint describes this explanation as an
admission that Defendant had “downloaded a number of confidential files from his
AlixPartners’ laptop.” 23 At no point did Defendant return to AlixPartners the
external storage device or the information he copied to that device. Defendant has
also declined to certify that he has returned, deleted, or destroyed the documents.
22
Id. ¶¶ 38–39.
23
Id. ¶ 44.
8
E. Alix Holdings Determines Defendant’s Leaver Status.
Defendant’s termination under the Employment Agreement had potential
knock-on effects under the agreements governing his equity awards.
Under the Equityholders’ Agreement, Alix Holdings has the right to
repurchase a separating managing director’s equity interests depending on the
managing director’s leaver status. If the Alix Holdings board determines that the
managing director is a “Bad Leaver,” 24 then Alix Holdings may repurchase the
managing director’s equity interests at a price equal to the lesser of (i) their fair
market value at the time they were granted, or (ii) their fair market value at the time
of the repurchase. 25 Upon Defendant’s termination, the Alix Holdings board
determined that Defendant was a “Bad Leaver” and decided to repurchase his equity
interests under the 2014 Agreement and the 2016 Agreement.
Under the 2017 Plan, a separating managing director’s equity interests
automatically terminate depending on the managing director’s leaver status. If the
Alix Holdings board determines that the managing director is a “Non-Qualified
Leaver,”26 then the managing director’s options “shall immediately terminate as of
24
The Equityholders’ Agreement defines the term “Bad Leaver” in § 1.1(a).
25
Equityholders’ Agreement § 4.1(c).
26
The 2017 Plan provides that the AlixPartners Equity Exchange (the “APEX”) defines
“Non-Qualified” Leaver. Id. § 2(y). The APEX is attached to the Complaint as Exhibit K
and defines “Non-Qualified Leaver” in § 2(w). Compl. Ex. K § 2(w).
9
the date such [managing director] becomes a Non-Qualified Leaver.”27 Upon
Defendant’s termination, the Alix Holdings board determined that Defendant was a
“Non-Qualified Leaver” within the meaning of the 2017 Plan. Defendant’s options
under the February 2017 Agreements, the April 2017 Agreement, and the April 2018
Agreement thus immediately terminated as of the date of Defendant’s termination.
F. This Litigation
Plaintiffs commenced this litigation on May 28, 2019. The Verified
Complaint asserts six counts:
• Count I for breach of the Employment Agreement’s confidentiality
provision, Return of Property Provision, and Best Efforts Provision
brought by Alix S.r.l.; 28
• Count II for breach of the LLP Agreement’s confidentiality provision
brought by Alix Holdings;29
• Count III for misappropriation of trade secrets brought by all three
Plaintiffs;
• Count IV for conversion brought by all three Plaintiffs;
• Count V for a declaratory judgment as to AlixPartners’ contractual right
to repurchase or terminate Defendant’s equity brought by all three
Plaintiffs; and
27
Compl. ¶ 56; 2017 Plan § 5(e).
28
Plaintiffs clarified in briefing that although AlixPartners pled Count I for breach of the
Employment Agreement broadly on behalf of all three Plaintiffs, only Alix S.r.l asserts that
Count. Dkt. 15, Pls.’ Answering Br. in Opp’n to Def.’s Mot. to Dismiss and to Vacate
Stipulation and Order for Status Quo (“Pls.’ Answering Br.”) at 14.
29
Plaintiffs also clarified in briefing that although AlixPartners pled Count II for breach of
the LLP Agreement broadly on behalf of all three Plaintiffs, only Alix Holdings asserts
that Count. Id. at 14 n.6.
10
• Count VI for a declaratory judgment concerning Defendant’s
contractual non-solicitation obligations brought by all three Plaintiffs.
Defendant moved to dismiss the Complaint. The parties fully briefed the
motion,30 and the Court heard oral arguments on August 28, 2019. 31
II. LEGAL ANALYSIS
Defendants have moved to dismiss the Complaint under Court of Chancery
Rules 12(b)(1) for lack of subject matter jurisdiction and lack of standing, 12(b)(2)
for lack of personal jurisdiction, 12(b)(3) for improper venue, and 12(b)(6) for
failure to state a claim.
A. The Court Has Subject Matter Jurisdiction.
Defendant’s first argument is that the Court lacks subject matter jurisdiction
over this dispute.32 Defendant does not dispute that certain of the claims in this case
30
Dkt. 9, Def.’s Mot. to Dismiss and to Vacate Stipulation and Order for Status Quo
(“Def.’s Opening Br.”); Pls.’ Answering Br.; Dkt. 19, Def.’s Reply Br. in Supp. of Mot. to
Dismiss and to Vacate Stipulation and Order for Status Quo (“Def.’s Reply Br.”).
31
Contemporaneously with the Complaint, Plaintiffs filed a motion for a temporary
restraining order. Dkt. 1, Mot. for a TRO. To resolve that motion, the parties negotiated a
Stipulation and Proposed Status Quo Order, which the Court entered on June 5, 2019 (the
“Status Quo Order”). Dkt. 8, Stipulation and Order for Status Quo. In the Status Quo
Order, Defendant agreed to relinquish custody of the external storage device to his counsel,
who would then arrange for forensic imaging of the device and deliver the forensic image
to Plaintiffs’ counsel. Id. ¶¶ 2–5. With the motion to dismiss, Defendant also moved to
vacate the Status Quo Order, which the Court addresses separately. Def.’s Opening Br. at
43–44.
32
Def.’s Opening Br. at 8–16.
11
fall within the Court’s traditional subject matter jurisdiction; 33 nor could he.34
Rather, Defendant argues that two foreign laws divest the Court of subject matter
jurisdiction: a European Union (“EU”) regulation enforceable as law in all EU
member states including Italy and a provision of the Italian Civil and Labour
Procedure Code. 35
The EU regulation on which Defendant relies, referred to as the “Brussels
Regulation,” is a jurisdictional rule promulgated by the EU in order to ensure
“judicial cooperation in civil matters which are necessary for the sound operation of
the internal market.” 36 It resolves “certain differences between national rules
governing jurisdiction and recognition of judgments” by “unify[ing]” those rules
“with a view to rapid and simple recognition and enforcement of judgments from
33
“As Delaware’s Constitutional court of equity, the Court of Chancery can acquire subject
matter jurisdiction over a cause in only three ways, namely, if: (1) one or more of the
plaintiff’s claims for relief is equitable in character, (2) the plaintiff requests relief that is
equitable in nature, or (3) subject matter jurisdiction is conferred by statute.” Candlewood
Timber Gp., LLC v. Pan Am. Energy, LLC, 859 A.2d 989, 997 (Del. 2004) (citing 10 Del.
C. §§ 341, 342).
34
Among other things, Plaintiffs seek equitable relief by asking this Court to enjoin
Defendant from a variety of conduct related to the confidential and proprietary information
in his possession and order the return of such information. Compl. Prayer for Relief ¶¶ b,
c, d, f. As to the remaining claims and requests for relief, the Court may exercise equitable
“clean-up” jurisdiction. See Donald J. Wolfe, Jr. & Michael A. Pittenger, Corporate and
Commercial Practice in the Delaware Court of Chancery § 2.04 (2d ed. 2018) (providing
an overview of equitable “clean-up” jurisdiction).
35
Def.’s Opening Br. at 9–16.
36
Dkt. 9, Transmittal Aff. of John A. Sensing in Supp. of Def.’s Mot. to Dismiss Ex. 4,
at 1.
12
Member States.”37 It requires employers, “[i]n matters relating to individual
contracts of employment,” to “bring proceedings only in the courts of the Member
State in which the employee is domiciled.”38
The Italian law on which Defendant relies is Article 413 of the Italian Civil
and Labor Procedure Code (“Article 413”). According to Defendant’s expert,
Article 413 provides that disputes involving an Italian citizen’s employment and
employment relationship belong solely to the jurisdiction of the Italian Labour
Judge. 39
The laws of a foreign country cannot unilaterally deprive an American court
of the power to hear a dispute.40 Delaware courts are “capable of adjudicating
37
Id.
38
Id. at ch. 2 § 5, arts. 18, 20.
39
Dkt. 9, Decl. of Luca Failla Pursuant to 10 Del. C. § 3927 ¶ 11 (“Failla Decl.”).
Throughout briefing, Defendant also refers Article 414 of the Italian Civil and Labor
Procedure Code (“Article 414”). Defendant does not assert that Article 414 divests the
Court of subject matter jurisdiction; instead, he argues that it works in tandem with a
provision of the Italian Constitution to invalidate the confidentiality provisions of the
various agreements involved in this case. The Court addresses this argument below in the
analysis of whether Plaintiffs have stated a claim under Rule 12(b)(6). See infra note 147
and accompanying text.
40
See Randall v. Arabian Am. Oil Co., 778 F.2d 1146, 1150 (5th Cir. 1985) (“We reject
outright the notion that the law of a foreign country can unilaterally curtail the power of
our federal courts to hear a dispute even though the dispute involves rights fixed by the
laws of another nation.”); see also Reservoir 2020, Inc. v. Paulsson, 785 F.3d 330, 335 (9th
Cir. 2015) (quoting Randall, 778 F.2d at 1150); Flame S.A. v. Freight Bulk Pte., Ltd., 762
F.3d 352, 366 (4th Cir. 2014) (“[F]oreign law . . . cannot determine the subject matter
jurisdiction of an American court.”) (Wilkinson, J., concurring).
13
[equitable] rights and remedies under the laws of foreign jurisdictions.”41 There are
only “limited circumstances” in which Delaware courts “will not exercise subject
matter jurisdiction over a dispute that is predicated on foreign law where the foreign
state has vested jurisdiction exclusively in its own courts.” 42 Defendant bears the
burden of persuading the Court that foreign law divests this Court of an otherwise
appropriate exercise of subject matter jurisdiction.43
Two decisions of the Delaware Supreme Court establish the limited
circumstances in which a foreign country’s exclusive jurisdiction statute will divest
a Delaware court of subject matter jurisdiction: Taylor 44 and Candlewood. 45
In Taylor, a Canadian company’s minority stockholder sought to enjoin
preliminarily the majority stockholder, a Delaware entity, from acquiring the
minority interest. 46 The plaintiff’s claim derived solely from the so-called
“oppression remedy” conferred by the Canada Business Corporations Act. 47 The
defendant moved to dismiss, arguing that the Canada Business Corporations Act
41
de Adler v. Upper N.Y. Inv. Co., 2013 WL 5874645, at *8 (Del. Ch. Oct. 31, 2013).
42
Candlewood, 859 A.2d at 1004 (emphasis added).
43
Id. (“On the question of whether exclusive jurisdiction has been vested in [another
country’s] courts . . . the proponent of that contention[] has the burden of persuasion.”).
44
Taylor v. LSI Logic Corp., 715 A.2d 837 (Del. 1998), overruled on other grounds by
Martinez v. E.I. du Pont de Nemours & Co., 86 A.3d 1102 (Del. 2014).
45
Candlewood Timber Gp., LLC v. Pan Am. Energy, LLC, 859 A.2d 989 (Del. 2004).
46
715 A.2d at 838.
47
Id. at 839.
14
required the plaintiff to file suit in the courts of Canada. 48 After considering relevant
legislative intent,49 the Delaware Supreme Court held that the plaintiff’s “exclusive
equitable remedy under . . . the Canada Business Corporations Act for oppressive
corporate acts lies in the courts of Canada.”50 The Delaware Court of Chancery thus
lacked subject matter jurisdiction over the dispute.51
Six years after Taylor, the Delaware Supreme Court again considered the
effect of a foreign nation’s exclusive jurisdiction statute in Candlewood. In that
case, a Delaware entity’s wholly owned Argentine subsidiary purchased a large plot
of forested land in Argentina for purposes of manufacturing and selling wood
products.52 The Delaware entity, Candlewood, agreed through its subsidiary to
allow the defendant—a Delaware LLC—to extract the oil and gas from the forested
land.53 Thereafter, the defendant’s drilling program caused “massive” property
damage, and Candlewood filed a lawsuit in this Court alleging breach of contract,
negligence, fraud, tortious infringement of property rights, and tortious interference
with business relations.54 The defendant moved to dismiss the complaint, arguing
48
Id.
49
Id. at 840.
50
Id. at 841.
51
Id.
52
Candlewood, 859 A.2d at 991.
53
Id. at 991–92.
54
Id. at 992.
15
among other things that Argentine law vested jurisdiction exclusively in Argentine
courts. 55
On appeal, the Delaware Supreme Court affirmed the Court of Chancery’s
decision rejecting the defendant’s argument. The Court found that the plaintiffs’
claims were transitory in nature and thus subject to the jurisdiction of the Delaware
courts. In its analysis, the Candlewood Court adopted the test set forth by the
Supreme Court of the United States in Tennessee Coal, Iron & R.R. Co. v. George.56
In Tennessee Coal, a locomotive engineer suffered an injury while repairing brakes
in Alabama. 57 The engineer sued his employer in a Georgia state court, asserting
claims under an Alabama statute.58 That Alabama statute provided for employer
liability, but it also required the plaintiffs to seek relief in Alabama courts. 59 The
Court found that the plaintiff’s claims were transitory in nature because “the place
of bringing suit [was] not part of the cause of action[]—the right and the remedy
[were] not so inseparably united as to make the right dependent upon its being
enforced in a particular tribunal.”60 The Court reasoned:
55
Id. at 1004.
56
Id. at 1006 (citing Tenn. Coal, Iron & R.R. Co. v. George, 233 U.S. 354 (1914)).
57
Tenn. Coal, 233 U.S. at 358.
58
Id. at 358.
59
Id.
60
Id. at 359.
16
[A] state cannot create a transitory cause of action and at
the same time destroy the right to sue on that transitory
cause of action in any court having jurisdiction. That
jurisdiction is to be determined by the law of the court’s
creation and cannot be defeated by the extraterritorial
operation of a statute of another State, even though it
created the right of action.61
Although Tennessee Coal involved the application of another U.S. state’s law and
thus was rooted in the Full Faith and Credit Clause, federal courts have since applied
Tennessee Coal’s reasoning in order to determine the extraterritorial operation of the
law of a foreign nation. 62
The Delaware Supreme Court followed suit in Candlewood, applying the
Tennessee Coal test to determine the extraterritorial operation of Argentine law. The
Court observed that Candlewood’s contract and tort claims were transitory in nature,
and that they were thus properly brought in Delaware under Tennessee Coal.63 The
Candlewood Court distinguished Taylor, reasoning that in that case, “the general
rule of Tennessee Coal did not apply, because ‘the oppression remedy in [the Canada
Business Corporations Act] [was] purely a legislatively created statutory remedy,’
and ‘it was the intent of the [Canadian] Parliament that actions brought under . . . the
61
Id. at 360.
62
See, e.g., Randall, 778 F.2d at 1153 (“[I]f the Full Faith and Credit Clause of the United
States Constitution, which is the Supreme Law of land, does not compel one state from
recognizing the exclusive jurisdiction provisions of a sister state, then we see little or no
reason why in a transnational case such as this, where no higher positive law binds us, we
should be compelled to give effect to a foreign state’s exclusive jurisdiction provision.”).
63
Candlewood, 859 A.2d at 1006–07.
17
Canada Business Corporations Act be brought only in the courts of Canada.’” 64 By
contrast, the plaintiffs in Candlewood were “asserting claims arising under common
law, not under an Argentine statute that purports to localize those claims exclusively
within the Argentine court system.” 65 And in Candlewood “the plaintiffs’ causes of
action [were] not (as was found to be the case in Taylor) so inseparably intertwined
with a statutorily-created remedy that the right [could] be enforced only in the
statutorily-mandated tribunal.”66
In its analysis, the Candlewood Court also discussed with approval the Fifth
Circuit’s holding in Randall. 67 In that case, the former employee of a Delaware
corporation whose tenure took place in Saudi Arabia filed suit in a federal court
challenging his termination.68 The defendant moved to dismiss on the ground that a
Saudi Arabian labor law gave exclusive jurisdiction over labor disputes to a Saudi
Arabian labor commission.69 The Fifth Circuit rejected the defendant’s argument,
describing the plaintiff’s claim as “a classic example of a transitory cause of action
64
Id. at 1007 (quoting Taylor, 715 A.2d at 840 n.13, 841).
65
Id.
66
Id.
67
Randall v. Arabian Am. Oil Co., 778 F.2d 1146 (5th Cir. 1985).
68
Id. at 1148.
69
Id. at 1149.
18
that may be enforced in any foreign court having subject matter and in personam
jurisdiction.” 70
Applying Candlewood’s analytical framework to this case, Defendant’s
subject matter jurisdiction arguments fail because the rights and remedies at issue
are transitory in nature in that they “are not so inseparably united as to make the
right[s] dependent upon [their] being enforced in a particular tribunal.” 71 A
comparison of this case with Candlewood and its progenitor decisions reinforces this
conclusion.
Unlike Taylor, where a Canadian statute was the only source for the plaintiff’s
recovery, neither the Brussels Regulation nor Article 413 creates the rights or the
remedies at issue in this case. As Defendant explains, the Brussels Regulation did
not create enforceable substantive rights; it merely “codified the jurisdictional rules
for the EU.” 72 Similarly, Article 413 serves a procedural function rather than a
substantive one in that it vests jurisdiction over employment disputes in the Italian
Labour Judge.73 Defendant does not argue that the Brussels Regulation or
Article 413 creates the substantive rights or remedies that form the basis for the
Complaint.
70
Id. at 1151.
71
Tenn. Coal, 233 U.S. at 359.
72
Def.’s Opening Br. at 9.
73
Id. at 10.
19
Like in Candlewood and Randall, Plaintiffs assert “claims arising under
common law,” not under an EU or Italian law that “purports to localize those claims
exclusively within the [Italian] court system.” 74 Plaintiffs assert two counts for
breach of contract, one count for misappropriation of trade secrets, and one count
for conversion. 75 As Candlewood explains, “[n]o contemporary legal order’s law of
contract or tort seeks to localize . . . actions sounding in tort or contract.”76 And as
a general matter, “[m]ost types of actions are considered transitory.” 77 The common
law rights Plaintiffs seek to enforce are not the sort of statutorily-created rights so
“inseparably united” with statutorily-created remedies that they must be enforced in
a “particular tribunal.” 78 The Brussels Regulation and Article 413 thus do not divest
this Court of subject matter jurisdiction.
This conclusion is particularly appropriate given that the claims in this case
relate to the internal affairs of Alix Holdings, a Delaware limited liability
partnership.79 Plaintiffs’ claims that Defendant violated confidentiality obligations
to his employer under the Employment Agreement overlap significantly with claims
74
Candlewood, 859 A.2d at 1007; see Randall, 778 F.2d at 1151.
75
Compl. Counts I, II, III, IV.
76
Candlewood, 859 A.2d at 1006 (citation omitted).
77
Id. (quoting Moore’s Federal Practice ¶ 110.20[2] (3d ed. 2002)).
78
Tenn. Coal, 233 U.S. at 359.
79
Compl. ¶ 5.
20
arising out of the LLP Agreement. “[T]he logic of the internal affairs doctrine,
developed in regard to corporations, applies with equal force in the context of a
partnership.”80 That doctrine “is a long-standing choice of law principle which
recognizes that only one state should have the authority to regulate corporation’s
internal affairs—the state of incorporation.” 81 Plaintiffs’ claims involve matters
peculiar to Alix Holdings that pertain to the relationship between that entity and one
of its partners—Defendant. 82 Delaware thus has a vested policy interest in providing
a forum for the adjudication of claims under the LLP Agreement.
B. Alix and Alix Holdings Have Standing to Pursue Their Claims.
Defendant next argues that Alix and AlixHoldings lack standing to pursue
Plaintiffs’ claims for breach of the confidentiality provisions of the LLP Agreement,
misappropriation, and conversion. 83 To establish standing under Delaware law, a
plaintiff bears the burden of pleading each of the elements of standing, including
80
Total Hldgs. USA, Inc. v. Curran Composites, Inc., 999 A.2d 873, 884 (Del. Ch. 2009).
81
VantagePoint Venture P’rs 1996 v. Examen, Inc., 871 A.2d 1108, 1112 (Del. 2005).
82
See VantagePoint, 871 A.2d at 1113 (“The internal affairs doctrine applies to those
matters that pertain to the relationships among or between the corporation and its officers,
directors, and shareholders.” (citing McDermott Inc. v. Lewis, 531 A.2d 206, 214 (Del.
1987))).
83
Def.’s Opening Br. at 16–19. Defendant also argues that Alix and Alix Holdings lack
standing to pursue the claim for breach of the Employment Agreement. Id. at 16. In
response, Plaintiffs clarified that only Alix S.r.l. brings that claim. See supra note 28.
21
that the plaintiff suffered an injury in fact.84 An injury in fact is “an invasion of a
legally protected interest which is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical.”85 “At the pleading stage, general
allegations of injury are sufficient to withstand a motion to dismiss because it is
‘presume[d] that general allegations embrace those specific facts that are necessary
to support the claim.’” 86
Defendant argues that Alix and Alix Holdings have not suffered an injury in
fact because the information Defendant downloaded belongs exclusively to Alix
S.r.l. 87 But it is a reasonable inference from the facts alleged in the Complaint that
Defendant accessed the confidential and proprietary information of all three
AlixPartners entities.
In the Complaint, Plaintiffs define “AlixPartners” to include Alix, Alix
Holdings, and Alix S.r.l. 88 Nothing in Plaintiffs’ allegations limit the ownership of
the misappropriated materials to Alix S.r.l. They allege that the information
Defendant downloaded includes “numerous PowerPoint presentations related to
84
Dover Historical Soc’y v. City of Dover Planning Comm’n, 838 A.2d 1103, 1110 (Del.
2003).
85
Id. (quoting Soc’y Hill Towers Owners’ Ass’n v. Rendell, 210 F.3d 168, 175–76 (3d Cir.
2000)).
86
Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
87
Def.’s Opening Br. at 18.
88
Compl. at 1.
22
Defendant’s work on behalf of AlixPartners, reports, revenue assessments, studies
prepared by AlixPartners, notes from meetings, pricing analyses, and other strategic
documents.” 89 “[T]he majority of th[ose] documents contain confidential and
sensitive AlixPartners’ and AlixPartners’ clients’ information.”90 At the pleading
stage, the Court may presume that these general allegations as to AlixPartners
“embrace those specific facts that are necessary to support the claim[s]” as to Alix
and Alix Holdings.91 This inference is buttressed by the allegation that both of
AlixPartners’ data protection systems that detected the purported breaches are hosted
within the United States—the country where Alix and Alix Holdings are organized
and located.92 Those U.S.-based data protection systems revealed that Defendant
downloaded thousands of confidential documents and that a majority of the 22,000
items that Defendant copied, created, or wrote to his external storage device “appear
to be AlixPartners data.” 93
Defendant cites a federal case, Acrisure Holdings, Inc. v. Frey,94 to argue that
the information Defendant downloaded belongs exclusively to Alix S.r.l. because
89
Id. ¶ 38.
90
Id.
91
Dover Historical Soc’y, 838 A.2d at 1110 (quoting Lujan, 504 U.S. at 561).
92
Compl. ¶¶ 4–5, 27, 33.
93
Id. ¶¶ 2, 35–36.
94
2019 WL 1324943 (D. Del. Mar. 25, 2019).
23
Defendant was in Alix S.r.l.’s direct employ. 95 In Acrisure, a subsidiary’s parent
and its holding company sued the subsidiary’s former employee. 96 The plaintiffs
alleged that the defendant misappropriated a client list exclusively from the
subsidiary as “his employer,” rather than from all three entities.97 In addition, the
employment agreement at issue in Acrisure stated: “All business [the defendant]
develops and secures . . . and all business [he] services during the term of this
Agreement shall be the exclusive property of [the subsidiary].” 98 The court thus
found that the plaintiffs lacked standing to pursue their misappropriation claims. 99
Acrisure is inapposite. In this case, Plaintiffs have alleged that defendant
downloaded documents that belong to all three AlixPartners entities. 100 The
Complaint contains no allegation that the allegedly misappropriated information
belongs solely to Alix S.r.l. In addition, the Employment Agreement does not
contain a provision similar to that in Acrisure designating the information at issue as
the exclusive property of Alix S.r.l. In fact, the Employment Agreement
contemplates the opposite: that Defendant would have access to the confidential
95
Pls.’ Answering Br. at 19.
96
Acrisure, 2019 WL 1324943, at *1, 3.
97
Id. at *7.
98
Id. at *7 n.108 (emphasis added).
99
Id. at *8–11.
100
Compl. ¶¶ 31–32, 36–38.
24
information of not only Alix S.r.l. as his direct employer, but also of Alix and Alix
Holdings as related entities. 101 Thus, Defendant’s argument that the data belongs
solely to Alix S.r.l. is unavailing. The Complaint adequately alleges an injury in fact
such that the inference of standing as to Alix and Alix Holdings is appropriate at this
stage.
C. The Court Has Personal Jurisdiction Over Defendant.
Defendant also moves to dismiss pursuant to Rule 12(b)(2) for lack of
personal jurisdiction. 102 Delaware courts resolve questions of personal jurisdiction
using a two-step analysis. 103 First, the court must “determine that service of process
is authorized by statute.” 104 Second, the defendant must have certain minimum
contacts with Delaware such that the exercise of personal jurisdiction “does not
offend traditional notions of fair play and substantial justice.”105 However, “[w]hen
a party is bound by a forum selection clause, the party is considered to have expressly
101
The Employment Agreement prohibits Defendant from disclosing or using “any
confidential or proprietary information of the Group . . . relating to the property, business
and affairs of the Group.” Employment Agreement at 5. The term “Group” includes not
only Alix S.r.l. and any other subsidiary of Alix, but also “all companies controlling,
controlled by or under common control within the meaning of article 2359 of the Italian
Civil Code.” Id. at 4, 5. This definition encompasses Alix and Alix Holdings. Dkt. 15,
Decl. of Giovanni Gaudio Pursuant to 10 Del. C. § 5351, et seq. ¶ 13 n.4.
102
Def.’s Opening Br. at 20.
103
Ryan v. Gifford, 935 A.2d 258, 265 (Del. Ch. 2007).
104
Id.
105
Matthew v. Fläkt Woods Gp. SA, 56 A.3d 1023, 1027 (Del. 2012) (quoting Int’l Shoe
Co. v. Washington, 326 U.S. 310, 316 (1945)).
25
consented to personal jurisdiction.” 106 “An express consent to jurisdiction, in and of
itself, satisfies the requirements of Due Process,” eliminating the need to undertake
a minimum contacts analysis. 107 Forum selection clauses are “‘presumptively valid’
and should be ‘specifically’ enforced unless the resisting party ‘clearly show[s] that
enforcement would be unreasonable and unjust, or that the clause [is] invalid for
such reasons as fraud and overreaching.’” 108
Two agreements at issue in this case contain Delaware forum selection
clauses—the LLP Agreement and the Equityholders’ Agreement. 109 On their faces,
those agreements apply to claims asserted in the Complaint,110 and Defendant does
106
Solae, LLC v. Hershey Can., Inc., 557 F. Supp. 2d 452, 456 (D. Del. 2008) (citing Res.
Ventures, Inc. v. Res. Mgmt. Int’l, Inc., 42 F. Supp. 2d 423, 431 (D. Del. 1999)).
107
Id. (citing Sternberg v. O’Neil, 550 A.2d 1105, 1116 (Del. 1988), abrogated on other
grounds by Genuine Parts Co. v. Cepec, 137 A.3d 123 (Del. 2016)).
108
Ingres Corp. v. CA, Inc., 8 A.3d 1143, 1146 (Del. 2010) (quoting Capital Gp. Cos. v.
Armour, 2004 WL 2521295, at *3 (Del. Ch. Nov. 3, 2004)).
109
LLP Agreement § 15.9 (“In any judicial proceeding involving any dispute, controversy
or claim arising out of or relating to this Agreement or [Alix Holdings] or its operations,
each of the Partners and [Alix Holdings] unconditionally accepts the non-exclusive
jurisdiction and venue of any United States District Court located in the State of Delaware,
or of the Court of Chancery of the State of Delaware . . . .”); Equityholders’ Agreement
§ 5.8 (“In any judicial proceeding involving any dispute, controversy or claim arising out
of or relating to this Agreement, each party hereto unconditionally accepts jurisdiction and
venue of any United States District Court located in the State of Delaware, or of the Court
of Chancery of the State of Delaware . . . .”).
110
Compl. Counts II, V, VI.
26
not contend otherwise. Defendant also does not contend that the forum selection
clauses are invalid because they were the product of “fraud or overreaching.” 111
Instead, Defendant argues that the Delaware forum selection clauses are
unenforceable as to him because he “merely joined the agreements” and had “no
ability to negotiate their terms.” 112 This argument fails to rebut the presumed
validity of the forum selection clauses. Individuals often become parties to
agreements by signing joinders to those agreements, as the case law Defendant cites
illustrates.113 This Court declines to hold that forum selection clauses in every such
agreement are categorically invalid and unenforceable for want of free negotiation.
Further, Defendant’s emphasis on the purportedly “inequitable” nature of an
exercise of personal jurisdiction in this case is deeply misguided, especially in light
of the equitable principles announced in the very case law on which he relies.114
Defendant cites to Capital Group as support for the proposition that a “freely
negotiated” agreement is one that “contemplate[s] the claimed inconvenience,”115
but he ignores its discussion of equitable estoppel. In Capital Group, this Court
111
Ingres Corp., 8 A.3d at 1146.
112
Def.’s Opening Br. at 22.
113
See Capital Gp., 2004 WL 2521295, at *2 (considering trustees’ execution of a “Joinder
Agreement” by which they agreed to be bound by a stock restriction agreement and finding
that the forum selection clause in the stock restriction agreement was valid).
114
Def.’s Opening Br. at 22 (“[I]t would be inequitable to permit Plaintiffs to manufacture
personal jurisdiction via a non-negotiated jurisdictional consent provision . . . .”).
115
Id. at 21 (citing Capital Gp., 2004 WL 2521295, at *6); Def.’s Reply Br. at 18 (same).
27
bound a non-signatory to a Delaware forum selection clause when it found that the
non-signatory received a direct benefit from and was thus “closely related” to the
agreement at issue. 116 The closely-related test is an application of equitable
estoppel, which—as the Court in Capital Group explained—“prevents a non-
signatory to a contract from embracing the contract, and then turning her back on
the portions of the contract, such as a forum selection clause, that she finds
distasteful.”117
In this case, even if Defendant had not “joined” the LLP or Equityholders’
Agreements, he received a direct benefit from those agreements in the form of
partnership rights and interests in Alix Holdings.118 In view of these rights, he is
“closely related” to—and thus bound by—their forum selection provisions. 119 This
Court will not allow Defendant to accept the benefits of the agreements while
simultaneously escaping his obligation under those agreements to litigate in
Delaware.
116
Capital Gp., 2004 WL 2521295 at *6–7.
117
Id. at *6.
118
LLP Agreement art. IV; Compl. Exs. D, E, F, G, H, I, at 1 (“[A]s a condition to the grant
of this Option, the Participant shall . . . be required to execute the omnibus joinder . . . to
the Partnership Agreement and the Equityholders’ Agreement . . . .”).
119
See Neurvana Med., LLC v. Balt USA, LLC, 2019 WL 4464268, at *4 (Del. Ch.
Sept. 18, 2019) (collecting cases finding that non-signatories were bound by the relevant
agreements’ forum selection clauses because they received direct benefits—“both
pecuniary and non-pecuniary”—from those agreements).
28
D. Venue in This Court Is Proper, but Practical Considerations
Warrant a Stay of Claims Under the Employment Agreement.
Defendant next moves for dismissal of the entire Complaint under
Rule 12(b)(3) for improper venue on forum non conveniens grounds.120 As
discussed above, however, Defendant bound himself to the Delaware forum
selection provisions in the LLP Agreement and Equityholders’ Agreement. 121 In so
doing, Defendant “unconditionally accept[ed]” the “jurisdiction and venue” of the
Delaware Court of Chancery with respect to claims arising out of those
agreements. 122 Defendant may not renege on this promise by now claiming that this
Court is an inappropriate forum.
The Delaware Supreme Court’s decision in Ingres is instructive. That case
involved a forum selection clause designating either Delaware or New York as the
appropriate forum. 123 The Supreme Court affirmed this Court’s refusal to stay the
Delaware action in favor of a first-filed California action under McWane in light of
the parties’ “agreed upon forum selection clauses.”124 The Ingres Court then
120
Def.’s Opening Br. at 24–30.
121
LLP Agreement § 15.9; Equityholders’ Agreement § 5.8.
122
LLP Agreement § 15.9; Equityholders’ Agreement § 5.8.
123
Ingres, 8 A.3d at 1145 & n.1.
124
Id. at 1145. “In McWane, [the Delaware Supreme Court] held that Delaware courts
should exercise discretion in favor of a stay where a prior action, involving the same parties
and issues, is pending elsewhere in a court capable of doing prompt and complete justice.”
Id. (citing McWane Cast Iron Pipe Corp. v. McDowell–Wellman Eng’g Co., 263 A.2d 281
(Del. 1970)).
29
clarified that, “where contracting parties have expressly agreed upon a legally
enforceable forum selection clause, a court should honor the parties’ contract and
enforce the clause, even if, absent any forum selection clause, the McWane principle
might otherwise require a different result.” 125 This was so because “the McWane
principle is a default rule of common law, which the parties to the litigation are free
to displace by a valid contractual agreement.” 126
Like the McWane doctrine, the forum non conveniens doctrine is a rule of
common law that parties are free to displace by a valid contractual agreement. The
plain language of the forum selection clauses in the LLP Agreement and
Equityholders’ Agreement preclude Defendant’s forum non conveniens argument as
a basis for dismissal.127
125
Id.
126
Id. at 1146.
127
Defendant alternatively suggests that principles of international comity warrant
deference to the Italian courts. Def.’s Opening Br. at 15 n.16; Def.’s Reply Br. at 11–14.
“International comity is an ‘abstention doctrine,’ under which a court that has jurisdiction
over a person or dispute . . . may abstain from exercising jurisdiction and defer to a foreign
court.” Nat’l Indus. Gp. (Hldg.) v. Carlyle Inv. Mgmt. L.L.C., 67 A.3d 373, 387 (Del. 2013)
(quoting Ungaro–Benages v. Dresdner Bank AG, 379 F.3d 1227, 1237 (11th Cir. 2004)).
But “[t]he enforcement of an international forum selection clause is not an issue of comity.”
Id. Rather, “[i]t is a matter of contract enforcement and giving effect to substantive rights
that the parties have agreed upon.” Id. The Delaware forum selection clauses in the LLP
Agreement and Equityholders’ Agreement thus “supersede[]” the “application of the
doctrine of international comity,” just as they supersede Defendant’s forum non conveniens
argument. Id.
30
The same cannot be said of the claims arising exclusively from the
Employment Agreement—Count I for breach of the Employment Agreement’s
confidentiality, Return of Property, and Best Efforts provisions, and the portion of
Count VI seeking relief under the non-solicitation provision in the Employment
Agreement. Unlike the LLP Agreement and Equityholders’ Agreement, the
Employment Agreement does not contain a Delaware forum selection provision. As
a result, Defendant’s forum non conveniens argument is not foreclosed with respect
to the claims arising exclusively out of the Employment Agreement.
Under the doctrine of forum non conveniens, a court may decline to hear a
case “whenever considerations of convenience, expense, and the interests of justice
dictate that litigation in the forum selected by the plaintiffs would be unduly
inconvenient, expensive or otherwise inappropriate.”128 The doctrine operates even
“[w]here there is no issue of prior pendency of the same action in another
jurisdiction.” 129 Delaware courts consider six factors when determining whether an
action should be dismissed on forum non conveniens grounds:
(1) the relative ease of access to proof; (2) the availability
of compulsory process for witnesses; (3) the possibility of
the view of the premises; (4) whether the controversy is
dependent on the application of Delaware law which the
128
Summer Sports, Inc. v. Remington Arms Co., 1993 WL 67202, at *7 (Del. Ch. Mar. 4,
1993) (quoting Monsanto Co. v. Aetna Cas. & Sur. Co., 559 A.2d 1301, 1304 (Del. Super.
Ct. 1988)).
129
Martinez, 86 A.3d at 1104 (citing Taylor v. LSI Logic Corp., 689 A.2d 1196, 198–99
(Del. 1997)).
31
courts of this State more properly should decide than those
of another jurisdiction; (5) the pendency or nonpendency
of a similar action or actions in another jurisdiction; and
(6) all other practical problems that would make the trial
of the case easy, expeditious and inexpensive. 130
To obtain dismissal of a first-filed or only-filed action in Delaware, “[t]he
defendant must show ‘with particularity’ that one or more of these
factors . . . imposes an ‘overwhelming hardship’ on the defendant.” 131 Unlike
dismissal, a stay of proceedings under the doctrine of forum non conveniens does
not require a showing of “overwhelming hardship”—rather, “the burden . . . is a
lesser one.”132 “Given the profound distinction between those two remedies, that is
hardly surprising.”133 Thus, when considering whether to stay proceedings under
the doctrine of forum non conveniens, the defendant need only show that, “on
balance,” the relevant factors “preponderate in favor of granting a stay.” 134
130
Id. (citing Gen. Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681, 684 (Del. 1964)).
131
Mar-Land Indus. Contractors, Inc. v. Caribbean Petroleum Ref., L.P., 777 A.2d 774,
778 (Del. 2001) (quoting Ison v. E.I. du Pont de Nemours & Co., 729 A.2d 832, 838 (Del.
1999)); see Lisa, S.A. v. Mayorga, 993 A.2d 1042, 1047 (Del. 2010) (“overwhelming
hardship” standard only applies where “the Delaware action [is] either the first filed or the
only filed action”).
132
HFTP Invs., L.L.C. v. ARIAD Pharm., Inc., 752 A.2d 115, 121 (Del. Ch. 1999) (quoting
Life Assurance Co. of Penn. v. Associated Inv’rs Int’l Corp., 312 A.2d 337, 340 (Del. Ch.
1973)).
133
Id.
134
Id.
32
Defendant has sufficiently demonstrated that, on balance, the relevant factors
warrant a stay of Count I and the portion of Count VI pertaining to the non-
solicitation provision in the Employment Agreement. The Employment Agreement
contains an Italian choice of law provision and is thus governed by Italian law.135
The underlying facts of this case may ultimately involve a “right of defense” that is
peculiar to the Italian legal regime and thus more properly litigated in an Italian
court.136 They may also involve a determination of whether the non-solicitation
provision in the Employment Agreement is subject to certain restrictive covenant
requirements or to general principles of freedom of contract. 137
In the same vein, trial in Italy as to claims under the Employment Agreement
might very well be easier, more expeditious, and less expensive. Defendant’s tenure
with AlixPartners took place in Italy, and the witnesses who may have information
about his termination from that tenure are located in Italy. Those witnesses might
135
Employment Agreement at 8 (“This agreement and its performance will be construed
and interpreted in accordance with the laws of Italy.”). “Delaware courts will recognize a
choice of law provision if the jurisdiction selected bears some material relationship to the
transaction.” Annan v. Wilm. Tr. Co., 559 A.2d 1289, 1293 (Del. 1989) (citing Wilm. Tr.
Co. v. Wilm. Tr. Co., 24 A.2d 309, 315 (1942)). Italy bears some material relationship to
Defendant’s employment because his direct employer is an Italian entity located in Italy
and because his tenure took place entirely in Italy.
136
Def.’s Opening Br. at 35–37. For a discussion of the “right of defense,” see infra note
147 and accompanying text.
137
Def.’s Opening Br. at 39; Pls.’ Answering Br. at 49–50.
33
not be subject to compulsory process, thus disabling the Court from compelling their
appearance in Delaware.
Taken collectively, while these facts may not demonstrate an “overwhelming
hardship” to Defendant sufficient to warrant dismissal of any claims, the Court is
satisfied that they satisfy the lesser burden of a stay. Thus, Count I and the portion
of Count VI pertaining to the non-solicitation provisions in the Employment
Agreement are stayed. 138
E. Plaintiffs Have Sufficiently Stated Their Claims.
Defendant moves to dismiss Counts II, III, IV, and VI for failure to state a
claim. 139 Under Rule 12(b)(6), the Court may grant a motion to dismiss for failure
to state a claim if a complaint does not allege facts that, if proven, would entitle the
plaintiff to relief.140 “[T]he governing pleading standard in Delaware to survive a
motion to dismiss is reasonable ‘conceivability.’” 141 When considering such a
motion, the Court must “accept all well-pleaded factual allegations in the
138
It might be appropriate to stay aspects of Count V, which Defendant describes as
“interwoven” with Plaintiffs’ claims under the Employment Agreement. Def.’s Opening
Br. at 37. As instructed in the conclusion of this decision, the parties shall confer to
determine whether there is a way to stay proceedings in Delaware or in Italy to avoid having
both courts determine overlapping issues.
139
Def.’s Opening Br. at 31–43. Defendant also moved to dismiss Count I for failure to
state a claim, but for the reasons detailed above, that Count is stayed.
140
Ct. Ch. R. 12(b)(6).
141
Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531, 537
(Del. 2011).
34
[c]omplaint as true . . . , draw all reasonable inferences in favor of the plaintiff, and
deny the motion unless the plaintiff could not recover under any reasonably
conceivable set of circumstances susceptible of proof.”142 The reasonable
conceivability standard asks whether there is a possibility of recovery. 143 The Court,
however, need not “accept conclusory allegations unsupported by specific facts
or . . . draw unreasonable inferences in favor of the non-moving party.” 144
Defendant first argues that this Court should dismiss Counts II, III, and IV
because the relevant choice of law provisions are unenforceable in light of Italian
public policy. He further argues that Count VI should be dismissed because the non-
solicitation provisions in the Employment Agreement and various option award
agreements are unenforceable under Italian and Delaware law.
1. Claims for Breach of Contractual Confidentiality
Obligations, Misappropriation, and Conversion
Defendant argues that the Delaware choice of law provisions in the LLP
Agreement and Equityholders’ Agreement are unenforceable and that Italian law
applies to Plaintiffs’ claims for breach of his contractual confidentiality obligations,
misappropriation, and conversion. 145 Defendant submits a declaration in support of
142
Id. at 536 (citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002)).
143
Id. at 537 n.13.
144
Price v. E.I. du Pont de Nemours & Co., Inc., 26 A.3d 162, 166 (Del. 2011) (citing
Clinton v. Enter. Rent-A-Car Co., 977 A.2d 892, 895 (Del. 2009)).
145
Def.’s Opening Br. at 31–34.
35
this argument, stating that he in fact “downloaded . . . data in order to preserve [his]
right of defense, guaranteed by the Italian Constitution and several pronouncements
of the Italian Supreme Court.”146 That constitutional “right of defense,” according
to Defendant, allows employees to retain information concerning the employment
relationship for use in an employment action as a form of self-help discovery.147
Defendant argues that this Italian “right of defense” supersedes his contractual
confidentiality obligations, and that as a result, Plaintiffs’ claims fail as a matter of
law. 148
At this stage, the Court need not reach the question of whether Italian
substantive law governs Plaintiffs’ claims because the Complaint adequately states
a claim even if Italian law governs and operates as Defendant describes. “As a
general rule, the law of the forum governs procedural matters.” 149 Under Delaware
law, “[t]he complaint generally defines the universe of facts that the trial court may
146
Dkt. 9, Decl. of Giacomo Mori Pursuant to 10 Del. C. § 3927 ¶ 7.
147
Def.’s Opening Br. at 35–37. According to Defendant, Article 414 requires plaintiffs
bringing employment actions to prove their facts at the outset of their case without the
benefit of discovery. Failla Decl. ¶ 18; see supra note 39. Defendant’s expert explains
that this burden of proof has led Italian courts to interpret Article 24 of the Italian
Constitution as affording Italian employees the substantive right to “take and retain
documents and information concerning the employer and/or employment relationship for
the purpose of asserting a legal defense or challenge to an employment action.” Id. ¶ 16.
148
Id. at 36–37.
149
Chaplake Hldgs., LTD v. Chrysler Corp., 766 A.2d 1, 5 (Del. 2001) (citations omitted).
36
consider in ruling on a 12(b)(6) motion to dismiss.” 150 “Matters extrinsic to a
complaint generally may not be considered in a ruling on a motion to dismiss.”151
In this case, the Complaint does not allege that Defendant’s intent in downloading
the information was to launch a legal challenge to his termination in Italy. Rather,
it alleges that he “misappropriated AlixPartners’ trade secrets and other confidential
and proprietary information for his own benefit.”152 On a motion to dismiss, this
Court may not venture beyond the pleadings and consider facts Defendant offers
through an affidavit in his own defense. 153 This aspect of Defendant’s motion is
therefore denied.
2. Claims as to the Non-Solicitation Provisions in the February
2017, April 2017, and April 2018 Agreements
Count VI of the Complaint seeks declarations concerning Defendant’s
obligations under the non-solicitation provisions of the Award Agreements, 154 which
150
In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 168 (Del. 2006) (collecting
cases).
151
Gentili v. L.O.M. Med. Int’l, Inc., 2012 WL 3552685, at *2 (Del. Ch. Aug. 17, 2012)
(quoting Zucker v. Andreessen, 2012 WL 2366448, at *2 (Del. Ch. June 21, 2012)).
152
Compl. ¶ 25.
153
See Allen v. Encore Energy P’rs, L.P., 72 A.3d 93, 96 n.2 (Del. 2013) (“Generally, a
judge should not consider matters outside of the pleadings when he rules on a Court of
Chancery Rule 12(b)(6) motion.” (citing Vanderbilt Income & Growth Assocs., L.L.C. v.
Arvida/JMP Managers, Inc., 691 A.2d 609, 612 (Del. 1996))).
154
The portion of Count VI seeking declaratory judgment as to the non-solicitation
provisions in the Employment Agreement is stayed on forum non conveniens grounds, as
previously discussed.
37
prevent Defendant from “directly or indirectly engag[ing] in the solicitation of any
business from, or attempt[ing] to influence, any of the Group’s clients, prospective
clients, or Lead Sources . . . .” 155 Plaintiffs specifically ask the Court to “[d]eclare
that, during the non-solicitation periods applicable to each of his non-solicitation
obligations to AlixPartners, Defendant may not be employed by or perform services
for any client, prospective client, or Lead Source of [Alix Holdings] or any of its
affiliates or subsidiaries.”156
In support of dismissal, Defendant first argues that the plain language of the
non-solicitation provisions do not support the declaration Plaintiffs seek, which
would restrict Defendant’s ability to work for certain employers. Defendant
interprets the non-solicitation provisions as restricting Defendant’s ability to solicit
business only from AlixPartners clients, prospective clients, or lead sources. 157 In
contrast, Plaintiffs interpret the non-solicitation provisions more broadly to prohibit
Defendant from being employed by or performing services for an AlixPartners
client, prospective client, or lead source. Plaintiffs reason that by virtue of such
employment, Defendant would necessarily “attempt to influence” the relevant actor,
including with respect to any engagement that actor has with AlixPartners.158
155
Compl. ¶ 101; id. Exs. D, E, F, G, H, I §§ 8(b).
156
Compl. Prayer for Relief ¶ k; Def.’s Opening Br. at 38–43.
157
Def.’s Opening Br. at 41–42.
158
Pls.’ Answering Br. at 54.
38
“When interpreting a contract, the role of a court is to effectuate the parties’
intent.”159 “Absent ambiguity, the court ‘will give priority to the parties’ intentions
as reflected in the four corners of the agreement, construing the agreement as a whole
and giving effect to all its provisions.’” 160 Ambiguity arises when a contractual term
is “fairly or reasonably susceptible to more than one meaning.” 161 If a term is
ambiguous, dismissal under Rule 12(b)(6) is improper unless “the defendant[’s]
interpretation is the only reasonable construction as a matter of law.” 162 At this stage,
“the trial court cannot choose between two differing reasonable interpretations of
ambiguous provisions.” 163
In this case, the “attempt to influence” language of the non-solicitation
provisions is reasonably susceptible to more than one meaning. On the one hand, it
is at least reasonably conceivable that the phrase “attempt to influence” prohibits
only affirmative attempts to influence certain persons such that merely being in the
employment of a client, prospective client, or lead source is permissible. On the
other hand, the prohibition on any “attempt to influence” could be construed as broad
159
Lorillard Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 739 (Del. 2006).
160
Williams Field Servs. Gp., LLC v. Caiman Energy II, LLC, 2019 WL 4668350, at *16
(Del. Ch. Sept. 25, 2019) (quoting In re Viking Pump, Inc., 148 A.3d 633, 648 (Del. 2016)).
161
Alta Berkeley VI C.V. v. Omneon, Inc., 41 A.3d 381, 385 (Del. 2012).
162
VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 615 (Del. 2003) (citing
Vanderbilt Income, 691 A.2d at 613).
163
Id. (citing Vanderbilt Income, 691 A.2d at 613).
39
enough to prohibit working or performing services for a client, prospective client, or
lead source. Because the relevant language is susceptible to multiple reasonable
interpretations, it is ambiguous. 164 At the pleading stage, the Court must construe it
“in the light most favorable to the non-moving party.” 165 Thus, the Court declines
to dismiss Count VI on the ground that it seeks relief impermissible under the non-
solicitation provisions in the Award Agreements.
Defendant next argues that the non-solicitation provisions in the Award
Agreements are unenforceable under Delaware law because of their open-ended
temporal scope.166 As Defendant observes, the Award Agreements impose non-
solicitation obligations while his equity remains outstanding and for two years
thereafter, but the Equityholders’ Agreement gives Alix Holdings “the right, but not
164
Id. (citing Vanderbilt Income, 691 A.2d at 613).
165
Id. (citing Savor, Inc. v. FMR Corp., 812 A.2d 894 (Del. 2002); McMullin v. Beran, 765
A.2d 910, 916 (Del. 2000)).
166
Def.’s Opening Br. at 42–43. The Equityholders’ Agreement and 2017 Plan, which
Plaintiffs allege govern the various Award Agreements, both contain Delaware choice of
law provisions. See supra notes 6 & 8 and accompanying text; see also Equityholders’
Agreement § 5.7 (“This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware.”); 2017 Plan § 13(a) (“This Plan and the Awards granted
hereunder shall be governed by and construed in accordance with the law of the State of
Delaware, without regard to conflicts of laws principles thereof.”). And again, “Delaware
courts will recognize a choice of law provision if the jurisdiction selected bears some
material relationship to the transaction.” Annan, 559 A.2d at 1293 (citing Wilm. Tr. Co.,
24 A.2d at 315). Delaware bears some material relationship to the Award Agreements, as
those agreements govern awards of equity in a Delaware entity—Alix Holdings.
Defendant’s argument that Italian law should apply thus fails.
40
the obligation,” to repurchase those equity interests.167 Thus, the argument goes,
Defendant’s non-solicitation obligation would extend until Alix Holdings exercises
its right to repurchase his equity—which could potentially be never.168
Defendant’s argument fails, at least with respect to the February 2017, April
2017, and April 2018 Agreements. The 2017 Plan arguably governs those
agreements. 169 Under the 2017 Plan, Defendant’s options under the February 2017,
April 2017, and April 2018 Agreements stopped vesting and were subject to
reacquisition automatically upon Defendant’s termination. 170 Thus, the two-year
clock on Defendant’s non-solicitation obligations under those agreements
immediately began ticking as of the date he was terminated.
Defendant’s argument is more persuasive with respect to the 2014 and 2016
Agreements, which are not subject to the 2017 Plan’s automatic reacquisition or
termination provisions and are thus arguably open-ended. 171 Defendant, however,
167
Def.’s Opening Br. at 42–43; see Equityholders’ Agreement §§ 4.1(a), (b), (c).
168
Def.’s Opening Br. at 42–43.
169
See supra note 8.
170
Compl. ¶ 59; 2017 Plan § 5(e) (“[I]n the event of a Participant’s termination of
Employment for any reason prior to the time that such Participant’s LLP Interests have
vested, all vesting with respect to such Participant’s LLP Interests shall cease, and all
unvested LLP Interests shall be reacquired by the Partnership . . . .”).
171
Plaintiffs read Section 4.1(c) of the Equityholders’ Agreement as requiring Alix
Holdings to exercise its right to repurchase Defendant’s equity under the 2014 and 2016
Agreements within two years of his termination. Pls.’ Answering Br. at 57. This, Plaintiffs
argue, sets a four-year duration for the non-solicitation provisions in the 2014 and 2016
Agreements. However, the Equityholders’ Agreement provides Alix Holdings a
41
fails to point to legal authority for the proposition that the arguably open-ended
nature of those provisions renders them wholly unenforceable as a matter of law.172
This aspect of Defendant’s motion is therefore denied.
III. CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss is DENIED.
Count I and the portion of Count VI pertaining to the non-solicitation provisions in
the Employment Agreement are STAYED.
As the dust settles from this decision, it becomes clear that there is significant
overlap between the stayed claims, which will presumably move forward in Italy at
some point, and aspects of the sustained claims pending in this Court. The parties
shall confer to determine whether there is a practical way to stage proceedings in a
manner that promotes efficiency in both fora. Within twenty days of the entry of
repurchase right, not a repurchase obligation. And this right includes the right to
repurchase only some—and not all—of Defendant’s equity. Ultimately, the Equityholders’
Agreement provides no requirement that Alix Holdings or any of its stakeholders
repurchase Defendant’s vested interests in the partnership. While Section 4.1(g) of the
Equityholders’ Agreement provides a process whereby other partners may repurchase
Defendant’s equity in the event Alix Holdings chooses not to, that process is also optional.
The effect of this contractual scheme is that the non-solicitation provisions in the 2014 and
2016 Agreements are potentially infinite in duration.
172
Defendant cites to no Delaware authority rendering non-solicitation provisions
unenforceable on this basis, which does not mean that none exists; Defendant might be
able to support its argument as a matter of law at a later stage. In any event, the issue is
largely academic, given that the non-solicitation issues to be litigated in connection with
the February 2017, April 2017, and April 2018 Agreements overlap with those to be
litigated under the 2014 and 2016 Agreements.
42
this decision, the parties shall jointly submit a stipulation reflecting any agreement
that arises from this meet and confer or jointly submit a letter reflecting their
competing positions. If the parties are unable to agree upon a mode of staging the
potentially competing cases so as to avoid a collision course, the Court reserves the
right to revisit the balancing analysis called for by the forum non conveniens
doctrine, including the scope of the discretionary stay granted by this decision.
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AlixPartners, LLP v. Giacomo Mori
Combined Opinion