In re Oracle Corporation Derivative Litigation

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN RE ORACLE CORPORATION ) CONSOLIDATED
DERIVATIVE LITIGATION ) C.A. No. 2017-0337-SG

MEMORANDUM OPINION

Date Submitted: March 11, 2020
Date Decided: June 22, 2020

Joel Friedlander, Jeffrey M. Gorris, Christopher P. Quinn, and Bradley P. Lehman,
of FRIEDLANDER & GORRIS, P.A., Wilmington, Delaware; OF COUNSEL:
Randall J. Baron and David A. Knotts, of ROBBINS GELLER RUDMAN & DOWD
LLP, San Diego, California; Christopher H. Lyons, of ROBBINS GELLER
RUDMAN & DOWD LLP, Nashville, Tennessee; Brian J. Robbins, Stephen J. Oddo,
and Gregory Del Gaizo, of ROBBINS LLP, San Diego, California, Attorneys for
Lead Plaintiff Firemen’s Retirement System of St. Louis.

Elena C. Norman and Richard J. Thomas, of YOUNG CONAWAY STARGATT &
TAYLOR, LLP, Wilmington, Delaware; OF COUNSEL: Peter A. Wald, of
LATHAM & WATKINS LLP, San Francisco, California; Blair Connelly, of
LATHAM & WATKINS LLP, New York, New York, Attorneys for Defendants
Lawrence J. Ellison and Safra A. Catz.

Kenneth J. Nachbar, John P. DiTomo, and Thomas P. Will, of MORRIS, NICHOLS,
ARSHT & TUNNELL LLP, Wilmington, Delaware; OF COUNSEL: Sara B. Brody
and Jaime A. Bartlett, of SIDLEY AUSTIN LLP, San Francisco, California; Matthew
J. Dolan, of SIDLEY AUSTIN LLP, Palo Alto, California, Attorneys for Defendants
Jeffrey O. Henley, Renée J. James, and Paula R. Hurd as Trustee of the Hurd Family
Trust.

A. Thompson Bayliss and E. Wade Houston, of ABRAMS & BAYLISS LLP,
Wilmington, Delaware; OF COUNSEL: John W. Spiegel, George M. Garvey, and
John M. Gildersleeve, of MUNGER, TOLLES & OLSON LLP, Los Angeles,
California, Attorneys for Defendant Evan Goldberg.

Andrew S. Dupre and Sarah E. Delia, of MCCARTER & ENGLISH, LLP,
Wilmington, Delaware; OF COUNSEL: Robert P. Feldman, of QUINN EMANUEL
URQUHART & SULLIVAN, LLP, Redwood Shores, California; Christopher D.
Kercher, of QUINN EMANUEL URQUHART & SULLIVAN, LLP, New York,
New York, Attorneys for Defendant Zachary Nelson.

Thomas A. Beck, Blake Rohrbacher, Susan M. Hannigan, Matthew D. Perri, and
Daniel E. Kaprow, of RICHARDS, LAYTON & FINGER, P.A., Wilmington,
Delaware, Attorneys for Nominal Defendant Oracle Corporation.

GLASSCOCK, Vice Chancellor
 This matter was brought by stockholders of a major technology company,

Oracle Corporation (“Oracle”). They allege that breaches of fiduciary duty inhere

in Oracle’s overpriced acquisition of a second technology company, NetSuite, Inc.

(“NetSuite”). The fiduciary duty claims against Oracle fiduciaries Ellison and Catz

have withstood a motion to dismiss.1

Among the other Defendants are both the Chief Executive Officer and the

Chairman of the Board of the acquired company, NetSuite. Plaintiffs allege that

these NetSuite fiduciaries tortiously aided and abetted breaches of duty by Oracle

fiduciaries. This Memorandum Opinion resolves these two Defendants’ Motions to

Dismiss.

Can a fiduciary for an acquired entity aid and abet breaches of duty by a

fiduciary for the buyer? Brief reflection reveals that, in the infinite garden of

theoretical inequity, such a flower may bloom. But what if the breach of duty relates

only to the buyer paying the seller too much? In such a case, the cogitation quotient

must increase, in light of the fact that the seller’s fiduciaries have a duty to their own

stockholders to maximize price.2 At Oral Argument, Lead Plaintiff’s counsel offered

this memorable hypothetical (moderately enhanced here to make the implicit,

explicit):

1
In re Oracle Corp. Derivative Litig., 2018 WL 1381331 (Del. Ch. Mar. 19, 2018).
2
See Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173, 182 (Del. 1986).
1
 Posit two technology companies, both founded by the same rapacious genius

(“RG”). Co. A is a giant; Co. B is smaller, and does not initially compete in Co. A’s

space. As Co. A grows, however, it begins to compete with Co. B; insiders at both

companies (but not the trading public) are aware that ultimately Co. A will

outcompete and destroy Co. B.

RG is a large blockholder of Co. B. Along with his minion, the CEO of Co.

A (“Minion”), he develops a scheme to transfer Co. A’s wealth to himself through

the overpriced acquisition of Co. B. Minion meets with one of two pliable

fiduciaries of Co. B. She informally suggests a purchase of Co. B at $100/share,

which both Minion and the pliable fiduciary know to be a gross overvaluation. The

pliable fiduciary responds with an even grosser proposal of $125. Thus, a price

collar is set.

Thereafter, a secret dinner is held, attended by RG and the other pliable Co.

B fiduciary. The following facts and aspects of the scheme are made explicit at the

dinner:

Co. B will be destroyed by competition with Co. A, although this fact is not

yet reflected in Co. B’s trading price.

It is in Co. A’s business interest to simply proceed without acquiring Co. B.

The inevitable destruction of Co. B means that Co. B’s pliable fiduciaries will

lose their jobs, and their stock in Co. B will decline in value.

2
 It is in RG’s financial interest as a blockholder of Co. B. that Co. A buy Co.

B at an excessive price, within the price collar. He shares that interest with the other

stockholders of Co. B—including the pliable fiduciaries. In addition, the pliable

fiduciaries have an interest not shared with the other Co. B stockholders; RG and

Minion promise them perpetual employment via Co. A, if Co. B is acquired by Co.

A. Additionally, it is implied that Minion will be rewarded by RG upon Co. A’s

acquisition of Co. B.

Thus, in the overpriced purchase of Co. B by Co. A, everyone wins except

Co. A and its stockholders, who will be impoverished.

RG and Minion convey to the pliable Co. B fiduciaries that Minion can make

the deal happen. She will use her influence over Co. A’s board to set up a sham

special committee of loyal but gullible directors of Co. A, then use her powers of

persuasion and obfuscation to steer the special committee to a purchase within the

price collar. She will also ensure that the scheme is concealed from the stockholders

and loyal fiduciaries of Co. A.

However, RG and Minion inform the pliable fiduciaries of Co. B that they

have an important role to play in the scheme as well, requiring the pliable fiduciaries

to commit a corrupt act. The pliable fiduciaries must ensure that the scheme,

including the perpetual employment agreement and price collar, is not disclosed to

the Co. B stockholders who will be asked to approve the sale. This concealment will

3
require that the pliable fiduciaries ensure that Co. B issue misleading disclosures to

its stockholders. This will be in breach of the duty of candor owed by the pliable

fiduciaries to their stockholders, but no damages will result; Co. B stockholders are

in fact incidental beneficiaries of the scheme. The deception is necessary to the

scheme, however, for the following reason: if the scheme becomes public, it will

likely become known by the special committee of loyal but gullible directors of Co.

A. The scales will fall from these committee members’ eyes; gullible no more, they

will realize that Co. A is being fleeced, and nix the deal.

The scheme is agreed to; Minion does her part; the pliable fiduciaries of Co.

B actively conceal the scheme from the public by omitting the pertinent details from

Co. B’s securities filings, and the merger is consummated to the detriment of Co. A

and its stockholders.

A complaint based on this hypothetical against the pliable fiduciaries, alleging

aiding and abetting of RG’s and Minion’s breaches of duty, composed of well-pled

allegations sufficient to permit me to plausibly infer all the forgoing facts, would

withstand a motion to dismiss.

As Plaintiffs’ counsel conceded, however, his hypothetical does not reflect the

real-world Third Amended Complaint (“TAC”), the operative pleading here. The

TAC is but a faint shadow of the robust hypothetical. In the TAC, the part of the

rapacious genius is filled by Defendant Lawrence J. Ellison; the Minion by

4
Defendant Safra A. Catz; the pliable fiduciaries by Defendants Evan Goldberg and

Zachary Nelson of NetSuite; with Oracle as Co. A and NetSuite as Co. B. The TAC

alleges only that the price collar discussion between Katz and Nelson took place,

and that Ellison discussed with Goldberg that NetSuite would remain as an

independent entity post-acquisition, presumably implying continued employment

for Goldberg and Nelson. The TAC also reveals that NetSuite disclosed the

foregoing information to its stockholders. The TAC alleges that these disclosures in

NetSuite’s Schedule 14D-9 were inadequate in two respects: the full context (i.e.

date and substance) of the discussion of the preservation of NetSuite, post-

acquisition, was omitted; and the supplemental nature of the disclosure of the price

collar discussion made that disclosure inadequate.

Even if I could reasonably infer that these alleged disclosure deficiencies were

the result of a scheme akin to the one described in the hypothetical—that is, even if

I found the rather florid hypothesization above was reasonably implied by the facts

pled—it is not reasonably conceivable that the disclosure deficiencies just described

represent substantial assistance to Ellison’s and Catz’s alleged breach of fiduciary

duty. That is, it is not the case that the intention of Oracle to keep NetSuite as an

independent subsidiary was concealed in NetSuite’s public filings. It is not the case

that the “price collar” discussion was concealed—it was initially omitted but

disclosed in filings and by a supplemental proxy. In other words, it is the form of

5
those disclosures that is relied on by the Lead Plaintiff to constitute substantial

assistance by Nelson and Goldberg to the Ellison and Katz scheme. The Plaintiffs

theory appears to be that if the date of the first discussion of the preservation of post-

acquisition NetSuite had only been disclosed, or if the disclosure of the price collar

had only been packaged differently, Oracle’s special committee would have been

alerted to the fact that the acquisition was not in Oracle’s interest, and withdrawn

from the acquisition. I find that inference unreasonable. In fact, it is unreasonable

to conclude that the NetSuite disclosure deficiencies alleged, compared to “perfect”

disclosures, assisted Ellison and Katz’ scheme, at all. Since not only knowledge and

scienter, but also substantial assistance, are elements of the aiding and abetting tort,

the Motions to Dismiss must be granted, and I need not examine whether the Lead

Plaintiff has successfully alleged the other elements of the claim. A more detailed

look at the facts, and my reasoning, is below.

I. BACKGROUND3

A. The Parties and Relevant Non-Parties

Nominal Defendant Oracle is a Delaware corporation headquartered in

Redwood City, California.4 Oracle is a technology company that offers an integrated

3
The facts, except where otherwise noted, are drawn from the Lead Plaintiff’s Verified Third
Amended Derivative Complaint, D.I. 315 (the “Third Amended Complaint” or “TAC”), and are
presumed true for the purposes of evaluating the Defendants’ Motions to Dismiss.
4
TAC, ¶ 21.
6
array of applications, servers, storage, and cloud technologies.5 Oracle has over

135,000 full-time employees, over 420,000 customers across 175 countries, and its

market capitalization exceeds $200 billion.6

Non-party NetSuite was founded in 1998 and provided cloud-based financial

management and enterprise resource planning (“ERP”) software suites for medium

sized businesses.7 On November 5, 2016, NetSuite was acquired by Oracle for $109

per share (the “Acquisition”).8

Defendant Lawrence J. Ellison founded Oracle in 1977 and served as Oracle’s

Chief Executive Officer until September 2014, at which time he became Chairman

of the Board and Chief Technology Officer.9 Ellison also co-founded NetSuite in

1998.10 Ellison and his affiliates beneficially owned an aggregate of approximately

44.8% of NetSuite’s common stock prior to the Acquisition.11

Defendant Safra A. Catz has been Oracle’s Chief Executive Officer since

September 2014 and has held other various positions with Oracle since 1999.12

5
Id.
6
Id.
7
Id. ¶¶ 52, 59.
8
Id. ¶¶ 157, 181.
9
Id. ¶ 23.
10
Id. ¶ 52.
11
Id. ¶ 23.
12
Id. ¶ 24.
7
 Defendant Evan Goldberg co-founded NetSuite with Ellison in 1998 after

working at Oracle for eight years.13 Goldberg was Chief Technology Officer and

Chairman of the Board of NetSuite.14 Upon consummation of the Acquisition

Goldberg was named Executive Vice President, Oracle NetSuite Global Business

Unit, with responsibility for product strategy and development.15

Defendant Zachary Nelson was the Chief Executive Officer of NetSuite.16

Before joining NetSuite, Nelson worked at Oracle, where he was Oracle’s longest-

serving Vice President for Marketing.17

Defendant Paula R. Hurd as Trustee of the Hurd Family Trust is the legal

successor to Mark V. Hurd, who was Oracle’s Chief Executive Officer from

September 2014 until his death in October 2019.18 Hurd was Oracle’s President

from September 2010 to September 2014.19

Defendant Jeffrey O. Henley has been Oracle’s Executive Vice Chairman of

the Board since September 2014.20 Henley was Oracle’s Chairman of the Board

13
Id. ¶ 28.
14
Id.
15
Id.
16
Id. ¶ 29.
17
Id.
18
Id. ¶ 25.
19
Id.
20
Id. ¶ 26.
8
from January 2004 to September 2014 and Oracle’s Executive Vice President and

Chief Financial Officer from March 1991 to July 2004.21

Defendant Renée J. James is a director of Oracle, a position she has held since

December 2015.22 James was the chair of the special committee of Oracle’s Board

empowered with respect to the Acquisition.23

Lead Plaintiff Firemen’s Retirement System of St. Louis (the “Lead Plaintiff”)

was a stockholder of Oracle at the time of the conduct described in the TAC and has

continuously held Oracle stock since that time.24

B. Increasing Competition Between Oracle and NetSuite; NetSuite Identified
as an Acquisition Target

NetSuite was founded in 1998 by Ellison and Goldberg to provide companies

with business management software over the internet.25 Ellison, through an

affiliated entity, provided the financial backing to start NetSuite and the TAC alleges

that Ellison was NetSuite’s controlling stockholder.26 Ellison long viewed NetSuite

as his company and long planned for Oracle to acquire it—when Ellison’s

biographer asked Ellison what would happen if Microsoft made an offer for

NetSuite, Ellison responded: “I’d tell them to get [expletive]. I suppose [Goldberg]

21
Id.
22
Id. ¶ 27
23
Id. ¶ 110.
24
Id. ¶ 20.
25
Id. ¶ 52.
26
Id.
9
might take a swing at me, but I own 55 percent of the company, and there’s no way

in hell Microsoft’s going to get it.”27 NetSuite was publicly offered in December

2007 at a valuation of approximately $1.5 billion (the “IPO”), with Ellison and his

affiliates owning approximately 65% of NetSuite’s common stock.28

After NetSuite’s IPO, NetSuite experienced rapid growth, expanding annual

revenues from $108 million in 2007 to $741 million in 2015.29 Important to

NetSuite’s growth was that it provided cloud-based financial management and ERP

software suites for medium-sized businesses without meaningful competition from

large ERP software providers.30 But by 2015, the large ERP software providers—

including Oracle—began to aggressively target the small and mid-sized businesses

that were NetSuite’s core customers.31

Oracle was particularly focused on outcompeting NetSuite, and Henley

wanted to ensure Oracle was communicating the message that Oracle believed that

the mid-market would be Oracle’s biggest market-share gain in future years.32

Simultaneously, Ellison and Catz began exploring buying NetSuite, and Ellison

wanted to receive premium value for his controlling stake in NetSuite before the

market realized the negative impact to NetSuite from pressure from the larger ERP

27
Id. ¶ 53.
28
Id. ¶ 54.
29
Id.
30
Id. ¶ 59.
31
Id.
32
Id. ¶¶ 60–61.
10
providers.33 On February 20, 2015, Ellison wrote Catz: “We need to discuss

NetSuite” and later that day, Ellison, Goldberg, and Nelson held a conference call.34

By February 25, 2015, a presentation book was prepared for Ellison, Catz, and Hurd

about a potential acquisition of NetSuite by Oracle, with a baseline assumption that

Oracle would pay $120 per share of NetSuite, an 18.9% premium from NetSuite’s

then-price of $100.91 per share.35

Internal Oracle presentations from around this time period reflected the

increasing competition between Oracle and NetSuite. For instance, a presentation

to the Board’s Committee on Independence Issues (the “Independence

Committee”)—which was charged with approving software subscription and

licensing support agreements between Oracle and NetSuite because they were

“Related Party Transactions”—noted that Oracle and NetSuite competed for $23.6

million of opportunities in fiscal year 2014 and $39.1 million of opportunities in

2015 compared to $16.7 million of opportunities cumulatively from fiscal years

2007 to 2013.36 The same presentation noted that Ellison’s “potential conflicts of

interest . . . could prevent potential acquirers such as SAP or Microsoft from making

a bid for NetSuite even if it is in the best interest of [NetSuite] shareholders.”37 A

33
Id. ¶ 60.
34
Id. ¶ 62.
35
Id.
36
Id. ¶ 64.
37
Id.
11
2015 Oracle internal management presentation provided advice on how to compete

with NetSuite in winning new customers and identified 11 reasons why Oracle wins

in head-to-head competition and 8 reasons why NetSuite wins.38

NetSuite likewise recognized the increasing competition between itself and

Oracle. A December 2015 NetSuite senior management presentation identified

Oracle as a competitor—shortly after that presentation Nelson emailed Ellison

stating: “You know we are 24X as large as you in Cloud ERP ;)” Ellison responded

that Oracle had “about 2,000 cloud ERP customers.”39 Nelson responded to Ellison

that NetSuite had “about 13000 (live) individual ERP companies.”40 NetSuite’s

stock price fell from $107.31 per share on January 2, 2015 to $53.11 per share on

February 12, 2016.41

Industry analysts commented on competition between Oracle and NetSuite.

In June 2016, Cowen and Company opined that Oracle was the “biggest near-term

competitive threat” to NetSuite in part because Oracle had “move[d] down into the

mid-market where it historically did not compete.”42 Stifel Nicholaus & Company

noted in July 2016 that “checks continue to suggest Oracle is having increasing

38
Id. ¶ 66.
39
Id. ¶ 69.
40
Id.
41
Id. ¶ 70.
42
Id. ¶ 71.
12
success in cloud ERP in the mid-market and Microsoft is making a more aggressive

push[.]”43

Against this backdrop, Ellison decided that Oracle should acquire NetSuite.44

At a two-day in-person Board meeting on January 14–15, 2016 attended by all then-

directors of Oracle, Catz led a strategy discussed with the Board, during which the

Board was given a verbal overview of a potential acquisition of NetSuite, which had

been code-named “Napa.”45 Ellison sat in on the management proposal and the

subsequent Board discussion even though Oracle’s Independence Committee had

responsibility to review and approve related party transactions, such as a potential

acquisition of NetSuite.46 The proposal focused solely on the possibility of acquiring

NetSuite, with no discussion of alternatives—additionally, management did not

provide the Board with written materials regarding the potential NetSuite

acquisition.47 After the discussion, Oracle’s Board “directed management to

continue to assess the feasibility of pursuing Project Napa” and directed Catz and

Hurd “to understand if NetSuite would be willing to receive an indication of interest

but to not engage in any price discussions or otherwise engage with NetSuite’s

management.”48

43
Id. ¶ 72.
44
Id. ¶ 76.
45
Id.
46
Id. ¶ 77.
47
Id.
48
Id. (internal quotation marks omitted).
13
 C. Communications Between Oracle and NetSuite Fiduciaries

On January 15, 2016, Catz asked Nelson (then NetSuite’s CEO) if he was

available for dinner; the two dined on January 19, 2016 and spoke again shortly

after.49 Twice thereafter Nelson summarized his discussions with Catz. Notes from

a January 25, 2016 NetSuite Board meeting state: “Z at $120. S more at $100.”50

Months later, Nelson told the story of his conversation with Catz to investment

professionals at T. Rowe Price, a large blockholder of NetSuite stock. A T. Rowe

Price representative memorialized Nelson’s telling: “Safra’s $100 bid (off the cuff

according to N). Zack’s $125 bid (off the cuff according to N),” and “a loose, pre-

due-diligence exploratory conversation where a price range of $100–125 was

discussed.”51 Deposition testimony regarding the conversation states: “[Nelson]

didn’t specifically say, Safra said this. It was more like, Safra, you know, mentioned

100; I went back with 125[,]” and “[Nelson said Catz] almost made the statement

‘It’s time,’ you know, as, like, it was an inevitability that now you have to come, so

to speak.”52

Six days after Catz and Nelson’s conversation, Goldberg (then NetSuite’s

Chief Technology Officer and Chairman of the Board) arranged a principal-to-

49
Id. ¶ 79.
50
Id. ¶ 81. Nelson’s first name is Zachary and Catz’s first name is Safra.
51
Id. ¶ 82.
52
Id. ¶ 83.
14
principal conversation between himself and Ellison.53 Per the TAC, during that

conversation, Goldberg “secured an undisclosed understanding from Ellison about

how an acquisition would work.”54 Part of this understanding was that Ellison

promised not to harm NetSuite in the acquisition process and to keep the NetSuite

business intact post-closing.55 Goldberg recounts: “There was a commitment at [sic]

highest level of Oracle—Mark Hurd, Safra Catz and Larry Ellison—to maintain the

integrity of the Netsuite organization. We became what’s called a global business

unit.”56

By February 2 or 3, 2016, each of Ellison, Catz, Nelson, and Goldberg had

agreed in principle on a friendly cash acquisition of NetSuite by Oracle within a

price range of $100 to $125.57 On February 3, 2016, Goldberg proposed to Ellison

that Ellison have dinner with Goldberg and Goldberg’s wife upon the signing of the

Acquisition agreement, writing: “This is a huge life event for Cindy and me—

NetSuite is a huge part of both of our lives. At some point, probably after an

agreement is inked (assuming it is) we’d love to have dinner with you to talk about

it, just from a personal angle.”58

53
Id. ¶ 92.
54
Id.
55
Id.
56
Id.
57
Id. ¶ 95.
58
Id. ¶ 94.
15
 D. The Special Committee is Constituted; Initial Negotiations

Oracle’s Board held a special meeting about NetSuite on March 18, 2016;

Ellison, Henley, and Hurd absented themselves from the Board meeting.59 At the

meeting, Catz reported back to the Board on her discussion with Nelson; the Board

minutes read:

Ms. Catz stated that following the January board meeting, as directed
by the Board, she had reached out to a senior representative of NetSuite
to gauge whether NetSuite would be willing to consider a potential offer
from the Corporation. Ms. Catz stated that the NetSuite representative
had indicated that the NetSuite board would be willing to consider an
offer from the Corporation. Ms. Catz informed the Board that no other
terms or details relating to any potential transaction with NetSuite were
discussed.60

Notably, the Board minutes do not reflect that Catz and Nelson discussed a price

collar of $100 to $125.

Oracle’s Board appointed directors James, Leon Panetta, and George

Conrades as members of a special committee empowered with respect to the

Acquisition (the “Special Committee”).61 None of the three Special Committee

members were members of the Independence Committee.62 Oracle’s Board

resolutions delegated the full and exclusive power of the Board and the

Independence Committee to the Special Committee with regard to the potential

59
Id. ¶ 103.
60
Id. ¶ 104.
61
Id. ¶ 105.
62
Id.
16
NetSuite acquisition, including the express power to make the required

determinations under the Independence Committee charter and Oracle’s conflict of

interest policy.63 The Special Committee was also given responsibility for directing

senior management’s involvement in assessing a potential transaction.64 The only

identified power of the Special Committee with respect to potential alternatives—

that is, other than the NetSuite acquisition—was to “evaluate” them.65

The Special Committee held its first meeting on April 8, 2016—

management’s presentation materials for that meeting stated that Oracle and

NetSuite each bring “complementary strengths in the business applications industry”

with no mention of head-to-head competition between the two companies.66

Defendant James was appointed as chair of the Special Committee. 67 Additionally,

the Special Committee retained Moelis & Company LLC (“Moelis”) as its financial

advisor.68

The TAC alleges that James “operated in complete sync with Catz and

allowed Catz to lead the acquisition of NetSuite.”69 Catz presented at 10 of the 13

63
Id. ¶ 106.
64
Id.
65
Id.
66
Id. ¶ 109.
67
Id. ¶ 110.
68
Id. ¶ 114.
69
Id. ¶ 113.
17
Special Committee meetings, and the TAC alleges that the Special Committee

followed each recommendation made by Catz and Oracle’s management team.70

On May 20, 2016, the Special Committee met to decide whether to pursue an

acquisition of NetSuite.71 The Special Committee heard presentations from Oracle’s

management and Moelis—both presentations concluded that NetSuite was

preferable to other acquisition targets.72 Management’s presentation advocated that

NetSuite was the “best strategic fit,” and the Special Committee determined that it

would focus on an acquisition of NetSuite.73 On May 26, 2016, Ellison was

instructed not to communicate with Catz or other Oracle personnel about the

acquisition.74

On May 27, 2016, the Special Committee met once again to consider the

potential NetSuite acquisition.75 Moelis presented its preliminary financial analysis

of NetSuite, which included a Selected Public SaaS Companies analysis, a Selected

Precedent Transactions analysis, and a discounted cash flow (“DCF”) analysis.76

Catz and Douglas Kehring, Oracle’s Chief of Staff, also presented to the Special

70
Id.
71
Id. ¶ 115.
72
Id. ¶ 116.
73
Id. ¶ 119.
74
Id. ¶ 113.
75
Id. ¶ 121.
76
Id. ¶ 122.
18
Committee at the meeting, and their presentation included two DCF calculations.77

The Special Committee decided to offer $100 per share to buy NetSuite.78

NetSuite responded to Oracle’s offer with a counter-offer of $125 per share.79

Following NetSuite’s counter-offer, the Special Committee met on June 8, 2016 with

Moelis, and members of Oracle management (including Catz) present.80

Management advised the Special Committee to offer $106 per share, and the Special

Committee asked Moelis to convey an offer of $106 per share to NetSuite.81

NetSuite responded by offering $120 per share.82 On June 14, 2016, the Special

Committee met again, at which time management advised the Special Committee

not to immediately respond to the counter-offer, and the Special Committee

complied.83

E. Oracle and NetSuite Agree to the Acquisition at $109 per Share

NetSuite’s stock price closed at $67.36 per share on June 27, 2016,

representing an approximately 15% decline over the course of two trading days. 84

On June 28, 2016, James, Moelis, and Oracle management considered suspending

further work on the Acquisition and retracting Oracle’s latest offer of $106 per

77
Id. ¶ 129.
78
Id. ¶ 121.
79
Id. ¶ 131.
80
Id. ¶ 132.
81
Id.
82
Id. ¶ 133.
83
Id.
84
Id. ¶ 134.
19
share.85 The same day, NetSuite’s financial advisor contacted Moelis indicating that

“recent market volatility as a result of the vote on Brexit may have created a window

of opportunity to come to an agreement on price.”86 Ultimately, Catz recommended

that on June 30, 2016 the parties schedule a due diligence session to review

NetSuite’s financial results for the just-completed quarter—the Special Committee

followed Catz’s recommendation.87 On July 6, 2016, Oracle management, James,

and Moelis had a due diligence call with NetSuite regarding NetSuite’s quarterly

financial results, but NetSuite did not share certain key financial metrics.88

At a July 8, 2016 Special Committee meeting, Catz recommended that the

Special Committee request additional meetings between Oracle management and

NetSuite, and the Special Committee did so.89 Between July 8 and July 12, 2016,

Oracle management, led by Catz, held multiple meetings and calls with NetSuite.90

Oracle’s due diligence reflected that NetSuite’s “quarter [was] soft” and that there

was “some legitimate concerns about the quarter.”91 On July 12, 2016, the Special

Committee convened again and heard a new presentation from Oracle management

reflecting the results of additional due diligence, which included new DCF ranges

85
Id. ¶ 135.
86
Id. ¶ 136.
87
Id.
88
Id. ¶ 137.
89
Id. ¶ 138.
90
Id.
91
Id. ¶ 139.
20
with significant reductions in value compared to the May 27, 2016 presentation.92

The Special Committee decided to reaffirm Oracle’s previous offer of $106 per

share.93 Shortly after this meeting, Catz instructed Oracle’s management team to

“revert to the original,” and Oracle management thereafter labeled the newly created

projections the “Conservative” case, the prior projections were deemed the “Base”

case, and management also created an “Upside” case.94

NetSuite made a counter-offer of $111 per share, and the Special Committee

met on July 13, 2016 to consider the counter-offer.95 At the meeting Oracle

management presented the “Conservative,” “Base,” and “Upside” valuations.96 The

valuation ranges presented the previous day—$93.78 to $120.83 per share labeled

“DCF (Terminal Value Multiple)” and $53.94 to $115.59 per share labeled “DCF

(Perpetuity Growth Rate)”—were again presented, but at this meeting those ranges

were labeled “Conservative.”97 The “Base” and “Upside” valuations were also

presented, and the DCF Terminal Value range was entirely above $110 per share for

“Base” and entirely above $120 per share for “Upside.”98 Catz offered her views to

the Special Committee on potential next steps.99 Thereafter, the Special Committee

92
Id. ¶¶ 140, 142.
93
Id. ¶ 141.
94
Id. ¶ 142.
95
Id. ¶ 143.
96
Id.
97
Id.
98
Id.
99
Id.
21
resolved to make a “best and final” proposal at $109 per share.100 On July 14, 2016,

Goldberg emailed Ellison: “I guess this means… We can start arguing politics again

soon!”101

Throughout the June and July 2016 negotiations Ellison was permitted to

negotiate directly with NetSuite regarding how Ellison would vote his NetSuite

shares should NetSuite receive an offer superior to Oracle’s.102 The Special

Committee “opened this direct line of communication” but “did not indicate that any

topic was off-limits” and was not informed of back-and-forth negotiations or

whether Ellison negotiated any issues directly with NetSuite other than the voting of

Ellison’s shares.103 Ellison ultimately agreed to vote his NetSuite shares

proportionately with NetSuite’s other stockholders in such a scenario.104

NetSuite agreed to Oracle’s offer of $109 per share.105 On July 27, 2016, the

Special Committee met, with Catz and other Oracle management in attendance, to

approve a tender offer for NetSuite at the agreed price.106 Moelis presented a fairness

analysis at the meeting and the TAC alleges that “Moelis’ own analyses

demonstrated that Oracle’s proposed offer of $109 per share significantly overvalued

100
Id. ¶ 144.
101
Id. ¶ 145. I note that the ellipsis is in the TAC and as used here does not denote the omission
of text.
102
Id. ¶ 146.
103
Id. ¶ 147.
104
Id.
105
Id. ¶ 148.
106
Id.
22
NetSuite.”107 The TAC also alleges that Oracle’s management “manipulated” parts

of Moelis’s analysis, inflating NetSuite’s value.108 Moelis indicated that it was

prepared to provide a fairness opinion at $109 per share.109 At the meeting, the

Special Committee adopted resolutions to effectuate the Acquisition.110 On July 28,

2016, Oracle announced that it would acquire NetSuite for $109 per share.111

F. The Tender Offer and Disclosures

On August 18, 2016, Oracle filed its Schedule TO and Offer to Purchase (the

“Schedule TO and Offer to Purchase.”)112 On the same day, NetSuite filed its

Schedule 14D-9 (the “Schedule 14D-9”), which was signed by Nelson.113 Both

filings were filed with the Securities and Exchange Commission (the “SEC”). The

Schedule 14D-9 stated that the offer price of $109 per share “represents a 62%

premium to the trading price at which the Shares closed on June 27, 2016, the last

trading day before public speculation and market rumors that NetSuite was

potentially the subject of an acquisition transaction involving Oracle[.]”114

The Schedule 14D-9 and the Schedule TO and Offer to Purchase identically

disclosed the following regarding Catz and Nelson’s discussions in January 2016:

107
Id. ¶ 156.
108
Id. ¶ 153.
109
Id. ¶ 156.
110
Id. ¶ 157.
111
Id.
112
Id. ¶ 166.
113
Id.
114
Id. ¶ 167.
23
 On January 21, 2016, a senior representative of Oracle indicated to a
senior representative of NetSuite that Oracle would be potentially
interested in acquiring NetSuite. The senior representative of NetSuite
responded that he would need to discuss with the NetSuite Board its
willingness to consider an offer to acquire NetSuite.115

There was no mention of the price collar of $100 to $125 disclosed in the Schedule

14D-9 or the Schedule TO and Offer to Purchase.116

On August 30, 2016, Nelson and NetSuite lead director Steve Gomo met with

T. Rowe Price, the largest public stockholder of NetSuite.117 Nelson was instructed

to provide T. Rowe Price only with information that was publicly available and

previously disclosed.118 At the meeting, Nelson described his January 21, 2016

conversation with Catz.119 On September 6, 2016, numerous portfolio managers

from T. Rowe Price co-signed a letter to the board of directors of NetSuite

summarizing Nelson’s description of the conversation as follows: “In our recent

meeting, Mr. Nelson described the initial contact with Oracle as a loose, pre-due-

diligence exploratory conversation where a price range of $100–125 was

discussed.”120 The letter expressed concern that this price discussion “may have

anchored the subsequent discussions.”121

115
Id. ¶ 168.
116
Id. ¶¶ 168–69.
117
Id. ¶ 171.
118
Id. ¶ 172.
119
Id. ¶ 173.
120
Id. ¶ 174.
121
Id.
24
 On September 7, 2016, NetSuite publicly filed the T. Rowe Price letter and

indicated that NetSuite’s Board had met to discuss the letter.122 The public filing

“did not comment on the accuracy of T. Rowe Price’s summary of Nelson’s

description of his initial conversation with Catz.”123 Additionally, the TAC alleges

that NetSuite did not amend the Schedule 14D-9 regarding the details of the

conversation with Catz referenced in T. Rowe Price’s letter.124 However, on

September 7, 2016, NetSuite amended the Schedule 14D-9 by attaching the T. Rowe

Price letter as an exhibit and referencing the public filing of the letter.125

On October 27, 2016, T. Rowe Price sent a letter to the Special Committee

that referenced the views expressed in its letter to NetSuite’s Board from September

6, 2016.126 Oracle did not amend its Schedule TO and Offer to Purchase to add any

details about the Nelson-Catz conversation.127

Additionally, NetSuite’s Schedule 14D-9 disclosed the following of the

conversation between Goldberg and Ellison regarding the future of NetSuite post-

Acquisition as follows: “Mr. Ellison indicated his understanding that Oracle would

be potentially interested in acquiring NetSuite. He also indicated that he would not

122
Id. ¶ 175.
123
Id.
124
Id.
125
NetSuite Defs.’ Reply Br. in Support of Their Mot. to Dismiss Count Two of the Verified Third
Am. Derivative Compl., D.I. 332, Ex. J, Amendment No. 1 to the Schedule 14D-9.
126
TAC, ¶ 176.
127
Id.
25
seek to influence NetSuite’s decision with respect to an acquisition.”128 The

Schedule 14D-9 did not disclose Ellison’s commitment that the NetSuite

organization would not be harmed in the Acquisition process and that NetSuite

would become an intact, freestanding business unit within Oracle.129

The Acquisition closed on November 5, 2016.130 On November 4, 2016 James

emailed the Special Committee and senior executives at Oracle: “This was the #1

thing we said we needed to do for our strategy at last year’s offsite and you are now

on your way!”131

G. Procedural History

The Lead Plaintiff filed the original complaint in this Action on July 18, 2017,

and filed the TAC on February 18, 2020.132 The TAC pleads two counts. Count

One alleges breach of fiduciary duty by Oracle fiduciaries Ellison, Catz, Hurd,

Henley, and James (the “Oracle Fiduciaries”) in connection with the Acquisition.133

Count Two alleges that Goldberg and Nelson (the “NetSuite Defendants”) aided and

abetted the Oracle Fiduciaries’ breach of fiduciary duty.134 The NetSuite Defendants

128
Id. ¶ 13.
129
Id.
130
Id. ¶ 181.
131
Id. ¶ 182.
132
Two months before the Lead Plaintiff’s original complaint was filed, another Oracle
stockholder had filed a separate Complaint in this Court challenging the same transaction and, on
September 7, 2017, I designated the Lead Plaintiff’s original complaint as the operative pleading.
See In re Oracle Corp. Derivative Litig., 2019 WL 6522297, at *4 n.91 (Del. Ch. Dec. 4, 2019).
133
TAC, ¶¶ 201–05.
134
Id. ¶¶ 206–07.
26
have moved to dismiss Count Two of the TAC. I heard Oral Argument on the

NetSuite Defendants’ Motions on March 11, 2020, and considered the matter

submitted for decision on that date.

II. ANALYSIS

The NetSuite Defendants have moved to dismiss Count Two of the TAC

pursuant to Chancery Court Rule 12(b)(6).135 The standard of review for a Rule

12(b)(6) motion is well settled:

(i) all well-pleaded factual allegations are accepted as true; (ii) even
vague allegations are well-pleaded if they give the opposing party
notice of the claim; (iii) the Court must draw all reasonable inferences
in favor of the nonmoving party; and (iv) dismissal is inappropriate
unless the plaintiff would not be entitled to recover under any
reasonably conceivable set of circumstances susceptible of proof.136

When reviewing a motion to dismiss, the Court may take into consideration

documents incorporated into the pleadings by reference and judicially noticeable

facts available in public SEC filings.137

A. The Lead Plaintiff’s Allegations

The Lead Plaintiff has alleged that the NetSuite Defendants aided and abetted

the Oracle Fiduciaries’ alleged breaches of fiduciary duty. The elements of aiding

and abetting a breach of fiduciary duty are: “(i) the existence of a fiduciary

135
Ch. Ct. R. 12(b)(6).
136
Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002) (footnotes and internal quotation
marks omitted).
137
Reith v. Lichtenstein, 2019 WL 2714065, at *1 (Del. Ch. June 28, 2019).
27
relationship, (ii) a breach of the fiduciary’s duty, (iii) knowing participation in that

breach by the defendants, and (iv) damages proximately caused by the breach.”138

The Lead Plaintiff’s aiding and abetting claims center on Goldberg’s and

Nelson’s alleged aiding and abetting of Ellison’s and Catz’s breaches of fiduciary

duty. The Lead Plaintiffs “theory of liability” is that “Goldberg and Nelson knew

the substance and materiality of their respective early discussions with Ellison and

Catz—(i.e. a high bargaining range of $100 to $125 per share and social terms that

benefitted Goldberg)—but nonetheless caused NetSuite not to record or publicly

discuss the substance of those early discussions.”139 Thus, the Lead Plaintiff’s

theory is that in not causing NetSuite to disclose certain details of the early

conversations, Goldberg and Nelson were participating in a “conspiracy of silence”

that prevented Oracle’s Special Committee and other directors from learning the

substance of such conversations.140

The Lead Plaintiff alleges that had these Oracle parties learned the truth, it is

“an open question whether Oracle would have gone forward with the tender offer if

the outside directors had obtained credible information that Catz had concealed her

138
RBC Capital Mkts., LLC v. Jervis, 129 A.3d 816, 861 (Del. 2015) (citing Malpiede v. Townson,
780 A.2d 1075, 1096 (Del. 2001)).
139
Pl.’s Answering Br. in Opp’n to NetSuite Defs.’ Opening Br. in Support of Their Mot. to
Dismiss Count Two of the Third Am. Derivative Compl., D.I. 328 (Pls.’ Answ. Br.”), at 21.
140
See Oral Arg. Tr., at 28:5–28:10 (“Okay. But just to be clear, the theory is the Oracle side
would have the ability to walk if it was fully disclosed later. And by the NetSuite people not
disclosing it, they took away from the Oracle side the ability to walk . . . .”).
28
secret price discussions from the Board.”141 The Lead Plaintiff further argues that

“[c]orrective disclosures of material facts about the early discussions may have

prompted more scrutiny of the transaction and impacted investors’ trading strategies

and tendering decisions, as well as investigative action and potential drastic steps by

Oracle’s Board to remedy the fraud perpetrated on them by Ellison and Catz.”142

Had NetSuite’s disclosures told the whole story, per the Lead Plaintiff, it would have

set in motion a cascade of events that would have stymied Ellison and Catz’s scheme

for Oracle to acquire NetSuite at an inflated price.

B. Knowing Participation as an Element of Aiding and Abetting

For the aiding and abetting claims to survive this motion to dismiss stage, it

must be reasonably conceivable that the NetSuite Defendants knowingly

participated in the alleged breaches of fiduciary duty by the Oracle Fiduciaries.143

“Because the involvement of secondary actors in tortious conduct can take a variety

of forms that can differ vastly in their magnitude, effect, and consequential

culpability, the element of ‘knowing participation’ requires that the secondary actor

have provided ‘substantial assistance’ to the primary violator.”144 This requirement,

141
Pls.’ Answ. Br., at 25 (internal quotation marks omitted).
142
Id. at 26–27.
143
See RBC, 129 A.3d at 861; In re Xura, Inc. S’holder Litig., 2019 WL 3063599, at *3 (Del. Ch.
July 12, 2019)).
144
In re Dole Food Co., Inc. S’holder Litig., 2015 WL 5052214, at *41 (Del. Ch. Aug. 27, 2015)
(citing Kuhns v. Bruce A. Hiler Delaware QPRT, 2014 WL 1292860, at *21 (Del. Ch. Mar. 13,
2014)).
29
that an alleged aider-and-abettor must have provided “substantial assistance” for

liability to attach, emanates from Section 876(b) of the Restatement (Second) of

Torts (the “Restatement”).145 The Restatement’s comments to Section 876(b) state:

“If the encouragement or assistance is a substantial factor in causing the resulting

tort, the one giving it is himself a tortfeasor and is responsible for the consequences

of the other’s act.”146 Thus, the secondary actor must have provided “assistance . . .

or participation” in aid of the primary actor’s allegedly unlawful acts.147 Whether a

secondary actor knowingly provided substantial assistance is “necessarily fact

intensive.”148 In its inquiry, the court may consider, among other factors, “[t]he

nature of the tortious act that the secondary actor participated in or encouraged,

including its severity, the clarity of the violation, the extent of the consequences, and

the secondary actor’s knowledge of these aspects” and “[t]he amount, kind, and

duration of assistance given, including how directly involved the secondary actor

was in the primary actor’s conduct.”149 To withstand a motion to dismiss, a plaintiff

must plead facts making it reasonably conceivable that the defendant knowingly

145
Restatement (Second) of Torts § 876(b) (1979). Section 876(b) of the Restatement has been
cited with approval in this Court and in the Delaware Supreme Court. See Malpiede v. Townson,
780 A.2d 1075, 1097 n.78 (Del. 2001); Dole, 2015 WL 5052214, at *41–42; Xura, 2019 WL
3063599, at *3.
146
Restatement (Second) of Torts § 876 cmt. d (1979).
147
Id.
148
Dole, 2015 WL 5052214, at *42.
149
Id.
30
supported a breach of duty and that his resulting assistance to the primary actor

constituted substantial assistance in causing the breach.

C. The NetSuite Defendants Did Not Provide Substantial Assistance

The Lead Plaintiff alleges that the NetSuite Defendants caused NetSuite to

fail to disclose the substance of (i) the Nelson-Catz January 21, 2016 discussion (the

“Price Collar Discussion”) and (ii) the Goldberg-Ellison discussion regarding the

survival of NetSuite post-Acquisition (the “NetSuite Discussion”). The Lead

Plaintiff alleges that such disclosures would have put Oracle’s directors on alert to

the allegedly lopsided terms, and would have led Oracle to scuttle the deal. Because

such disclosure would have thwarted Ellison and Catz’s scheme, the Lead Plaintiff

alleges that the NetSuite Defendant’s silence constituted substantial assistance to the

Oracle Fiduciaries’ breach of duty.

Before turning to that analysis, it is important to note the duty that, according

to the Lead Plaintiff, the NetSuite Defendants have breached. Absent a fiduciary or

contractual relationship, “Delaware law generally does not impose a duty to

speak.”150 The TAC does not plead that such a relationship existed between the

NetSuite Defendants and the injured parties at Oracle. Thus, upon first glance, even

if the NetSuite Defendants believed that the Oracle Defendants intended to breach

150
MetCap Sec. LLC v. Pearl Senior Care, Inc., 2007 WL 1498989, at *5 (Del. Ch. May 16, 2007)
(citing Nicolet, Inc. v. Nutt, 525 A.2d 146, 150 (Del. 1987)).
31
fiduciary duties to Oracle, Delaware law recognizes no affirmative duty of the

NetSuite Defendants to so inform Oracle, its fiduciaries, or its stockholders.

Implicitly conceding that the NetSuite Defendants did not owe Oracle or its

stockholders an affirmative duty to speak, the Lead Plaintiff’s theory of liability is

not that the NetSuite Defendants breached such a duty. Instead, the NetSuite

Defendants’ liability to the Plaintiffs here requires that they undertook action to

provide substantial aid to Ellison and Catz to facilitate those Defendants’ breach of

their own duties to Oracle—the alleged substantial aid was silence. But, given the

general unwillingness of our law to impose a duty to speak, how could mere silence

be cognizable as substantial assistance in tortious aiding and abetting?

Confronting this question, the Lead Plaintiff must identify an obligation of the

NetSuite Defendants to speak. To this end, the Lead Plaintiff points out that the

NetSuite Defendants did owe fiduciary duties to make disclosures to NetSuite

stockholders in way of the Acquisition.151 The Lead Plaintiff posits that the NetSuite

Defendants breached those duties in aid of the secrecy necessary to Ellison and

Catz’s corrupt scheme. That is, the disclosures required of the NetSuite Defendants

to NetSuite’s stockholders would, if made, result in disclosure to the public, which

151
See Raul v. Astoria Fin. Corp., 2014 WL 2795312, at *8 (Del. Ch. June 20, 2014) (“Under
Delaware law, directors owe a fiduciary duty to fully and accurately disclose all material
information to stockholders when seeking stockholder action, which duty arises out of a director’s
duties of both loyalty and care.” (footnotes and quotation marks omitted)).
32
would in turn result in disclosure to Oracle’s Special Committee. Ellison and Catz’s

scheme required that the latter disclosure be prevented. Under this theory, the claims

of Oracle’s stockholders ride the coattails of the duties owed to the stockholders of

their acquisition target,152 without regard to whether the target stockholders were

themselves harmed by such breach.153 Thus, to succeed on its aiding and abetting

claims the Lead Plaintiff must show: (1) that the NetSuite Defendants intentionally

breached a duty owed to NetSuite and its stockholders and (2) in doing so

substantially assisted a breach of duty to Oracle.154 To survive the NetSuite

Defendants’ Motions to Dismiss, the facts averred by the Lead Plaintiff must make

the forgoing reasonably conceivable.

This requires not only a pleading that reasonably implies that the NetSuite

Defendants’ fiduciary duties to NetSuite and its stockholders required that they

cause NetSuite to disclose the Price Collar Discussion and the NetSuite Discussion,

but also that the NetSuite Defendants intentionally violated such duties in

furtherance of the Oracle Defendants’ breach of duty to Oracle. Again, the Lead

152
While the breach of duty to speak by the NetSuite Defendants alleged in the TAC is a breach
of a duty of disclosure to NetSuite, one could envision other duties—such as those under federal
securities laws—that an acquirer’s stockholders could seek to import to allege that a defendant is
liable for aiding and abetting due to a failure to speak.
153
In fact, the Lead Plaintiff’s theory is that NetSuite’s stockholders benefitted from the scheme.
154
The incongruity of the Lead Plaintiff’s theory crystallizes when one considers that the NetSuite
Defendants contemporaneously had a duty to “get the best price for the stockholders at a sale of
the company.” Lyondell Chem. Co. v. Ryan, 970 A.2d 235, 242 (Del. 2009) (quoting Revlon, Inc.
v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173, 182 (Del. 1986)) (internal alterations
omitted).
33
Plaintiff’s theory is that the NetSuite Defendants intentionally breached a duty of

candor to NetSuite stockholders, because compliance with this duty would have also

informed the public, and ultimately Oracle’s Special Committee, imperiling the

overpayment scheme. But under the facts alleged, I find that I need not determine

whether the NetSuite Defendants breached a duty to NetSuite’s stockholders. That

is because even if the NetSuite Defendants did breach a duty to disclose, it is not

reasonably conceivable that by their silence they provided substantial assistance to

the Oracle Fiduciaries’ alleged breaches of fiduciary duty, in light of the actual

disclosures of record.

1. The Price Collar Discussion

The Lead Plaintiff’s primary contention involves concealment of the price

collar. The TAC alleges that the NetSuite Defendants provided substantial

assistance to Ellison and Catz by not causing NetSuite to disclose the substance of

the Price Collar Discussion. To this point, the discussion of a price range of $100–

$125 was not included in the original Schedule 14D-9.155 However, after the

Schedule 14D-9 was filed, Nelson did disclose the Price Collar Discussion to T.

Rowe Price, a large blockholder of NetSuite stock, leading T. Rowe Price to write a

letter to NetSuite’s Board expressing concerns about the Acquisition (the “T. Rowe

155
See Transmittal Aff. of E. Wade Houston, Esq., D.I. 290 (“Houston Aff.”), Ex. F, NetSuite
Schedule 14D-9 (“Schedule 14D-9”).
34
Price Letter”). T. Rowe Price’s concern was that the Price Collar Discussion was

unfair to NetSuite’s stockholders because it cabined NetSuite’s price at a level

unfairly low.156 NetSuite publicly filed the T. Rowe Price Letter with the SEC as an

attachment to a Form 8-K the day after the letter was written.157 The Form 8-K itself

stated that “[o]n September 6, 2016, the Transactions Committee of [NetSuite’s]

Board of Directors and [NetSuite’s] Board both met to discuss the letter.

[NetSuite’s] Board unanimously reaffirmed its recommendation that stockholders

accept Oracle’s offer and tender their shares.”158

Regarding the Nelson-Catz conversation, the T. Rowe Price Letter states:

In our recent meeting, Mr. Nelson described the initial contact with
Oracle as a loose, pre-due-diligence, exploratory conversation where a
price range of $100–$125 was discussed. We don’t think it’s a
coincidence that the final agreement ended up very close to the
midpoint of that range. We are concerned that this initial conversation
—which by your account came as a surprise to NetSuite —may have
anchored the subsequent discussions. This anchoring effect, in
combination with the disincentives for other bidders to come forward,
may have prevented full price discovery. We were disappointed to see
in the tender offer document that NetSuite did not undertake an
outbound market check with inquiries to other logical purchasers before
agreeing to Oracle’s offer.159

156
Houston Aff., Ex. G, NetSuite Form 8-K Filed September 6, 2016, Ex. 99.1 (“T. Rowe Price
Letter”), at 1–2.
157
Houston Aff., Ex. G, NetSuite Form 8-K Filed September 6, 2016.
158
Houston Aff., Ex. G, NetSuite Form 8-K Filed September 6, 2016, Item 8.01.
159
T. Rowe Price Letter, at 2.
35
When presented with this public disclosure of the supposedly clandestine Price

Collar Discussion, the Lead Plaintiffs’ response is that the 8-K is “not an affirmative

disclosure by NetSuite of what Catz and Nelson actually said” and that it was “not

part of the tender offer materials” and “did not bind NetSuite, much less induce

Oracle to make a parallel disclosure.”160 But in addition to the 8-K NetSuite did

make the T. Rowe Price Letter part of the tender offer materials by amending the

Schedule 14D-9 and attaching the T. Rowe Price Letter as an exhibit.161

Upon review of these NetSuite public filings, it is, to my mind, not reasonably

conceivable that the NetSuite Defendants could have provided substantial assistance

to Ellison and Catz by failing to disclose the Price Collar Discussion to NetSuite’s

stockholders, and thus to the public. This is because the disclosure of the T. Rowe

Price Letter by NetSuite contained the relevant substance of the Price Collar

Discussion, i.e. that Nelson and Catz had discussed a price range before Oracle’s

Special Committee was constituted, and after Oracle’s Board had specifically

instructed Catz “not engage in any price discussions” with NetSuite.162 I cannot

make the inference that the Form 8-K and amended Schedule 14D-9 disclosures

were insufficient to alert those on the Oracle side of the Price Collar Discussion, but

160
Pls.’ Answ. Br., at 25–26.
161
NetSuite Defs.’ Reply Br. in Support of Their Mot. to Dismiss Count Two of the Verified Third
Am. Derivative Compl., D.I. 332, Ex. J, Amendment No. 1 to the Schedule 14D-9.
162
TAC, ¶ 77.
36
also that disclosure by some other method would have been sufficient to bring the

matter to Oracle’s attention. Furthermore, even if the NetSuite Defendants had been

trying to keep the Price Collar Discussion secret, and, assuming it was unknown by

Oracle’s Special Committee and directors until NetSuite’s disclosures, it is not

reasonably conceivable that the NetSuite Defendants ultimately provided assistance

to or participation in Ellison’s and Catz’s alleged breaches of duty, because after

NetSuite’s disclosures the Price Collar Discussion was no longer a secret.

It is important to keep in mind that the liability of the NetSuite Defendants

here does not turn simply on whether they complied with fiduciary duties to NetSuite

and its stockholders in regard to the proxy disclosures. Even assuming that fact, the

NetSuite Defendants can be held in this Action only if it is also reasonably

conceivable that they substantially assisted the Oracle Fiduciaries breach of duty to

Oracle. The Lead Plaintiff’s counter to my finding above is that the disclosure of

the T. Rowe Price Letter was insufficient because it was not an affirmative disclosure

by NetSuite of what Nelson and Catz actually said. This is unavailing, because the

Lead Plaintiff’s theory does not hinge simply on a breach of duty to NetSuite. There

are, of course, certain circumstances—typically involving direct rather than

secondary liability for breach of fiduciary duties—where affirmative statements by

an acquisition target on the 14D-9 itself must be the focus of the court’s analysis.163

163
E.g. Morrison v. Berry, 191 A.3d 268 (Del. 2018).
37
But bearing in mind how the Lead Plaintiff has pled its case, whether the disclosures

complied with the NetSuite Defendants’ fiduciary duties to NetSuite is irrelevant if

the disclosures nonetheless were sufficient to alert those on the Oracle side of the

Price Collar Discussion. It is not reasonably conceivable that the disclosure of the

Price Collar Discussion by NetSuite in two separate SEC filings did not, at a

minimum, disclose to the public and to Oracle that Catz and Goldberg discussed a

price collar when Catz was not authorized to discuss price and before the Special

Committee was constituted. Moreover, it is not reasonably conceivable that such a

public disclosure failed to find the Oracle Special Committee, who had a duty to

gather information pertinent to whether Oracle was overpaying for NetSuite.

Thus, regardless of whether the NetSuite Defendants’ disclosures of the Price

Collar Discussion comported with their fiduciary duties to NetSuite, the NetSuite

Defendants’ actions cannot have provided substantial assistance to Ellison and

Catz’s breach of duty, because the alleged attempt that the NetSuite Defendants

made to keep the Price Collar Discussion secret from Oracle failed. It is not

reasonably conceivable that the difference between what was disclosed and what the

Lead Plaintiff alleges should have been disclosed constituted substantial assistance

to Ellison and Catz’s scheme to cause Oracle to overpay for NetSuite.

38
 2. The NetSuite Discussion

The Lead Plaintiff also alleges that the NetSuite Defendants aided and abetted

Ellison’s and Catz’s alleged breaches of fiduciary duty by not causing NetSuite to

disclose the substance of the “NetSuite Discussion,” which concerned Ellison’s

commitment to Goldberg to keep NetSuite intact post-closing.164 Pursuant to the

NetSuite Discussion, Goldberg allegedly “secured an undisclosed understanding

from Ellison about how an acquisition would work” by February 3, 2016, before the

Special Committee was even constituted.165 The Lead Plaintiff alleges that after the

NetSuite Discussion, the general terms of the Acquisition were set, rendering the

negotiations between the respective special committees of Oracle and NetSuite a fait

accompli. But, per the Lead Plaintiff, revelation of the details of the NetSuite

Discussion to the Oracle Special Committee could have caused the Special

Committee to repudiate the sale. Therefore, concealment of the NetSuite Discussion

was necessary to Ellison and Catz’s scheme. The NetSuite Defendants allegedly

breached duties to NetSuite’s’ stockholders in order to conceal the NetSuite

Discussion from the public and, ultimately, the Oracle Special Committee.

NetSuite publicly disclosed the alleged substance of the NetSuite Discussion

on numerous occasions. In NetSuite’s July 28, 2016 press release announcing the

164
It is unclear whether Nelson is included in this allegation or it is against Goldberg alone, but
for purposes of this analysis, I assume the allegation is against both.
165
TAC, ¶¶ 92, 94, 105.
39
Acquisition, Mark Hurd is quoted as saying: “Oracle and NetSuite cloud applications

are complementary, and will coexist in the marketplace forever. . . . We intend to

invest heavily in both products — engineering and distribution.”166 In a publicly

filed letter to customers on July 29, 2016 signed by Goldberg and Nelson, NetSuite

states: “Oracle is committed to protecting and enhancing customer investments in

NetSuite solutions. After the close of the transaction, Oracle plans to accelerate the

pace of investment in NetSuite functionality and capabilities.”167 Thus, it was no

secret at the time the parties agreed to the Acquisition that Oracle intended for

NetSuite to function as an independent business unit. Goldberg and Nelson could

not have provided substantial assistance by failing to disclose the substance of the

NetSuite Discussion because such information was already public.

But the Lead Plaintiff’s also raises concerns about non-disclosure of the

timing of the NetSuite Discussion. The Lead Plaintiff argues that by not disclosing

that Goldberg and Ellison had such a discussion early on in the process, and before

any formal negotiations, the NetSuite Defendants enabled Ellison and Catz to

perpetrate a charade whereby it appeared to the public—and Oracle’s Special

Committee—that the Acquisition was being negotiated by special committees but

166
Houston Aff., Ex. A, NetSuite Press Release: Oracle Buys NetSuite, at 1. This press release
was an exhibit to a NetSuite SEC filing.
167
Houston Aff. Ex. D, NetSuite Letter to Customers, at 1.
40
that, in reality, the principals had already come to a basic understanding in advance.

NetSuite’s Schedule 14D-9 refutes such a narrative. The Schedule 14D-9 states:

[O]n January 27, 2016, in response to a desire expressed by Mr.
Goldberg to speak to Mr. Ellison to understand Oracle’s interest in a
possible acquisition, Messrs. Goldberg and Ellison spoke. Mr. Ellison
indicated his understanding that Oracle would be potentially interested
in acquiring NetSuite. He also indicated that he would not seek to
influence NetSuite’s decision with respect to an acquisition.168

Therefore, it was no secret to Oracle that Goldberg and Ellison had a conversation

regarding the Acquisition early in the process. The Lead Plaintiff may argue that

the NetSuite Defendants had a duty to their stockholders to disclose more about the

conversation, but, again, that is not the crucial inquiry here. Even if the NetSuite

Defendants breached a duty owed to NetSuite’s stockholders, the inquiry is whether

it is reasonably conceivable that the NetSuite Defendants provided substantial

assistance to Ellison’s and Catz’s alleged breaches of fiduciary duty by hiding the

NetSuite Discussion from Oracle via deficiencies in NetSuite’s securities filings. I

find that it is not reasonably conceivable that the NetSuite Defendants could have

provided assistance or participation to Ellison and Catz in this regard because the

substance of the NetSuite Discussion (that NetSuite would be kept intact) and the

fact that a discussion occurred between Ellison and Goldberg on January 27, 2016

were publicly disclosed by NetSuite. Such public disclosures were obtainable by the

168
Schedule 14D-9, at 18.
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party with the most incentive to inform itself of flaws in the bargaining process: the

Oracle Special Committee. As with the Price Collar Discussion, it is not reasonably

conceivable that the difference between what was disclosed and what the Lead

Plaintiff alleges should have been disclosed regarding the NetSuite Discussion

constituted substantial assistance to Ellison and Catz’s scheme to cause Oracle to

overpay for NetSuite.

***

By the time the Schedule 14D-9—including the challenged disclosures of the

NetSuite Discussion and the Price Collar Discussion—issued, Oracle’s Special

Committee had already approved the tender offer. Sticking with the Lead Plaintiff’s

theory of liability—that had the NetSuite Defendants disclosed more, it could have

led those on the Oracle side to scuttle the Acquisition before it closed—all the

information existing that the Lead Plaintiff insists was necessary to such a

reassessment had been disclosed in securities filings while the tender offer was still

outstanding. Thus, the NetSuite Defendants could not have provided substantial

assistance to Ellison and Catz because it is not reasonably conceivable that if only

the NetSuite Defendants had ensured additional disclosures Oracle’s Special

Committee and directors would have put the kibosh on the Acquisition. The

disclosures made are sufficient to make the Lead Plaintiff’s theory of substantial

assistance not reasonably conceivable.

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 III. CONCLUSION

The NetSuite Defendants motion to dismiss Count Two of the TAC is

GRANTED. The parties should submit a form of order consistent with this

Memorandum Opinion.

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